Contempt - Ground Breaking Ruling

Tayken

Tayken

Well-known member
CanLII - 2013 ONSC 2364 (CanLII)

Very interesting case law on a parent whom has been found in contempt of court for not having their child attend an access visit as ordered.

[25] Justice Greer noted this point in Sickinger v. Sickinger 2009 CanLII 28203 (ON SC), 2009 CanLII 28203, [2009] O.J.No. 2306 at para. 30 saying, “The parent does not have to force a child to go with the other parent but should “require” the child to do. A failure to require the child to do that is considered contempt.” See: V.(S.) v I. (T.), 2009 Carswell Ont 1023 (S.C.J.).

[26] As counsel for the Applicant points out, the Respondent did not provide evidence that she required the Child to attend. There is no evidence that the Respondent was giving any sanctions to the Child for the Child's failure to attend.

[27] The order of November 27, 2012 was simple and straightforward. the Applicant and his counsel gave some flexibility on the time as it was not specified. Nonetheless, the Respondent did not honour the order.

[29] I find the Respondent in contempt of court in accordance with Rule 31 of the Family Law Rules.

[30] The court has a wide range of penalties with a view to remedying the failure to honour the access order. The best interests of the child remains the court’s guide. Pursuant to Rule 31(5):
If the court finds a person in contempt of court, it may order that the person:

(a) be imprisoned for any period and on conditions that are just:
(b) pay a fine in an amount that is appropriate;
(c) pay an amount to a party as penalty;
(d) do anything else that the court decides is appropriate;
(e) not do what the court forbids;
(f) pay costs in an amount to be decided by the court; and
(g) obey any other court order.

Having found an individual in contempt of court, the court should give the individual an opportunity to purge that contempt.​

[31] The parties will return to the court on a date to be arranged for the parties to make submissions on how the Respondent may be given the opportunity to purge the Respondent's contempt.
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I recommend all readers of this publicly posted case law found on CanLII to "reflex" the matter and read the other related decisions linked to this file.

Note: CanLII is a non-profit organization managed by the Federation of Law Societies of Canada. CanLII's goal is to make Canadian law accessible for free on the Internet. This website provides access to court judgments, tribunal decisions, statutes and regulations from all Canadian jurisdictions.

Good Luck!
Tayken
 
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I'm curious as to what the court sees as the difference between: "does not have to force..." but "should require".

I've had to really talk our son into going on access visits a number of times, and from my point of view all it does is get him upset at both of his parents.

Personally, I let our kids know that it's important they spend time with their dad, but I feel like I should be able to draw the line somewhere when they are just outright refusing, sometimes for valid reasons.

I suppose there is a difference though when the CP is being quite honourable in nurturing the access parents relationship with the kids, versus a CP who is encouraging the behaviour of the kids who do not want the access.

I'm interested in your thoughts.
 
I would think it would be difficult to prove contempt without showing some action that hindered access. If the CP said to the child, "you don't have to go if you don't want to", that would be in contempt, since the spirit is to "require" the child to go. If the child said they weren't going, and the CP did nothing to attempt to change that, that might in comptempt as well, but difficult as heck to demonstrate.

My kids would refuse to visit me because their mother told them stories about me that were not true. That they were poor because I had gambled. That my GF had been my mistress before the separation. That I was depressed and suicidal. That would be both parental alientation, and in contempt of the access rules.
 
Unless the child has work or a similar activity to attend, they should spend their parenting time with the appropriate parent. Should they have an activity they want to attend, they should first clear it with the appropriate parent and seek their permission and make transportation arrangements.

Parenting time is no different than school or other activities we expect our children to oblige. Should the child become difficult we, as parents, should act like a parent and let them know there will be ramifications for their actions. If they simply refuse, well then, they should lose privileges accordingly. I look it at like my job....if I refuse to do something reasonable (not taking into account dangerous activies blah blah), but I could be fired, sent home or otherwise have disciplinary action taken against me....and that is way it should be.

Teach them at a young age that there are instances in life where we don't get to choose if we do something. Teach them that life isn't always fair and we don't always get what we want. Teach them about the realities of life and stop coddling them into being entitled adults.
 
