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Posts from the ‘Contempt’ Category

Cousin Steals from Own Family Member – and Gets Slapped with $5,000 in Punitive Civil Damages

Image result for home alone cousin

Cousin Steals from Own Family Member – and Gets Slapped with $5,000 in Punitive Civil Damages

Although it still technically relates to “family” matters, a recent Ontario civil case was still interesting even though it falls outside the realm of the topics I normally cover.

The court set the stage:

On the morning of Wednesday, June 8, 2011, [the victim] left the house at 8:30 a.m. for his regular golf game. His wife … went to play tennis. Sometime between 9 a.m. and 11 a.m., someone entered the house, proceeded to [the victim’s] home office, used a key hidden in a briefcase to open a locked armoire, and removed jewelry, cash, and a Personal Video Recorder (PVR) which was part of a home security system and was hidden in a closet.  Nothing else in the house was disturbed.  The [victim] contacted the police the same day, and retained a private investigative agency two days later to attempt to locate the jewelry and find the perpetrators.

It turned out to be an “inside job” by the victim’s own first cousin, Esposito, and the victim’s housekeeper.  The court detailed how the victim had hired and occasionally loaned money to Esposito, who had no source of regular income and admitted to a gambling habit.

At the civil trial brought by the victims to have Esposito held liable for conversion and damages, the court had no trouble disbelieving Esposito’s evidence.  Among other things, he initially denied outright that he had any phone conversations with the housekeeper, until his phone records were produced at trial.  These showed 139 calls up to the date of the theft (including 7 on the morning of the theft alone), and only 2 calls afterward.  The phone records also showed lengthy conversations with her that Esposito claimed not to remember, or could not adequately explain.

The court also found that Esposito had first-hand knowledge of the cousin’s daily routine, knew the layout of his home, and had an obvious motive (in the form of the gambling habit).  Especially with his shoddy credibility, the court readily found Esposito to have been either the culprit, or else the mastermind behind the theft.

After finding him personally liable for damages for conversation and trespass, as well as breach of confidence, the court ordered him liable for the value of the jewelry and sums of cash in various currencies.

But what was especially interesting about the case, was he court’s decision to impose a hefty award of punitive damages against Esposito in these circumstances.  The court wrote:

I award punitive damages given the intrusion on the privacy and security of Esposito’s cousin and his family, the important sentimental value of the jewelry which was made known to Esposito within six days of the theft; and the betrayal of a cousin and misuse of family ties.  [The victim’s] evidence was that he trusted Esposito because he was a family member. Esposito’s conduct must be denounced. I award $5,000 in punitive damages.

What’s interesting about this case is that it’s a civil matter – not a criminal one – and is designed to restore the victim to where he was pre-theft, through the award of damages.  Although the court has the right to impose punitive damages in appropriate cases, it’s a bit unusual to have a court increase the awarded damages to account for the fact that the victim and perpetrator were both members of the same family.

What are your thoughts on that?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Can a Parent be in Contempt When Kid Disobeys a Court Order?

Can a Parent be in Contempt When Kid Disobeys a Court Order?

In many of the child custody and access cases I write about, the central dispute boils down to the fact that the parents of the child are at odds in terms of what custody arrangements they want and how much access they should each have to the children.

But even once a court order is in place, the disagreements can continue, because the parents may be at odds over precisely what the order means, and how it should be complied with. In a typical scenario, the custodial parent will have failed to abide by the terms of a court order setting out specific custody or access, perhaps by keeping the child longer than ordered, or else by failing to facilitate the access rights of the non-custodial parent.

But what if the lack of compliance is because it’s the child – not the parents – who won’t co-operate? What if the child outright refuses to spend time with the access parent?

In a recent set of Blogs I talked about the concept of “contempt of court”, in family law proceedings especially. This remedy can be imposed on a parent who refuses to comply with a court order, or otherwise hampers the course of justice.

What may be surprising is that under Canadian law, in some circumstances a parent can still be held accountable for contempt of court even if it’s the child who thwarts the fulfilment of the court order. This is because of the legal principle that if there is a court order in place, the parent is under a duty to do all that he or she reasonably can in order to ensure that it is complied with. And a finding of contempt of court may follow if the other parent can establish, beyond a reasonable doubt, that the other parent failed to take all of those reasonable steps.

