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Court orders cannot be ignored or disobeyed, and complying with a court order is not optional. In a recent case, an Ontario court considered whether or not the mother of a young child was in contempt for refusing to grant access to the child’s paternal grandmother in accordance with a previous order.

What Happened?

The parties were married in January 2008 and separated in August 2009. They had one child together, born in February 2008.

In 2012, the father agreed to an order granting sole custody of the child to the mother. He was granted access.

In 2015, the mother took the child on a three-month vacation and failed to return him for the father’s scheduled access. The mother returned to Ontario after the father brought an urgent motion. She had since brought a motion herself to permit her to remain in the Dominican Republic at her discretion.

In April 2015, a temporary consent order was made granting the paternal grandmother, Ms X, access to the child “so long as it is on reasonable notice” (i.e., at least 48 hours’ notice) to the mother, and in accordance with a specific schedule.

The mother started denying Ms X access to the child in May 2015.

Ms X brought a motion for contempt of court.

Finding someone in contempt of court is a last resort and great caution must be exercised when considering contempt motions in family law proceedings. Contempt remedies should not be granted in family law cases where other adequate remedies are available. Furthermore, to make a finding of contempt, the following three-part test must be satisfied:

  • the order must be clear and not subject to different interpretations;
  • the acts stated to constitute the contempt must be wilful rather than accidental; and
  • the events of contempt must be proven beyond a reasonable doubt.

That said, it is important for contempt powers to be exercised in appropriate cases so that parties in family law proceedings understand that they must comply with court orders. As the court stated in a previous Ontario case:

The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness.” In this environment it is all too easy for a spouse to believe that he or she “knows what is right”, even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated.

If a party is found to be in contempt, section 31(5) of the Family Law Rules provides that the court may order that person to:

  • be imprisoned for any period and on any conditions that are just;
  • pay a fine in any amount that is appropriate;
  • pay an amount to a party as a penalty;
  • do anything else that the court decides is appropriate;
  • not do what the court forbids;
  • pay costs in an amount decided by the court; and
  • obey any other order.

Finally, for a person to make out a defence, he or she needs to have a “reasonably held belief” that there was a good reason to disobey the order.

The Court’s Decision

In granting Ms X’s motion, the court found that the mother had deliberately disregarded the court’s order regarding access. It noted that even if the mother regretted agreeing to the order, she did not have the right to unilaterally refuse to comply with it. The order in this case was clear.

The court found that an appropriate penalty was to refuse to hear the mother’s outstanding motion to change, or any other motion brought by the mother, until she brought herself into compliance with the access provisions of the April 2015 order.

Lessons Learned

It is incredibly important to comply with court orders – failing to do so might result in the court finding you in contempt. If you have questions about a previous order, make sure to speak with a lawyer so that you understand your obligations and don’t unintentionally end up in contempt of court.

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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