Friday, 6 p.m. The car is in the driveway. Your twelve-year-old sits on the stairs with a backpack that was packed an hour ago and says, flatly, “I’m not going.” You have an order that says your child goes. You also have a child in tears, and an ex-partner who is about to believe you have planned this.
Parents on both sides of this scene ask the same thing: what does the law expect me to do? The parent waiting in the car wonders whether to call the police. The parent at the door wonders whether they can physically force a child into a vehicle and what a judge will think if they do not. There is no comfortable answer, but there is a framework, and knowing it helps you make better decisions on the hard evenings.
This is general information about Ontario family law, not legal advice. If there is any concern about abuse or a child’s safety, get help immediately and speak with a lawyer about your specific circumstances.
What the law says about a child’s wishes
Parents often hear that a child can choose at a certain age, usually 12. That is a myth. No Ontario or federal statute lets a child decide at 12 where they will live or whom they will see.
What the law does say is that the child’s views and preferences are part of the best interests analysis. Under section 24(3) of Ontario’s Children’s Law Reform Act and section 16(3) of the Divorce Act, courts give due weight to the child’s age and maturity. The opinion of a thoughtful fifteen-year-old with a reasoned concern will usually carry far more weight than that of a seven-year-old who has had a disappointing weekend.
The one age-related marker in the Children’s Law Reform Act is section 65, which preserves the right of a child of 16 or older to withdraw from parental control. In real terms, it is difficult to make a parenting order work against the firm wishes of an older teenager, and courts know this. Even so, a child’s preference is a factor rather than a veto, up to the point where the child truly withdraws from parental control.
A parent’s duty does not disappear
Parents who have the child in their care at exchange time often say, “I can’t force them.” The courts generally respond that an order is an order, and a parent is expected to take real steps to make it work. Treating the decision as the child’s alone, particularly with a younger child, tends not to go well.
Think of how you handle school. If your child refused to go to school one morning, you would probably not shrug. You would find out why, encourage, insist where appropriate, talk with the teacher and impose consequences. Judges often ask whether a parent has put the same sort of effort into parenting time.
Both statutes also set out duties. Section 33.1 of the Children’s Law Reform Act and section 7.2 of the Divorce Act require parties to protect children from conflict arising from the case, to the best of their ability. Each parent’s willingness to support the child’s relationship with the other parent is a listed factor in the best interests test. A pattern of quiet permission for refusals can harm your own position later.
Reasonable steps might include:
- Telling your child, calmly and clearly, that the visit is going ahead and that you support it.
- Preparing them ahead of time and helping pack, rather than waiting until the last minute.
- Not offering an attractive alternative. If refusing means a sleepover at a friend’s, the refusal is being rewarded.
- Asking what is really bothering your child, without interrogating them or suggesting answers.
- Telling the other parent about the difficulty in advance, in a neutral message.
- Offering a make-up visit right away if a visit is missed.
Find out why before you pick a response
A refusal is a symptom, and the right response depends a great deal on the cause. Different reasons call for different actions, such as:
- Ordinary reasons. The child wants to be at a birthday party, has a tournament, dislikes a long commute from Brampton to the other parent’s home, has no room or friends there. These often yield to small schedule changes.
- Friction with the other household. Conflict with a stepparent, strict rules, a new baby. A candid conversation between parents, or a counsellor, can help.
- Harsh parenting or a difficult event. Yelling, a broken promise, or an incident the child cannot get past. A counsellor or a repair conversation between parent and child may help.
- Fear for good reason. Family violence, substance use, unsafe driving or abuse. Safety comes first. Report to Peel Regional Police or a children’s aid society as appropriate, and get legal advice about changing the order, including on an urgent basis.
- Pressure from the other parent. Sometimes a child has absorbed a parent’s anger or fear, or has been drawn into the dispute. Courts take this seriously, and the term “parental alienation” is often used, though it is contested and a judge will want evidence rather than a label.
A word of caution: do not diagnose alienation from your side of the driveway. A child who rejects a parent may be reacting to that parent’s own conduct, to pressure from the other household, or to a mixture of both. Assume at first that you might not have the whole picture.
