Mr. Speaker, I have a return to written question asked by Mr Braden on November 1, 2006, regarding non-custodial fathers' visitation rights.
It is important to note that the Department of Justice does not have a role in determining the outcome of individual cases. This is a judicial role. Decisions are made according to statutes, common law and precedent. Territorial family laws were passed by the Legislation Assembly, which determined the factors to be considered when a couple separates.
There is both federal and territorial legislation dealing with access and custody: the federal Divorce Act and the territorial Children's Law Act. Parents in the Northwest Territories may have custody and access issues determined under either legislation, depending on their circumstances. In either case, the law presumes that children benefit from maximum contact with both parents, unless it is not in the child's best interests. Under both laws, neither parent has a legal advantage based on their gender and, accordingly, it is more appropriate to use the word "parent" rather than "father" or "mother" in discussing access rights.
Parents are likely to use the territorial Children's Law Act to deal with access and custody considerations if they live common law and are not "legally" married, or if they are married and separated but do not wish to divorce. When parents are legally married and seeking divorce, custody and access issues are typically determined by the federal Divorce Act.
The Children's Law Act sets out a system for determining access and custody, and the factors to be considered in doing so, and the remedies available to parents who are wrongfully prevented from exercising access to their children. Section 17 of the Children's Law Act identifies several factors to be considered in determining what custody and access arrangements will be in the best interests of the child, including the ability of each party seeking custody or access to act as parent and, notably, the willingness of each to facilitate access between the child and the other parent. Access to a child also includes the right to visit with, and by visited by, the child, and to make inquiries and receive information as to the health, education and welfare of the child.
Where a parent has been granted general access to a child and they are wrongfully denied access, the first step towards enforcement is to obtain an order pursuant to section 21 of the Children's Law Act that sets out specific times and days when access is to be exercised. In the event that this does not resolve the issue, then an application to enforce the access order can be made under section 30 of the act. The court may issue any order it considers appropriate, including one or more of the following:
- an order requiring the other party to give the access parent compensatory access to the child for a specified period;
- an order giving directions for the supervision of custody or access;
- an order requiring the other party to reimburse the access parent for reasonable expenses incurred as a result of the wrongful denial of access; and
- the appointment of a mediator to assist the parties in working out access, in accordance with the provisions of the Children's Law Act.
These legislative provisions do not limit other remedies that a court may grant, such as varying custody where there has been a continual denial of access, or holding a parent in contempt for non-compliance with court-ordered access.
The federal Divorce Act uses the "best interests" test to determine custody and access, although it does not specify factors to be considered with the same level of detail as the Children's Law Act. It does, however, expressly stipulate that children should have as much
contact with the non-custodial parent as is in the child's interest.
The Divorce Act also does not set out specific remedies for parents who are wrongfully denied access; however, parents who have been granted access under this act may make an application to the court to enforce those rights in much the same way as they would under the Children's Law Act. In these instances, the court has jurisdiction to offer any number of remedies, and usually the first step is to ask the court to specify access times. If that is unsuccessful, then the court may issue other remedies, such as the imposition of cost penalties, variation of custody or holding the other parent in contempt.
It is important to note the provisions of the Children's Law Act cannot be used to enforce access orders made under the Divorce Act, as it is federal legislation. This is confirmed in subsection 30(5) of the Children's Law Act. Thank you, Mr. Speaker.
