Even When A Parent Is In Contempt, Courts Can Exercise Discretion

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We’ve written in the past about the importance of abiding by court orders, highlighting the significant penalties, both financial and in terms of parenting time, that can result from failing to follow parenting orders and other directions from the courts. Ignoring court orders can result in a person being found in contempt of court, which brings financial penalties as well as jail time in some circumstances. However, as we see in a recent decision from the Ontario Court of Appeal, the courts can exercise discretion in finding whether a person should be found to be in contempt or not.

Mother violates parenting agreement

The court explained that the parties to the hearing were married in 2007 and had a child together in 2010, They separated in 2015 and have had a relationship riddled with conflict since. A parenting order was issued in 2018 that runs 43 paragraphs and is over 12 pages long.

The father appeared before a motion judge on November 12, 2019 to ask the court to find the mother in contempt for breaching the parenting order ten times between December 2018 and July 2019. The allegations included the mother overholding the child twice, attending the child’s activities and school during the father’s parenting time, unilaterally changing the date of the child’s First Communion, and failing to provide the court with the child’s Social Insurance Number.

The motion judge originally advised the matter should be held over until the parties completed arbitration. However, the parents did not make it to arbitration and as a result, the court heard from the parents on February 3, 2020. During the hearing, the motion judge found the mother in contempt for the four alleged incidents described earlier. The mother was ordered to pay the father $2,500 as a sanction as well as $10,000 in costs.

Mother appeals court’s decision

The mother appealed the motion judge’s ruling on two grounds. The first was that the motion judge erred in concluding that she deliberately breached the parenting order.

The court analyzed this position, but found no errors in the motion judge’s finding that her overholding was “unnecessary, unjustified and in deliberate defiance of the (parenting) order.” While the mother provided excuses for the issues that led to her breaching the order, the court agreed with the motion judge that she still deliberately violated the parenting order.

The second ground was that the motion judge failed to consider discretionary factors before making findings of contempt of court.

The court found that the motion judge did express concern for the child’s best interests, but found the motion judge did not consider whether a declaration of contempt was a remedy of last resort. Instead, the court stated the motion judge “appears to have proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt.”

The court said it is important for courts to consider alternatives to contempt in such high-conflict situations. In fact, a finding of contempt can lead to increased conflict between the parents.

The court set aside the findings of contempt and instead replaced them with declarations that the appellant intentionally breached the parenting order.

For questions that only a family law lawyer can answer, contact Howie Johnson Barristers & Solicitors at 519.973.1500 or contact us onlineHowie Johnson Barristers & Solicitors has been a fixture of the family law community of Windsor and Essex County for over 25 years, and so understandably, many prospective clients come to the firm through referrals from current or past clients, and also through referrals from lawyers, accountants, medical professionals and marriage counselors.

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