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Following a divorce or separation, parents may find themselves with a new set of responsibilities and obligations. Many times these are established through a court order, which sets out, amongst other things, parenting schedules. It goes without saying that most divorced couples don’t see eye-to-eye on some things, and these disagreements can continue to be expressed post-divorce. However, as we saw in a recent decision from the Court of Appeal for Ontario, pursuing these disagreements can have costly consequences.

The court order

The parents had been issued a court order that covered the transitions of the children between each parent on school days and non-school days. The relevant section of the order read,

“Transitions on a school day shall take place at the school with the parent whose time with the children is ending delivering the children to the school and the parent with whom the children will be with picking up the children. If not a school day, the parent who has the children will deliver the children to the other parent’s residence at 8:00 a.m.”

Breaching the order

The breach of the order occurred on a school day when the children were to be picked up by the mother. The father texted the mother saying he would pick up the children in order to feed the kids before their evening activities, stating he didn’t believe the mother had time to feed them. The mother responded that she did not want him to pick them up, and that she would pick them up, following the order. She told him she had arranged for their dinner. Nevertheless, the father picked up the children, fed them, and returned them to school.

A motion judge referred to two leading cases on civil contempt, which set out the three elements that have to be proven beyond a reasonable doubt in order to establish civil contempt. They are:

(1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done;

(2) the party alleged to have breached the order must have actual knowledge of it; and

(3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

The motion judge found these three elements to be established beyond a reasonable doubt. The order had been clear, the father had knowledge of it, and he intentionally acted contrary to the order.

While the motion judge did not impose a penalty or award costs, she did encourage the parents to see a family mediator.

On appeal

The court found no error in the motion judge’s finding of contempt, but noted she did commit an error in law by failing to consider whether she should exercise her discretion to decline to make a finding of contempt. The court cited a decision from the Supreme Court of Canada, which stated “[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders,” adding the power should be exercised “cautiously and with great restraint” as “an enforcement power of last rather than first resort”.

The court then made note that the motion judge had failed to consider whether the finding of contempt was considered a last resort, or if other findings were considered, such as a breach of the order. The court also found the motion judge to have failed to consider the best interests of the children in making the finding of contempt.

The court allowed the appeal and overturned the motion judge’s finding of contempt.

Contact Gelman & Associates to learn how mediation can help you and your spouse resolve your family law issues in a cost-effective and low-conflict manner. Serving six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, our offices are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (844) 769-0737 or 1-844-736-0200 or contact us online for an initial consultation.

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