Stuyt v. Stuyt: Access Orders and Contempt

In this case the mother brought a motion for contempt against the father for his repeated breaches of the access orders made.

Three access orders were made in this case. The first was based on a comprehensive Parenting Plan made by a parenting coordinator (which is a professional hired to help parties creating a parenting plans for their children) and agreed to by both parties. The second order suspended the father’s midweek access as outlined by the first order and allowed for police enforcement of access. Finally, the third order (i) ordered the police to enforce access and to use all reasonable force to so, (ii) denied the reinstatement of the midweek access suspended by the second order, and (iii) gave the mother permission to bring a contempt motion.

The father breached these orders repeatedly. When the parties’ son arrived at the father’s home during his access time with his mother, the father (a) failed to take the child to the mother’s house, (b) failed to encourage the child to return to the mother’s house, and (c) rewarded the child for not returning to the mother’s house with ski trips, birthday parties and other incentives.

In order for the courts to find a party in contempt, three factors must be met:

  1. The order breached must state clearly what should have been and what should not have been done,
  2. The party must have disobeyed the order deliberately and wilfully, and
  3. The evidence must show contempt beyond a reasonable doubt.

All three of these factors were met in this cause because:

  1. The orders gave specific details about where the children were to be when,
  2. The fact that the father rewarded the child for disobeying the order, as well as the father’s disrespect for the law, showed that the breaches of the access orders were deliberate and wilful, an
  3. Justice Aitken had no reasonable doubt that the father breached these orders.

Despite Justice Aitken’s obvious contempt (no pun intended) for the father’s disrespect for the law, she did not order jail time for the father for fear that he would tell the children that their mother threw him in jail and use this to teach the children to disrespect the law. Instead, she ordered that if the father breached the orders again, he would be sentenced to seven days in jail.

This case shows that although holding a party in contempt for breaching access orders is a last resort, it will be used when necessary. It also shows that parents have an obligation to ensure that court ordered access takes place, even if it is against the children’s wishes. In Justice Aitken’s words:

“No one is above the law. A parent does not have the option of disobeying court orders that he or she does not like. It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means. It is also the role of parents to instill in their children a respect of the law and of legal institutions. A parent who does not do so does a huge disservice to his or her child – a disservice that can have lasting, negative, ramifications throughout the child’s life.”

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