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Bozzo v. Cartagena: Motion for Contempt

Case Background

In Bozzo v. Cartagena, the Applicant Father brought an urgent motion for contempt, alleging that the Respondent Mother unilaterally terminated his parenting time with their child. According to a Final Order, dated May 30, 2019, the father has gradually increasing parenting time with the child every other weekend, including overnight access for one out of every two weekends, and is entitled to additional parenting time to make up for any missed visits with the child. The father states that he has not had any parenting time with the child since mid-December 2019. Starting in June 2019, the mother allegedly denied access 16 times, not including the Christmas access which was also denied to the father. Based on this, the father requests that access be reinstated immediately with additional access to make up for the lost parenting time.

In response, the mother takes the position that the urgent motion ought to be dismissed. She submits that not only is the motion not urgent, but the father’s parenting time was reduced because there were concerns with his parenting. The mother made several reports to the police and the Children’s Aid Society and alleges that the Children’s Aid Society declined to be involved due to bias. The father denies the mother’s allegations and states that the Children’s Aid Society expressed no concerns with his parenting.

Legal Analysis

Pursuant to the new COVID-19 protocols, the Court had to first determine whether the matter is truly urgent. Following the decision in Thomas v. Wohleber, 2020 ONSC 1965, the Court has established the factors below as considerations for assessing urgency:

  1. The concern must be immediate and cannot await resolution at a later date;
  2. The concern must be serious in the sense that it significantly affects the health or safety or economic wellbeing of the parties and/or their children;
  3. The concern must be definite and material rather than speculative;
  4. The concern must be clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

Based on the factors above, the Court determined that the father’s motion was urgent as it was important for the child to spend time with the father on a regular basis and that this is seriously impacting the child’s well being and cannot wait for a resolution.

The Court assessed the evidence and found no indication that the Children’s Aid Society was biased or that the father’s parenting gave rise to protection concerns. In the face of competing and untested allegations, the Court held that it must balance the child’s need for meaningful contact with the father with the serious but not yet tested allegations of the mother.

The Court ultimately decided to reinstate access for the father. However, given that the father has not had contact with the child for over three months, overnight access may be too soon for the child. As a result, the father was granted interim without-prejudice access on alternating weekends until further court order or written agreement between the parties.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.

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