For parents who are separated or divorced, one of the most emotionally and logistically difficult areas to find resolution in is around parenting time and decision making responsibilities for their children. This can be even more difficult for parents who live considerable distances from one another, as one parent often has primary parenting time, while the other may only be able to visit occasionally.
In a recent decision from the Ontario Superior Court of Justice, the Court heard from a father who lives in Australia, while his children resided with their mother in Ontario. The parents had an order in place that stipulated when the father would exercise his parenting time with the child, however, after the parties failed to properly see these visits through, he sought a motion for contempt against the mother.
Father in Australia Claims Parenting Time is Denied by Children’s Mother in Ontario
In the case of Kim v. McIntosh, the father resided in Australia, while the mother and their four children lived together in Ontario. At the time of the hearing, the children were 5, 10, 12, and 14 years old. The parents had been involved in litigation for several years, and on October 1, 2021, a Final Order addressing parenting arrangements had been issued. The Final Order provided that the children shall reside with their mother in Canada and she would have decision-making responsibility for them, while the father was entitled to virtual and in-person parenting time.
The father was allowed to have virtual visits with the children on a weekly basis, as well as in-person parenting time for eight weeks in Canada, provided he gave the mother advanced notice of the dates he planned to visit. The father claimed that the mother had failed to respect his parenting time and he sought leave to file a motion to find her in contempt pursuant to the Family Law Rules, and asked the Court to enforce the 2021 Final Order.
The father had seen the children on five occasions since August 2019, which included extended travel restrictions during the COVID-19 pandemic. However, the father argued that he travelled to Canada in 2022 to see the children, but the mother only allowed him to do so if he surrendered his passport, which was not part of the Final Order. He also claimed that the mother “disrespected” his virtual parenting time.
For various reasons set out below, the Court found that, while there was sufficient evidence to grant him leave to bring a motion of contempt, no contempt on the mother’s part had occurred.
No Finding of Contempt for Failed Visitation Attempts
The Court first addressed the father’s attempt at in-person parenting time in the summer of 2022. The Court found there to have been insufficient evidence to establish that he provided sufficient advance notice and did not appear to have obtained agreement from her on his timing. The Court noted that the father showed up at the mother’s home in a large box addressed to the children, and popped out of the box when they came to the door, while the mother had no idea he had been planning to visit.
The father appeared at the mother’s door again in October 2022 without having provided notice to the mother. The mother told the Court that she agreed to waive the notice requirements for both of his visits on the condition that he surrender his passport. Regardless of whether the mother should have made that a condition, the Court found that “the mother’s denial of the father’s in-person parenting time when he failed to comply with the notice provisions of the Parenting Order can hardly constitute contempt.” Further, the court found that the father had previously taken steps to take the eldest child to Australia without consent, thereby justifying the mother’s concern about his passport.
In 2023 the father made another attempt at exercising his in-person parenting time after requesting permission from the mother. Although she was late replying to him, she did agree to allow him to exercise eight weeks of parenting time in the summer of 2023. Despite the mother failing to promptly facilitate his parenting time request, the father was ultimately able to exercise his rights under the Final Order to see the children and there was no contempt found on the mother’s part.
The Court then turned to the difficulty the parties had in making the father’s virtual parenting time work. The Court acknowledged that the mother did not facilitate the virtual parenting calls as required under the Parenting Order until the Spring of 2023. However, by that point, the parties had agreed on a schedule, which made it easier for the mother to regularly accommodate the calls. For this reason, the Court again failed to find contempt by the mother.
The Court explained that making a finding of contempt is a serious and significant conclusion to arrive at. Accordingly, in this case, the Court ordered that the parties each make real efforts to follow the 2021 Final Order.
Contact Johnson Miller Family Lawyers for Advice on Exercising Parenting Time
Contact the knowledgeable family lawyers at Johnson Miller Family Lawyers in Windsor-Essex for trusted advice on navigating disputes regarding parenting time and decision-making responsibility. Whether you are seeking enforcement of an existing parenting time schedule, or are seeking to resolve parenting time issues, contact our office at 519.973.1500 or reach out to us online to learn how we can help you.