By Brian Ludmer, B.Com., L.L.B., LudmerLaw, Toronto, Ontario, Canada
Brian@ludmerlaw.com; 416-781-0334
Editor’s Note: See the March issue of PAI for Part 1.
PARENTS FACING A CONTEMPT PROCEEDING would be well advised to have sufficient third-party evidence of the exercise of their parental authority and why it had, to that point in time, been ineffective.
Of note, the subjective good faith of the alleged contemnor — even if their intention is to act as a “protective” parent in their self-perceived best interests of the child — is insufficient to justify non-compliance with a Court Order. Therefore, in the event of true emergencies and palpable risk of harm, the recommendation is to immediately contact the local child protection authority and indicate why a child is being withheld and what the risk is and seek a directive from the child protection authority for the concerned parent to retain the child in his/her care while an investigation is being conducted. The child protection authority may therefore contact the other parent and ask them to voluntarily suspend their access while the investigation is conducted, failing which they may have to bring formal proceedings. In addition, the withholding parent, even if following a directive of the child protection authority, needs to immediately return the matter to Court for authorization by the Court to retain physical custody of the child.
The obligation to ensure access to the non-residential parent applies to telephone and electronic access as well. Where phone calls to the non-residential parent are not taking place, merely passing along a message that the other parent has called falls short of the clear requirement, if appropriately drafted into the Court Order, to “ensure” that calls take place.
One Court recently stated that a primary care parent who argued that they tried to “force” the child to go did not have an adequate defense when those efforts constituted out-of-context singular demands made in an intense circumstance that focused all of the pressure on the child, who had become embroiled in the parental conflict. There needs to be a consistency of the messaging of expectations, incentives and consequences and rationales, which is apt to be much more effective.
A good question in cross-examining a withholding parent is whether they have any difficulty getting the children to do anything in any of the domains of their parental responsibility or the child’s life (school, bedtime, homework, music instrument practice, chores, etc.) and, if so, what modalities do they use to ensure compliance with their directives. The same communications, directives and strategies should then be applied to the child spending time with the other parent, and behaving respectfully towards them.
In terms of alienation cases where sometimes the children are in fact compelled to go, but they are cold, rude, disrespectful, angry, withdrawn, and take their meals alone in their rooms behind closed doors, some Courts have held that simple contact is not a sufficient discharge of parental authority if the parent is otherwise undermining the relationship directly or indirectly and, by their silent acquaintance, permitting such unacceptable behavior in the other parent’s house.
Remedies/Penalties for contempt
Contempt proceedings are usually held in two stages. The first stage would involve the determination of whether a Contempt finding is made. Due to the seriousness of the finding, the offending parent is then given an opportunity to purge the Contempt by bringing himself into compliance prior to a second stage proceeding (which is often simply conducted based on submissions and affidavit evidence) where the remedies and penalties are to be determined.
At that time, compensatory access and all the other remedies would be contemplated, even if the
Contempt has been purged by compliance (i.e. there is a compensatory aspect as well). If the Contempt has not been purged, the Court may consider stronger remedies.
Where, however, there has been a denial of parenting time for an extended time, requests for makeup access (or double makeup access) necessitate a broader inquiry into the best interests of the children, as fundamentally imposing that much make-up time would constitute a fundamental change in the then Court-Ordered parenting plan. A “best interest hearing” and some method of introducing the children’s views and preferences (discounted for any manipulation or coercion) is called for in such circumstances. That more robust examination of the best interests of the children may nonetheless be of assistance to the
parent who brought the Motion as well, since it may prove clearly that there is emotional abuse (coercive control and alienating behaviors) going on and a thorough response, including a time-out for the offending parent, required to protect the children from the dynamic.
Conclusion
Attorneys, mental health practitioners, and targeted parents must fully understand the advantages and disadvantages and potential relief and procedural aspects of Compliance Motions and Contempt Motions, so that the strategy deployed can be well thought out and appropriate for the particular circumstances
Recent Comments