What not to do
Some responses are likely to make things worse, however tempting they may be.
Do not physically drag a child into a car, for the child’s sake and for yours. Do not put the choice on the child by asking, “So, do you want to go or not?” in front of the other parent. Do not hand a child a phone to explain the refusal to the other parent. Do not have a sibling carry messages. Do not record your child, or question them repeatedly so that you can write down the answers; judges are generally wary of recordings of children.
If you are the parent being refused, do not turn up repeatedly at the door and make a scene, and do not criticize your child’s other parent to them. Keep sending cards, keep attending the school concert if it is permitted, and keep your side of the schedule. Your consistency is both good for your child and good evidence.
Calling the police is rarely the solution
Police involvement at an exchange is hard on children, and officers usually have limited ability to resolve a parenting dispute unless an order specifically directs them to enforce it. Courts are reluctant to make such police enforcement clauses except in serious situations, because of the potential harm to the child. If there is a safety emergency, call 911. For an ordinary missed visit, a call to your lawyer will almost always be more useful than a call to Peel Regional Police.
Keeping a useful record
Keep a simple, factual log: the date, what was scheduled, what happened, what each person did. Add dates of any messages, and copies of them. Stick to observations such as “J. stayed in her room and said she would not come; I told her the visit was going ahead; I texted her father at 5:40 p.m.” Avoid editorializing or writing for a judge. Use a co-parenting app, or at least text or email, for all messages. Assume a judge will read them.
Court tools when it keeps happening
If refusals become a pattern, the options fall into several groups, and the court will choose based on the reasons and the child’s age.
Getting the child’s voice in front of the court. Under sections 89 and 112 of the Courts of Justice Act, the Office of the Children’s Lawyer may be asked to become involved and, if it accepts the case, may assign a lawyer or clinician. A judge may also accept a “Voice of the Child” report or, less often, speak with the child directly. Section 30 of the Children’s Law Reform Act allows the court to order an assessment by a professional of the child’s needs and each parent’s ability to meet them. Assessments can be expensive and slow, so they are not ordered in every case.
Counselling. Family therapy, individual counselling for the child, or a reconciliation program can be useful. A court’s power to order therapy is limited and depends on the facts, and consent usually makes things go better. Note that older children generally make their own treatment decisions if they are capable.
Changing the order. Where a schedule no longer works, a court may vary it: shorter visits, a gradual ramp-up, community-based visits, or sometimes supervised time as a stepping stone. If circumstances have materially changed, it may be better to bring a motion to change than to keep breaching an order that no longer fits.
Enforcing the order. Under Rule 1(8) of the Family Law Rules, a court dealing with a failure to obey an order may make such orders as it considers necessary, including costs. Make-up parenting time is a common remedy. Contempt is available, but it is a serious, last-resort step with a high standard of proof, and courts tend to prefer solutions that help the child. In the Ontario Court of Justice, section 38 of the Children’s Law Reform Act also provides for fines or imprisonment for wilful contempt, though that is not what most parents actually want to see happen.
Older teens
With a 15- or 16-year-old, the practical focus usually shifts. Force is pointless. The real goal is keeping a door open: shorter meals instead of full weekends, one-on-one time without a stepfamily present, and a teen’s input on the schedule. If your order was written when your child was six, it may be time to revise it. Our custody and parenting page explains how parenting orders are set up and changed.
If you find yourself in this situation
Start with a calm message to the other parent, and try to find out what is behind the refusal. If it continues for more than a few visits, talk with a professional such as a school counsellor or your family doctor. Then get legal advice, and sooner rather than later, as courts can be reluctant to disturb a status quo that has been in place for many months. Delay can also be read as acceptance. A meeting with a family lawyer to review the order and your notes can help you decide whether this needs a letter, mediation or a motion at the Brampton courthouse at 7755 Hurontario St.
The child on the stairs is the point of all of this. A response that keeps them safe, keeps them out of the middle, and keeps both parents in their lives is the goal, and even small steps in that direction tend to count, with the child as well as the court.