Sign up to receive Benmor's Guide to Money & Divorce

o o o

What is a parent to do if the other parent obstructs their relationship with the child?

Judges have the power to enforce court orders for access in Family Court. Specifically, a custodial parent who willfully disregards a court order may be found in contempt of a court order. A finding of contempt is considered quasi-criminal in nature and could result in serious penalties, including imprisonment. As a result, the person accused of contempt is provided with many safeguards. The custodial parent must be personally served with notice. Contempt must be proven ‘beyond a reasonable doubt’, just like with other crimes. The custodial parent is entitled to remain silent and not testify. The access parent must prove that the contempt was a willful violation of the court order.

In many of these cases, Family court judges are interested in ascertaining why the custodial parent acted in such a way. If the parent willfully denied the other parent access to the child, the judge has the power to order make-up access, fine the custodial parent, order costs against the custodial parent, transfer custody of the child to the access parent and even have the custodial parent arrested and incarcerated. These decisions are largely dependent upon the circumstances in each case.

Even in some cases where the custodial parent acted willfully to disobey the court order, a judge may act with leniency if penalizing the custodial parent will cause emotional harm to the child. That is what occurred in a recent decision of the Ontario Court of Justice. In A. (R.G.) v. C.(K.A.) [2011] O.J. No. 2496, the judge ultimately denied the father access to his 10 year old son even though the custodial parent breached the court order for access to deny the child a relationship with his father. The case had been before the court for 4½ years without any access having occurred. This was notwithstanding the father’s protracted efforts to see his son. Throughout the litigation, the mother refused to comply with the judge’s orders and thwarted the father’s access including denying parentage, threatening criminal harassment charges and making unproven allegations of sexual abuse. The judge even assigned the child his own lawyer and directed that his doctor reintroduce the child to his father. All these efforts failed as the mother refused to bring the child to the appointments. As a result, the child’s views were unknown to the judge and the experts, who were unable to determine what was in the child’s best interest.

In the end, the judge found that the likelihood for a successful reintegration between the father and his son was very low. By then, the child had not seen his son for over 7 years and, as a result, the father was a stranger to his son. Moreover, the judge considered the adverse impact that further court proceedings or penalties would have on the child and determined that it would not be in the child’s best interests. Similarly, it noted that any orders made would likely be ignored by the mother, thereby being futile.

This case raises an important debate in high-conflict custody cases. On one hand, judges must consider what effect an order will have on the welfare of the child. On the other hand, judges cannot sanction a parent’s willful disregard of a court order regarding children.

In 1961, Mr. Justice Pearce stated in Attorney-General v. Harris:

“A breach with impunity by one citizen leads to a breach by other citizens, or to a general feeling that the law is unjustly partial to those who have the persistence to flout it.”

Disrespect for the law is a serious matter. The concern with this recent decision is that it may set a dangerous precedent by rewarding parents for taking matters into their own hands and disregarding the law.