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Posts from the ‘Court Procedure’ Category

Wednesday’s Video Clip: Whether a Parent has a Right to Move with a Child – the Concept of “Mobility” in Family Law.


Wednesday’s Video Clip: Whether a Parent has a Right to Move with a Child – the Concept of “Mobility” in Family Law.

The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place.

But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.

The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and — if so — what happens to the custody and access arrangements that are in place.

In family law, this is known as a “mobility” issue.

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

For a Divorce Trial, is $430,000 in Legal Fees Too Much?

For a Divorce Trial, is $430,000 in Legal Fees Too Much?

Anyone who has gone through a divorce will know that legal costs can get out of control. But consider the recent Ontario case of McCabe v Tissot, where the court was asked to rule on whether the husband should pay the wife’s legal fees of $430,000, part of divorce litigation that “financially devastated” both former spouses, and which saw the wife alone rack up almost $1 million in legal fees overall.

The court’s first step was to determine which member of the sparring couple had been the successful party at trial, because under Ontario civil procedure this is essentially the starting-point for determining how costs should be apportioned, although additional factors come into play as well. Both parties claimed that they had been entirely successful on all significant issues.

Perhaps not surprisingly, in addition to disputing her entitlement the husband also took issue with the wife’s dollar-figure: the $430,000 she was claiming was both excessive and disproportionate, in his view. The wife had chosen to endlessly litigate to the point where both parties’ financial stability, and thus the well-being of their son, was in jeopardy.  He said that for his own part, he had been financially ruined by the whole process.

The court, after considering the various circumstances (including the reasonableness of the parties’ positions at trial, the offers to settle they had exchanged, and prior courts orders), agreed that the wife had been more successful overall. But it rejected the notion that she should receive the full costs she was claiming. The court said:

[t]he amount of legal fees spent by the parties on this litigation is astronomical and completely unreasonable. The [wife] has mortgaged her home and has very little equity left as was her evidence at trial and as set out in her sworn Financial Statements. The [husband] also spent an exorbitant amount on legal fees borrowing funds from his parents to finance the first trial. The [wife] alone has spent close to $1 million on legal fees and disbursements. The [husband] borrowed over $393,000 from his parents. The fees spent by the parties are completely disproportionate to the issues before the court.

The court continued:

The parties lost sight of what is reasonable and what is proportionate. The financial devastation suffered by this family will last a lifetime. Most importantly it will once again negatively impact their son….

And further:

…from the spring of 2013 onward conflict ensued and they attended court numerous times, obtaining approximately 41 court orders. Not only did this financially devastate the parties and affect Liam detrimentally as set out in my Reasons, but it also resulted in the use of an inordinate amount of judicial resources. My only hope is that the parties have now come to the realization that the destruction both financially and emotionally was not worth it and they will not become embroiled in further litigation in the future. Only time will tell.

After reviewing all the relevant factors, the court concluded that legal costs in the amount of $125,000 were payable by the husband to the wife in the matter.

For the full text of the decision, see:

McCabe v Tissot, 2016 ONSC 4443 (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

“The Courthouse is Not a Restaurant,” Says Exasperated Judge

“The Courthouse is Not a Restaurant,” Says Exasperated Judge

The mother was as self-represented litigant who had “very aggressively” pursued multiple claims against the father, and had filed more than 430 documents since their litigation began almost 10 years earlier. Those documents were part of a long history of numerous motions, appeals and a litany of related procedures to contest virtually every aspect of untangling their former relationship, including settling out child custody and support of their two children.
In advance of one of those many motions, the mother had arbitrarily and on short notice absented herself from a half-day court hearing that had been scheduled for March 1, 2013. Less than a week before the motion she had faxed a letter to the court, indicating that she could not attend.

In the court’s e-mail reply, it advised the mother that an adjournment could not be granted without the father’s input, and that since the father’s lawyer would not consent in advance, she could make the request in person at the scheduled hearing date and take her chances.

Instead, the mother failed to show up at the hearing at all. Nor did she call in. She later claimed that she had mixed her calendar up.

The father asked the court for an order forcing the mother to pay for the legal costs he had wasted in preparing for a motion that she did not even bother to attend.

The court, after concluding that the mother’s excuse for missing the hearing date “stretches credulity past its breaking point”, entertained striking out the mother’s motion outright, but ultimately decided to strike it off the list and impose significant costs against her instead.

