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In a recent decision, an Ontario court grappled with the interesting question of when it may be appropriate to find a party in contempt in the context of family law proceedings.
The Parties’ Story
The parties separated in January 2016. They had two children together, ages seven and three.
Since separation, the parties had been involved in almost continuous motions involving the children. In September 2016, an order was made setting out the father’s access to the children.
Since the September order was made, access had gradually ceased. The mother claimed that the children were afraid of their father and refused to go on access visits. She stated that she did everything in her power to encourage the children to spend time with their father, but that the father displayed “bizarre and belligerent” behaviour that made it impossible to fully comply.
The father brought a motion to find the mother in contempt of court for breaching the September order. The mother brought a cross-motion seeking to modify the September order.
The Relevant Legal Principles
The court indicated that once it has been determined that access is in the best interests of a child, a parent cannot leave the decision to comply with the access order up to the child. In fact, if a parent fails to take concrete measures to have the child comply with an access order, it may constitute contempt.
The court went on to explain:
A finding of contempt is of course the most drastic enforcement mechanism available to the court. It opens the door to a range of sanctions including penal sanctions. Although the moving party does not seek a fine or imprisonment at this stage, nevertheless a finding of contempt is quasi-criminal in nature. It requires proof that the respondent wilfully breached a clear and unequivocal court order and it must be proven on the criminal standard, beyond a reasonable doubt. It is important to underscore that there are various other remedies available to the court to enforce its orders or to sanction breach of such orders even if the failure to abide by an order does not rise to the level of contempt. But it is not necessary to exhaust such steps before moving for contempt.
The Court’s Decision
In granting the father’s motion and making a finding of contempt, the court concluded that the mother had impeded the father’s access to the children. The court stated that despite the judge’s findings and clear direction that access was to proceed on an unsupervised basis, the mother continued to thwart that access and to impede the custody and access assessment.
The court adjourned the question of penalty or sanction for the mother’s contempt. The court explained that there are various remedies for contempt and that in any case, it would be appropriate to give the mother a chance to purge her contempt. It was also important to ensure that the remedy for the contempt finding would not inadvertently punish the children or expose them to further conflict or risk.
Lessons Learned
It is important to comply with court orders so that you will not be found in contempt.
If you are worried that you have breached a court order, or you believe your spouse has breached an order, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.
With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to schedule an initial consultation.
