Custody & Access

Enforcing Custody/Access

Sometimes one or both parents do not follow the terms of an agreement or a court order. One parent might interfere with the other parent’s time with the child by doing things like not having the child ready for pick-ups or scheduling activities for the child during the other parent’s time. Sometimes one parent does not spend time with the child when they are supposed to, by doing things like missing visits or being late for visits. In more extreme cases one parent may prevent the other parent from seeing the child at all or may even abduct the child. There are a number of possible options when this is happening. Parents can start by talking the situation over and finding out why the problems are occurring. Parents can get help from a counsellor or a mediator. If parents cannot work things out themselves they can ask the court for help. See Resolving Disputes for information about options. When it comes to enforcing custody and access, agreements are treated differently than court orders. When agreements concerning custody and access are not being followed the party seeking to enforce it will need to get a court order before they can ask the court for help enforcing custody or access. However, some options, such as criminal charges when there is parental abduction, are available to all parents. A person who has a custody/access order can ask the court for help in enforcing it. There are a number of options available depending on the circumstances.

Child Unlawfully Held

In some situations the court can order the police to find a child so that a person entitled to custody or access under a court order can exercise their custody or access rights. The court can make this order if the other parent is keeping the child away from the parent who has custody or access. The court can also make this order if the access parent has or is planning on taking the child outside of Saskatchewan and not returning or if the other parent has or is planning to take the child outside of Saskatchewan contrary to a custody/access order.

Preventing Child’s Removal from Saskatchewan

A number of orders are available to prevent a child from being taken outside of the province or to secure their return if they have been taken outside of Saskatchewan. These orders are available in two situations:
  • person who is prohibited by the custody/access order from taking the child outside of Saskatchewan has done so or is planning on doing this
  • person with access under a court order has or is planning to take the child outside of Saskatchewan and is not likely to return
In either of these situations the court can order that the parent who has or who is planning on taking the child outside of Saskatchewan post a bond payable to the other parent, transfer property to a trustee, or hand over their passport and the child’s passport. The court can also direct that support payments that are being paid to the parent who has removed or is going to remove the child be paid to a trustee instead of to that parent. These kinds of orders can make it more difficult for a parent to take the child out of the province and provide a financial incentive for a parent not to leave with the child or to return the child. For example, a parent who was ordered to post a bond would have to pay the other parent the amount of the bond if they do not return the child to Saskatchewan.

Enforcing Access

If one parent is not providing access as specified in the order the court may order that they…
  • attend mediation with the other parent to try to resolve the issue
  • provide additional access or parenting time to make up for periods when access was denied
  • give security for the performance of their obligation to give access
Access cannot be denied because of issues with child support. Even when the child is reluctant or uncooperative the parent with custody is expected to make every effort to ensure that the other parent can exercise their access to the child. If, on the other hand, the access parent is not returning the child as required or not exercising their right to access the court can direct them to…
  • attend mediation with the other parent to resolve the issue
  • give security for the performance of the obligation to exercise access or to return the child
  • provide the other parent with their contact information
These measures are not available if the parent has a legitimate reason for not providing access, not returning the child as required or not exercising their access rights and they have provided the other parent with reasonable notice and an explanation. In some cases the court can order that the access or the access exchange be supervised. For more information see Supervised Access/Exchange.

Contempt of Court

If one parent is not obeying the custody/access order the other parent can ask the court to find that parent in contempt of court. If a person is found in contempt of court it is a very serious matter. They can be fined or even sentenced to jail. Because of the serious consequences, asking the court to find the other parent in contempt should be a last resort. It should be used only if there is no other way to get the other parent to comply with the court order. For the court to find someone in contempt of court it must be clear beyond a reasonable doubt that they deliberately disobeyed the court order. If there is conflicting evidence and the court cannot determine who is telling the truth, there may be a reasonable doubt about what happened and the court may not find the person in contempt. For a person to have deliberately disobeyed an order of the court they must have known about the exact terms of the order and deliberately chosen not to obey the order. For example, if they were unable to obey the order because of an accident or illness it would not be contempt. As well the order itself must be clear about what the person is required to do or not do. For example, if the order only states that the person must provide reasonable access and the parties have different ideas about what that means there would be no contempt of court.

Payment of Expenses

If one parent has expenses because the other parent did not obey the custody/access order, the court can order the other parent to pay these expenses. They may be ordered to pay expenses such as…
  • travel expenses
  • costs of locating and returning child
  • lost wages
  • legal fees
The expenses must be related to the denial of custody or access. For example, if one parent had to take time off work to travel to another city to pick up a child that was being kept there by the other parent contrary to the custody order, they could ask the court for travel expenses and lost wages.

Parental Abduction

It is a criminal offence for a parent to intentionally deprive another parent of custody of a child under the age of 14 contrary to a court order, regardless of where in Canada the court order was made. Police can try to locate and return the child and may charge the offending parent. It is also an offence for a parent to keep a child away from the other parent even if there is no custody order. However, in this situation the consent of the Attorney General is required for charges to be laid. If a parent takes a child under the age of 16 out of, or into, Canada contrary to a court order it may be possible to have the order enforced under international child abduction agreements. More information and assistance is available from the Central Authority for Saskatchewan under the Hague Convention. You may also wish to look at International Child Abduction: A Guidebook for Left-Behind Parents, a publication of Foreign Affairs, Trade & Development Canada.