In short: the parent cannot simply leave questions of custody and access up to the child; otherwise it amounts to an abdication of parental responsibility. In an older case called Geremia v. Harb, Justice Quinn put it well when he said:

Undoubtedly, 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 on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

With that said, the contempt remedy is not imposed every time a parent is unsuccessful at coercing a child – particularly an older one – to comply with an order. Rather, the outcome on whether to make a contempt finding will be viewed by the court with its broader duty in mind: which is to balance the need to enforce court orders and to encourage a child’s contact with both parents versus respecting a child’s own wishes and safeguarding his or her needs, safety and well-being.

For the full text of the decision, see:

Geremia v. Harb, 2007 CanLII 1893 (ON SC)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

You Win Some, You Lose Some: Mother Still Ordered to Pay $400,000 in Legal Costs to Father

Unhappy Depressed Woman

You Win Some, You Lose Some: Mother Still Ordered to Pay $400,000 in Legal Costs to Father

This week’s case is not exceptional on its facts, yet it conveniently illustrates a few important ideas:

1) That Family Law litigation can have many ups and downs in terms of who is “victorious” at any given time;

2) That it’s easy to run up enormous costs in the course of trying to come out ahead; and

3) That courts are mindful of how that back-and-forth of litigation can detrimentally affect the children of the marriage.

The mother and father had three children together, aged 14, 13 and 12. Once the parents separated, they agreed that the children would live with the mother, with access to the father on a specified schedule.

However, a dispute arose as to whether the mother was complying with their deal; this led to the father bringing several motions for contempt. Next, there had to be a separate trial, lasting 19 days, to deal with the unwinding of the parties’ financial affairs; A custody-and-access hearing followed soon after, lasting another 22 days. A later review of those arrangements took a 23-day trial-like hearing that took 10 months to complete.

At this point, the father’s legal costs for these proceedings totaled about $400,000; given that he had been successful in terms of the outcome of the various proceedings, the trial judge made an order making the mother liable to the father for that full amount.

The mother then brought an appeal, not only of that costs award but also of the various unfavourable substantive rulings (including one that adjudged that her children had suffered “emotional abuse” at her hands in the preceding 2.5 years. This involved a finding that the mother fostered the children’s distorted reality of their father, based on her own fear and dislike of him).

The Appeal Court began its judgment this way:

Before dealing with the issues raised on the appeal, it is worth recalling for mother and father the bigger picture. The trial judge devoted 45 hearing days to their custody and access dispute. The 2013 Order reversed the custody of the children. More than two years then elapsed before the parties were ready to argue the appeal. During that time, the children have lived with their father. They are now 14, 13 and 12 years old, and they have lived the last seven years of their lives in the shadow of their parents’ litigation. The children are entitled to a stable childhood, not one marked by uncertainties over their living arrangements and contact with their parents resulting from the bitter dispute between mother and father.

The appeal record filed by the parties is voluminous. In the months prior to the hearing, the parties generated a blizzard of new paper with their competing motions for fresh evidence…

In reviewing the trial judge’s reasons, the Appeal Court found no fault with them overall: for example the trial judge’s factual finding that this was “an extreme case”, and that the children were suffering emotional abuse by the mother, was supported by the evidence. Still, for various complex reasons the Appeal Court did find that a review of the access arrangements was merited at this point (and suggested that the review should take no more than a few days – rather than the 20-plus days such a review had taken in the past). The mother’s access to the children was temporarily increased in the meantime.

This meant that in the appeal portion of the proceedings the mother had won some of her arguments; but the father had come out on top in others. In other words, success was divided; this played into the question of whether either of them should pay the legal costs of the other. Specifically, the mother asked the court to award her the full $207,886 she spent bringing the appeal, while the father asked for his costs totaling $124,440. In ruling on the costs issue, the Appeal Court wrote:

The parties enjoyed mixed success on the appeal and, as a consequence, mixed success in respect of the proceedings below. The fairest disposition of the costs of this matter is that the parties bear their own costs of the appeal, and I would reduce the costs payable by the mother to the father under the Costs Order for the proceedings below from $400,000 to $200,000, inclusive of fees, disbursements and taxes.

