Family Law... Failing to Exercise Parenting Time and Denial of Parenting Time

Ashley Donald – December 2017

In May 2017, the Maintenance and Custody Act became the Parenting and Support Act (see Christine Doucet’s June 26th Blog for more details). The Parenting and Support Act, and its predecessor, governs (as you may be able to guess) parenting and support for married couples, common-law spouses, or parents when the separate. There are many changes that came into force in May of this year, but two of the strongest new provisions centre around denial of parenting time, and failure to exercise parenting time.

Because these changes are so new, there has been little case law that addresses these provisions. The legislation, however, is straight-forward.

The new section 40(1) of the PSA states:

Denial of time application

40 (1) Where a person who has parenting time, contact time or interaction

under an agreement registered under this Act or a court order is denied that

time or interaction, the person may make an application to address the denial.

If you have a court order, or if you have registered an agreement with the court under the PSA, and you are denied parenting time stated in the agreement or order, you now have a remedy with the Court.  You can bring an application to the court (must be done within 12 months of the denial of parenting time) to address the denial of parenting time.  If the court determines the denial was without good reason (a good reason may be that the parent who denies time feared the child would be unsafe or subject to abuse), the court has great discretion and power to order any of the following:

(a) that either party or the child be required to attend counselling or engage in other services, and who must pay for those services;

(b) that the applicant is to have “make up” time with the child;

(c) that the respondent reimburses the applicant for expenses because of the denial of parenting time;

(d) that the transfer of the child be supervised;

(e) that the parenting time be supervised, and who would bear those costs;

(f) costs of the application to the applicant; or

(g) the payment of no more than five thousand dollars to the applicant or to the applicant in trust for the child from the respondent.

The new legislation makes it clear that there are now legislated consequences for denying a parent court-ordered or agreed upon parenting time. These consequences include a possibility of the denying parent being ordered to pay the denied parent up to $5,000 as a penalty.

The PSA also includes a new section 40A, which addresses a parent’s failure to exercise parenting time.

Section 40A(1) states:

Failure to exercise time

40A (1) Where a person has failed, with or without notice, to exercise

parenting time, contact time or interaction, in accordance with the provisions of an

agreement registered under this Act or a court order, any parent or guardian of the

child may make an application to address the failure.

Again, if you have a court order or agreement that is registered with the court, and the other parent fails to exercise parenting time that is outlined in the order or agreement, you now have a remedy available to you under the PSA. You must file an application to address the failure within 12 months of the missed parenting time. The consequences associated with failing to exercise parenting time are much the same as those listed above for denying parenting time.

Under the prior legislative regime of the Maintenance and Custody Act, there was little remedy for parents who were denied parenting time or little consequences imposed on those who failed to exercise parenting time. The new PSA now addresses these concerns and provides clear instruction for seeking a remedy within the court system.

If you have been denied parenting time, or if the other parent of your child continuously fails to exercise his or her parenting time, please give our offices a call and meet with one of our MDW Law lawyers who can assist you in finding a remedy.


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