Even where the court finds that there has been contempt of court, a court may decline to exercise its power when it is in the best interests of the child.

BACKGROUND

The parties in this case had one child. There were two final orders which addressed parenting. The first provided joint decision-making responsibility to the parents, with primary parenting time to the father and generous access to the mother and the second order provided for an alternate weekly residential schedule to both parents. When the child was 14, he moved in with his mother full time and has resided with her since, with very little contact with the father. The father brought a motion for contempt of court against the mother based on her non-compliance with the two orders. With reference to the first order, he alleged that the mother failed to communicate with him or assist their son in doing better in school, breaching their joint decision-making responsibility. For the second order, the father alleged contempt due to her not abiding by the alternating weekly schedule.

THE LAW

There is a three-pronged test to establish whether there has been a contempt of court which has been confirmed by the Ontario Court of Appeal. The test is as follows:

1. The order that was breached must state clearly and unequivocally what should and should not be done.
2. The party who disobeys the order must do so deliberately and willfully.
3. The evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.

ANALYSIS

The first order was found to be unclear as to the mother’s obligation to communicate with the father about assisting their son in his academics. Therefore, the contempt motion relating to that order was dismissed. The judge then concluded that the first prong of the contempt test was satisfied for the second order, stating that the order was clear and unequivocal. In addition, the judge found that the mother had not done everything she reasonably could to facilitate the father’s parenting time. Although the mother claimed to have encouraged the child to have contact with his father and to see a counsellor, she had very limited evidence to demonstrate this. In fact, when the father’s lawyer requested sensible short parenting time visits, the mother did not respond, nor was there evidence of her speaking with the child about the request. This amounted to the judge determining that she satisfied the second prong of the test, willful and deliberate disobedience of the order. The mother raised the issue that the father should have used an alternate remedy, rather than bringing this contempt of court motion. The court agreed that this type of motion should be the last resort but noted that the father made attempts to resolve this outside of court. Finally, the judge noted that paramount consideration in cases of parenting time contempt is the best interests of the child. Considering both parents played a role in the mother’s breach, including the mother’s lack of facilitation and the father’s unwillingness to take small parenting time the son offered, the judge decided not to exercise a finding of contempt against the mother.

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