In its lengthy rebuke of the mother’s conduct, the court wrote:

In coming to my decision I had to deal with a matter of increasing judicial awareness in Canada, namely how to sanction or impose meaningful consequences on irresponsible and inappropriate behaviour by a litigant.


Adding to the difficulties of this case is the “customer-service” expectations that the mother brings to these proceedings. Unlike a retail environment, where the customer is king, the administration of justice cannot possibly proceed in any meaningful way if litigants adopt a customer-service mentality at the courthouse.

The courthouse is not a restaurant where reservations can be rescheduled at the last minute or simply cancelled on the whim of a litigant. Neither can a litigant pick and choose which procedural rules and time deadlines they wish to comply with. The court must impose sanctions on litigants who behave irresponsibly or recklessly.

The court continued:

The attitude and behaviour that the mother brings to this litigation is troubling as it only increases the intensity of the conflict and creates an environment in which any kind of settlement discussions are impossible.

It must be obvious to the mother, even as an unrepresented litigant, that the time deadlines imposed at the case management meetings for the filing of affidavits and briefs and concluding cross examinations are significant and cannot be casually disregarded on a whim. The mother must have known, or ought to have known, that the father would have already incurred significant legal costs in compliance with those deadlines when she attempted to cancel the March 1, 2013 Hearing on less than five business days notice.

Somehow the mother is also oblivious to the obvious fact that by running up the father’s legal bills she is also depriving her children of potential financial resources.

Moreover the mother somehow expects the court to ignore the fact that her last minute demand for an adjournment would not only have a significant financial impact on the father and the children but also on the court’s time and resources. A half day was reserved for the hearing that she demanded and that time slot was denied to other litigants and made an already backlogged list even longer.

The court has a duty to administer its scarce resources wisely and cannot allow litigants to run roughshod over its own process by ignoring deadlines, the rules of court and capriciously failing to show up at scheduled hearings.

After scrutinizing the costs thrown away, the court ultimately awarded the father $3,000, which it intended as:

… a strong message to the mother that her disregard for the rules of court and the meticulous timelines set out at the case management conferences and her unilateral decision to fail to appear at the March 1, 2013 Hearing are totally unacceptable. This kind of behaviour is simply intolerable and must be sanctioned by the court to protect the integrity of the court process and as a warning to the mother and other litigants that this kind of behaviour will have significant consequences.

What are your thoughts about the court’s admonishments? Do too many litigants approach the justice system with a “customer service” mentality, as the court in this case says?

For the full text of the decision, see:

Delichte v Rogers, [2013] M.J. No. 113, 2013 MBQB 93

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

Wednesday’s Video Clip: The Family Courts and Rules – The Basics


Wednesday’s Video Clip: The Family Courts and Rules – The Basics

Most people will have no reason to become familiar with the workings of the Ontario Family Law system. Exposure to the justice system is usually a result of necessity, such as a separation or divorce, with its resulting property, support and child custody issues. As a result, most people do not know how the Family Court system works.

This video will provide a brief and basic review of the Ontario Family Courts, and the Rules that people are expected to follow.

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

Ontario Superior Court Justice Pazaratz Speaks Out Against Legal Aid Squandering – Again

Ontario Superior Court Justice Pazaratz Speaks Out Against Legal Aid Squandering – Again

A recent Family law decision by Justice Pazaratz of the Ontario Superior Court of Justice caused a stir this past few weeks. In his written endorsement of a consent order, he bluntly stated that the case before him should not have been dragged out so long, and should not have been funded by public coffers so indiscriminately. He chastised both Legal Aid Ontario and the parties themselves for “squandering scarce judicial and community resources”, writing:

After confirming that Legal Aid was paying for all of this, I couldn’t help but ask some obvious questions:

a. Is it fair for people who have never paid any taxes to be so cavalier about how they spend other people’s money?

b. Is it fair that Legal Aid has decided to fund this easily resolvable case, when every day I see people with much more serious and complex problems who have been denied any help by Legal Aid?

c. Is it fair that more important cases, many involving the well-being of children, couldn’t be dealt with on March 9, 2017 because our court was required to devote one of our limited timeslots to this case?

The balance of the decision has much the same no-holds-barred tone. And while his comments might be unusually critical and frank for a judge, this isn’t the first time Justice Pazaratz has spoken out this way.

In several prior cases he provided similar disapproval of profligate spending on needless motions and other procedural wrangling — whether paid by from the public purse or otherwise.

