Perna v Foss, 2015 ONSC 5636

This case involved a motion by a paternal grandmother for contempt of court against the child’s mother for refusing access in accordance with a previous court order.

Background

Amber Perna and Darren Foss were married in 2008, one month before their son (J.) was born. They separated in 2009. In 2012, the father agreed to an order granting sole custody of J. to the mother, with access to him.

In 2015, Ms. Perna took the child to the Dominican Republic for a three month vacation. She failed to return J. for the father’s scheduled access and only returned the child to Ontario following an urgent motion by the father. The mother then brought a motion to permit her to remain in the Dominican Republic at her discretion.

The court also granted a temporary consent order for the paternal grandmother (Sandra Bennett) to have access to the child. Ms. Bennett was granted access to the child at least one day per week for a minimum of 4 hours. She had access to her grandson for two months but then the mother denied her access. The mother acknowledged on record that she was not providing access to Ms. Bennet in the original motion on this matter and Ms. Bennett included text message evidence in her affidavit where the mother indicates she will not permit Ms. Bennett to have unsupervised access with the child.

The Law

Contempt is not granted lightly and it is one of the last resorts. To find contempt, the court has to be satisfied of all of the following three factors:

a) the order is clear and not subject to different interpretations,

b) the acts stated to constitute the contempt must be wilful rather than accidental, and

c) the events of contempt must be proven beyond a reasonable doubt. While the court is reluctant to exercise its contempt powers, sometimes it must in appropriate cases.

If a person is found to be in contempt of court, the court has extensive remedial powers, pursuant to the Family Law RulesSection 31(5). The court can order that a person in contempt of court:

a)     Be imprisoned for any period and on any conditions that are just;

b)     Pay a fine in any amount that is appropriate;

c)     Pay an amount to a party as a penalty;

d)     Do anything else that the court decides is appropriate;

e)     Not do what the court forbids;

f)      Pay costs in an amount decided by the court; and

g)     Obey any other order

Analysis

The court found access to be an important right. Enforcing access through a contempt order is justified if there is evidence that the custodial parent has a demonstrated history or pattern of intentionally frustrating, limiting or terminating access.

From the text message exhibits and the mother’s own admissions, the court found the mother was deliberately disregarding the access order.

The court also found it significant that the mother did not file a response to the contempt motion and she did not bring a motion to change the paternal grandmother’s access order. The judge was satisfied beyond a reasonable doubt that the mother was deliberately disobeying the access provisions and was in contempt of court.

Since contempt of court was found, the appropriate penalty had to be determined. Justice Charney found the appropriate penalty was to refuse to hear the mother’s outstanding motion seeking an order that she be permitted to travel with her son in the Dominican Republic at her discretion, until she were to bring herself into compliance with the access provisions.