So even with a partial victory on the appeal, the mother was still on the hook to the father for more than $400,000. Even on a generous interpretation, it’s hard to call that a “win”.

For the full text of the decision, see:

Fiorito v. Wiggins, 2015 ONCA 729

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Who has to Prove Contempt of Court? – Part III

Contempt

Who has to Prove Contempt of Court? – Part III

A recurring topic in some of the recent Blogs has been the court-imposed “contempt of court” remedy (What is “Contempt of Court” in Family Law, Anyway – Part I, and Part II), and in particular those scenarios where a custodial parent has failed to abide by a court order requiring him or her to make the child available for the other parent to exercise access rights. In the face of the custodial parent’s steadfast refusal to comply, the court may (among its other remedies) make a finding of contempt, with the penalty being a monetary fine or even jail for the obstinate parent.

The availability of this remedy gives rise to a related question: which parent bears the burden to prove that that contempt has (or has not) occurred?

Is it the parent who claims to be fulfilling the order’s terms? Or is it the one whose legal rights are being thwarted by the other’s lack of compliance – or by inadequate efforts to get a child to comply?

The answer may surprise you: it’s the parent making the contempt accusation who must bring the proof. That means he or she has the burden of establishing that the other, uncooperative parent has actively breached one or more court-ordered obligations, or that the parent did not take all reasonable steps to make sure it is complied with (either personally, or by the child).

For the parent who does the accusing, this will involve providing the court with:

• the particular order that is claimed to have been breached

• evidence that the other parent knew about the order

• indications that the order clearly states what should and should not be done

• the precise day-to-day elements (from a practical standpoint) that would fulfil the requirements inherent in the order

• details as to the dates, times, and other specifics that show that the other parent has fallen down on the duty to comply with those requirements

• evidence showing the non-compliant parent disobeyed the order deliberately and willfully

• proof that the non-compliant parent had notice that a contempt finding was being sought against him or her

In the context of those difficult situations where the court order is being because the child is unwilling to cooperate, this obligation may seem especially harsh, because the parent asserting contempt must also show that the non-compliant parent has failed to take active steps to ensure the child complies. (These steps were the subject of an earlier Blog here.)

Because parents in such situations usually no longer live together, it may be challenging to identify and critique (from afar) the non-compliant parent’s shortcomings in this regard, at least to court’s satisfaction. This may not seem fair, because the “innocent” parent is being forced to marshal proof of the other parent’s default. It seems more reasonable that the non-compliant parent should be the one to come forward with all of the measures he or she took to try to coerce the child and satisfy the requirements under the order, and prove that there was no contempt. Yet that’s not how Ontario law works: it’s the innocent parent who must show that the other parent did not do what was required.

Seems like a difficult hurdle? It can be. Moreover – because a contempt hearing is considered quasi-criminal in nature – the burden of proof is high: these elements must be proven to the court “beyond a reasonable doubt” by the parent making the accusation.

See for example:

Jackson v. Jackson, 2016 ONSC 3466 (CanLII)

Funnell v. Jackscha, 2012 ONSC 4234 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

How Far Must Parents Go, to Ensure a Kid Complies with a Court Order?

access

How Far Must Parents Go, to Ensure a Kid Complies with a Court Order?

In many of the child custody and access cases I write about, the central dispute boils down to the fact that the parents of the child are at odds in terms of what custody arrangements they want and how much access they should each have to the children.

But even once a court order is in place, the disagreements can continue, because the parents may be at odds over precisely what the order means, and how it should be complied with. In a typical scenario, the custodial parent will have failed to abide by the terms of a court order setting out specific custody or access, perhaps by keeping the child longer than ordered, or else by failing to facilitate the access rights of the non-custodial parent.

But what if the lack of compliance is because it’s the child – not the parents – who won’t co-operate? What if the child outright refuses to spend time with the access parent?

