Custodial Arrangements Cannot be Used as Punishment for Contempt

Chan v. Town
The parties in this case were former common law spouses. The motion judge found that the mother manipulated their child into believing she could go on a school trip to Europe on March Break just so that the child would refuse to go to Whistler, B.C., with her father during the same period.

The judge found the mother in contempt and as a remedy ordered that custody be changed from joint custody to sole custody for the father.

The Mother’s appeal was allowed, setting aside both the contempt order and the remedy. The Court of Appeal found that the Motion judge made a number of errors in finding contempt and in remedy.

The following principles must be evaluated when making a finding of contempt:

  1. The notice of motion must be sufficiently detailed to allow the responding party to know the case against them. In this case, the notice of motion did not supply sufficient detail about the mother’s alleged actions. As well, while the notice of motion alleged that the mother breached s. 6(c) of the order, the motion judge’s fundamental finding was that she breached s. 8.
  2. A finding of contempt requires a standard of proof of beyond a reasonable doubt. In this case, the motion judge failed to consider all of the evidence before him. In particular, he ignored one of the mother’s affidavits. This was particularly significant because the excluded affidavit could have raised a reasonable doubt.
  3. The record must support the finding of the judge. Here, it was unreasonable for the motion judge to find that it was solely the mother’s manipulation that led the child to want to go on the school trip and refuse to go on vacation with the father. This was not a reasonable conclusion having regard to the child’s own conversations in the record about her wishes.

Considering all of these principles, the Court of appeal set aside the finding of contempt.

The Court of Appeal also stressed that the remedy imposed by the motion judge was not available under rule 31(5) of the Family Law Rules. Essentially, the motion judge changed the custodial arrangement in order to punish the mother for contempt. However, in order to change a custody order, there must be a demonstrated material change in circumstances that would warrant a change in custody based on the best interests of the child. In this case, no such material change in circumstances existed as the lawyer for the father never brought that issue before the court.  Had he asked for that relief then, the court may have considered whether it would be in the child’s best interest to change custody taking into account the mother’s behaviour.

On another note, this case is yet another reminder that a court should only make an order for contempt when there is proof beyond a reasonable doubt as contempt of court is considered to have the same standard of proof as a criminal charge.  In this case, the court of appeal did not feel that there was proof beyond a reasonable doubt to make a finding of contempt.

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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