What I find interesting is that the judge isn't saying a parent has to "force" the child to go but that there has to be consequences for the child from the parent if they don't go. I wonder what sort of punishment/consequences they were looking for.....

“The parent does not have to force a child to go with the other parent but should “require” the child to do. A failure to require the child to do that is considered contempt.” See: V.(S.) v I. (T.), 2009 Carswell Ont 1023 (S.C.J.).

[26] As counsel for the Applicant points out, the Respondent did not provide evidence that she required the Child to attend. There is no evidence that the Respondent was giving any sanctions to the Child for the Child's failure to attend.
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I'm confused about the part that says the boy (Brandon) was too heavy for mom to lift. Is there more information to explain? Is Brandon physically disabled and requires lifting to transport? Can someone clear up what I missed?

What if NCP tells S15 that it's "up to him" and "he's old enough to decide what he wants to do" and then S15 decides not to visit NCP? Is that contempt if CP isn't forcing-but-not-forcing S15 to go out of town to visit NCP? Hmmm...
 
Being convicted of contempt in family court is not common. My personal opinion is that nothing will come out of it. I look forward to reading outcome.
 
WOW....that ruling is like a case I am following on canlii scrivo v scrivo! Its almost word for word. I find this site interesting because being a woman of divorce, I am extremely fortunate that my ex and I have always put our children's needs first and discussed any objections or concerns with eachother and resolved any issues.
 
Qrious said:
I'm confused about the part that says the boy (Brandon) was too heavy for mom to lift. Is there more information to explain? Is Brandon physically disabled and requires lifting to transport? Can someone clear up what I missed?

What if NCP tells S15 that it's "up to him" and "he's old enough to decide what he wants to do" and then S15 decides not to visit NCP? Is that contempt if CP isn't forcing-but-not-forcing S15 to go out of town to visit NCP? Hmmm...
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And so now I'm quoting myself. Lol.

I re-re-reread the case. It was an off-hand comment from the brother who said Brandon is too heavy for mom to lift (to force him to go to the party) when he was defending his mom's position that she did attempt to get Brandon to attend the Christmas Eve party at his Aunt's.

So, when you consider the background information that:

1. mom had previously been found to be alienating her sons from their father,

2. that mom was ordered to transport Brandon for his visits, and

3. was ordered for this particular access visit to occur on December 24th,

And then didnt make sure Brandon attended this particular party as previously ordered by the court, it makes a little more sense to me how she can be found in contempt.

Interesting case. Thanks, Tayken.
 
Thank you Qrious....I was lost. I was looking for sickenger...a little slow sorry. I clicked on the actual link at the top and it brought me to scrivo v scrivo. It is the same case. It grabbed my attention a while back with a poster Cynthia10.
 
Truthcomesout said:
WOW....that ruling is like a case I am following on canlii scrivo v scrivo! Its almost word for word. I find this site interesting because being a woman of divorce, I am extremely fortunate that my ex and I have always put our children's needs first and discussed any objections or concerns with eachother and resolved any issues.
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And that you haven't thrown any eggs at the other parent's car? Or written awful things on the other parent's and the children's public Facebook wall?

Good Luck!
Tayken
 
What would really be groundbreaking (IMO) if there were actual consequences imposed on the party found guilty of contempt.
 
I think its sad when we look at how children are being used as pawns in a battle between adults. Reading the different comments here where it is advised that we need to tell children that sometimes they need to deal with the reality that they are going to be shuttled back and forth so both parents can have their parental rights does not seem to show that we are concerned with what is best for the child but what is best foe the adults. Sometimes I think we are too caught up in the rights of the,parents to be parents and forget about the rights of the child to have a carefree happy childhood.
 
Exquizique said:
What would really be groundbreaking (IMO) if there were actual consequences imposed on the party found guilty of contempt.
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Well, the court orders are stacking against the possibly alienating parent in this chain of court orders. There is the trial decision, then a 30,000 cost award against them and now a finding of contempt. The parent who is now convicted of contempt (quasi criminal conduct) has an opportunity to purge the contempt.

There may never be a remedy as the parent in question who was found in contempt may have purged the contempt. The objective of the court as we see in the progression in this case law is to.

