This case deals with a motion brought by the applicant for contempt. The parties had been enjoying equal time with the children of the marriage post-separation until the fall of 2010 when the children began refusing to see the applicant. Consequently, an Order was made in November of 2010, concerning access which provided that the respondent had to take all reasonable means to enforce his parental authority to ensure access every second weekend, and ensure that the children met with the applicant for dinner at least once every two (2) weekends. In addition, the Order placed a prohibition on both the applicant and respondent from talking about the court proceedings with the children. However, despite the Order in place, the children continued to refuse to visit with their mother resulting in this motion being brought against the respondent for contempt as the applicant did verily believe that he was not complying with the Order of November 2010.
In his decision, Justice Charbonneau listed the test that needs to be satisfied in order for there to be a finding of contempt. He indicated that the onus is on the applicant to prove to the court the following:
- That the terms of the Order are clear;
- That the respondent breached the Order wilfully; and
- That the court is satisfied beyond a reasonable doubt that the respondent acted wilfully.
To that end, and in order to prove that the respondent's behaviour was in fact wilful, Justice Charbonneau clarified that the applicant must prove to the court that the respondent knew exactly what the order required him to do and that he decided not to do it. Essentially, it must be shown that the respondent had the capacity and opportunity to abide by the terms of the order and chose deliberately not to do what the Order required him to do.
Justice Charbonneau also indicated that it would be possible for the respondent to counter the applicant's arguments for contempt by proving to the court, on a balance of probabilities, that he had a lawful excuse for breaching the order.
The respondent could not put forward a viable lawful excuse to justify his actions and consequently, Justice Charbonneau found him to be in contempt of court. He indicated that the respondent readily admitted that the terms of the order were clear and that he knew what the order required of him, thus satisfying step 1 of the above mentioned.
With regards to wilful breach of the Order, Justice Charbonneau stated that the Order required the respondent to take all reasonable means to enforce his parental authority such that the children visited with the applicant every second weekend. However, the respondent failed to do so, and instead he scheduled shopping trips with the children over said weekends and would send the children to the visits without their overnight bags so that he would be required to pick them up in the evening.
Additionally, the requirement that the respondent ensure that the children met with the applicant for dinner at least once every two weekends was an absolute obligation imposing minimal access. As such, the respondent had to ensure that he complied with same and that the children attended at said dinners. However, when asked to explain why he failed to do so the respondent provided no explanation and instead placed blame on the applicant.
Finally, the Order also prohibited both parties from speaking with the children about the court proceedings and the litigation surrounding their matter. The respondent admitted to telling the children that the court had ordered them to visit with the applicant contrary to the Order of November 2010. Justice Charbonneau stated that instead he should have told them it was his decision that they visit with the applicant as he believed it to be in their best interests. In so doing, the respondent would be taking all reasonable means to enforce his parental authority in compliance with the Order of November 2010 rather than directly involving the children in the issues of litigation as he had done
Therefore, the respondent was found in contempt and Justice Charbonneau ordered a subsequent appearance, on March 1, 2011, so that the respondent could indicate what means he had taken to purge his contempt and/or determine the appropriate penalty for same. In addition, the applicant was granted costs of the motion as she was forced to bring same in order to address the respondent's wilful and deliberate breach.
The appearance scheduled for March 1, 2011, during which the respondent was given the opportunity to indicate what means he had taken to purge his contempt and/or determine the appropriate penalty, has yet to be reported. As such, we query whether this Order achieved its objective.