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In the matter of Pootoolal v. Ferraro the Applicant Father brought a motion for contempt pursuant to the Family Law Rules against the Respondent Mother for failure to abide by the interim order with respect to the custody and access of the child of the relationship.

In accordance with the initial interim order of 2007, the child was placed in the primary residence with the mother.  The child had some special health issues which required attention.   In light of these health concerns, in 2009 an additional interim order was made whereby the mother was ordered not to not smoke in presence of the child and refrain from exposing the child to second-hand smoke.  The order further required that access exchange take place at the mother’s home.  Also, as per the order, the mother was required to advise the father of medical appointments for the child and provide the father with the child’s health card when required.

The father had concerns about the mother’s care of the child and therefore hired a private investigator to observe the mother’s behavior while she was with the child.  The father’s private investigator found mother smoking on numerous occasions outside the home and in her motor vehicle.  In addition, the father claimed that mother had failed to advise him of the child’s medical appointments and provide him with the child’s health card when he requested it.  Lastly, the mother had disobeyed the interim order by unilaterally changing the access exchange location from her home to a local doughnut shop.

As a result, the father successfully brought motion for finding that the mother was in contempt of interim court order.  In determining the merit of the contempt motion, the court applied a three pronged test for contempt of court: 1) whether the order that was breached stated clearly and unequivocally what should and should not be done; 2) whether the party disobeying the order did so deliberately and willfully; and, 3) whether the evidence showed contempt beyond a reasonable doubt.

An assessment of each prong of the test showed that the mother’s behaviour was in contempt of the court’s order.   With respect to health card, the court determined that the mother’s failure to provide the father with the child’s health card upon his immediate request was not a willful act of contravention.  The mother’s behavior with respect to drop-off was found to be “minor but annoying breach of conduct” which the mother rectified by reinstating the initially ordered access exchange.  However, the mother’s chain smoking near the child and the resulting exposure of the child to second-hand smoke constituted contempt.  The mother should have known that her smoking would have consequences on the child’s vulnerable health.

The court had the discretion by R. 31(5)(d) of Family Law Rules to transfer custody of child and exercised this authority by changing the custody and residence of the child pending trial.  The child was placed in the interim joint custody of the parents and the primary residence of the child was changed to be with the father.