Contempt of Court: Failure to Encourage Access

Karar v Ella, 2016 ONSC 7926

In this case, the father sought to find the mother in contempt for breach of court orders and interference with access. A finding of contempt is the most drastic enforcement mechanism available to the court as it opens the door to a range of sanctions including penal sanctions.

Background

The parties separated on January 11, 2016 and have been involved in continuous motions involving the children since that time. There are two children, aged 7 and 3. There has been considerable involvement of the Children’s Aid Society as well as the Ottawa Police Service.

The mother claimed that the seven-year-old daughter and to a lesser extent, the three-year-old son, are afraid of their father and are refusing to go on access visits with him. The mother claimed to be doing everything in her power to encourage the children to spend time with the father and accuses him of bizarre and belligerent behaviour which she asserts has made it impossible to fully comply.

The father claimed that the mother attempted to frustrate his access and his relationship with the children as a result of the mother’s negative feelings towards him.

Part of the evidence put forward by the mother was a series of video clips showing the seven-year-old daughter yelling at her father and refusing to go with him.

Analysis

Justice MacLeod begins by commenting that the videos of the seven-year-old are deeply disturbing as they “…show a child who has been inappropriately empowered and allowed to yell at her father to shut up and go away while being filmed and recorded.” Justice MacLeod further notes that there is no evidence of any reasonable effort by the adults in the house to calm the child and reassure her or tell her she must go.

In Godard v Godard, the Ontario Court of Appeal dealt with a similar situation and upheld a finding of contempt. In that case, the motion judge held that it was inappropriate for a mother to leave a 12 year of child with the impression that she could decide whether she wished to continue with access to her father. The motion judge held that refusing to abide by the access order by leaving the child and “effectively abandoning her parental authority on the issue of access” and allowing the behaviour of the child to sometimes result in positive consequences for her justified a finding of contempt.

Justice MacLeod indicated that once the court has determined that access is in the best interests of the child, the parent cannot leave the decision to comply with the access order up to the child. While parents are not obligated to do the impossible, that are required to do all that they reasonably can to comply with the order.

Based on the evidence before Justice MacLeod, he made a finding of contempt against the mother. In this case the mother had continued to impede access. Essentially, this is the kind of contempt of court that was sanctioned in the Godard case. In fact, even passively permitting the court order to be undermined without taking reasonable steps to cause the children to comply is contempt under these circumstances.

Justice MacLeod notes that the remedies for contempt are various but it is important to craft a remedy that does not inadvertently punish the children or expose them to further conflict or risk. Ultimately, there was a finding of contempt against the mother but the question of penalty or sanction was adjourned. The court ordered that the mother is to comply with the existing order from now on and that she will have the opportunity to purge her 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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