Can A Judge Punish A Parent For Not Following An Access Order By Switching Custody of Children?

This issue was presented to the Ontario Court of Appeal in the child custody case of Chan v. Town [2013] O.J. No. 3437. Nancy Chan and Kenneth Town were the parents of two children, aged 16 and 13, and around whom an access dispute had arisen.  

There was a final order granting the father access to the children. Despite the order, the oldest child refused to accompany her father on a trip to Whistler during March Break. The lower court found that the mother manipulated the child into believing she could have other plans and not travel with her father. 

Child access cases can also prove challenging for the courts

The lower court subsequently punished the mother by granting the father sole custody of the children with exclusive decision-making authority. In a decision released on July 15, 2013, the Ontario Court of Appeal ruled that the lower court judge erred, stating:

‘Having regard to the child’s conversations about her wishes, it was unreasonable to find beyond a reasonable doubt the mother’s manipulation was the sole factor that led her to refuse to accompany her father on the Whistler vacation. The finding of contempt was thus set aside’

As for the form of punishment that a court can use, the court stated:

‘Custodial arrangements of children cannot be used as a punishment for contempt. That is not to say that there may not be a circumstance where a change in custodial arrangements would be in the best interests of the child, but this is not that case’

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