Factual Background
In Bouchard v. Sgovio, 2019 ONSC 6158, the parties were married for 14 years and separated on March 31, 2017. They entered into a Parenting Agreement that the judge turned into a Final Order. The parties have two children, and the mother brought a motion to compel the father to comply with the provisions of the Final Order, pursuant to Rule 1(8) of the Family Law Rules.
The Final Order provided that the parties shall share parenting time equally. The mother alleged that the father exhibited an ongoing pattern of withholding her time with their son, failed to take the children to weekly counselling as ordered, and breached the Final Order at least three times.
The father responded by arguing that their son wished to live primarily with him on a go-forward basis and that the child was justifiably estranged from the mother. The father argued that the mother engaged in a war to alienate the children from him and forced them to lie to him and third party professionals.
The father claims that their son is often distressed at the thought of visiting the mother, despite him encouraging the child to attend these visits. He submitted to the Court that he was caught between two systems, as the Court expects him to comply with the Order, yet he cannot physically force the child to spend time with the mother.
Analysis The Final Order contained an extensive and detailed parenting schedule for the parties to follow.
Legal Analysis
Following the decision in Gordon v. Starr, 2007 O.J. No. 3264, an order is an order, not a suggestion. As such, non-compliance with an order must have consequences. In cases where a parent blames the child’s lack of cooperation for their failure to comply with a court order, judges have repeatedly said that a parent is obligated to do what is reasonable and necessary to secure the child’s compliance. Examples include means of exhortation, reward, or even threats of discipline.
It is not enough to simply reason with the child about parenting visits. While the father expressed their son’s views on the matter, the law does not accept that a 13-year-old’s views about access are determinative. While children have a voice in family court proceedings, they do not have a veto over the matter. In examining the evidence, the Court found that the father essentially admitted that he allowed the child not to visit the mother.
In addition, the Court found that the father actually discussed the parties’ legal issues with the child, despite being prohibited from doing so by the Final Order, and that he deliberately had those discussions with the intent of making the child angry with his mother. As such, the Court had to impose a penalty on the father for willfully breaching the Final Order.
The Court determined that the inclusion of a police enforcement clause was premature at the time and that the father’s non-compliant behaviour could be influenced by monetary penalties and incentives.
In arriving at the appropriate amount for a monetary penalty, the judge considered various aggravating factors, such as:
- The father’s lack of remorse
- The father’s multiple breaches
- The father’s failure to take any responsibility for not complying with the order
Based on these factors, the Court imposed a fine of $18,000 on the father to account for breaches of the Final Order, including discussing legal issues with the children, breaching the regular and holiday parenting schedules, and failing to bring the children to their weekly counselling sessions.
Consult Feldstein Family Law Group P.C. for Advice
At Feldstein Family Law Group P.C., our attorneys are intimately familiar with various family law matters, including new court decisions that can affect issues related to the legal consequences of failing to comply with a court order for child custody based on a child’s lack of cooperation. We are dedicated to providing our clients with up-to-date legal representation to help secure their legal rights and interests.
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