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  #1  
Old 05-06-2014, 11:55 PM
Beachnana Beachnana is offline
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Default Contempt motion threatened again!

Not sure if this is the right place for this. But I think it is.

So long story short.

Dad decided he would come and "take for roughly a month" child of 2 yrs 3 months. Mom said she thought this was unfair to child and as Dad had not seen. Child for 2 1/2 mths ( his choice) she suggested he should come and visit son for a 2 or 3 overnight visit. There is no set access schedule, distance is a factor, agreement is vague stating reasonable requests will not be denied. He said " no I am coming next week"', she suggested the following weekend, as she had some plans this weekend. He said "no I am coming this weekend" and booked his return and child's one way ticket. He had his lawyer send a quite lengthy threatening letter and therefore forcing her to seek some legal advice. They are supposed to mediate but he bypassed that stage. Her lawyer responded with suggestions to mediate and also suggesting some dates be setup for visits appropriate to child's age. This was ignored by ex and his lawyer stated in his letter that he had advised his client to continue with his plans to come and collect the child

He then told Mom to bring child to the airport because he only had a 3 hour turnaround and has no licence. She did not respond anymore and ignored his emails all that day. It was upsetting and she was quite afraid.

Next week 10 page letter from lawyer threatening contempt of court and costs to,cover the airfare and emotional stress and legal fees. Lots of receipts were sent and a demand that she reimburse for his costs or they will file a contempt of court against her.

She choose to ignore the threat. 2 weeks later she receives an email from ex not sent through lawyer, saying he wants to extend an olive branch and try and move past their differences. She respond if this is truly and olive branch then Actions speak louder than words and he should come and visit child as soon as possible and perhaps pay some of the outstanding monies for daycare. No response

Nothing was said regarding the latest threat from lawyer. she heard nothing until today 3 weeks later. Again another 2 week timeline to pay up or they will file a motion of contempt.

Her lawyer will not entertain court he has told her to inform her previous lawyer so he can be prepared to go to court. He is a collaborative FL lawyer. She chose him because now they have a settlement ( 1 year old) she felt that disputes should go through the mediation process and be solved at the very least through lawyers. That was the direction in the agreement.

So now what to do? Does she go back to her first lawyer who was a litigator and let this go to court? Does she ask her collaborative lawyer to reply with a suggestion of mediation. $$$$ are piling up in legal bills. They say 2 is better than one. But I am not sure they mean lawyers!

Last edited by Beachnana; 05-07-2014 at 12:01 AM.
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  #2  
Old 05-07-2014, 12:04 AM
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arabian arabian is offline
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A 10 page letter from a lawyer? That's nuts.

Contempt of court is a very lengthy and expensive process. The bar is set very high to prove. Contempt issues are generally dealt with on their own separate hearing process. Sounds like intimidation.

I have a lawyer who is a member of the Collaborative Lawyer Society of Alberta yet this lawyer has represented me tirelessly and aggressively over the past 5 years in and out of court. Being a "collaborative" lawyer shouldn't mean the lawyer can't or won't go to court if/when needed. I'd check that out and then decide which lawyer you want to retain and then stay with that lawyer.
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Old 05-07-2014, 12:12 AM
Beachnana Beachnana is offline
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Well that is what we thought. It is a dangerous route to take. i know Tayken had posted on this issue in another thread I started. We were thinking we would ignore the contempt threat as such" a threat" but then his lawyer is eager to get into court experience, so we were a little nervous on this. I was thinking we should approach with an offer to enter into a mediation process first.

She does not believe she is in Contempt of their agreement. She interprets a vague clause one way and he another. They will never agree I guess.
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Old 05-07-2014, 12:24 AM
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Sounds like the father just wasted a bunch of $$.

Terrible strategy but then often people are easily intimidated and probably cave after receiving these sorts of letters.

