Author: dawi

“In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate.   A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator.   In addition, co-operative arrangements may lead to opportunities for further family violence.  To help courts assess the impact, severity and risks of family violence, s.16(4) provides a non-exhaustive list of additional criteria.

Subsection 16(4) provides the following in respect of factors relating to family violence.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or

whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family         member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.”

         Bell v. Reinhardt, 2021 ONSC 3352 (CanLII) at 15-16

“This is a classic example of why there are exceptions built into the SSAGs.  Where the SSAG formula generates results that are inconsistent with the objectives of the Divorce Act or the Family Law Act, an appropriate result is achieved by departing from the formula, for example:

a.   For short marriages, that can involve large compensatory claims that are disproportionate to the length of the marriage (SSAGs, c. 12.5); and

b.   Where there is a prior agreement, the SSAGs cannot be used to override an existing agreement (SSAGs, c. 5.2).

In short term marriages, support may be required to alleviate economic loss, such as when one spouse moves across the country (or from another country) to marry and has given up a job or business.  These types of circumstances can also bring the situation under the basic needs/hardship exception of the SSAGs.  Compelling financial circumstances at the interim stage may dictate a higher amount of support for a transitional period:  Divorce Act, s. 15.2(6)(c), and SSAGs, cc. 10.1 and 12.7.

An agreement, such as the Sponsorship Agreement that includes a promise by the Applicant to support the Respondent for three (3) years, is also a relevant factor in deciding spousal support.  The existence of such an agreement can create a reasonable expectation that the wife in this case would receive financial assistance from her husband: M. (O.) v. M. (N.E.), 2003 BCPC 99, 40 R.F.L. (5th) 189, and F.Y. v. F.F.G., 2005 MBQB 36, 16 R.F.L. (6^th) 420, at para. 43.”

         Khan v. Irum, 2021 ONSC 3314 (CanLII) at 19-21

“I agree with the observations of Forgeron J. in MacNeil v. Playford, 2008 NSSC 268 as follows:

[10] Parental conduct, including domestic violence, may affect the ability of a parent to provide proper care, nurture and example to his/her child.  Domestic violence demonstrates an inability to problem solve in a healthy manner.  Domestic violence shows the absence of respect and dignity for the other parent.  Domestic violence demonstrates a reactive personality with poor impulse control.  Domestic violence is emblematic of poor parenting skills.

[11] Domestic violence will usually impact on the court’s determination as to whom should be assigned primary care of a child.  This is one factor, albeit a significant one, which determines the best interests of the child.  The seriousness of the assaults, the frequency of the assaults, the circumstances of the parties, and the circumstances of the child, all must be examined and balanced in determining the best interest of the child.”

         Baran v. Baran, 2019 ONSC 2653 (CanLII) at 53

“The trial judge recognized that Kerr v. Baranow was decided within the context of common-law relationships.  He also knew that, in the present case, the parties had been married. Nonetheless, he understood that this court’s decision in Martin v. Sansome, 2014 ONCA 14 (CanLII), 118 O.R. (3d) 522, mandates that such an approach be followed for married couples, as well as those in common-law relationships. At para. 44 of his reasons, the trial judge states, “the first step must be the determination of whether or not the elements of a joint family venture exist and then determine whether or not there is fair compensation after reviewing the calculations in accordance with the scheme set out in the FLA for equalization of property.”

In my view, the trial judge erred by beginning his analysis with the question of joint family venture. He should simply have had recourse to the FLA. This court’s decision in Martin does not suggest otherwise.

In Martin, the trial judge concluded that the farm business was a joint family venture and awarded the wife a constructive trust interest in it. This court set aside the trial judge’s determination and replaced it with a calculation of the wife’s entitlement under the equalization provisions of the FLA.

At para. 63 of Martin, Hoy A.C.J.O., writing for the court, explains that s. 5(7) of the FLA makes it clear that the express purpose of the FLA equalization provisions is to address the unjust enrichment that would otherwise arise on marriage breakdown.

She then refers to para. 66 of McNamee v. McNamee, 2011 ONCA 533 (CanLII), 106 O.R. (3d) 401, in which this court stated that, “in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the [FLA]”.

At para. 66 of Martin, Hoy A.C.J.O. concludes,

if unjust enrichment as the result of a marriage has been found, and it has been determined that monetary damages can suffice, the aggrieved party’s entitlement under the equalization provisions of the FLA should first be calculated.

For these reasons, it was an error for the trial judge to begin his analysis by considering the possible existence of a joint family venture. For married couples, application of the FLA equalization provisions is the starting point for addressing inequities arising from marriage breakdown.”

