“Sometimes, the court is far too blunt an instrument to deal with the intricacies of the relationship between children and their parents. Resorting to a punitive measure or proceeding, like a contempt motion, isn’t going to yield the most satisfactory results when you are trying to repair or rehabilitate a relationship between a child and his or her parents,” says Ambrosino.
But Mississauga sole practitioner Ravinder Sawhney says the May 9 decision has caused confusion in the family law bar because it’s unclear to what extent, if at all, the court followed the precedent of Godard v. Godard, 2015 ONCA 568.
“Of course, contempt is not a remedy of first resort. That’s clear. This is not a case where this is coming up for the first time,” says Sawhney. “It’s unclear how [the court] reached its decision that there were overriding or palpable errors…it makes the decision less useful because obviously a practitioner would use all decisions that were available, including Ruffolo. But by doing that the court creates a conflict between Ruffolo and other decisions, and one wonders why the other decisions were not either followed or distinguished.”
The case centres on three findings of contempt, including that the mother didn’t give the father their children's summer activity schedule on time in 2012 through 2015. It also says she did not allow the father access on Easter weekend in 2015 and that father couldn’t see his son on his birthday in October 2015.
“[W]here the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court's assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged,” the judges wrote.
The parents were supposed to exchange a summer schedule so the father could identify when to take a two-week vacation with the kids each summer, while the incident on Easter occurred because the mother “did not confirm by email that she would in fact make the children available.”
Unlike the lower court, the court of appeal said that the record did not support findings of contempt. For example, the appeal court noted that the mother was not present at the school on the disputed day of the son’s birthday and there was no evidence that she had told the son not to visit his father that day. At Easter, the judges wrote, “at best, the appellant did not provide a timely response to the respondent's emails and she may not have agreed to a different arrangement.”
“The motion judge did not address important background in his decision, namely the appellant's explanation that the respondent had not regularly exercised his access rights for years. 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,” wrote the panel of judges, which included justices David Doherty, Paul Rouleau and David Brown.
The panel wrote in the decision that “contempt orders should not be so readily granted by motion judges,” citing Supreme Court of Canada decision Carey v. Laiken. The panel awarded costs of $7,500 to the mother.
Sawhney says the new decision will make it harder to apply the previous 2015 Godard decision, when the court found that a child’s refusal to visit the other parent “had sometimes resulted in positive consequences for her” and that the parent “has effectively abdicated her parental authority on the issue of access.”
“The court of appeal even said that she didn’t respond on time but she probably had the children available, nevertheless, for pick up. Well, you do have to respond in time. How should a parent know whether he should travel across the city to see the children if you don’t respond?” says Sawhney.
Amy Voss, an associate who also worked on the case, says the new decision shows there isn’t a straight line between a parent’s lack of access and contempt by the other parent. She said the Godard case was “entirely different on the facts.”
“The motion judge’s decision relies on that decision to ground part of it and, in so doing, really found our client, the appellant, in contempt for not facilitating access, whatever that might mean, imposed on her obligations that were nebulous,” says Voss. “We shouldn’t all jump to contempt. It’s not a tool to help access to go forward; there is a specific test there.”