I think you need to get a 'game plan' organized and stick to it. As long as you don't have a lawyer you can expect to continue to receive these sorts of letters. Kind of like collection agent mentality.
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Old 05-07-2014, 12:34 AM
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If the agreement stipulates that disputes are to be settled through a mediation process then that is the route you should go. If that is clear in the agreement then if any contempt action were taken against your daughter, and your daughter were successful and contempt motion was dismissed, then your daughter could request costs. There is undoubtedly a very nice legal way of putting that in a responding letter. Perhaps your 'collaborative' lawyer could point this out along with directive that mediation process must be undertaken as is stipulated by agreement. In other words, call them on their own bullshit.
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Old 05-07-2014, 12:49 AM
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here is a case from BC where the mother was found in contempt for denying access as stipulated in a previous court order:

https://www.canlii.org/en/bc/bcsc/do...VlbWVudAAAAAAB
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Old 05-07-2014, 12:18 PM
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Unless a month-long access period is specified in the separation agreement or court order, I don't see how she could possibly be in contempt for refusing it. Especially if she is offering reasonable alternatives.

However, maybe I'm just paranoid and cynical, but I would be more worried about the lack of specified end date for the visit leaving open the possibly of refusal to return the child rather than how the child would feel with his dad. I would be insisting, for a visit of any length, that the ex provide a firm end date, in writing, with proof (such as the child's return ticket) attached, before access happens.
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Old 05-07-2014, 12:31 PM
Beachnana Beachnana is offline
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Agree and that is what she asked for and did. He ignored her and came up anyway, now trying to charge her for the costs incurred. What a pain it all is for sure. She wants to just hit " ignore" but that is hard to do.
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Old 05-07-2014, 05:30 PM
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Quote:
Originally Posted by Beachnana View Post
There is no set access schedule.
Then the parents should establish a "residency schedule". (aka Access Schedule) When and where the child would reside with either parent. If you want to reduce conflict stop calling it an "access schedule" all together. That terminology causes more conflict than most in family law.

Quote:
Originally Posted by Beachnana View Post
distance is a factor
Who created this factor? The mother or the father? Distance is mostly the responsibility of the moving party. That is how the court will generally view it.

Quote:
Originally Posted by Beachnana View Post
agreement is vague stating reasonable requests will not be denied
That is why a set residency schedule needs to be setup between the parents in the matter. The "reasonable requests" lines are not worth the paper they are written on.

Quote:
Originally Posted by Beachnana View Post
He had his lawyer send a quite lengthy threatening letter and therefore forcing her to seek some legal advice.
Careful, with the use of "threatening". Lawyers generally do not "threaten". They set out facts and how they are going to possibly respond to non-compliance. This is not to say that some lawyers don't make baseless threats (contempt), serve them and not even bother to file them with the courts. Happens all the time but, remember stating that you will bring a motion to resolve a matter is not a "threat" it is a legal tool that is perfectly within the rights of either party in the matter. Even if there is no merit to the motion by the party bringing it.

Quote:
Originally Posted by Beachnana View Post
They are supposed to mediate but he bypassed that stage.
A court will not generally force parties to go to mediation. If it was arbitration then they would have. I don't recommend mediation in most situations. It takes two reasonable parties to 'mediate'.

Quote:
Originally Posted by Beachnana View Post
Her lawyer responded with suggestions to mediate and also suggesting some dates be setup for visits appropriate to child's age. This was ignored by ex and his lawyer stated in his letter that he had advised his client to continue with his plans to come and collect the child.
Neither lawyer is doing the better thing. The lawyer for the mother should have made an offer to settle on the matter in accordance with the Rules that outlines a fully detailed schedule. The lawyer for your daughter is wasting money as that lawyer should be looking to resolve things FINAL and not in the temporary. This is how they drag out costs.

Quote:
Originally Posted by Beachnana View Post
He then told Mom to bring child to the airport because he only had a 3 hour turnaround and has no licence. She did not respond anymore and ignored his emails all that day. It was upsetting and she was quite afraid.
Afraid of what? Afraid of a parent who wants to see their child and is making an effort to do so? You are not going to get much sympathy with the conduct your daughter is demonstrating.

