Overview and Assessment of
Approaches to Access Enforcement

2001-FCY-8E

SUMMARY OF FEDERAL, PROVINCIAL AND TERRITORIAL STATUTES (cont'd)

REMEDIES FOR ABDUCTION

Are there provisions aimed at preventing abduction?

Most jurisdictions have measures that may prevent a custodial parent from removing the child without notice. The Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, s. 16(7), authorizes a court to order a custodial parent, prior to changing the child's place of residence, to give at least 30 days' notice to any person granted access of the change of the time at which the change will be made and the new place of residence. Saskatchewan's legislation contains the same provision, except that it is mandatory for the court to make such an order (The Children's Law Act, S.S. 1997, c. C-8.2, s. 6(5)(b) and (6)). Alberta's Domestic Relations Act, R.S.A 1980, c. D-37, ss. 56(6) and 56(7), contains similar provisions. The province has recently amended its Provincial Court Act, R.S.A. 1980, c. P-20, s. 32(1.1) and (1.2), to include a similar provision.

The laws of Manitoba, New Brunswick, Newfoundland, the Northwest Territories, Nunavut, Ontario, Prince Edward Island, Saskatchewan and Yukon allow a court, when satisfied that a person prohibited by court order or agreement from removing a child from the province or territory proposes to remove the child, to make an order requiring a person: a) to transfer property to a trustee to be held subject to terms and conditions; b) to make any child support payments to a trustee; c) to post a bond payable to the applicant; or d) to surrender the person's passport, the child's passport or other travel documents (Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 10; Family Services Act, S.N.B. 1980, c. F-2.2, s. 132.2; Children's Law Act, R.S.N. 1990, c. C-13, s. 45; Children's Law Act, S.N.W.T. 1997, c. 14, s. 32 [the provision on child support payments has been eliminated]; Children's Law Act, S.N.W.T. 1997, c. 14, s. 32, as duplicated under the Nunavut Act, S.C. 1993 c. 28 as. am.; Children's Law Reform Act, R.S.O. 1990, c. C.12, , s. 37; Custody Jurisdiction and Enforcement Act, R.S.P.E.I. 1988, c. C-33, s. 22; The Children's Law Act, S.S. 1997, c. C-8.2, ss. 25 (also allows the court to vary or make custody or access order but does not indicate that this is subject to the best interests of the child); Children's Act, R.S.Y. 1986, c. 22, s. 47).

Are there provisions aimed at locating the child?

An order directing a law enforcement officer to locate and apprehend a child may be made under the apprehension provisions outlined above.

All jurisdictions except Alberta have enacted legislation on the release of information to help locate a child to enforce an access order: Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 (2nd Supp.); Family Relations Act, R.S.B.C. 1979, c. 121, ss. 39, 40, 98 (information goes to enforcement officer, applicant or person named by court); Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 13 (information goes to court) and Family Maintenance Act, R.S.M. 1987, c. F20, s. 49(1) (information goes to judge); Family Services Act, S.N.B. 1980, c. F-2.2, s. 122 (information goes to court); Children's Law Act, R.S.N. 1990, c. C-13, s. 47; Children's Law Act, S.N.W.T. 1997, c. 14, s. 33 (information goes to court); Children's Law Act, S.N.W.T. 1997, c. 14, s. 33, as duplicated under the Nunavut Act, S.C. 1993 c. 28 as. am. (information goes to court); Family Orders Information Release Act, R.S.N.S. 1989, c. 161 (information held by province may be released by Minister to a) a person, service, agency or body (i) entitled to have a family order enforced, or (ii) authorized by the Minister to assist with the enforcement of a family order; or (b) a peace officer investigating a child abduction) and Family Maintenance Act, R.S.N.S. 1989, c. 160, s. 54 (information goes to court); Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 39 (information goes to court); Custody Jurisdiction and Enforcement Act, R.S.P.E.I. 1988, c. C-33, s. 25 (information goes to court); An Act Respecting the Civil Aspects of International and Interprovincial Child Abduction, R.S.Q. c. A-23.01, ss. 8(1), 9 and 10 (information goes to applicant); The Children's Law Act, S.S. 1997, c. C-8.2, s. 28 (information goes to applicant or person court considers appropriate); Children's Act, R.S.Y. 1986, c. 22, s. 48 (information goes to court).

Are there provisions for return of the abducted child in non-Hague cases?