For example, in Scipione v Scipione, he railed against Family law litigants who run up legal costs, and then ask the losing party to pay them. In explaining that costs rulings are to be directed by an “overall sense of reasonableness and fairness”, he added that “The Rules [of court] do not require the court to allow the successful party to demand a blank cheque for their costs.”

Next, displaying perhaps a little more creative flair, in Izyuk v Bilousov, Justice Pazaratz wrote:

The popular beverage has a catchy slogan: “Red Bull gives you wings.”

But at this costs hearing, the self-represented Respondent father suggested a wry variation:  “Legal Aid gives you wings.”

He now seeks costs in relation to a 1- day custody trial … He won; sole custody.  The Applicant mother was represented by counsel.  Her poor finances qualified her for Legal Aid.   Now she says those same poor finances should excuse her from paying costs.

The Respondent asks a valid question:   Does she have wings?   Can she do whatever she wants in court, without ever worrying about fees – hers or anyone else’s?

Justice Pazaratz ultimately made the following ruling:

In the case at bar, the Applicant conducted herself as if her Legal Aid certificate amounted to a blank cheque – unlimited resources which most unrepresented Respondents would be hard-pressed to match.  A scheduled 3-4 day trial turned into 17 days, largely because the Applicant fought every issue and pursued every dubious allegation, to the bitter end.  She appeared to make up evidence and allegations as she went along.  She defied court orders directly impacting on the child, even while the trial was underway. There have to be consequences.  Either we sanction this irresponsible and destructive behaviour, or we invite more of the same.

Encouraging settlement and discouraging inappropriate behaviour by litigants is important in all litigation – but particularly in family law, and most particularly in custody cases.  No litigant should perceive they have “wings” – the ability to say or do anything they want in court, without consequences.

Returning to the most recent of decision that is now under controversy: It’s a 2017 case called Abdulaali Salih in which Justice Pazaratz simply turns up the volume a little, on what has apparently become a recurring theme with him.

To give his latest comments context: The divorcing husband and wife, both of whom had immigrated from Iraq and had never worked in Canada, were both monthly recipients of government money from the Ontario Disability Support Program. Their litigation was being funded by Legal Aid Ontario, and since they had “no children. No jobs. No income. No property. Nothing to divide.”, he added that it should be “a simple case”.

Yet the couple had repeatedly returned to court to settle even minor issues, and seemed to have no impetus to slow down the steady stream of hearings between them. In expressing his exasperation at the needless dissipation of public money, Justice Pazaratz wrote:

At the March 9, 2017 attendance, apart from paying for the lawyers, taxpayers also had to pay for the following government employees to be present in Courtroom #5 to deal with this matter:

 a. A Court Services Officer.

 b. A Court Reporter.

 c. A Court Registrar.

 d. And me.

I have no idea how much the other players in the courtroom get paid. But as a Superior Court Judge I receive approximately $308,600.00 per year. So you can see that not even counting overhead charges and administrative staff in the building, every hour of court time is hugely expensive.

Many taxpayers can’t afford their own lawyers, and don’t qualify for free assistance through Legal Aid. So they end up representing themselves in court. Or facing financial reality and settling without going to court.

But when you pay no taxes and Legal Aid gives you a free lawyer, there’s no incentive to be sensible. Why worry about the cost when some unsuspecting taxpayer out there is footing the bill?

Clearly Justice Pazaratz has an axe to grind. Does he go too far? Or is he right?

For the full text of the decisions, see:

Scipione v Scipione, 2015 ONSC 5982 (CanLII)

Izyuk v Bilousov, 2011 ONSC 7476 (CanLII)

Abdulaali v Salih, 2017 ONSC 1609 (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

 

UK Tightens Immigration Rules for Foreign Spouses

UK Tightens Immigration Rules for Foreign Spouses

In a controversial decision the Supreme Court of the United Kingdom has recently upheld the legality of immigration rules that imposed requirements on its British citizens to have a certain level of income before they are able to bring their spouses into the country. These contentious “Minimum Income Rules”, which came into force in 2012, had been challenged by four couples who asserted that they breached their basic human right to have a family life.

The rules require that, before being allowed to bring a spouse to live with them from another country outside the European Economic Area, a British citizen (including a recognized refugee) must have a minimum annual income of at least £18,600 (around CDN$30,600). The couples who contested the rules had argued that the income threshold was set too high, particularly since it increased with each additional child that needed to be supported.

