KR v JW, 2016 BCSC 225
This decision of Justice Betton involved an in-depth analysis and application of section 61 of the Family Law Act. Section 61 provides for remedies where one person entitled to parenting time or contact with a child is wrongfully denied that parenting time or contact by a guardian of the child. The section provides for a variety of remedies, which include but are not limited to ordering make-up time with the child or fining the guardian.
In KR v JW, the father claimed that the mother had actively and passively denied him parenting time with their child and that this and other behaviour had led to parental alienation and the child expressing reluctance to spend time with him as a result. The father also claimed that the mother had not done enough to encourage the child to spend time with him.
Justice Betton engaged in a lengthy discussion of the limited case law regarding this section, as well as the purpose and intent of this section. In deciding this case he clarified three important issues regarding the application of this section:
1. The section applies not only to discrete or individual incidents of denial of parenting time but allows the court to make a nuanced examination of patterns of behaviour over time. Even when individual incidents may not necessarily appear to be wrongful denies on their own, a pattern of behaviour by a guardian may still be characterized as wrongful denial.
2. When a child is resistant to parenting time or contact, the court must look at the source of that resistance, as well as examine the guardian’s response to that resistance. If the guardian’s response is not appropriate, such as if they do not adequately encourage the child to spend time with a person entitled to parenting time or contact, this may constitute wrongful denial.
3. Where a person entitled to parenting time or contact with a child agrees or acquiesces to foregoing contact or parenting time in the face of a denial does not in and of itself absolve the guardian from wrongful denial. Ultimately Justice Betton found that there had been a wrongful denial of parenting time by the mother in this case, and ordered that she pay $2,500 to the father for the benefit of the child so as to “impress upon [her] the seriousness of the issue”.