            Halliwell v. Halliwell, 2017 ONCA 349 (CanLII) at 65-71

“In proposing an equal time-sharing parenting schedule, Michael did not focus on the children’s needs or best interests. Rather, he proposed an equal-time sharing schedule on the basis of what he saw as his right to have maximum time with the children. There is no presumption of equal time-sharing of children after a child’s parents separate. Section 24(9) of the Children’s Law Reform Act provides that a child should have as much time as possible with each parent. Section 24(9) does not override the best interests test contained in s.24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. It is noteworthy that Michael addressed his request for equal time with the children on the basis of his perceived right to equal time and not time on facts, which according to him, demonstrated that the children should be in his care 50% of the time.

Michael did not support his request for an equal time-sharing schedule on the basis of evidence, which, according to him had demonstrated that it would be in their best interests to be in each party’s care 50% of the time.  Section 24(9) of the Children’s Law Reform Act requires that the Court determine what “as much time as possible with each parent” means where parents disagree on the amount of time it would be in the children’s best interests to spend in their respective care.”

         Ammar v. Smith, 2021 ONSC 3204 (CanLII) at 62-63

“In Van v. Palombi, 2017 ONSC 2492 (Div. Ct.), the Divisional Court set out the legal principles governing the exercise of judicial discretion to strike a party’s pleadings. The court stated that these “three-pronged principles” are well-established in the case, citing several decisions of our Court of Appeal: at para. 31. The court stated the legal principles as follows:

a.   Is there a triggering event justifying the striking of pleadings?;

b.   Is it appropriate to strike the pleadings in the circumstances of the case?; and

c.   Are there other remedies in lieu of striking pleadings that might suffice?

While striking a party’s pleadings for non-compliance is a remedy available to the court, it is to be reserved for only the most serious and exceptional cases. It is to be used sparingly and with great care and even reluctance.  See: Stulberg v. Batler, [2009] O.J. No. 4780, 78 R.F.L. (6^th) 199 (Ont. C.J.), reversed on other grounds 2010 ONSC 5299, 94 R.F.L. (6th) 375.

The Ontario Court of Appeal noted in Ablett v. Horzempa, 2011 ONCA 633, [2011] O.J. No. 4391, that “the courts must use the utmost caution in resorting to this sanction due to the seriousness of denying a litigant their right to participate in the court process. This is a drastic remedy of last resort which is restricted to particularly egregious cases of deliberate, persistent non-compliance, total disregard for the court process, and failure on the part of the offending party to either comply with or adequately explain non-compliance.”

In Purcaru v. Purcaru, 2010 ONCA 92 (Ont. C.A.), [2010] O.J. No. 427), the Ontario Court of Appeal emphasizes that special care must be taken in family law cases,

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. As this court said at p. 23 of Marcoccia v. Marcoccia 2008 ONCA 866 (CanLII), (2009), 60 R.F.L. (6^th) 1 (Ont. C.A.), the remedy of striking pleadings is “a serious one and should only be used in unusual case”. The court also explained at p. 4 that the remedy imposed should not go “beyond that which is necessary to express the court’s disapproval of the conduct in issue.” This is because denying a party the right to participate at trial may lead to factual errors giving rise to any injustice, which will erode confidence in the justice system.”

Sheresht v. Abadi, 2021 ONSC 3161 (CanLII) at 32-35

“In Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at paras. 46-48, Abella J., writing for the court, outlined some of the important principles to be considered in reviewing discretionary orders in the family law context:

[C]ontractual autonomy … depends on the integrity of the bargaining process. Decisions about what constitutes an acceptable bargain can only authoritatively be made if both parties come to the negotiating table with the information needed to consider what concessions to accept or offer. Informational asymmetry compromises a spouse’s ability to do so[.]

…

[A] duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances….

…

Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain. It also helps protect the possibility of finality in agreements. An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties…. [Internal citations omitted.]

Rule 13 of the Family Law Rules provides for extensive financial disclosure, and an ongoing duty to correct or update documents. Rule 13(15) provides that “[a]s soon as a party discovers that a document that he or she has served under this rule is incorrect, incomplete or out of date, the party shall serve on the other party and, if applicable, file, a corrected, updated or new document, as the circumstances require.

…

The motion judge found that Mr. Dowdall knew, at the time he accepted the October 2019 offer, that he would soon earn a much greater salary. This finding is unchallenged and undisturbed on appeal. Given this finding, we agree with the motion judge’s conclusion that Mr. Dowdall did not act in good faith and breached the Family Law Rules, in particular r. 13(15), by failing to disclose the fact that he intended to accept a new job at a significantly higher salary before accepting the October 2019 offer.