This addition of a set income requirement reflects a stark change from the previous rules, which prior to 2012 had required only that the spouses could establish an ability to support themselves without needing to avail themselves of welfare payments from the UK government.

Although the UK Supreme Court’s ruling confirms that the rules did not violate human rights legislation, it also recommends they be amended, since the current incarnation does not adequately account for the best interests of the children, and neglects to consider other sources of income that the spouses might have.

This UK development is in stark contrast to the immigration policy in Canada, where applicants must prove only that they have enough income to provide basic needs for the spouse or his or her dependent children. (Although those who want to sponsor parents or grandparents are subject to specific income-level requirements and a new process for applying starting in 2017).

And by announcement made December 15, 2016, the Canadian Government has indicated that the department of Immigration, Refugees and Citizenship Canada will be speeding up the processing for spousal sponsorship applicants, as part of its commitment to family reunification. Most applications will be processed within a year of a person applying.

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

Should Pacemaker Evidence Be Used to Catch Cheaters?

Should Pacemaker Evidence Be Used to Catch Cheaters?

I have written several times before about some of the more novel uses of the information that can be gleaned from social media, for example the use in Family Law of evidence taken from Facebook. Some of our previous posts include: Facebook as a Source of Evidence In Family Law: Part 1Facebook as a Source of Evidence in Family Law: Part 2; and  Facebook as a Source of Evidence in Family Law: Part 3.

The legal issue behind this kind of information-gathering, is whether collecting information in this manner is unduly intrusive into a person’s privacy.

A U.S. case reported by the American Bar Association that caught my attention recently takes the privacy question it even further: It involved the use of evidence taken from a man’s pacemaker, used to support a charge of criminal fraud and arson against him. It seems the data from his heartbeat-regulating device – which was collected from him by way of a search warrant – did not support his claim that his house had burned down. Evidently the man’s heart-rate on the night in question did not correspond with his description of events, including his scramble to collect his personal belongings and get out of the home. He was ultimately charged with arson and insurance fraud.

As the American Bar Association article pointed out, this Ohio decision is contentious because it can be seen as having “eroded” the privacy rights that an individual has in his or her health information. In Canada, the government’s ability to collect and use private information is strictly governed by the Personal Information Protection and Electronic Documents Act (PIPEDA), and this includes the right and duties in relation to collecting information for the prosecution of crime.

Although the U.S. decision has no sway in Canada, it occurred to me that if it did, the information from personal health devices like a pacemaker might eventually be exploited in Family Law cases as well.  I started to think about the limits of this kind of information, and how it might apply to divorce cases.

For example, it could be called up in support of the adultery-based grounds for divorce under the federal Divorce Act, by bolstering other evidence that a spouse who claimed to have been “working late” on a given evening was – judging by an unusually elevated heartbeat – actually engaged in an extra-marital affair. (Although I guess it might depend on how truly exciting the person’s work is!)

For now, this is the stuff of science fiction; it’s probably a long way off, before these kinds of biometrics are used as evidence in litigation generally, much less in Family Law cases. And they give rise to many privacy concerns that are assiduously safeguarded by Canadian public policy in the form of legislation.

What are your thoughts on whether evidence of this nature should be used?

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

Vexatious Litigant Won’t Take “No” for An Answer

Vexatious Litigant Won’t Take “No” for An Answer

Sometimes you hear about Family litigants for whom their dispute against the former spouse has taken on a life of its own, and who will not stop until they have literally exhausted every possible legal and procedural avenue.   The case of Nassr v. Vermette seems to be a great illustration of this scenario.

The former couple had commenced their family litigation in 2009, after which time the husband brought numerous questionable and downright meritless applications and motions. In 2011, pursuant to an order of the court, he was declared a “vexatious litigant” – which means that he was prohibited from commencing or continuing any further proceedings.

About four years later the husband decided he wanted to have that “vexatious litigant” designation set aside. But the court flatly rejected his application, and made an order that declared the designation anew. For greater certainty, the wording made it abundantly clear that he was expressly prohibited from instituting any new legal proceedings, and was prevented from continuing any proceeding previously instituted by him, unless he obtained the court’s permission.

Yet the husband tried to launch another appeal, and duly asked the court for permission to proceed. Although the court granted him an audience, it found that he simply did not meet the test for being allowed to proceed, under s. 140 of the Ontario Courts of Justice Act, and found there was no merit to his appeal anyway. Section 140 deems the court’s decision to be final, so the husband was blocked from appealing the court’s refusal of his application for leave.

