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The Court of Appeal recently ruled on a situation involving complicated family dynamics, allegations of abuse, and a restraining order.

The Court removed a condition in an order requiring a father to attend family counselling meetings with his ex-wife, her new partner, and the former couple’s children. The Court did not find these terms appropriate since the new partner was subject to a restraining order which prevented him from coming into contact with the kids. Ultimately, the father was still obligated to attend the counselling, but the new partner could not be there.

What Happened?

This was an appeal of an earlier decision by the Ontario Court of Justice which had found that the father in a custody and access dispute had been in contempt of an earlier access decision. The father appealed the contempt decision as well as the accompanying $10,000 penalty.

The Judge who had made the contempt decision had been the case management judge, had overview of the matter for a considerable period, and was familiar with the dynamics of the dispute. The contempt order had been made after the father refused to grant the mother access to the children on two back-to-back occasions. Following the father’s refusal, the mother filed for, and obtained, the contempt order.

In addition to finding the father in contempt, the order also provided that the father, mother and children participate in family counselling, and that the father “cooperate fully” with all recommendations made by the counsellor, including any regarding the involvement of the mother’s current partner. The order further contained a restraining order preventing the mother’s partner from coming within 500 metres of anywhere the mother had access to the children.

The Court of Appeal’s Decision

On appeal, the father argued that the original judge had not believed his reasons for why he prevented the mother from seeing the children, which was alleged abuse by the mother’s new partner against the mother, the children, as well as the father.

The Court noted that the original trial judge had not considered the best interests of the children he made the decision to order the involvement of the mother’s new partner in the counselling. In addition, the Court of Appeal noted that it had been an error of law to order family counselling that involved the mother’s new partner, since the order also restrained the partner’s ability to be anywhere near the children.

The Court of Appeal ultimately changed the order so that it required only the father to attend and cooperate with the counselling process. The father was also awarded $4,000 in costs.

Lessons Learned

At some point, all separated parents will likely have to contend with their former spouse’s new partners. Parents are reminded to be cooperative and act in the best interests of the children.  Here, the Court of Appeal specifically noted that the mother had “jumped the gun” by proceeding directly to obtaining a contempt order against her ex-husband after he refused to allow her to see the children. Indeed, there are other options that she could have taken prior to proceeding to such a drastic step.

If you have questions about access, child support, domestic violence, or any other issues stemming from a separation or divorce, contact one of the divorce lawyers at Gelman & Associates. With offices in Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough we are easily accessible for clients across Southern Ontario. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.

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