…

Finally, we disagree with Mr. Dowdall’s suggestion that setting aside the settlement agreement will “promote litigation and encourage litigants to question, contest, and refuse to be bound by accepted offers without first asking more questions and demanding further disclosure.”

On the contrary, as stated by Abella J. in Rick, disclosure is fundamental to the just resolution of familial disputes. Setting aside a settlement brought about through intentional and material non-disclosure protects confidence in r. 13 disclosure obligations, which in turn encourages settlement. Where both parties have access to the relevant and material information and full disclosure is provided, as required by the Rules, litigation will be minimized. Courts are not inclined to interfere with settlements reached between parties, so long as there has been full and frank disclosure and the opportunity to obtain independent legal advice.”

         Dowdall v. Dowdall, 2021 ONCA 260 (CanLII) at 22-23, 27, 33-34

“Undertakings given at discoveries confer a presumption of relevance and propriety, including proportionality.  In Towne v. Miller, (2001), the court noted that an undertaking is an acknowledgment that a question is proper and that the subject matter of the undertaking is relevant.  Therefore, counsel should not be permitted to renege on a production undertaking where he later comes to believe that the document is not relevant.”

Ahmadi v. Heydari, 2018 ONSC 2682 (CanLII) at 50

“The caselaw is clear that this is a three part test reflected by the following subheadings: see the leading case of Drygala v. Pauli, 2002 CanLII 41868 (ONCA) at paragraph 23.  Good recent summaries of the factors to be considered and the steps in the analysis are set out in Tillmans v. Tillmans, 2014 ONSC 6773, Pey v. Pey, [2016] O.J. No. 1994 (S.C.J.), and Oyewole v. Adepoju, 2019 ONCJ 111.

The first part of the test is establishing whether the spouse is intentionally under-employed or unemployed.  As a general rule, a payor cannot avoid a support obligation by a self-imposed reduction of income (Drygala at paragraph 38).  Choosing to earn less than one is capable of earning is intentional under-employment (Drygala at paragraph 28).

The onus is on the spouse claiming imputation to establish an evidentiary foundation for intentional unemployment or under-employment (Berta v. Berta, 2015 ONCA 918 at paragraph 63).  Once established, the burden shifts to the purported unemployed or under-employed spouse to establish that the decision was justified in a compelling way (Riel v. Holland (2003), 2003 CanLII 3433 (ON CA), 67 O.R. (3d) 417 (Ont. C.A.) at paragraph 23) and was reasonable, thoughtful, and highly practical (Pey v. Pey, at paragraphs 88 to 91).  As noted in Pey, not all career decisions which result in reduced income will be unreasonable.

If there is a finding of intentional under-employment or unemployment, and if applicable, the under-employed or unemployed spouse has the burden of establishing that the decision was required by (1) the needs of any child of the marriage or any child, or by his or her reasonable (2) educational needs or (3) health needs.

If there is unjustified intentional under-employment or unemployment, the last step is to determine what if any income is appropriately imputed in the circumstances.  The onus is on the spouse claiming imputation to establish the evidentiary foundation for the amount sought to be imputed (see Berta above).  There must be a rational basis underlying the selection of an amount (Drygala at paragraph 44).  Drygala sets out considerations at paragraph 45:

45.   When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97 (CanLII), 14 R.F.L. (5^th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

Importantly, as noted in paragraph 46 of that decision as well as in Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (Ont. C.A.) at paragraph 38, the amount of imputed income can also be based on the payor’s previous earning history, applying an appropriate percentage.  There are numerous examples of this in the jurisprudence: see Olah v. Olah (2000), 2000 CanLII 22590 (ON SC), 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien (2001), 2001 CanLII 28136 (ON SC); Vitagliano v. Di Stavolo (2001), 2001 CanLII 28202 (ON SC), 17 R.F.L. (5^th) 194 (Ont. S.C.); Zagar v. Zagar, 2006 ONCJ 296 (CanLII); Laing v. Mahmoud, 2011 ONSC 4047 (CanLII); Thompson v. Gilchrist, 2012 ONSC 4137; Stoyko v. Delorome, 2013 ONSC 4232; Walts v. Walts, 2016 ONSC 4777; and Woodenfren v. Woodenfren, 2018 ONSC 4583.”

            McNeil v. Dunne, 2019 ONSC 2528 (CanLII) at 48-53

“Counsel for the Respondent cited a number of cases where courts have addressed how a parent might respond to a recalcitrant teenager or older child who is the subject of a court order and who does not wish to comply with that court order.

Those cases include:

Godard v. Godard, 2015 ONCA 568 (CanLII), [2015] O.J. No. 4073 (C.A.)