In a recent set of Blogs, I talked about the concept of “contempt of court”, in family law proceedings especially. This remedy can be imposed on a parent who refuses to comply with a court order, or otherwise hampers the course of justice.

What may be surprising is that under Canadian law, in some circumstances a parent can still be held accountable for contempt of court even if it’s the child who thwarts the fulfilment of the court order. This is because of the legal principle that if there is a court order in place, the parent is under a duty to do all that he or she reasonably can in order to ensure that it is complied with. And a finding of contempt of court may follow if the other parent can establish, beyond a reasonable doubt, that the other parent failed to take all of those reasonable steps.

In short: the parent cannot simply leave questions of custody and access up to the child; otherwise it amounts to an abdication of parental responsibility. In an older case called Geremia v. Harb, Justice Quinn put it well when he said:

Undoubtedly, 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 on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

With that said, the contempt remedy is not imposed every time a parent is unsuccessful at coercing a child – particularly an older one – to comply with an order. Rather, the outcome on whether to make a contempt finding will be viewed by the court with its broader duty in mind: which is to balance the need to enforce court orders and to encourage a child’s contact with both parents while respecting a child’s own wishes and safeguarding his or her needs, safety and well-being.

For the full text of the decision, see:

Geremia v. Harb, 2007 CanLII 1893 (ON SC)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

What is “Contempt of Court” in Family Law? — Part II

dad

What is “Contempt of Court” in Family Law? — Part II

As we have reviewed previously, I set out the general legal principles behind the concept of “contempt of court” in family proceedings, which had been considered in great detail in the recent Ontario decision in Jackson v. Jackson.

The mother in that case had asked the court to declare the father in contempt, since she claimed he had breached the terms of prior temporary access orders and had thwarted her access in a long-standing campaign to gradually eliminate her from their two children’s lives.

After embarking on a detailed, sometimes historically-based consideration of the law and principles that underpin the contempt penalty in Canadian family proceedings, the court then turned to the more practical aspect: the specific, fact-driven legal tests that the mother had to meet in order to prevail in obtaining a contempt order against the father.

Specifically, the mother had to establish all of the following:

• That there was a valid, live court order that was to be enforced.

• That the father had actual knowledge of the order that the mother claims he breached.

• The order clearly and unequivocally states what should and should not be done.

• That, on the facts, the father disobeyed the order. (And there is no need to establish that he violated a specific term – it is enough for the mother to show that he disobeyed to the extent that it foiled the implementation of the court order).

• That the father disobeyed the order deliberately and willfully.

Moreover, the mother had to prove all these things, beyond a reasonable doubt.

Over the next 60 paragraphs of a very careful judgment, the court closely scrutinized the facts surrounding the various failed or unsatisfactory supervised visits, keeping in mind that the parents’ relationship had been turbulent and the separation was very acrimonious. (The mother had been criminally charged with assaulting one of the children, and which led to the supervised access order in the first place).

Overall, the court concluded that the father, while perhaps over-protective of the children and not sufficiently mindful of the mothers’ progress in addressing her parenting and emotional issues, was not in contempt within the meaning of the legal test. The necessary elements of the test were simply not made out.

For the full text of the decision, see:

Jackson v Jackson, 2016 ONSC 3466 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

What is “Contempt of Court” in Family Law, Anyway? – Part I

Daddy

What is “Contempt of Court” in Family Law, Anyway? – Part I

A recent Ontario family law judgment in Jackson v. Jackson contains a comprehensive look at a narrow topic: Contempt of court in family proceedings.

As part of their child custody dispute, the divorcing parents of two children had been to court several times, and various temporary access orders had been made. One of them required the father, who had custody, to make the children available to the mother for two-hour supervised access visits.

Some of the supervised access visits had gone ahead as scheduled; however, the mother complained about the father’s conduct in relation to three of them, where she felt her access had been thwarted or that he had not fully cooperated. She accused him of engaging in a larger campaign to frustrate her access rights and to alienate the children from her, and asked the court for an order finding him in contempt.

The father rejected the allegations, insisting that he had complied with the spirit of the orders, and denied trying to eliminate the mother from the children’s lives.

