The parties met in 2005. They had four (4) children together, ages 5, 10, 12 and 14. The parties never married. The relationship ended in August of 2019.
The father is an Australian national and returned to live in Australia shortly after the separation. The mother has been the children’s primary caregiver since the father’s departure, and the children have always lived in Ontario.
The party’s obtained a Parenting Order which entitled the father to weekly virtual parenting time and eight (8) weeks of in-person unsupervised parenting time in Canada provided he gives the mother advance notice of the dates of his visits.
In 2022, the father arrived unexpectedly at the mother’s door and popped out of a box to surprise the children. He showed up again in October of 2022 expecting to exercise in-person parenting time without prior notice. The mother in both instances waived the notice requirements and granted the father in-person parenting time, provided he deposit his passport.
In 2023, the father reached out to the mother to make a plan for in-person parenting time to which she provided a delayed response. She did eventually respond to agree on a parenting time schedule.
There were also issues with the virtual parenting time as the father stated that after August 2022, the calls with his children ceased with the mother reasoning she was unable to facilitate the calls because of issues related to internet, affordability, lack of access to devices (despite the father purchasing one of the children a phone to which the mother withheld from them until a future date where she would determine it was appropriate for them to have such a device), and time differences, etc.
The father alleges that the mother has failed to respect this agreement and is seeking a finding of contempt against the mother for breach of his virtual and in person parenting time.
- Whether the mother is in contempt of a court order for breach of the parenting order granting the father virtual and in-person parenting time?
The court summarized the law of contempt. They referred to section 31(1) of the Family Law Rules which prescribes that a family court order may be enforced by a contempt motion even if another penalty is available. The onus is on the moving party to establish contempt beyond a reasonable doubt.
To find civil contempt, the court must be satisfied that:
- The court order alleged to have been breached states clearly and unequivocally what should or should not be done;
- That the person alleged to be in contempt had actual knowledge of the terms of the order; and
- That the person alleged to be in contempt intentionally committed an act that the order prohibits or intentionally failed to do an act that the order requires.
When a motion regarding contempt concerns access to children, the paramount consideration is the best interests of the children, which requires consideration of:
- Whether the contemnor took reasonable steps in good faith to comply with the order;
- Whether imposing contempt would work an injustice in the circumstances of the case;
- The presence of exigent or extenuating circumstances;
- Whether alternatives exist such as finding a breach of the order and imposing other remedial options; and
- Whether the defiant conduct is severe or significant.
The court has discretion to find someone in contempt, and it is considered a remedy of last resort.
If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy.
The court held that there was no reasoning to justify a finding of contempt in this case.
The court found that despite the father emailing the mother in October 2021 and February of 2022 before his two (2) visits to which the mother did not respond, the onus remained on him to obtain the mother’s consent in writing, or in the alternative, seek leave to bring a motion for the enforcement of in-person parenting time. In the absence of either of these occurrences, the court found it was inappropriate for the father to show up at the mother’s house unannounced. Further, as the mother ended up agreeing to the father having parenting time on these occasions, the court did not find the mother was in contempt of their parenting order.
The court also noted that although the mother’s unresponsiveness in 2023 is obstructive, because she ultimately responded and coordinated parenting time with the father there was no justification for a finding of contempt.
Finally, the court did find that the mother breached the parenting order by failing to facilitate the father’s virtual parenting time. However, this issue was resolved as the mother resumed compliance with this part of the Order when a precise schedule was put in place with terms as to who would initiate the calls and how.