In other words, the husband’s road was formally at an end. Or so only it seemed.

The husband tried to appeal yet again, this time focusing on an earlier judgment that had been made dealing with custody, access, and child support. The wife brought a motion to have that appeal attempt dismissed, and she was successful.

In making its ruling, the court emphasized that since the husband had been declared a vexatious litigant, this meant he had no further right to appeal or take any other step. That designation had been validly made by an earlier court, and – under section 140 of the Courts of Justice Act – could not be appealed.

The court also rejected the husband’s last-ditch argument, to the effect that the Rules of Civil Procedure should be bent for him.   Under one of its provisions, the court was entitled at any time to decide that compliance with a rule could be dispensed with. The husband claimed he should be given the benefit of the doubt so that his appeal could go forward notwithstanding the prohibition in section 140 of the Act.

The court didn’t buy it. The provision the husband had in mind applied only to the Rules, not to the test for obtaining leave in section 140 of the Courts of Justice Act, which is entirely different legislation. The court went ahead and quashed the husband’s appeal.

Not to be deterred, the husband didn’t stop there: He applied for leave to appeal from that Appeal Court decision as well. That application was made to the Supreme Court of Canada, but it was dismissed with costs.

Game over.

For the full text of the decisions, see:

Vermette v. Nassr, 2016 ONCA 658 (CanLII)

Jason Donald Nassr v. Laurie Ann Vermette, 2017 CanLII 5363 (SCC)

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

Delays, Extensions, Adjournments and Excuses – How Not to Conduct Your Family Litigation

Delays, Extensions, Adjournments and Excuses – How Not to Conduct Your Family Litigation

A few weeks ago, I reported on a case called Schwilgin v. Szivy. I recounted the court’s stern response to a litigant – in this case, the husband – who had been obdurate in failing to comply with numerous prior court orders.

“Part 2” of this story reveals the court’s reaction to that same husband’s repeated delays in moving their divorce and custody issues along. Since the husband was self-represented, it all becomes a good lesson on “how not to conduct your own Family litigation”.

The couple had separated in 2002 and had two children.   Starting around 2010 they commenced what turned out to be rather lengthy legal process around custody and child support.

After a series of prior court decisions in the case, the husband wanted to appeal one particular order that related to (among other things) denying his requested variation of child support, and relieving him of the obligation to pay $75,000 he owed in child support arrears since 2006.

But what followed was a series of blunders and delays on the husband’s part. First, he filed his Notice of Appeal in the wrong court.   When the error was brought to his attention by opposing counsel, he went ahead anyway. But not only did the court refuse to hear him, it refused to transfer the matter to the proper court, and simply quashed the husband’s appeal outright.

By now, the husband was too late to file in the proper court venue.   He asked the court for an extension of the filing deadline claiming that, being a layperson, he simply made a procedural mistake in choosing the wrong court. The court didn’t buy it. The extension was turned down.

Having frittered away his right to appeal automatically, he now needed the court’s permission to take further steps toward an appeal.   But in yet another motion he failed to persuade the court that he had met the relevant test. More importantly, the court explained that the husband’s many poorly-justified delays in the past “weigh[ed] very heavily against” granting the time extension.

Which brings us to the latest ruling.

A full 13 months after the dismissal of his earlier motion for an extension, the husband brought yet another motion to have that order reviewed.

However, even though this was the 11th hour the husband was not cured of his shenanigans: After the hearing date was set, he contacted the court staff to ask for an adjournment. His reason? He was unable to find a lawyer, and unable “to defend himself due to illness” and a lack of funds.   This was contrary to earlier information stating that he had duty counsel lined up, which claim the court also found to be suspect.

The Appeal Court flatly turned down the husband’s latest request for an adjournment.   After reviewing his materials, it concluded that:

  • He had failed to provide current medical or other evidence in proper form to justify having the court grant the order;
  • He had not proven that he had legal aid lined up, as he claimed; and
  • There was no acceptable explanation for the husband’s 13-month delay in asking for a review.

Although he is quickly running out of legal options – and likely testing the courts’ collective patience – I suspect this will not be the husband’s “last kick at the can”.

For the full text of the decisions, see:

Schwilgin v. Szivy, 2017 ONCA 78 (CanLII)

The decision appealed from is:

Schwilgin v. Szivy, 2015 ONCA 816 (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

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