Overview

The parties married in 2004 and separated in 2019. They had two (2) children during their marriage: Azan who is now 14 years old and Issa who is 9.

After commencing litigation in 2019, the parties obtained a final order dated March 19, 2021, which provided that the parties shall have joint decision making responsibility of their children, and that the children shall spend a week at a time in each parent’s case from Sunday to Sunday.

On March 19, 2023, the father filed a Notice of Contempt Motion with the court alleging that the mother is in contempt of court due to her failure to facilitate the shared parenting schedule pursuant to the final order since February 12, 2023.

Events between February 12 to March 19, 2023

On February 15, 2023, the children were in the mother’s care. The mother’s lawyer sent a letter to the father outlining the mother’s concerns with his parenting and requesting his consent to changing the parenting schedule. The father responded to this letter on February 17, 2023, addressing the concerns, and advising that he would not provide consent to change the parenting schedule but was open to coming up with a temporary solution while he works on addressing the mother’s concerns about his parenting.

The children were not returned to the father’s care on February 20, 2023, pursuant to the final order. The father emailed the mother on February 22, 2023, expressing his concerns about this and advising that if she continued to not comply with the order, he would be attending her house with the police and a copy of the order. The mother responded to this advising the children did not want to be with the father and welcomed the father attending her home with the police.

The next date the children were scheduled to be with the father was March 5, 2023. The father sent an email on this date advising he would be attending her home to pick up the children. His son, Azan, sent him a text message on this day advising that if he came to pick them up, the mother would call the police. When the father continued to show up at the mother’s house on this day to pick up his children, he was unable to, and was told the police were called.

The father proceeded to retain legal counsel. His lawyer wrote a letter to the mother’s counsel advising that the father would be attending her home to pick up the children on March 19, 2023, and if he was denied his parenting time again, they would be bringing a contempt motion.

When the father proceeded to attend the mother’s home to pick his children up for his parenting time on March 19, 2023, he left once again without his children, and he and his counsel proceeded to bring the Notice of Contempt Motion to the court.

Issues

1. Is the mother in contempt of the final order dated March 19, 2021?

Analysis

In their decision, the court laid out the three (3) general principles established in the Ontario Court of Appeal’s decision in Moncur v Plante, 2021 ONCA 462, governing the use of the court’s power to find a party in civil contempt of court for breaching a court order, which must be proved beyond a reasonable doubt:

1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done,

2. The party alleged to have breached the order must have had actual knowledge of it, and

3. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

The court found parts one (1) and two (2) of this test were satisfied, as the mother had knowledge of the final order which clearly and unequivocally set out the parties parenting schedule.

In looking at part three (3) of the test, the court found that the mother intentionally failed to make the children available for the father’s parenting time, and therefore she intentionally breached the final order. The mother attempted to justify this behavior by claiming she did not facilitate the father’s parenting time due to the children’s refusal to see him.

The court considered whether this justification could absolve the mother of her breach. In these considerations, the court reviewed case law which emphasized parents have a positive obligation to ensure children resisting contact with an access parent comply with access orders. This positive obligation may include addressing whether the parent engaged in discussions with the child to determine why they refuse to see the other parent, communicating with the other parent about the child’s refusal and discussing how to resolve these issues, offering children incentives to comply, and articulating disciplinary measures should the children continue to refuse to comply.

The court then found that the mother had done none of the measures above to ensure the children complied with the final order to see their father. The court then stated that justifying non-compliance with a court order based on a child’s refusal to see a parent “is a completely unacceptable stance to take, and it is irresponsible for counsel to suggest that the mother’s actions are appropriate or in the best interests of the child.”

Conclusion

The court held that although the mother is clearly in breach of the final order, because there are other, lessor available orders available to the father (ex. the father bringing an enforcement motion before moving to a contempt motion), it was not appropriate for them to find the mother in contempt of the final order.

In reaching this conclusion, the court emphasized that family law litigants must be counselled to comply with court orders, or immediately move to vary an order if it appears to be no longer in a child’s best interests due to a material change in circumstances. It is a family law lawyer’s responsibility to ensure that parents understand court orders for parenting time must be complied with and cannot be unilaterally changed or ignored.