All provinces and territories except Alberta and Nova Scotia have enacted legislation allowing the court to order the return home of a child who has been wrongfully removed to or retained in the jurisdiction, or in cases in which the court does not have jurisdiction: Family Relations Act, R.S.B.C. 1979, c. 121, s. 47; The Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 7; Family Services Act, S.N.B. 1980, c. F-2.2, s. 130.1; Children's Law Act, R.S.N. 1990, c. C-13, s. 48; Children's Law Act, S.N.W.T. 1997, c. 14, s. 28; Children's Law Act, S.N.W.T. 1997, c. 14, s. 28, as duplicated under the Nunavut Act, S.C. 1993 c. 28 as. am.; Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 40; Custody Jurisdiction and Enforcement Act, R.S.P.E.I. 1988, c. C-33, s. 16; An Act Respecting the Civil Aspects of International and Interprovincial Child Abduction, R.S.Q. c. A-23.01 (Quebec's legislation applies within Canada but is not currently in effect for cases involving other Canadian jurisdictions); The Children's Law Act, S.S. 1997, c. C-8.2, ss. 17 and 18; Children's Act, R.S.Y. 1986, c. 22, s. 49. These statutes may be applied to cases that are not governed by the Hague Convention on the Civil Aspects of International Child Abduction.

Has the Hague Convention been implemented?

Every province and territory has implemented the Hague Convention on the Civil Aspects of International Child Abduction, which applies to parental abductions from one contracting state to another of children younger than 16 but not to interprovincial abductions (International Child Abduction Act, S.A. 1986, c. I-6.5; Family Relations Act, R.S.B.C. 1996, c. 128; The Child Custody Enforcement Act, C.C.S.M. C360; International Child Abduction Act, N.B. Acts 1982, c. I-12.1; An Act Respecting the Law of Children, R.S.N. 1990, c. C-13; International Child Abduction Act, S.N.W.T. 1987, c. 20; International Child Abduction Act, S.N.W.T. 1987, c. 20, as duplicated under the Nunavut Act, S.C. 1993 c. 28 as. am.; Child Abduction Act, R.S.N.S. 1989, c. 67; Children's Law Reform Act, R.S.O. 1990, c. C.12; Custody Jurisdiction and Enforcement Act, R.S.P.E.I. 1988, c. 33; An Act Respecting the Civil Aspects of International and Interprovincial Child Abduction, R.S.Q. c. A-23.01; The International Child Abduction Act, S.S. 1986, c. I-10.1; Children's Act, R.S.Y. 1986, c. 82). All provinces and territories except Quebec have incorporated the Convention into the provincial or territorial law. A reservation has been filed to the Convention for each of the provinces and territories except Manitoba so the provinces and territories are not bound to assume any costs resulting from the participation of legal counsel or advisers in court proceedings, except in accordance with their Legal Aid plans. Quebec's statute does not incorporate the Convention into provincial law but restates and adopts the principles of the Convention. Under section 4 of Quebec's statute, the notion of wrongful removal or retention is expanded to include cases in which it occurs when proceedings for determining or modifying the rights of custody have been introduced in Quebec or in the designated state where the child was habitually resident, and the removal or retention might prevent the execution of the decision to be rendered. Quebec's statute also governs interprovincial child abductions. It explicitly provides in section 12 that it "also applies to secure the peaceful enjoyment of access rights and the fulfilment of any conditions to which those rights may be subject and to remove, as far as possible, all obstacles to the exercise of such rights."

ENFORCEMENT OF FOREIGN AND EXTRAPROVINCIAL ACCESS ORDERS

Is there provision for unilateral recognition and enforcement of foreign and extra-provincial access orders?

The Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, s. 20, provides that an access order made under the federal Divorce Act has legal effect throughout Canada and may be enforced throughout Canada. Under section 20(1), the definition of court for the purpose of this section may be expanded by each province to include a provincial court, thus making it possible to use the quicker and less expensive enforcement procedures available in provincial courts.

Every province and territory, except Nova Scotia, allows unilateral recognition and enforcement of foreign and extraprovincial access orders. All jurisdictions allow court to supersede or vary such orders as appropriate, but details of this part of the legislation are not given here.

Alberta and Manitoba have enacted legislation to recognize and enforce foreign and extra-provincial access orders, under which a court enforces an access order as if it had been made by the court, unless it is satisfied that the child did not at the time the order was made have a real and substantial connection with the granting jurisdiction (Extra-Provincial Enforcement of Custody Orders Act, R.S.A. 1980, c. E-17, ss. 1(c) and 2; The Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 3).

New Brunswick, Newfoundland, the Northwest Territories, Nunavut, Ontario, Prince Edward Island and Yukon have enacted legislation to recognize and enforce foreign and extra-provincial access orders, under which a court must recognize and enforce an order as an order of the court, unless, in the proceedings in which the order was granted, the respondent was not given notice or an opportunity to be heard, the best interests of the child standard did not govern, the order is contrary to the public policy of the province or territory, or the court acted without jurisdiction (Family Services Act, S.N.B. 1980, c. F-2.2, s. 130.2(1); Children's Law Act, R.S.N. 1990, c. C-13, s. 49; Children's Law Act, S.N.W.T. 1997, c. 14, s. 34; Children's Law Act, S.N.W.T. 1997, c. 14, s. 34, as duplicated under the Nunavut Act, S.C. 1993 c. 28 as. am.; Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 41; Custody Jurisdiction and Enforcement Act, R.S.P.E.I. 1988, c. 33, s. 17; Children's Act, R.S.Y. 1986, c. 82, s. 50).