In this case, the original motion judge had found ample evidence of failure on the part of the custodial parent to require her 11-year-old child to attend access with her father. As the Court of Appeal noted, the motion judge found that the child was “under the impression that she could decide, starting at the age of 12, whether she wished to continue access” with her father.

While this was a contempt motion, which requires a higher standard of proof than a motion to compel compliance under subrule 1(8), the Court of Appeal rejected the Appellant’s submission that it was sufficient for the custodial parent to encourage the child to attend access in order to avoid a finding of a deliberate and wilful disobedience of a court order beyond a reasonable doubt.

The Court of Appeal addressed the issue of how parents might approach dealing with older children and having them comply with court orders as follows:

28  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“: (citations omitted)

29  No doubt, it may be difficult to comply with an access order, especially as children get older. 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. In this case, the motion judge inferred deliberate and wilful 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 parental authority to have the child comply with the access order”. (Bolding added)

Quoting the motions judge, the Court of Appeal addressed the submissions that a parent cannot force the child to comply with the court order, writing:

30…  [W]hat does the mother do when this child doesn’t want to go to school or doesn’t want to go to the dentist? What are her mechanisms? Right? … Does this child have an allowance? Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see dad before? Are there things she could do to force her to go short of the police attending at her house and physically removing her?

The Court of Appeal found that the mother “did not go beyond mere encouragement to attempt any stronger forms of persuasion.” As a result, the Court of Appeal dismissed the Appellant’s appeal from a finding that she was in contempt of the court order that the child attend access with her father.

Stuyt v. Stuyt, [2009] O.J. No. 2475  

In this case, the child who was the subject of the proceeding was 13 years of age. The parties had engaged in years of litigation over a number of issues including custody and access. The mother had custody of the children. There was a specific schedule when the children were to be in the care of the father. The evidence established that on several occasions the 13-year-old child simply vacated the residence of the mother and went to stay with the father. On some of those occasions, he did so despite direction from his mother that he remain at home. The court found that by allowing the child to remain in his care at times when he was supposed to be in the care of his mother, the father was in contempt.

Justice C.D. Aitken wrote the following about the father’s evidence that he tried to have the child follow the terms of the order:

44  The Respondent’s evidence is that on a number of the occasions in question, he attempted to convince Braden to return to the Applicant’s home but Braden refused. There is nothing in the evidence that lends any credence to the Respondent’s evidence that he tried, in good faith, to persuade Braden to return to the Applicant’s home but the Respondent could not convince him to do so. The Respondent’s behaviour belies this assertion.

45  There is no evidence from the Respondent that he actually told Braden that he had to return to the Applicant’s home on any of the occasions in question. There is no evidence that he actually took Braden back to the Applicant’s home (via the intermediary) on any of these occasions (aside from the night of May 6th, when the Respondent returned Braden hours later). There is no evidence that the Respondent took any disciplinary action against Braden for his refusal to abide by the access regime to which both the Applicant and the Respondent had agreed. He did not ground him. He did not remove any privileges. He did not impose any sanctions for disobedience to parental instructions. On the contrary, Braden was rewarded for being at the Respondent’s farm instead of the Applicant’s home. (Bolding added)

Justice Aitken continued:

52  In order to meet his own needs of wanting Braden living with him, the Respondent is undermining Braden’s respect for the Applicant, for the law, for the courts, for the police, and for authority in general. Heaven help Braden as he moves through his teenage years and his years as a young adult if this is the message he is receiving from his father.

…

54  I join in the chorus along with several of my colleagues who have observed as follows.

A parent has some positive obligation to ensure that a child who allegedly resists contact with the other parent complies with the existing access order. (Hatcher, supra, at para. 27; Quaresma, supra, at para. 8)

A parent governed by an access order is not entitled, in law, to leave access up to the child. (Hatcher, supra, at para. 28; K.(B.) v. P.(A.), [2005] O.J. 3334 (S.C.J.) at para. 24)

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 refuses to go to or stay at the home where he is supposed to be under an access order should be treated by the parent the same as a child who refuses to go to school or who otherwise misbehaves. The job of a parent is to parent. (Hatcher, supra, at para. 28; Geremia v. Harb, 2007 CanLII 1893 (ON SC), [2007] O.J. No. 305 (S.C.J.) at para. 44)

55  The Respondent cannot hide behind Braden’s wishes as a reason not to comply with the orders of Polowin J. Whether the Respondent or Braden agrees or disagrees with those orders, both must comply with them. It is the responsibility of the Respondent to show that he is the adult, he is the parent, and he will take appropriate steps to make sure that the access schedule in the orders is complied with. (Bolding added)

