How important is it to keep showing up child's school when gearing up for contempt ?

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accused_dad

New member
Haven't been able to see teenager child for a number of months. Mother has been influencing her against me by way of alienation and false allegations of abuse. The allegations have already been investigated and closed off by protection agency and police but mom continues to advance them. Lawyer wanted to move forward with contempt motion, but mediation is required before going to court. Now mom wants to do mediation and then go for primary residency.
History of case, i had little time, had trouble with my access being screwed around with by mom, went back to court, proved efforts to alienate, and got 50/50, was good for several years, until this happened.

Question is, do I keep attending at school on my days and document efforts? I do get messages from child, stop showing up, i dont want to go with you, etc, but those are all just her reiterating mom's stance and child had agreed to return to schedule but when I showed up at school, mom took her to the police station and made another set of false allegations. I have never been charged with anything from their claims.​

Contempt is set to go as mom and her lawyer have re advanced the false allegations of abuse, even though CAS and Police have investigated and closed off, and they further said they will keep child from me while we do mediation - my lawyer says their admission to this is pretty much all we need to prove contempt of court.
 
Picking up your child directly from school on your custody days should be clear-cut—the school has no grounds to prevent this if your agreement allows it. As for contempt charges, they're practically a joke in Family Court. There's a widespread tendency to dodge these charges to avoid ruffling feathers, which ironically often exacerbates the issue. This avoidance teaches irresponsible parties that there are little to no consequences for their actions, essentially rewarding bad behavior and undermining the entire purpose of having court orders in the first place. It's realistic not to hold high hopes for significant outcomes from contempt charges—my prediction is you'll see a mere caution at best, maybe a light slap on the wrist.

Btw -- like the Reddit/Custody cross post lol.
 
accused_dad said:
Haven't been able to see teenager child for a number of months.
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This is problematic and adds significant complexity to the matter. If the child is over the age of 14 things change dramatically.

accused_dad said:
Mother has been influencing her against me by way of alienation and false allegations of abuse. The allegations have already been investigated and closed off by protection agency and police but mom continues to advance them. Lawyer wanted to move forward with contempt motion, but mediation is required before going to court. Now mom wants to do mediation and then go for primary residency.
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If this is instruction from your lawyer I recommend you seek advice from an alternative Barrister on the matter of contempt. Generally contempt is contempt and a very complex issue to bring forward and you would not bring an issue of contempt to mediation. You would pass mediation and go straight to court with a motion for contempt. Motions for contempt are quasi criminal and nature and not something that is mediated. They are NOT determined on the BALANCE OF PROBABILITIES but a stricter standard that is very similar to that of a criminal matter on BEYOND REASONABLE DOUBT.

You can, with good will, attempt to go to mediation to hash out a solution but, if you are dealing with CONTEMPT and a lawyer has identified it as CONTEMPT then you should be proceeding to CONTEMPT.

See this case which this forum was intimately involved with as the mother in this matter was posting on this forum.

1. https://www.canlii.org/en/on/onsc/do...2onsc2727.html
2. https://www.canlii.org/en/on/onsc/do...2onsc3212.html
3. https://www.canlii.org/en/on/onsc/do...3onsc2364.html
4. https://www.canlii.org/en/on/onsc/do...3onsc4655.html
5. https://www.canlii.org/en/on/onsc/do...4onsc3779.html

Start at [NODE="1"]Home[/NODE] and then read the rest. All the same case. It deals with a very similar issue that you are describing. Also, present it to your lawyer as the supporting case law to forward your contempt that the mother is not doing enough to enforce the order.

Original thread that is very interesting where I reviewed this case:

https://www.ottawadivorce.com/forum/...tinued?t=13955

If you read the thread, you will notice on about page 2 (reply #19) the actual person involved in the case comes in and defends their awful conduct. It gives insight into the conduct of high-conflict people in legal disputes. The person in question threw eggs at the other parent at a soccer game!!!

Good Luck!
Tayken
 
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Tayken, I missed an important detail, which is why my lawyer said to try mediation first. There is a dispute mechanism clause in our order, that basically says when there is an impasse on parenting, that we should try to sort out issues between ourselves, if no resolution, then with a mediator, and if no resolution within 3 weeks or the matter is considered urgent, that either party can return the matter to court. Based on my understanding, mother only asked for this because now she wants to do a motion to change, and wants to show judge she tried to first resolve issues with me in mediation.

My lawyer said, its best to just do it then try to dance around it with any arguments. Especially when it comes to costs and stuff. It shows you've done everything you could to try and sort it out. He told me basically tell them in mediation, am I going to have my access restored or what's going on? TO not waste time talking about random stuff. Either we get my access going or I file the contempt. I have also read elsewhere you should file the contempt, before mediation, to make sure you're not getting manipulated and there is pressure on the other party to mediate to an agreement?
 
