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In a recent case, an Ontario court heard a father’s motions to find the mother in contempt of court for failing to facilitate access in accordance with court orders. In considering the motions, the court had to consider the interesting question of when, and in what circumstances, it would be appropriate to find a party in contempt in the context of a family law proceeding.

The Background

The parties had two children, born in 2002 and 2008.

In 2013, a final order was made. Among other things, the order granted the mother custody of the children and outlined a schedule for access for the father.

In April 2018, the father brought a motion seeking a finding that the mother was in contempt of the final order with respect to the terms of access.

The next month, the contempt motion was adjourned and a temporary order was made for specified access.

In November 2018, the father brought another contempt motion, claiming that the mother had breached both the final and temporary orders.

A three-part test must be satisfied before a court can make a finding of contempt. That is:

  • the order that was breached must state clearly and unequivocally what should and should not be done;
  • the party who disobeys the order must do so deliberately and wilfully; and
  • the evidence must show contempt beyond a reasonable doubt – any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.

Case law also indicates that contempt is a remedy of last resort. Great caution has to be exercised when considering contempt motions in the context of a family law proceeding.

The Court’s Decision

In granting the father’s motions, the court found that both the final and temporary orders were clear as to the terms of access.

The court also found that the mother was in contempt for the period between October 2017 and April 2018. Specifically, it was during those months that the mother began making unfounded allegations that the children were unsafe in the father’s care and tried to alienate the children from him. In the court’s view, the mother’s behaviour was wilful and deliberate, and her actions met the requirement of “beyond a reasonable doubt,” which supported a contempt finding. The court noted:

… the evidence is clear that [the mother] allowed her belief that [the father] was not an appropriate parent who deserved a relationship with his children to interfere with her obligation as a custodial parent to encourage [the children’s] relationship with their father.

Furthermore, by the fall of 2018, the mother:

  • had permitted the children to choose whether they wished to visit with their father;
  • did not question why the children did not wish to see their father and merely accepted that they feared to be in his care;
  • allowed the children to express their opposition to visits with their father to persons in authority, such as the police;
  • allowed the children to learn that if they expressed their view not to attend visits to persons in authority, including their mother and/or the police, the likely result would be that they would not be required to attend; and
  • had told the children that she supported their belief that they were not safe in the care of the father.

The court found that, sadly, the mother had permitted the children to conclude and maintain the belief that it was no longer acceptable for them to have a relationship with their father.

The court therefore ordered a gradual schedule of access between the younger child and the father. The court stipulated that if the child did not go to these visits, a financial penalty would be imposed on the mother.

Lessons Learned

While it is a rare remedy in family law proceedings, one party may be found in contempt of court if they breach court orders. If you have questions about your rights, 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.

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