B.K. v. A.P., [2005] O.J. No. 3334  

In this case, the child was 11 years of age, and the father had a custody order. The mother refused to return the child to the care of the father after being required to do so by a court order and claimed in her defence that the child refused to live with his father. Justice Mackinnon wrote the following with respect to the mother’s position:

22  The situation is different with respect to the April 13, 2005 order. Not only has the mother not returned Charles to the father’s custody, she has not made any effort to do so. In her affidavit, she states several times that Charles refused to leave her home on February 13 and has remained in her de facto custody since, by his own choosing. While she states that she has continued to encourage Charles to follow the court order, the specifics given are with respect to encouraging Charles to visit his father, at Easter and Father’s Day. Notably, he did visit his father on both occasions. There is nothing in the mother’s affidavit to show that she told Charles about the April 13 order, and that he and she must comply with it. No effort to actually deliver him or send him to his father’s, as required by that order, has been made. The comments of Chadwick J. in Fenato v. Fenato, [1999] O.J. No. 3546 (S.C.J.) (QL):

para. 15 I find it hard to understand how a custodial parent cannot control or direct an 11-year-old child unless the parent is not making a sincere effort to do so. I would expect if the father had taken a firm and more supportive stand Dominic would have returned to his mother and these incidents involving the police may never have occurred. It certainly leads one to draw the inference the father has very little control over his 11-year old son. If this is indeed the case Dominic may be completely out of control as he enters his teenage years.

…

24  It is clear from reading her affidavit that the mother’s view is that Charles does not want to live with his father. It is equally clear that, given his wishes, she does not intend to comply with the court order that he do so. The law does not entitle Ms. B.K. simply to leave this up to Charles. I find Ms. B.K. in contempt of paragraph 1 of the April 13th order. (Bolding added)

Michener v. Carter, [2018] O.J. No. 2325  

In this case, the children were 13 and 15 years of age. They resided with their mother in Ontario. Their father resided in British Columbia. Access between the father and the children had dwindled to the point that they were refusing to speak with him or visit with him when he attended in Ontario for that purpose. The father brought a motion seeking an order that the court find the mother in breach of orders affording the father access.

Justice J.P.L. McDermot wrote:

33  What steps does a parent have to go through to ensure that access take place? In Jackson, Chappel J. suggested four requirements for the parents to ensure that access take place. In para. 63(d) of her decision, Chappel J. suggested an inquiry as to the following four factors:

i.   Did they engage in a discussion with the child to determine why the child is refusing to go?

ii.   Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?

iii.   Did they offer the child an incentive to comply with the order?

iv.   Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?(Godard, Supra.; Jackscha v. Funnell, 2012 CarswellOnt 10467 (Ont. S.C.J.)). (Bolding added)

…

40  Whatever reason the children do not want to see their father, however, the real issue is whether the mother is taking all reasonable efforts to ensure that the access order was complied with. In the present case, I do not believe that she has. Prior to the abortive February visit, Ms. Michener deposed that, “If the children do not want to spend time with him or call him, I am not going to “punish” or “impose consequences” and if this is what the respondent interprets the term ‘reprimand’ in paragraph 49 of his affidavit I think it is inappropriate.” It appears that the most that she is willing to do is to “encourage and promote the concept of having contact with their father regularly when they can and he is available.” Later, after the failed visit, the applicant says that “I did encourage the children and told them it was okay for them to go with their father to Toronto and I was in support of it.” When I asked counsel as to whether that was the only evidence of the applicant’s attempts to force the children to go on the access visit, he confirmed that that was it.

…

42  Absent from all of these things were the latter two things that Chappel J. suggested were necessary for proof of compliance with an access order affecting children who were ambivalent over a visit with their father. The applicant provided evidence of neither inducements nor disciplinary measures designed to enforce what both of these parents agreed was in the best interests of the children, which was a four-day visit with their father. Rather, Ms. Michener confirmed that she was not willing to impose any consequences on the children if they did not wish to go on a visit with their father; she said that the most that she is willing to do is to encourage the children to go on a visit with their father which is, frankly speaking, insufficient to answer the allegations that she is in breach of the February 1 consent order.

…

44  I would firstly note that the reasons why the children do not want to go are not necessarily relevant to an enforcement motion where what is in issue is the efforts made by the responding party to make the access happen. It must be remembered that these parties agreed on two separate occasions that a visit between the children and their father was in the children’s best interests. Ms. Michener cannot now be heard to say that the visits may not, in fact, be in the children’s best interests when the parties previously agreed that they were. (Bolding added)”

Young-Marcellin v. Marcellin, 2021 ONSC 3026 (CanLII) at 145-157