Fact Sheet: Common Access Problems

Publication Date: 
Resource Origin: 
Springtide Resources

by Pamela Cross, LLB

It is not uncommon for an abuser to cause ongoing difficulties with custody and access. This can happen even when the order is clear and detailed.

Understandably, women are often concerned about the safety and well being of their children when they are on access visits, and at times want to deny access because of these concerns.

This is a tricky area legally, because courts take any perceived attempt by a parent to interfere in the relationship between the children and the other parent extremely seriously.

The law requires the custodial parent to support and encourage access by the other parent, even if the children do not want to go or the mother has some concerns about what goes on during the visits.

At the same time, if the mother believes the children are being harmed or are at risk of being harmed, especially physically or sexually, she has an obligation to ensure her children are safe, even if this means denying access.

What if the kids don't want to go?

If the children do not want to go, this can place the mother in a difficult situation.

There is no specific age written in the law at which children can make their own decisions about whether or not to visit their father.  This depends on the maturity of the child, the child's cognitive level, the reasons the child has for not wanting to visit and other details. However, the judges will rarely force adolescent and older children to engage in visits if they absolutely refuse to go.

What can I do if I am having access troubles with my ex?

There are strategies women can use if they are having access troubles with an abusive ex-spouse.

The more precise detail that is contained in the custody order, the better.  If all arrangements are clearly spelled out, with nothing left in doubt, it will be easier to ensure that access takes place as it is supposed to.

The order should explicitly state that the police are to enforce it.

It is a good idea to have multiple copies of the order so one is always available to show the authorities if a problem arises.

If at all possible, having someone else present during access exchanges is very helpful. Having a third person there often defuses the abuser.  It also means there is another set of eyes and ears to observe what is going on and how the children are responding to the father.

It is helpful to document any and all problems -- complaints the children return with, suspicious injuries, comments made by the kids about what went on in the visit, times he missed or was late for access, any threats he has made to keep the children and so on.

If a woman has to deny access, she should let her lawyer know this as soon as possible.

Depending on the circumstances, counselling for the children might be helpful. This gives them an outside third party with whom they can talk through their concerns.

This Fact Sheet contains general legal information only.  It is not a legal document, nor is it a replacement for legal advice.  Anyone in a situation involving family, immigration or refugee law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes.  A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.

For information about finding a lawyer in your community, contact Legal Aid Ontario at 1 800 668 8258 or 417 979 1446.

You can also visit Legal Aid Ontario online at www.legalaid.on.ca/en/locate/default.asp

Copyright 2012 Pamela Cross. Original development of this resource was funded by The Law Foundation of Ontario.