In Boivin v. Butts, 2019 ONCJ 610, the father brought two contempt motions against the mother and alleged that she willfully and deliberately breached existing court orders with respect to access. The matter was heard before Justice Parent at the Ontario Court of Justice.
Background
The parties are the parents of two children. The mother has sole custody and primary residence of the children. Per the Final Order of Justice Nelson, dated April 2, 2013, the parties are to follow a specified access schedule. However, due to changes in the father’s work schedule, the parties followed an impromptu access schedule from 2013 onwards. Despite their initial cooperation, beginning in the Spring of 2017, communications broke down and the mother refused to let the father see the children. The mother claimed that the children did not wish to visit the father and that he posed a safety concern for them.
On April 13, 2018, the father brought a motion in front of Justice Parent to find the mother in contempt of the Final Order of Justice Nelson. On May 4, 2018, a Temporary Order was made by Justice Parent for specified access visits to occur between May and July 2018. On November 5, 2018, the father brought another contempt motion alleging that the Final Order and the Temporary Order were breached by the mother, who failed to comply with the access terms in September and October of 2018.
Positions of the Parties
The father argued that the mother began to unilaterally dictate his access schedule beginning in the Spring of 2017. He was not permitted to see the children during summer break or Christmas break in 2017. Furthermore, his efforts to communicate with the mother were blocked in October 2017, making access nearly impossible. The father believes that the children have been alienated from him by the mother. While the mother indicated to the police that there were safety concerns when the children are in his care, her concerns were not verified by any third parties.
In her defense, the mother argued that the safety concerns were serious and that the children arrived independently at their decision to not see their father, without any influence from her.
Analysis
To find someone in contempt of a court order, the three-part test set out in Godard v. Godard, 2015 ONCA 568, must be met, namely:
- the court order that was breached must state clearly and unequivocally what should and should not be done;
- the party who disobeys the order must do so deliberately and willfully, but direct intention to disobey the court order is not required; and
- the evidence must show contempt beyond a reasonable doubt.
The remedy of contempt is one of last resort, and in the civil context, it is intended to be primarily a remedial attempt to gain compliance with court orders. Specifically, in the context of access, a parent has an obligation to ensure that a child who resists contact with the access parent still complies with the order.
Applying the three-part test mentioned above, Justice Parent found that the court orders in question were clear as to the terms of access. Although the mother was less cooperative in accommodating the father’s work schedule when arranging access, she cannot be said to have willfully breached the Final Order in the Spring of 2017. However, beginning in the Fall of 2017 to April 2018, the mother breached the court order beyond a reasonable doubt. The mother consciously decided to no longer continue the pattern of accommodation of access, permitted the children to be exposed to inappropriate communications between her and the father, and deliberately withheld medical information regarding the children from the father. The situation worsened in the Fall of 2018, when the mother allowed the children to decide whether they wished to see the father and encouraged their belief that they are unsafe in their father’s care and told them to report that belief to the police. As such, the father succeeded in his contempt motions.
The remedy is to put in place a gradual schedule of access between the younger child and the father and to impose a fine on the mother should the child fail to attend these visits. It is important to note that although the father requested police enforcement with respect to access, Justice Parent declined to include that clause in the order, as it might exacerbate the animosity that already exists between the child and the father.
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