Older children, like teenagers, will sometimes disagree and be unwilling to follow a parenting order made after their parents separate. They have their own views based on personal experiences that inform their choices. When older children choose to not visit with one parent, it can create a legal conflict, as in Wallace v Fisher. Judges using a child-focused approach can give children’s views more weight based on the idea that minors gain more autonomy and independence as they age and mature. While parents need to be careful about alienating their children from the other parent, they cannot always force their older children to follow a parenting plan.
Mother wants to enforce orders to see daughter
In a recent decision, the Ontario Superior Court of Justice was being asked by a mother to enforce previous parenting orders so she could see her daughter, Ruby. In Wallace v Fisher, the mother, Fisher, had not spent time wither her daughter since November 2017. Ruby, a 17-year-old, had been living full-time with her father, Wallace for the last four years. Three previous court orders required Ruby to spend time with her mother. The father admitted he did not comply with those. However, he also added that with the latest court order, Ruby refused to follow the order, and only once she stopped complying, did he violate it.
In this case, the judge did find there was noncompliance with the previous parenting orders. The larger issue for the judge to decide was what would be the consequence of the non-compliance. A court may issue either a remedial or a punitive order. The judge noted that any order needed to have two qualities. One it needed an identifiable purpose and two, it could not negatively affect Ruby’s best interests.
The court also noted that while a child’s position is not the same as what is in their best interest, a court needs to “promote and respect a child’s ability to gradually assume autonomy and independence” when it uses a child-focused approach. In Wallace v Fisher, the judge strongly considered Ruby’s personal opinions.
What is a child-focused approach?
A child-focused or child-centered approach is about putting the child’s needs ahead of the parent’s own desires when writing a separation agreement or parenting plan. While a parent might want to keep a child living with them full-time, a parent needs to consider the cost of keeping the child from their other parent. Parents should do their best to shield their children from any adverse effects of the parents separating. Another aspect of this method is having a plan in place that avoids parental conflicts that harm the child. A child-focused approach requires parents and courts to consider the child’s point of view. The child’s point of view and preferences are not the same as what is in their best interest but are still an important consideration. As a child age, their opinions may be given more weight when considering their best interests. The best interest of the child test is also part of being child-centered. The best interest test cannot just be ignored. It is the paramount test when considering any decision regarding any children and is enumerated in the Divorce Act.
Additionally, the child-focused prong that the judge notes in Wallace v Fisher, is that children can gradually assume autonomy and independence as they get older. This principle has been used regarding children giving consent to their own medical treatments. In this case, the court considered Ruby’s age, the length of time since having a relationship with her mother, and her unwavering position of not wanting to see her mother over a significant period. This is compared to Schmidt v Amy, where the court found a child stating a preference for one parent over the course of a couple of days was not as compelling. The court reasoned it was not as compelling for a couple of reasons. One, it was a short amount of time. Two, the context that had immediately preceded the statements. The child, who was only 12, had been living with her father for a significant period at the time and did not have a lot of face-to-face time with her mom. Further, the child also stated that she loved her mom.
Judge rules child does not have to see mother
The court did not order any forced parenting time between Ruby and her mother despite saying stating that Ruby’s feelings towards her mother may be unreasonable. Ruby was 13 when her parents separated, and she has not spent any time with her mother since a few months after the separation. The court noted that Ruby would probably not comply with any order made to spend time with her mother, so doing so would be ineffective.
Ruby is 17, nearly her time to be autonomous. While the court noted Ruby’s feelings might be unreasonable, they are her reality. Ruby has specific examples that have led to Ruby feeling a range of negative feelings about her mother including angry and unsafe. This is her reality despite potentially unreasonable. However, the court found that the father at least partly was responsible for the last order regarding the failure of family reconciliation therapy to allow the mother and daughter to reconnect.
The judge also denied the mother’s requests to terminate Ruby’s current individual therapist and require Ruby to continue to see Dr. Lyons, her family doctor. Ruby was opposed to both applications. The judge ruled that it would be wrong for a court to impede Ruby’s ability to consent to medical treatments under the Health Care Consent Act.
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