Miss Access Twice and it is Suspended
Miss Access Twice and it is SUSPENDED … Automatically: Analysis of a Surprising Case
Snook v. Hass is a rather intriguing unreported short judgment rendered by Culver Prov. J. on February 2, 1996 at the Kitchener Ontario Court of Justice (Provincial Division). The text can be found at Quick Law as [1996] O.J. No. 471 and it is digested at the Ontario Family Law Reporter, Volume 9, Issue 10.
The issue was access to a female child of approximately 6 – 7 years of age. The facts are really not all that unusual. The judge stated at paragraph 7:
The applicant [father] has had only sporadic access to his daughter, in part due to times when he was living in the Oakville area and had poor transportation available to him to Cambridge, in part due to periods of incarceration, in part due to his own fault or neglect, when he did not attend for access when he assumed that it would be denied, and in part because of a stated desire of the child, on many occasion, not to see him. He also, I find, has a history of failing to attend scheduled access visits and, at times, has not genuinely pursued access. I am satisfied, at the present time, that his interest in exercising access is genuine and it is for no other purpose than establishing a relationship with his daughter.
However, the judge noted that of late the father had been trying to exercise access and had met with resistance: At paragraph 9 of the judgment, His Honour stated:
The applicant stated that he frequently sought enforcement of his access privileges by attending to pick up his daughter but, except on a few occasions, was met with resistance or her refusal to go with him. The end result is that, over the last year, he has had few visits with the child, although he has attended on many occasions and has attended consistently since September 1995, pursuant to the current access order. The implication that he asked the court to draw is that the child is being influenced by her mother or by the mother’s husband or by both, to say, as she has on most occasions, that she does not wish to go with her father.
The mother’s point of view was described by the judge as follows at paragraphs 10 and 11:
The mother for her part indicated that the child stated a genuine desire not to go with her father for visits, notwithstanding the mother’s encouragement of her daughter to visit with her father. I accept the mother’s evidence on its face, but it is clear from observing the mother’s testimony that there is a clear antipathy towards the respondent that I am sure the child has sensed. I expect that the child either consciously or unconsciously wishes to curry her mother’s favour and is doing so by objecting to access. It appears from the evidence, and I accept, that the child, when attending access visits with her father, seems happy and contented. In making this finding, I clearly want it understood that I find no fault or neglect towards the mother whatsoever.
The trial judge proceeded to find that access to the child was beneficial to the child (at paragraph 12):
There is no evidence before me that the visits that have occurred have had a negative impact on the child and I find that it is, in the absence of any evidence to the contrary, more wholesome for the child to know and establish a relationship with her father.
Having then found that access to the child was beneficial, the judge ordered what can only be termed as minimal access: one Saturday in three until the end of December and every second Saturday thereafter. One wonders why only minimal access was ordered when the judge found that the access was beneficial. However, what is more puzzling was the term with respect to automatic suspension of access:
If the applicant father fails to attend for two consecutive access visits, his access shall be suspended until further order of the court.
The judge had found that the mother had at least subconsciously discouraged the child from visiting with her father. By leaving it open to deny access ostensibly because the child did not want to go, the judge left in the hands of the mother the power to suspend the access without further court order. The mother would be able to say that the father had missed two consecutive visits and therefore access was suspended. The onus would then be upon the father to apply to the court. All of this could be accomplished without any review by any objective third party, be it a court or some other agency.
Access should be the right of the child. Courts should be diligent in protecting the rights of children to pursue relationships with non-custodial parents. Courts should be cautious when allowing one parent to act unilaterally to deny access. In Snook v. Hass, perhaps requiring some sort of social service agency intervention would have been advisable if access problems were to arise.