Quote:
Originally Posted by Beachnana View Post
Next week 10 page letter from lawyer threatening contempt of court and costs to, cover the airfare and emotional stress and legal fees.
10 pages sounds about right. In fact, this is common for some lawyers to do. They lay it all on the line. It is a strategy. Also, it is a way to burn up your legal fees and fast. They want to make your lawyer read every page in detail and bill hours upon hours. Generally LOA lawyers pull this stunt.

To really respond properly, respond to every item in detail and then attach the original letter back as a schedule.

Generally this will end the stupidity on the other side.

Quote:
Originally Posted by Beachnana View Post
Lots of receipts were sent and a demand that she reimburse for his costs or they will file a contempt of court against her.
The problem with the contempt is that no one can reasonably say what the order intends and how it should be enforced. For contempt to be successful the first rule of thumb is that the order has to be clear and understood. They fail that threshold...

Quote:
Originally Posted by Beachnana View Post
She choose to ignore the threat. 2 weeks later she receives an email from ex not sent through lawyer, saying he wants to extend an olive branch and try and move past their differences. She respond if this is truly and olive branch then Actions speak louder than words and he should come and visit child as soon as possible and perhaps pay some of the outstanding monies for daycare. No response
Not a great way to respond. Not at all. You tied the payment of moneys to the one party as a possible gate to being able to access the child. VERY BAD! You want to get your hand slapped tell a judge this and in this manner and they will lose it big time. You can't restrict access because CS or S7 is not being paid. EVER.

Quote:
Originally Posted by Beachnana View Post
Nothing was said regarding the latest threat from lawyer. she heard nothing until today 3 weeks later. Again another 2 week timeline to pay up or they will file a motion of contempt.
There are very specific filing rules for contempt. Personal service etc...

Quote:
Originally Posted by Beachnana View Post
Her lawyer will not entertain court he has told her to inform her previous lawyer so he can be prepared to go to court. He is a collaborative FL lawyer.
Change lawyers now. You are wasting your time with a collaborative lawyer. You have a "solicitor" and need a "barrister".

Quote:
Originally Posted by Beachnana View Post
She chose him because now they have a settlement ( 1 year old) she felt that disputes should go through the mediation process and be solved at the very least through lawyers. That was the direction in the agreement.
Again, you can't really force mediation but arbitration processes can be. You can show up to mediation say the moon is made of cheese and walk out. Nothing can be disclosed as it is closed and the other party can file a motion.

Quote:
Originally Posted by Beachnana View Post
So now what to do? Does she go back to her first lawyer who was a litigator and let this go to court?
This is shoving tactics that are all common as teeth. She should make a full offer to settle that details out when and how the residential time with both parents for the child will be.

She should also try to think for herself, be an independent adult and not rely upon her mother to be an adult for her. I know this is harsh but, you may not be helping the situation. Just being honest with you on my opinion.

Quote:
Originally Posted by Beachnana View Post
Does she ask her collaborative lawyer to reply with a suggestion of mediation. $$$$ are piling up in legal bills. They say 2 is better than one. But I am not sure they mean lawyers!
I would drop the collaborative lawyer and get a litigation lawyer who can manage the file better.

Good Luck!
Tayken
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  #10  
Old 05-07-2014, 05:32 PM
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Quote:
Originally Posted by Rioe View Post
Unless a month-long access period is specified in the separation agreement or court order, I don't see how she could possibly be in contempt for refusing it. Especially if she is offering reasonable alternatives.
Key point. Contempt usually only gets heard / ordered / etc... when the order is crystal clear in what is to be done. You are correct in your statement Rioe.

Quote:
Originally Posted by Rioe View Post
However, maybe I'm just paranoid and cynical, but I would be more worried about the lack of specified end date for the visit leaving open the possibly of refusal to return the child rather than how the child would feel with his dad. I would be insisting, for a visit of any length, that the ex provide a firm end date, in writing, with proof (such as the child's return ticket) attached, before access happens.
I would just establish a set schedule that can be repeated year-over-year so you don't have to negotiate every week/month about this stuff.

Good Luck!
Tayken
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