Avoiding a Contempt of Access Order: Jackscha v Funnell

In this judgment regarding a parent’s duty to their ex-spouse to enforce custody and access orders in spite of a lack of cooperation on the child’s part, Justice Gordon, of the Ontario Superior Court of Justice, discusses contempt orders and the procedure a parent must follow in order to avoid contempt of a court order in such a scenario.

Factual Background

Following their separation in 2003, Ms. Jackscha and Mr. Funnell became involved in “long and tortuous family proceedings” largely revolving around care and access to their son, J, who was 11 years old when the motion was heard.  The Final Order between the parties, dated October 20, 2011, made on consent and endorsed by Justice Poupore, provided specifically for the time J was to spend in the care of each parent.

The incident which caused Mr. Funnell to bring the motion before Justice Roberts arose out of events which took place on December 25, 2011.  According to the access schedule, J was to be in the care and custody of Mr. Funnell between the dates of December 23 – December 30, subject only to Ms. Jackscha’s care of him from December 24 at 2 pm – December 25 at 2 pm.  However, on Christmas day, J informed his mother that he did not wish to attend at his father’s home.  In the end, J telephoned his father and informed him that he would not be coming.

Convinced that Ms. Jasckscha had persuaded J to remain with her and that his only alternative was to bring the matter back before court, following the Christmas incident, Mr. Funnell abandoned the access schedule in place, which provided for a week on/week off schedule.  On the week following the incident, Mr. Funnell did not pick J up from school as scheduled, nor did he attempt to make any further efforts to gain the care of J.

Instead, on March 1, 2012, Mr. Funnell brought a Motion to Change the custody order in place, as well as a Motion for Contempt, which was the subject of Justice Roberts’ decision.  Mr. Funnell alleged that Ms. Jackscha was in civil contempt of court which requires that Mr. Funnell prove, beyond a reasonable doubt, that the order breached stated clearly and unequivocally what should and should not be done and that Ms. Jackscha disobeyed the order deliberately and wilfully.

Justice Roberts’ Analysis

Given Ms. Jackscha’s testimony, Justice Roberts easily came to the conclusion that the mother had not been compliant with the terms of the order, at least for the day of December 25, 2011.  After all, Ms. Jackscha admitted that, once J informed her that he did not wish to attend his father’s residence, she merely encouraged him and then informed J that he would have to telephone his father.  As Justice Roberts notes, parents sharing custody have a much greater obligation to the other parent: “…in my view, it is implicit in such orders that parents are capable of ensuring the child’s compliance with the order and will take reasonable steps to ensure that compliance.”

Where, as in this instance, an order is not complied with and there is at least some truth to the supposition that the non-compliance rests with the child, it is up to the party alleging non-compliance to demonstrate that the other party did not take reasonable steps to ensure the child would comply.  Accordingly, it was up to Mr. Funnell to demonstrate that Ms. Jackscha did not take reasonable steps to ensure that J went to his father’s residence.

In an attempt to answer this question, Justice Roberts clearly outlines what a parent must do when faced with a child who is unwilling to go to the other parent.  As Justice Roberts asserts,

…the parent must do more than simply acquiesce.   At a minimum one might expect the following:

  • A discussion with the child to determine why he does not want to go
  • Communication with the other parent to advise of the difficulty and discuss how it might be resolved
  • Offering the child an incentive to go, or some form of discipline should he continue to refuse

While Justice Roberts was satisfied beyond a reasonable doubt that Ms. Jackscha did not take reasonable steps to have their son comply with the order on December 25, 2011, the same could not be said for the period following that day, when Mr. Funnell failed to pick up J from school or attempt to exercise his access rights.

Having found Ms. Jackscha in contempt of the court order for the incident on December 25, 2011, Justice Roberts was left to determine the appropriate remedy.  Justice Roberts stated,

My sense, having heard Ms. Jackscha’s testimony, is that she now has a better understanding of her obligation to ensure compliance with the court’s orders.  However, the history of these proceedings and the ongoing tension that exists between the parties requires some sanction to encourage future compliance.  In my view, this can be done by the imposition of a conditional fine in the amount of $3,000 payable in the event of any further finding of contempt.

As we see in this case, therefore, where a court order exists relating to custody, there is a positive obligation on the parties to enforce said agreement, and a defence of non-compliance from the child or children will be insufficient to avoid an order of contempt.

In this judgment, Justice Roberts very creatively ensures that the Mother has been warned about a failure to enforce the parties’ court order.  It is also a strong judgment, in that it sets out a parent’s obligation, in more clear terms, to facilitate the changeover between parties where a child is refusing to honour a court order for access.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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