Karar v. Abo-El Ella, 2016 ONSC 7926
The father sought the court to hold the mother in contempt for breach of a court order with regards to her interference with his access to the children.
A motion for contempt is the most extreme avenue of enforcement a party can employ as it allows for a range of penalties and sanctions including a fine and imprisonment.
In this case, the parties were separated on January 11, 2016 and had been involved in ongoing court battles and motions involving their children. There are two children of the relationship, a girl aged seven and a boy aged 3.
The mother claimed that the seven-year old daughter was afraid of her father. To a lesser degree, she claimed the same thing for their three-year old son. Due to their supposed fear of their father, the mother claimed that the children did not want to go and have access visits with him.
Further, the mother claims she was doing everything she could to facilitate and encourage the two children to see their father. The mother has alleged the father has acted strangely and his obnoxious behaviour has acted as a roadblock towards facilitating the access.
The father has claimed that the mother has purposely made attempts to limit his relationship and his access visits with his children due to her feelings towards him.
The mother brought forward video evidence showing the seven-year old daughter yelling and screaming at her father whilst refusing to go on the access visits with him.
Justice MacLeod comments that the videos depicting the seven-year old daughter screaming at her father are deeply disturbing videos as they “…show a seven-year old child who has been inappropriately empowered and allowed to yell at her father to shut up and go away while being filmed and records.” Justice MacLeod moves forwards and comments that there is no evidence to show a reasonable effort by any of the adults present in the home to calm the child down and assure her that she must go with her father.
In a recent decision, Goddard v. Goddard, the Ontario Court of Appeal recently dealt with a very similar situation and upheld a finding of contempt. In Goddard, the judge held that is was inappropriate for the mother of a 12-year old child to have the impression that she could start deciding at the age of 12 whether she wished to continue with access to her father. The Court held that refusing to abide by the access order by leaving it up to the child and “effectively abandoning her parental authority on the issue of access” and allowing the behaviour of the child to sometimes result in positive consequences for her justified a finding of contempt. The finding of contempt was justified because of the history of the case which had shown that alternative approaches were of no effect.
Once the Court has determined that access is in the best interests of the children, Justice MacLeod indicated that the parent cannot leave the decision to comply with the access order up to the children. The parents are obligated to do all that they reasonably can to comply with the Order.
Justice MacLeod made a finding for contempt against the mother in this case. She had continued to impede and limit access. This type of contempt was sanctioned in Goddard. Even passively permitting the court order to be undermined without taking all reasonable steps to cause the children to comply is contempt under these circumstances.
The Court ordered that the mother is to comply with the terms of the court order and would be given an opportunity to purge her contempt.