Most agreements have this clause. If one party isn't coming to the table with a mind to actually mediate then it is useless. The argument to the judge is “party a was unwilling to deviate from their best case scenario therefore we did not believe mediation would work”. When you are dealing with contempt and denial of access, mediation will not work.

I see what your lawyer is doing but this is urgent and you can't mediate alienation. As long as you can prove that you have done everything you can to work to achieve parenting time, there should be no need to wait.
 
StillPaying said:
That clause is for the regular disagreements which arise; not contempt.
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100% agree.

Contempt generally means that a person is acting in a way that interferes with or disrespects the court's authority. Rule 31 of the Family Law Rules governs contempt of court in family law proceedings and allows the court to enforce a contempt motion even if another penalty is available. (Ontario)
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See: https://tailorlaw.com/being-in-cont...aw/#:~:text=Contempt generally means that a,i f%20another%20penalty%20is%20available.

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Contempt, in general, means that a party is behaving in a way that may interfere or obstruct the course of justice, or in a way that undermines or shows disrespect to the court’s authority. It is being disobedient or disrespectful toward a court of law.
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See: https://www.lerners.ca/lernx/contempt-in-family-law/

To be frank how you describe the situation and the use of contempt leads many on this forum to the concept of EX FACIE CONTEMPT. (Not in the face of the court.)

As StillPaying says contempt is a whole different aspect of family law and is not a regular disagreement it involves the beyond reasonable doubt conduct of a party disrespecting the court's authority and not abiding by the agreement/order. A lawyer, in good standing, does not wave around the very serious matter of contempt as common vernacular. Contempt is a very serious quasi criminal conduct.

If contempt is the issue at hand a good lawyer will in my humble opinion:

1. Serve a comprehensive offer to settle that purges the contempt on the other party;
2. Provide a very limited time frame and end date as a part of that offer to settle for the other party to purge the contempt;
3. Provide the motion and materials attached to the offer should the other party not accept the offer to settle and pre-schedule the contempt motion and notify the other party and their lawyer of those dates and serve it on the other party.

As a matter of technicality... providing offers to settle are a form of mediation. It is negotiated settlement. I suspect your lawyer is a Solicitor first and not a Barrister. There are two different types of lawyers in Canada. Barristers (often called litigators) and Solicitors (who negotiate settlement but, do not go to court generally...).

I would recommend again you seek the advice of another independent lawyer who is a Barrister to go over the instructions provided by your lawyer to you and the other evidence that has risen to the discussion about contempt.

Good Luck!
Tayken

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Also see: https://www.canlii.org/en/on/onsc/doc/2016/2016onsc7926/2016onsc7926.html

Karar v Abo-El Ella, 2016 ONSC 7926 (CanLII)

At para 3:

A finding of contempt is of course the most drastic enforcement mechanism available to the court. It opens the door to a range of sanctions including penal sanctions. Although the moving party does not seek a fine or imprisonment at this stage, nevertheless a finding of contempt is quasi-criminal in nature. It requires proof that the respondent wilfully breached a clear and unequivocal court order and it must be proven on the criminal standard, beyond a reasonable doubt.[1] It is important to underscore that there are various other remedies available to the court to enforce its orders or to sanction breach of such orders even if the failure to abide by an order does not rise to the level of contempt. But it is not necessary to exhaust such steps before moving for contempt.[2]

[1] See for example Woronowicz v. Conti 2015 ONSC 5247​
[2] See Rule 31 (1)
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Note the highlight above: IT IS NOT NECESSARY TO EXHAUSE SUCH STEPS BEFORE MOVING FOR CONTEMPT.

That is straight from case law and this is a highly cited case and widely reported. So much so your lawyer, if primarily practicing in Family Law, in Ontario, should have seen this and be able to quote it verbatim as I am NOT a lawyer and nor is StillPaying yet we know. I highly recommend, that if you present this case law to your lawyer and they are not familiar with it... that you retain competent legal counsel that is.
 
accused_dad said:
Tayken isn't that referring to enforcement motions?
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You should always open and read links I provide for the full details. If you had you would have seen this in the first paragraph of the order:

This is a motion for contempt brought by the applicant father against the respondent mother for failing to comply with certain paragraphs of a consent court order, dated March 11, 2015.
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I clicked on it it says:

Paragraph 3: The respondent shall have the right to make day to day decisions involving the children. The applicant shall consult with the respondent regarding any decisions involving the health, religion, education and general welfare of the children. If there is disagreement, the respondent shall have the final say, provided that either party may refer the issue to arbitration…

[49] The father alleges that the mother has not permitted the children to communicate with him and has failed to engage the services of a parenting coordinator. Even assuming these allegations to be true, I do not see how they relate to, or would constitute a violation of, paragraph 3 of the March 11, 2015 order. Paragraph 3 permits the father to consult with the mother involving major decisions, the father provides no evidence that this has not occurred.

