We often advise clients with regard to the enforcement of Orders, including those for custody and access.  A recent case out of Ontario discusses the issue of contempt of an access order when the defence put forward by the parent is that the child did not want to go to a scheduled visit.

We often hear this from clients, regardless of the child’s age.  Moving between homes can be tiring for even the most flexible children and it’s difficult for parents to “force” their child to do something they don’t want to.

In Jackscha v. Funnell, 2012 ONSC 4234, the child was 11 years old and told his father on Christmas Day that he wanted to stay at his mom’s.  The father, indicating that there had been a history of interference with access, brought a motion for contempt.

Justice Gordon of the Supreme Court found that when a custody or access order is not complied with and there is an “air of reality” to the defence that it is the child who is not complying, it is the responsibility of the party alleging contempt to prove beyond a reasonable doubt (remember: contempt is a quasi-criminal offense) that the other parent did not take reasonable steps to ensure the child would comply.

The mother admitted that the steps she took to encourage the child to go to his dad’s were insignificant.  At paragraph 17, Justice Gordon said:

Fostering a child’s positive relationship with the other parent is one of the most significant parenting duties a separated spouse undertakes. Faced with a child who is unwilling to go with the other parent, the parent in care of the child must do more than simply acquiesce. At a minimum one might expect the following:

• A discussion with the child to determine why he does not want to go

• Communication with the other parent to advise of the difficulty and discuss how it might be resolved

• Offering the child an incentive to go, or some form of discipline should he continue to refuse

Given the evidence, Justice Gordon found that the mother did not go far enough and was satisfied beyond a reasonable doubt that that she did not take reasonable steps to comply with the Order (i.e., that she was in contempt of the Order).

The father wanted compliance with the order and did not request imprisonment, fine, or a monetary penalty, recognizing that those would not benefit the child.  Justice Gordon recognized that compliance is the primary goal for such a motion and ordered a conditional fine of $3,000.  Essentially, in the event the mother is found in contempt on any subsequent occasion, a $3,000 fine for the first contempt would be immediately due in addition to any future order!

This case was published in a widely read family law newsletter and is likely to make lots of appearances in court briefs given it’s clear clear message that it is a parent’s role and responsibility to take positive steps to ensure children attend access time, absent, of course, a requirement for the use of physical force.