Are you in contempt of an access order?

Failure to follow a court’s direction can cause you to lose some or all access to your child. Make sure you are not in contempt of an access order.

Ontario Superior Court of Justice changed an access order after a young boy’s father and stepmother involved him in their arguing (S. v S., 2019 ONSC 3214 (CanLII)). The father’s access was cut back from several days to four hours weekly, under supervision. Here’s what you need to know as a ex-spouse and parent.

When your children have three “parents”

S. v S. is evidence of what can happen when an access order is not followed.

The Ontario couple’s relationship began in 2000, waxing on and off until they married in 2014. In between, the father had a son, J., with another partner. Nevertheless, the couple and J. began living together in 2010 and, in 2012, the couple had children of their own. The couple split in August 2017.

J.’s natural mother died in October 2017, traumautizing her son, who found her body. Ten months later, J.’s stepmother applied to the court to have J. spend five days every second week, and any other time the couple agreed on, with her and his brothers. J. lived with his father, his primary caregiver, the rest of the time.

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His stepmother returned to court nine months later, in April 2019, bringing a motion for contempt against J.’s father. The court heard the father had breached his access and communications order. The father countered, asking the court to change J.’s access schedule. The request was dismissed and the father given seven weeks to show he could abide by the court’s orders.

Not complying can spell trouble

The case could have stopped there. Giving the father time to “purge” the contempt order was an opportunity to show he could do better. Instead, when the court reconvened in May 2019, the stepmother sought a 10-day prison term for her ex-spouse, along with court costs. She argued he had not changed his ways. Her ex disagreed. Even if he had not purged the order, he said, he should only pay a fine or penalty, not go to jail and should have his court costs paid. The Office of the Children’s Lawyer (OCL) was called in for their opinion.

So how did this couple get this far in their dispute?

Contempt, as the court pointed out, is a serious and “quasi-criminal” charge. Quasi-criminal means the court can punish someone as if their actions, or failure to act, were criminal. The judge found this father intentionally violated the court’s clear orders about his access to and communications with J. He was

concerned the parents argued in front of J. and discussed adult conflicts with the 11-year-old. He determined the father also failed to listen to the OCL.

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Contempt of An Access Order

Courts often reach back to other cases for guidance. The judge cited a family law case on contempt of an access order (Surgeoner v Surgeoner, (1991), [1992] OJ No 299 (Ont Gen Div) at paras 6 and 7):

“In this environment (of bitterness and betrayal) it is all too easy for a spouse to believe that he or she “knows what is right”, even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated.”

contempt of an access order
contempt of an access order

For the father, the issue was one of his son’s desire not to visit his stepmother. The father explained he had discussed access with his son, but J. wanted to spend more time with his friends and go to his stepmother’s whenever he pleased. The mother called foul. She said her ex discouraged J. from visiting and shared the couple’s often angry text messages with the boy. More angry words were exchanged when the son and father phoned the stepmother in May 2019. Court heard the father told his ex J. did not want to be around her. J. called her foul names on the phone, the stepmother said.

When the Office of the Children’s Lawyer gets involved

With the OCL now involved, J. was asked his wishes and preferences. After going back and forth with the OCL investigator, he recounted the phone exchange. J. said he only wanted to go to his stepmother’s to see his brothers. His behaviour at school had declined and he had been expelled.

Despite J.’s feelings toward his stepmother, the judge found the father had not done what was necessary to fix the contempt finding. He ruled the father had interfered with the stepmother’s access to J. and involved him in adult conflicts by showing J. the text messages. The judge accepted that J. was upset. Like the OCL, he felt the boy had taken sides to stop the couple from quarrelling.

The deciding factor in family law is the best interests of the child. In this case, the court sought to restore the stepmother’s access rights and penalize J.’s father. A remedy was also needed that sent a message to other parents that “flouting” family law would not be allowed.

What the court decided

First off, the judge rejected the stepmother’s request to strike the father’s evidence from the court record. With future court dates planned, the court felt it was important to have all the facts on file.

Ruling that the couple’s conflict was hurting J. at home and school, the court ordered that it be stopped. Or the Children’s Aid Society would be asked to intervene. The couple was ordered not to communicate directly and the stepmother asked to name a third party as a go-between. The father’s access to his son was limited to four hours weekly, at a youth centre or with someone present. And, he was prevented from contacting J. directly, by phone or text and from going near his ex’s home. The father also had to keep the peace, be of good behaviour and abide with court orders. Court costs were awarded to the stepmother.

Failing to follow an access order can cause you to lose valuable time with your children. If your ex is not doing what the court ordered them to, contact ClearWay Law. Our family lawyers can help you take steps to explain your point of view to a family court judge. Call us toll-free at 1-844-466-6529 or email info (at) clearwaylaw.com.

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