Adam Black on why conflict doesn't always end with a court order for separating couples in his latest column in the National Post

Parenting issues can be the most arduous and protracted component of the complex matrix of issues that must be resolved when a couple separates. For some, the conflict does not end after they reach an agreement or a judge makes an order.

In May of this year, Justice Judy Fowler of Ontario’s Superior Court of Justice dealt with one such dispute, hearing motions brought by two parents who each alleged the other failed to comply with a court order which set out parenting arrangements for their children. Both parents asked Justice Fowler to apply the big stick of litigation by finding the other parent to be in contempt of court.

At issue was a provision in the court order covering the children’s residential time with each parent.

“Transitions on a school day shall take place at the school with the parent whose time with the children is ending delivering the children to the school and the parent with whom the children will be with picking up the children,” the order read. “If not a school day, the parent who has the children will deliver the children to the other parent’s residence at 8:00 a.m.”

In the incident in question, the father said the mother was unable to pick up the children immediately after school for a scheduled transition. Rather than the children being in the care of a third party, the father believed the children should be in his care, and he told the mother that he would pick the children up after school and return them to the school that evening. The mother disagreed and told the father not to pick up the children. The father picked up the children anyway and the feud quickly made its way to the courtroom.

Justice Fowler found the father to be in contempt. Justice Fowler correctly considered the three widely-accepted elements that must be proved beyond a reasonable doubt in order to arrive at a finding of contempt: 1) the order must clearly state what should and should not be done; 2) whether the father had knowledge of the order; and 3) whether the father intentionally committed the prohibited act. The simplicity of the facts surrounding the alleged contemptuous behaviour no doubt permitted Justice Fowler to make short shrift of the finding of contempt.

The father appealed. On Oct. 7, the Court of Appeal for Ontario released its decision. The panel of three judges agreed with the father. According to the panel, Justice Fowler erred by “failing to consider whether she should exercise her discretion to decline to make a finding of contempt” notwithstanding her finding that the three elements of contempt were established.

The Court of Appeal makes it clear that a judge must engage in the “last, crucial step” of determining if a finding of contempt is appropriate in the circumstances. Quoting from a decision of the Supreme Court of Canada, the panel of judges noted that the “contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders.” Further, “a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case.”

Notably, the spirit of this decision is somewhat at odds with a 2015 decision of the Court of Appeal for Ontario in which that court confirmed Justice Robin Tremblay’s decision to find a mother in contempt of a parenting order. According to the mother in that case, she had “done her best to facilitate the father’s access, but the child had persistently refused to see the father.” In concluding that the mother was in contempt of court, the Court of Appeal noted that the “history of this case belies the adequacy of alternate approaches” since the mother had “a history of trying to limit or terminate the father’s access to the child.”

Returning to the recent case, the Court of Appeal highlighted that the children’s best interests are “the paramount consideration when the issue raised in the contempt motion concerns access to children.” In that context, the Court of Appeal noted that “it is in the best interests of the children to encourage professional assistance as an alternative to making a finding of contempt too readily. Indeed, here, Justice Fowler encouraged the parties to continue working with a family mediator.”

The court’s focus on alternate approaches to a finding of contempt is consistent with recent changes to the federal Divorce Act that will come into effect across Canada in July 2020. Those changes include a court’s ability to direct parents to participate in an alternate dispute-resolution process such as mediation.

Parents who find themselves snared in a dispute over the implementation of their parenting arrangements should consider an out-of-court process. One such process is the appointment of a parenting coordinator who can call balls and strikes on an as-needed, immediate basis. Such an appointment may help avoid being on the receiving end of a motion for contempt.

This article was originally published in the National Post.