[50] In addition, I note that paragraph 3 expressly provides for arbitration in the event of a disagreement. Given the court’s repeated caution that “the civil contempt remedy is one of last resort”, the express availability of an alternative remedy in the form of arbitration to resolve any disagreement with regard to paragraph 3 is an indication that the court should not entertain a motion for contempt until the moving party has tried arbitration. Had the father provided any particulars of a breach of paragraph 3, he would have to proceed with arbitration before bringing a motion for contempt.​
 
Arbitration is not mediation.

Arbitration has a judge like person making decisions. Mediation has a referee.

If you don't have access to arbitration, mediation is not the alternative. Court is.
 
accused_dad said:
The applicant shall consult with the respondent regarding any decisions involving the health, religion, education and general welfare of the children. If there is disagreement, the respondent shall have the final say, provided that either party may refer the issue to arbitration
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These are the regular disagreements which not only come up for everyone, but can be something new every week. Courts don't want to deal with these simple issues every time and want you to try mediation first.

Your access issue is more direct. There is a specific order not being followed. Mediation alternatives are not needed for this when the specific issue has already been ruled on.

You should listen to Tayken. Make an offer for ex to correct their ways then bring a contempt motion.

Waiting months on end reducing your access claim and looks more like you're in agreement with the new no access schedule.
 
I hear what you're saying. We did sign the mediation agreement though and we actually had a good session today. Mediator said we should continue to jointly make decisions so that the child can't play us, and that child needs to hear from mom that I'm an amazing dad, etc. Because mom said I'm an amazing dad when asked.

we agreed to implement a gradual approach to resuming my time, and that only I will show up when it's my time to pickup child. my daughter has reached out to in the middle of our session, to see me on friday, in the midst of this mediation process, i brought that up and now I am set to pick up child from school to spend some time together, and move towards returning to the usual schedule. Won't be sleepovers just yet, because child said no sleep overs "yet" . so more of a gradual approach.

mediation agreement says we can't take any fresh steps, etc while mediating. so I would have to withdraw my consent and file the contempt motion. mediation is going really well though, we even agreed to meet with coffee with child, and each bring one family member, following my time with child. To arrange, we will coordinate by email with the mediator copied on the emails.

I will follow up with my lawyer on advice too, but I think I should still try this. Mediator is definitely keeping the pressure on the return to the regular schedule.

the only thing, is to not get manipulated.

I feel like if mom pulls out of mediation, then I could show that she is the one who pulled out of trying to work through issues amicably, and there cannot be any argument whatsoever as to whether i exhausted all possible options or not before returning to court.

What do you guys think?
 
accused_dad said:
my daughter has reached out to in the middle of our session, to see me on friday, in the midst of this mediation process, i brought that up and now I am set to pick up child from school to spend some time together, and move towards returning to the usual schedule.
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Given your situation, I would have serious concerns about the timing of that call. Hopefully it works out for you.

Easier and faster options are available, but at the end of the day all that matters is that you're ok with the situation.
 
Is it really easier and faster though? My lawyer said the courts taking forever to do things currently. Had an expiated motion that was still waiting to be heard after a few months.... even on a motion to change, few lawyers i consulted said at least 5-6 months before you get to your first conference

Another challenge is, if child was younger, say 8, yes, no question, motion gets filed immediately and mom can ask for whatever she wants in interim, mediation, etc, etc. When a similar thing occurred when child was around 8, when mom unilaterally reduced my time to less than the status quo that was in place for a year, in the middle of an OCL assessment, we filed an immediate motion, heard within 2 weeks, and my access was reinstated. Because child is 14 turning 15 lawyer said with teenagers it's a whole different beast, usually mom comes in saying it's the child that doesn't want to go, etc, etc making things complicated.

anywho, Had great time with child and child said they want to start coming over and having overnights. I feel like I should go with this, also check in with my lawyer, and see how it goes? Mom and I seem to be getting along a lot better now. whether it's for real or for show in the face of mediation, only time will tell I guess.

That being said, the agreement says only like or 4 weeks to resolve the issue in mediation, then either party can go to court. I guess no harm in getting whatever time I can get with child so when I go in with the motion there some access having taken place than all out flat no access no communication from child for months on end, right??
 
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