Parenting Time Denial: When It’s Wrongful and When It’s Justified

After separation, parenting time can sometimes be denied, but it’s important to understand when this is wrongful and when it’s justified. Denial may be justified if there are concerns about family violence, the child’s health, or the other parent’s behavior, such as being under the influence. However, wrongful denial can lead to legal remedies, including compensatory time, financial penalties, and other court-ordered actions. It's essential for parents to understand their rights and options in these situations.

What is Parenting Time?

Section 42 of the British Columbia Family Law Act defines parenting time as follows:

(1) Parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

Can Parenting Time be Denied?

Although parenting time is a crucial legal right that allows parents to maintain a meaningful relationship with their children post-separation, there are circumstances where parenting time may be denied by a guardian. The British Columbia Family Law Act outlines specific conditions under which denial may be considered wrongful or justified. This article explores Sections 61 and 62 of the Act, explaining the legal remedies available for wrongful denial and the circumstances in which denial is legally permitted.

Wrongful Denial of Parenting Time or Contact (Section 61)

Who Can Apply for a Remedy?

Under Section 61 of the British Columbia Family Law Act, only individuals who have a legal right to parenting time or contact under an agreement or court order can apply for a remedy. Additionally, the application must be filed within 12 months of the denial, ensuring that the issue is addressed in a timely manner.

Legal Remedies for Wrongful Denial

If a guardian wrongfully denies parenting time or contact, the court has several remedies available. One possible order is to require the parties to participate in family dispute resolution, encouraging mediation or other forms of conflict resolution. In some cases, the court may also order counseling or specific services for the guardian, the applicant, or even the child, regardless of the guardian’s consent.

To compensate for lost parenting time, the court can order additional time with the child to make up for the denied visits. Furthermore, if the denial resulted in financial losses, such as travel costs, lost wages, or child care expenses, the court may require the guardian to reimburse the applicant. To prevent further issues, the court may also mandate that all exchanges of the child be supervised by a third party.

If there are concerns that the guardian may not comply with the court’s order, additional measures such as providing security or reporting to the court can be implemented. Additionally, financial penalties may be imposed, with the guardian facing fines of up to $5,000, which may be paid to the applicant or the child affected by the denial.

Who Pays for Ordered Services?

If the court orders services such as counseling, dispute resolution, or supervised transfers, it has the discretion to allocate the costs between the parties. In some cases, one party may be required to bear the full expense, depending on the circumstances.

When Denial of Parenting Time or Contact is Justified (Section 62)

There are instances where a guardian may legally deny parenting time without being considered wrongful. Section 62 of the British Columbia Family Law Act outlines these circumstances. If the guardian reasonably believes that the child might suffer family violence during parenting time, denial may be justified. Similarly, if the applicant is under the influence of drugs or alcohol at the time of the scheduled visit, the guardian may lawfully deny access.

Other justifications include cases where the child is ill and a medical professional has advised against contact. Additionally, if the applicant has repeatedly failed to show up for parenting time without reasonable notice or excuse in the past 12 months, denial may not be considered wrongful. If the applicant had previously informed the guardian that they would not be exercising parenting time and failed to provide reasonable notice of resumption, the guardian may also refuse access.

The law also allows for other circumstances that the court deems sufficient justification for denial. Each case is evaluated based on its unique facts, and the court determines whether the denial was wrongful or justified.

Court Actions in Non-Wrongful Denial Cases

Even in cases where denial is deemed justified, the court may still order compensatory parenting time to ensure that the applicant has an opportunity to maintain their relationship with the child. This ensures a fair balance between the child's well-being and the rights of both parents.

Hypothetical Examples Of Wrongful vs. Justified Denials

A parent has repeatedly failed to show up for parenting time in the past twelve months without reasonable notice. The guardian, believing the parent to be unreliable, denies access. The court may consider this a valid justification.

A child has a high fever, and a doctor provides written advice against travel. The guardian denies parenting time based on medical advice, which the court may accept as a justified denial.

A guardian refuses parenting time because they are angry at the other parent over an unrelated financial dispute. The court would likely intervene, as parenting time cannot be withheld for personal reasons.

A guardian refuses to let the other parent see their child because he was late for a previous visit. The court may view this as wrongful denial since tardiness alone is not a sufficient reason to withhold parenting time.

Practical Advice for Parents

Navigating parenting time disputes can be challenging. Parents should document any denied visitations, including communications and any expenses incurred. Before pursuing legal action, exploring mediation or family dispute resolution can be beneficial. Consulting a legal professional can help clarify whether a denial was wrongful and what remedies may be available. Above all, decisions should always prioritize the best interests of the child, ensuring their stability and well-being.

Denial of parenting time is a complex legal issue that requires careful consideration of both a child’s safety and a parent’s right to maintain a relationship. The British Columbia Family Law Act provides clear guidance on wrongful denial, justified denial, and the legal remedies available. Understanding these provisions can help parents navigate custody disputes effectively and ensure that their child’s best interests remain the top priority.

Navigating the family law system can be complicated and add stress to an already difficult time. If you would like to learn more, please contact our team of Vancouver family lawyers for a consultation.