Issues around child custody and access can create some of the most stressful experiences in family law. Oftentimes people may believe that the issue is resolved once a court rules in relation to child access. Unfortunately, however, not all people respect orders of the court. A decision from the Ontario Superior Court of Justice shows how serious it can be for a parent to ignore court orders relating to child access.

The family’s story

The parents involved were married on January 19, 2008. Their son was born one month later. The marriage did not last long, and the couple separated in August 2009. The parents shared custody of their child until April 11, 2012, at which time the father, who moved from Ontario to Calgary, agreed to an order granting sole custody of the child to the mother, with him getting access at certain times.

A trip to the Dominican Republic spawns dispute

In the winter of 2015 the mother took the child to the Dominican Republic for a three-month vacation. She was supposed to return the child to Canada by March 2015 because the father had a scheduled visit. The mother returned the child to Ontario only on April 7, 2015 after an urgent motion to have him returned. Meanwhile, the mother brought a motion seeking permission to remain in the Dominican Republic at her discretion.

On April 19, 2015, the court granted a temporary consent order granting the child’s paternal grandmother access to the child “so long as it is on reasonable notice”. The reasonable notice period was described in the decision as 48 hours. The order stated the grandmother “shall have access to the child at least one day per week for a period of not less than 4 hours from either 3:30 pm to 7:30 pm on a school day or 11:00 am to 3:00 pm or 3:30 pm – 7:30 pm on a weekend.”

The mother refuses to abide

The grandmother stated that she had visits with the child in April and May, but the mother had denied her access since May 23, 2015. The grandmother provided the court with a Skype transcript with the mother where the mother stated she believed the grandmother was “having conversations with (the son) regarding serious issues.”

The grandmother asked the courts to find the mother in contempt. After some delays, the motion was heard on August 27, 2015. The grandmother provided the courts with text messages from the mother to her. They were:

“Just wanted to give you another opportunity to think about what your doing. As I said before I would like you to be able to see and visit with Jackson those are my concerns and if you are not willing to even discuss them I can tell you right now absolutely nothing is going to happen in court as I will not be pressured into agreeing to this again. It will be a long process from here and thought maybe you would have wanted to see Jackson. Guess not.”

“I will consider giving you ur (sic) time back if u can promise me only good times and no conversations w Jackson about moving or living in Dominican Republic. I want the pressure off of him completely.  I never said I wanted you out of his life Sandra.  I just don’t want him having to answer questions about how he showers or what mommy does.  It’s not fair.  If you agree to this we can start visits again.  But you also have to promise Kim [Ms. Bennett’s roommate] won’t be pressuring him either.”

Determining whether the mother was in contempt

The court started out by explaining the three elements the court must see in order to find someone in contempt. They are:

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

After applying the facts to the case, the court determined it was, “satisfied beyond a reasonable doubt that the mother is deliberately disobeying the access provisions of the April 19, 2015 court order and is in contempt of court.”

The next issues for the court to determine was what the appropriate penalty should be. The court explained that in most cases there is a two-stage approach for contempt hearings. The court described the process as follows: “The first stage is the hearing of a contempt motion to adjudicate on whether a party is found in contempt, and the sanction or penalty stage to follow if contempt is found.”

However, in this case the court explained the circumstances allow the court to attempt to persuade the mother to cease in her contempt. A common law decision dating back over 50 years states,

“In my opinion, it is an abuse of process to assert a right to be heard by the court and at the same time refuse to undertake to obey the order of the court so long as it remains in force… It is a general rule that a party in contempt will not be heard in the proceedings until the contempt is purged.”

The court noted that the mother had an application before it to allow her to live half of the year with the child in the Dominican Republic. The court decided that it would not allow the mother to argue that motion before it until the mother complied with the order for which she was in contempt.

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