In this context, the court reflected on the general nature of contempt of court, observing it can arise whenever a person – whether a party to proceeding or not — does any act which may tend to hinder the course of justice or show disrespect to the court’s authority. It also includes obstructing or attempting to obstruct the administration of justice.

Examples may include:

• a lawyer failing to appear in court when scheduled,

• a witness refusing to be sworn or answer questions,

• insulting the court, and

• interrupting or being aggressive during proceedings.

It also includes:

• wilful breach of a court order,

• interfering with witness, counsel or juror,

• counselling perjury,

• fabricating evidence and

• breaching a court undertaking.

In family law proceedings, contempt motions are governed by the Family Law Rules, which in the right circumstances allows a court to make an order even if another penalty is available. As they relate to custody and access situations specifically, the court must also factor whether the breach of the order resulted not form the parent’s conduct, but rather from the child’s refusal to comply. (This in turns gives rise to complicated issues relating to how far a parent must go to insist or even coerce a child comply with the order so that no breach results, which will be the subject of another Blog.

Overall, the contempt remedy is designed to emphasize that court orders cannot be ignored or disobeyed. It reinforces the point that any wilful disobedience of court orders is a very serious matter that strikes at the very heart of the justice system. With that said – and since the penalty is a serious one – it must be used cautiously and with great restraint, but ultimately it is a matter for the court’s discretion.

In Part II I will examine the specific tests that the mother had to meet in the Jackson v. Jackson case, in obtaining an order holding the father in contempt of court.
For the full text of the decision, see:

Jackson v Jackson, 2016 ONSC 3466 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Breaching Access Orders: Is a Parent in Contempt if the Kid Won’t Cooperate?

upset

Breaching Access Orders: Is a Parent in Contempt if the Kid Won’t Cooperate?

If a court orders one parent to facilitate and encourage access to a child by the other parent, what happens if the child doesn’t want to participate? More specifically, how far does the parent have to go to “encourage” the child to cooperate, before being held in contempt of court themselves?

This was one of the issues in a recent Ontario case. The parents were married for about six years and had two children. One child lived principally with the father; the other stayed with the mother, who brought various unsuccessful motions to limit or terminate the father’s access to that child.

Then, responding to what the father felt was the mother’s attempt to actively thwart his weekend access rights over a six-month period, the father brought a motion asking the mother to be declared in contempt. Although that motion was dismissed, the court expressed serious concerns that the mother was trying to alienate the now-12-year old child from her father.

The father brought a second contempt motion after the mother failed to drop off the child at her paternal grandparents home one Friday, and on several subsequent Fridays. In her defence, the mother claimed that she had done her best to allow the father to have access, but the child herself had persistently refused to see him.

The motions judge found the mother was indeed in contempt, after concluding she had met the established legal test of being in “deliberate” and “willful” disobedience of a court order. The judge added that the mother had “effectively abdicated her parental authority on the issue of access” because she had not taken steps to ensure the daughter complied.

The mother appealed. She asked the court to consider whether, in light of the daughter’s own refusal to participate in seeing her father, the motions judge had erred in concluding that the mother had deliberately and willfully breached the access order.

The Ontario Court of Appeal did not think any error had been made by the previous judge on the contempt motion. It wrote:

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” …

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 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”.

As the motion judge noted, the appellant had been put on notice in prior proceedings that more than mere encouragement was required.

The Appeal Court also endorsed the following observations of the motion judge:

[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?

Here, there was ample evidence – including emails between the parents — that the mother had essentially left it up to the daughter to decide whether she wanted to see her father. The Appeal Court concluded:

It is possible that nothing short of physical force could have brought S. to the access visits. However, this does not excuse the [mother] given the motion judge’s finding that she has not done all that she could to attempt to comply with the access order. The motion judge found that despite being on notice that attempts at stronger forms of persuasion may be required, the [mother] did not go beyond mere encouragement. In these circumstances, the motion judge properly concluded that deliberate and wilful disobedience was established beyond a reasonable doubt.

The mother’s appeal was dismissed; the finding of contempt against her was allowed to stand.

Godard v. Godard, 2015 ONCA 568 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.