Dealing with Denial of Access to your Children
Motions for contempt are increasingly being used by parents when they are faced with a denial of access to their children. Unfortunately, it is very difficult to succeed on such a motion, and generally these motions should only be brought as a last resort when there is a pattern of repeated denials of access.
The main reason for the difficulty of succeeding at a motion for contempt is that contempt is considered quasi-criminal in nature. This is because of the serious penalties that a court can impose if it finds there has been contempt – including a jail sentence. Because of this, the person bringing the motion for contempt must show “beyond a reasonable doubt” that there has been contempt, which can be difficult to do.
In the typical “he says, she says” scenario, there is generally a reasonable doubt.
As well, to succeed at a motion for contempt, it is not enough to show that the access order has been breached. You must also show that the person who did not comply with the order did so wilfully. This can be difficult in the case of access, as there are numerous valid reasons why an access order may not be followed: for instance, a mixup as to the dates, a sick child, and a refusal by an older child to go to the other parent’s home.
Normally, if access is denied, the best thing to do is to document it, and to demand “make up” time with your children, and (if applicable) any costs associated with the missed access visit (for instance, the cost of a plane ticket). Given the emotional nature of divorce proceedings, especially shortly after separation, there frequently are conflicts surrounding access. It is only in cases of flagrant or repeated violations of access that a court will do anything.
Even when the court does find a parent in contempt, it is slow to punish the parent. This is because the normal penalties for contempt — fines or jail time — are generally not appropriate in an access dispute. Often, a court will simply order make up time, which is something you probably can negotiate without the necessity of contempt proceedings.