Under article 3155 of the Civil Code of Quebec, S.Q. 1991, c. 64, Quebec "recognizes and, where applicable, declares enforceable any decision rendered outside Quebec except in the following cases: (1) the authority of the country where the decision was rendered had no jurisdiction under the provisions of this Title; (2) the decision is subject to ordinary remedy or is not final or enforceable at the place where it was rendered; (3) the decision was rendered in contravention of the fundamental principles of procedure;... (5) the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations.…" Note as well that under article 3142, a Quebec court has jurisdiction to rule on custody of a child when the child is domiciled in Quebec, so an access order will be recognized and enforced when the child was domiciled in the granting jurisdiction. See articles 75 and 80 on the meaning of domicile.

Saskatchewan law requires a court to enforce an order for access "at specific times or on specific dates" as if it had been made by the court, but may refuse to enforce the order and may make any other order for access that it considers necessary when the child is in Saskatchewan and the court is satisfied on the balance of probabilities that the child would suffer serious harm if subject to access by the person entitled to access or is satisfied that the court that granted the access order did not have jurisdiction in accordance with Saskatchewan law (The Children's Law Act, S.S. 1997, c. C-8.2, ss. 14(2) and 17).

Nova Scotia only enforces access orders made by reciprocating states: Reciprocal Enforcement of Custody Orders Enforcement Act, R.S.N.S. 1989, c. 387, s. 3, and for registration and enforcement of access orders made by superior courts in other Canadian jurisdictions, Family Maintenance Act, R.S.N.S. 1989, c. 160, s. 43 (2).

ENFORCEMENT AGAINST THE NON-CUSTODIAL PARENT

Are non-custodial parents encouraged to maintain contact with their children?

No province or territory has enacted legislation aimed at encouraging non-custodial parents to maintain contact with their children, although legislative remedies for non-exercise of access may be viewed as indirect attempts to do so.

Is wrongful failure to exercise access defined?

Alberta has a remedy for failure to exercise access "without reasonable notice to the custodial parent" (Family Law Statutes Amendment Act, 1999, S.A. 1999, c. 22, s. 61.31). Manitoba has remedies for "wrongful" failure to exercise access, but does not define the term (Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 14.1(2)). Newfoundland has remedies for failure to exercise access "without notice and excuse" (Children's Law Act, R.S.N. 1990, c. C-13, s. 41(6)). Saskatchewan law says that failure to exercise access is "wrongful" unless it is justified by a legitimate reason and the non-custodial parent gave reasonable notice of the failure and of the reason (The Children's Law Act, S.S. 1997, c. C-8.2, s. 26(3)). Ontario has enacted remedies for failure to exercise access "without reasonable notice and excuse," but this provision is not in force (Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 34a (6)).

What remedies are available for failure to exercise access?

Alberta, Manitoba and Newfoundland, the Northwest Territories and Nunavut allow a court to order the non-custodial parent to reimburse the custodial parent for any reasonable expenses actually incurred as a result of failure to exercise access (Family Law Statutes Amendment Act, 1999, S.A. 1999, c. 22, s. 61.31; Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 14.1(2)); Children's Law Act, R.S.N. 1990, c. C-13, s. 41(6). Ontario law has a similar provision, but it has not been proclaimed (Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 34a (6)).

Newfoundland, the Northwest Territories and Saskatchewan allow a court to order mediation (Children's Law Act, R.S.N. 1990, c. C-13, s. 41(6); The Children's Law Act, S.S. 1997, c. C-8.2, s. 26(2)). Ontario also allows court to order mediation, but the provision is not in force (Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 34a (6)).

Manitoba, Newfoundland, the Northwest Territories, Nunavut and Saskatchewan allow a court to order supervised access (Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 14.1(2); The Children's Law Act, S.S. 1997, c. C-8.2, s. 26(2)). Ontario also allows a court to order supervised access, but the provision is not in force (Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 34a(6)).

Saskatchewan allows a court to order the non-custodial parent to give security for performance of the obligation or provide his or her address and telephone number (The Children's Law Act, S.S. 1997, c. C-8.2, s. 26(2)).

RESPONSIBILITY FOR ACCESS ENFORCEMENT

Is the government responsible for enforcing access orders or for providing preventive and alternative measures?

No province or territory has a government office to enforce access orders. No province or territory mandates that preventive or alternative measures be provided, except Quebec, which mandates that mediation be provided. In some provinces, civil Legal Aid may be available to parents to enforce access orders, depending on the merits of the case and financial eligibility.

Date modified: