Often, courts make final orders on custody and access. For purposes of our discussion, let us say that the Court makes an order providing for access to the access parent every other weekend. Many times, one of the parties do not follow the order of the Court. In this case, for our discussion, let us assume that the CP refuses access and keeps giving excuses. Let us call the party not following the court order as CP (for custodial parent). The other party (let us call this other party, AP for access parent) is furious and frustrated. AP truly believes that the CP has committed contempt of court in wantonly disobeying the orders of the court. What does AP do?
Clients often approach me with this dilemma. I tell clients that on the face of it, it appears that there has been a contemptuous action committed by the party not following the court order. Contempt in Family Law matter is a special power. In Ontario, one moves a power of contempt only through Rule 31 of the Family Law Rules, which calls for personal service against the person who has committed the alleged contempt.
Let us analyze what a slew of cases from Ontario have guided us.
The first case is that of Goddard v. Goddard, a 2015 ONCA, where the Court of Appeal said at paragraph 20 as follows:
In our view, the history of this case belies the adequacy of alternate approaches. The appellant has a history of trying to limit or terminate the respondent’s access to S. The respondent has brought numerous motions asserting his access rights in the face of the appellant’s persistent non-compliance with access orders. Following the first contempt motion brought by the respondent and Cornell J.’s previously noted expression of concern about the appellant’s behaviour, several settlement conferences were held.
At para 28 - 31, the Court notes:
No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and willful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order".
As the motion judge noted, the appellant had been put on notice in prior proceedings that more than mere encouragement was required. For example, in response to the submission of her counsel on November 28, 2014 that “any type of a forced provision I don’t think is going to help at all”, MacDonald J. asked:
[W]hat does the mother do when this child doesn’t want to go to school or doesn’t want to go to the dentist? What are her mechanisms? Right? … Does this child have an allowance? Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see dad before? Are there things she could do to force her to go short of the police attending at her house and physically removing her?
Despite this, it is clear from her affidavit that the appellant took no further steps. She did not go beyond mere encouragement to attempt any stronger forms of persuasion.
Para 21 states:
In light of the history of this dispute, it was open to the motion judge to conclude that a finding of contempt was the only adequate remedy in the circumstances.
In other words, the Court of Appeal has stated that in a situation described above, a contempt motion would be the only remedy available. This is because, the access parent has tried so many times to have access and the custodial parents simply did not do enough to ensure access – she just sat around and passed along the blame to the child that the child wasn’t interested in access. So, this would be an ideal case for a contempt matter.
But, every case is different. In part 2, we will examine other cases where contempt ought not to be the first remedy of choice but rather, the end remedy.