1. Give the parent the opportunity to do the right thing and order a remedy.
2. Award costs against parents. (Costs are meant to get people to really think about what they are doing.)
3. When costs doesn't work on changing parental behaviour then you can find yourself before a court and found in contempt.
4. You have an opportunity to purge the contempt... If you don't, then the court will eventually order something as a result.

But, do note the approach taken by the parent who has legal counsel in this matter. Clearly, the lawyer knows what they are doing and how to leverage relevant and cogent evidence to bring the appropriate change and with regard for the best interests of the child/ren for their client.

Good Luck!
Tayken
 
Further to HammerDad's comments which are (as usual) bang-on:

Justice Mossip in Reeves v. Reeves [2001] O.J. No. 308. Further, counsel referred me to paragraph 38 of Justice Mossip's decision in Reeves:

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrated the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentist's or doctor's. It is the responsibility of good parents to manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.
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(Above quote taken directly from the case law in this matter.)

And... as I always quote this here is the additional quote often used by the Honourable Mr. Justice Quinn...

As Justice Quinn stated in Gerenia v. Harb:

Undoubtedly, there are many tasks that a child, when asked may find unpleasant to perform. But ask we must and perform they must. A child who refused to go on an access visit should be treated by the custodial parent the same as a child who refused to go to school or otherwise misbehaves. The job of a parent is to parent.
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What this case law also demonstrates is that having a book of authorities and knowing case law is important... and will be relied upon... (For those nay-sayers who continually try to negate the fact I often cite case law to demonstrate a point or provide the court's view of parental conduct...)

Good to see positive advocate lawyers are familiar with, and leverage the appropriate case law. This is what often differentiates a good lawyer from a bad lawyer...

Good Luck!
Tayken
 
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Tayken said:
. If you don't, then the court will eventually order something as a result.

Well I don't believe I have read too much on family court actually doing something to punish those who have failed to purge their contempt.

The whole contempt process is, to my understanding, a trial unto itself because if convicted of contempt an individual's liberty is on the line.

If anyone knows of any literature of this I would be appreciative to receive the link.
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arabian said:
Well I don't believe I have read too much on family court actually doing something to punish those who have failed to purge their contempt.

The whole contempt process is, to my understanding, a trial unto itself because if convicted of contempt an individual's liberty is on the line.

If anyone knows of any literature of this I would be appreciative to receive the link.
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CanLII.org is the best place to find information on contempt motions in family law. Google is great too and can return results in milliseconds:

Law of Contempt | Pantalone Family Law in Ottawa Ontario

Rare ruling sends family law litigant to jail for contempt

Contempt of Court in Family Law Matters | By Toronto Family Lawyer

Overview of how contempt orders operate in the province of Ontario. | By Toronto Family Lawyer

Just as some examples by typing "contempt family law in canada" on Google.ca...

Good Luck!
Tayken
 
Thanks Tayken. I've been looking at articles for several years now. Generally speaking, it seems most people purge their contempt before they are imprisoned or fined so it stands to reason that there isn't much literature.

I couldn't download the "rare ruling...."

Thanks just the same.
 
arabian said:
Thanks Tayken. I've been looking at articles for several years now. Generally speaking, it seems most people purge their contempt before they are imprisoned or fined so it stands to reason that there isn't much literature.

I couldn't download the "rare ruling...."

Thanks just the same.
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Here is a reposting (syndication) of the "rare ruling". Just cut and paste the heading into Google and it comes up as the first hit... Google.ca, it can answer the vast majority of questions people have on this site...

Husband Jailed for Criminal Contempt in Disobeying Court OrdersPSW Law | PSW Law

It also provides a link to a rebroadcast on twitter to the link... that may take you to Law Time's publication of it...

https://twitter.com/Carolyn__Warner/statuses/270683288006455297

Good Luck!
Tayken
 
Thank you again. In my situation our problem has been that we have been in front of many judges. Everyone has agreed with the previous judge's direction but it just seems to get handed on and on and on and on. We only recently were assigned a case management judge and we are hopeful that some of our issues will be dealt with in a swift and decisive manner. Even a 7 day jail sentence would be welcomed - anything to get my ex to realize he has to obey court orders.
 
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