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At Howie Johnson Barrister & Solicitors, we understand the financial and emotional stress that can come with family law disputes, especially those relating to child custody. This is one of the reasons why we offer mediation services, which allow parties to come to a resolution without the financial, time, or emotional tolls associated with traditional litigation. Courts have also taken to encouraging the public to use mitigation and other alternative dispute resolution methods when appropriate in order to lighten the load that is placed on the judicial system. This encouragement was recently demonstrated in a decision from the Ontario Superior Court of Justice in which a father’s claim that his former partner had breached a court order but fell short of finding her in contempt.
Court orders that father should have primary parenting time with child
The court did not provide an extensive background on the relationship of the parties. What we do know is that they are the parents of a child who was four when an initial parenting order was made in or around 2010. That order stipulated that the child would live primarily with the father and would have generous access to the mother. A second order stated that the parents would switch to a schedule that included alternating weekly parenting time.
This arrangement seemed to last until May 2019, at which time the child was 13 years old. At this point, the child had begun to live full-time with his father. This continued until September 28 of that year when he unexpectedly moved in with his mother. Since then, he has not seen his father and has had very limited email and phone contact with him.
The father asked the court to find that the mother was in contempt of the court’s parenting orders.
Establishing contempt in child access issues
The court stated that a three-pronged test to establish contempt of court was set out in a 2006 decision from the Ontario Court of Appeal. This test requires that the order breached must be clear and unequivocal of what should and should not be done. Secondly, the person who violates the order must have done so deliberately and wilfully. Finally, the evidence demonstrating the first two factors must be beyond a reasonable doubt.
In addition, a 2016 decision from the Ontario Superior Court of Justice applied some context as to how contempt orders should be addressed when they concern parenting orders. This decision held that parents subject to custody and access orders have a general obligation to do what they can to comply with it. A finding of contempt can be available when one party “establishes beyond a reasonable doubt that the other has failed to take all reasonable steps to ensure compliance with the order.” The decision recognizes that children can make compliance difficult, such as when a teenager decides they want to live with one parent and not the other. Regardless of this, parents cannot allow children to make these decisions on their own and should do what they can to impose parental authority. In asking whether appropriate measures were taken, the court should consider a number of factors, including:
I. Did they engage in a discussion with the child to determine why the child is refusing to go?
II. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?
III. Did they offer the child an incentive to comply with the order?
IV. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?
Additionally, and importantly, the Supreme Court of Canada has held that when the main issue to be decided at litigation concerns access to children, the best interests of the children should be the paramount factor in what leads to the court’s decision.
Was the mother in contempt of court?
The court applied the test to the facts before it. It found that the first final order was not clear and unequivocal in regard to the mother’s obligation to do what the father said she had not done. That said, the court found the mother has “deliberately and wilfully” disobeyed the second final order, which was clear and unequivocal in its requirement that the child live with each parent on a week-on-week-off basis.
However, while the mother met the standards required to find her in contempt, it fell short of finding that a declaration of contempt should be made.
One of the reasons the court came to this conclusion was because there were adequate alternate remedies available to the parties before they resorted to litigation. The father could have first sought (even through court orders) for the parties to attend counselling, for phone conversations to take place with the child, for emails to be sent, for video conferencing to occur, or for parenting courses to be attended. The father did not pursue any of these and moved immediately to seek to have the mother found in contempt.
The court found that neither parent had acted in the best interests of the child. The father for his failure to take any measures described above, and the mother for her participation in the child’s refusal to see the father.
The motion to find the mother in contempt of court was dismissed, and the parties were encouraged to pursue alternative methods of resolution.
Contact Johnson Miller Family Lawyers for mediation in family law matters
If you have found yourself involved in a matter related to family law, the lawyers at Johnson Miller Family Lawyers can help. In addition to providing legal advice and representation for all matters relating to family law, we also offer mediation services to clients. Our own Jason P. Howie is a certified specialist in family law and has over 15 years of experience as a mediator. Contact us by email or phone today at 519-973-1500 to see if mediation is the right option for you today.
