A high conflict family dispute was the background for an Ontario judge to make contempt findings against a mother who allegedly failed to provide access/parenting time in accordance with a court order dated September 2015. (Ruffolo v. David, 2019 ONCA 385)
The child’s father presented 37 alleged breaches of ten separate access/parenting orders. The application judge found three instances of breaches that warranted contempt findings:
1. The appellant failed to provide the children’s summer activity schedule by May 1, from 2012 to 2015;
2. The appellant did not allow the respondent to have access to the children during the Easter weekend in 2015; and
3. The appellant denied the respondent access to his son, Michael, on his birthday in October 2015.
On appeal, the three contempt findings were dismissed but first, the Court of Appeal considered several principles of law germane to contempt cases.
The Court noted that an appeal of a contempt finding should not usually be heard until the sanction for the contempt has been made. In this case it had been close to three years since the contempt finding had been pronounced, but no sanctions hearing had yet occurred. The Court confirmed that until a chambers judge has disposed of the application, including the sanction, the appeal court will not know how serious the judge considered the contempt to be.
Nonetheless, because both parties, acting on their own, urged the court to hear the appeal, the Court did so.
In considering the merits of the appeal the Court pointed out the “extremely short” reasons and commented that the findings did not appear to be based on affidavit material, but on the appellant’s submissions during the hearing. The Court also addressed the lack of background information in the reasons and the application judge’s failure to include pertinent details, such as the respondent’s repeated failure to regularly exercise access saying:
“This is significant, as there would not have been strict compliance with the terms of the order for much of the period between 2011 and 2015.”
The Court’s dismissal of the contempt findings centred on the lack of an evidentiary foundation to support the allegations made. For example, the Court found there was insufficient evidence that the mother had prevented the father from exercising the access he was entitled to, either by not providing notice to the mother of his intention to see the child, or by the child refusing to see the father with no proof that the mother stood in the way of the scheduled access time.
Finally, the Court emphasized the discretionary nature of contempt proceedings and repeated the time-worn admonition that contempt proceedings are a last resort, particularly where the best interests of a child are paramount.
Far more satisfactory is to rely on the enforcement provisions of provincial legislation, widely expanded in British Columbia’s recent Family Law Act where appropriate punitive remedies can be fashioned without resorting to contempt.
Lawdiva aka Georgialee Lang