“I concur the mother had a positive obligation to ensure Kaila be returned to the care of her father. However, parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can (my emphasis).
In Supple v. Cashman [2014] O.J. No. 2800 (Ont. S.C.J.), A.D. Sheffield, J. dealt with among other things, a notice of motion by a father seeking to find the mother in contempt of prior orders as she was not facilitating his access.
The parties’ teenage children did not wish to see their father. The father argued his estrangement was as a result of parental alienation by the mother and she was in contempt of court for not facilitating his access. The evidence however failed to establish the mother intentionally breached the access order. The mother had made attempts to facilitate access in the face of resistant teenagers.
At paragraph 17, J. Sheffield noted the following:
In making my order, I am also aware that the children in this case are entering adolescence. They are forming and voicing their own opinions and they are gaining the ability to enforce their opinions, as evidence by their adamant refusal to see their father despite the efforts of several adult relatives. It is a simple reality that, despite a court order, teenagers are likely to seekout residency as it suits their desires and to “let their feet do the talking”.
Sheffield discussed the elements for a finding of civil contempt at paragraphs 31-34 as follows:
With respect to the third requirement, the court in Brookes v. Vander Muelen (1999), 1999 CanLII 14292 (MB QB), 141 Man. R. (2d) 25 (Q.B.) noted that the “standard of intention is knowledge of the reasons for the order and contravention of the other”. Wilful disregard will count as intention, but casual, accidental or unintentional acts of disobedience are insufficient for a finding of contempt.
Evidence of contempt in family matters should be “clear and unequivocal”. The courts are reluctant to make findings of contempt where a parent can show that she acted in the best interests of the child and not with the intention of disobeying the court’s order out of self-interest: Brookes, supra.
In Geremia v. Harb (2007), 2007 CanLII 1893 (ON SC), 73 W.C.B. (2d) 395) (Ont. S.C.J.), Quinn J. discussed the efforts which a custodial parent must exert to honestly attempt to comply with a court order that children attend access visits with the non-custodial parent. He stated, at paragraph 44:
Where a child should be physically forced by the custodial parent to go on an access visit depends on the facts of the case. Certainly, the force used should not be such as to cause physical harm to the child. And, although the specter of emotional harm is more problematic, a custodial parent would be advised to ensure that the evidence supports such a risk before declining to physically force the child to abide by an access order for that reason. 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.
In Sickinger, supra, the court noted that a parent does not have to force a child to go with the other parent but should “require” the child to do so. Failure to require the child to attend access visits is considered contempt.
In Godard v. Godard 2015 ONCA 568, the Appellant mother appealed an order of the motion judge, finding her in contempt of court as she was not facilitating access to the father. In particular, the mother felt there had been insufficient proof to satisfy the judge beyond a reasonable doubt that she willfully disobeyed the access order as the judge agreed the appellant had made some efforts to encourage their 12-year old daughter to see their father.
The court rejected this argument and stated at paragraphs 28 and 29:
Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathrust, (2008), O.J. No. 4734 (Ont. S.C.J.) at para. 8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 Can LII 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 CanLII 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup. Ct.).
No doubt, it may be difficult to comply with an access order, especially aschildren get older. Parents are not required to do the impossible to avoid a contempt finding. They are however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and willful disobedience of the order from the appellant’s failure to do all that she reasonably could; she failed to “take concrete measures to apply normal authority to have the child comply with the access order”.
I do note that in Godard the Ontario Court of Appeal noted the motion judge had previously advised the appellant in prior proceedings that more than mere encouragement was required if the child did not wish to attend for access. Despite their previous warning, the mother did not go beyond mere encouragement and attempt stronger forms of persuasion.