A common experience for parents, and for professionals assisting them, is that of the alienating parent not complying with Court Orders for parenting time, joint decision-making and other matters. There are practical and therapeutic/intervention responses that should be part of a thorough strategic plan. However, it is also typical and advisable to seek the assistance of the Court.

Procedural Options

Most jurisdictions provide various enforcement mechanisms in their Rules of Civil Procedure. The most common is variously phrased as a “Motion for Compliance”, which seeks the assistance of the Court in enforcing existing Orders.

However, some Courts have, where this procedure is not fully articulated in the appropriate Rules of Civil Procedure, refused to make a further Order, stating that Courts should not “make an Order to comply an with existing Order” as it is redundant and adds nothing. Accordingly, it is important to ensure that additional remedies to support future compliance, and to deal with the asserted reasons for noncompliance, are sought in the proceeding.

Examples of additional remedies include: (I) asking for a mandatory contribution to a registered educational savings plan (or other vehicle to save for the children’s University expense) for each missed visit; (II) asking for the withholding parent to deliver the children at each exchange [which forces them to get the children in the car and out of the house]; (III) a Police enforcement clause; (IV) additional positive and negative parenting covenants; as well as (V) asking for full recovery costs for having to bring the Motion.

Most jurisdictions also have a special proceeding where, in addition to other remedies, the complaining party seeks a “finding” of Contempt of Court. This “finding” can open up other more serious remedies and will help to “colour and create context” for all future litigation. In addition, all of the remedies otherwise available in a Compliance Motion can be sought in a Contempt proceeding.

However, in many jurisdictions there are specific directives (either in the statute or jurisprudence) for a Contempt proceeding to be a remedy of the last resort. This is interpreted as a specific directive to bring a Compliance Motion first. In appropriate circumstances, however, particularly where there has been a long-standing pattern of non-compliance with sequential Court Orders being breached, Courts may accept that the time has come for a Contempt proceeding. Some well-known rhetoric from an Ontario, Canada, case, where a Contempt finding was made on a Motion and upheld by the Court of Appeal, reads as follows: “Child custody and access orders are not like a game of baseball, where it takes three strikes before you “out”. Courts must take a first firm step at the earliest sign of non-compliance to prevent future breaches of their orders”.

Contempt Proceedings Differ in Many Aspects

Essentially, the difference in the two procedures in most jurisdictions is that fines and penalties [as opposed to costs awards and payments for the children] can only be awarded on a Motion for Contempt. In most jurisdictions, such fines and penalties are not payable to the complaining parent, but rather must be paid to the government/state.

Further, the Contempt finding in most jurisdictions is considered a quasi-criminal finding, since the potential remedies include incarceration. As such, specialized procedures often apply and the standard of proof requires a finding of willful or reckless disregard for the Court Orders beyond a reasonable doubt [essentially a criminal law standard].

The procedural differences in a Contempt proceeding include the fact that the defendant is entitled to an oral hearing, as opposed to merely defending a Motion brought on Affidavit evidence. This creates scheduling difficulties and longer lead times and adds to cost. It is possible, however, with a view to controlling cost and minimizing delays, for the Affidavit evidence supporting the Motion for Contempt to be accepted as the deponent’s evidence-in-chief, with the complaining party being cross-examined on their Affidavits. Similarly, the issue can be addressed by having a pre-motion examination for discovery on the Affidavits and then a proceeding using Affidavit evidence and those transcripts.

Because of the potential remedies in a Contempt proceeding, compliance with the applicable Rules of Civil Procedure is often strictly construed and much more rigorous. There is an enhanced level of clarity and specificity as to the alleged breaches [who, what, when, where, why] that must be contained in the Notice of the proceeding (although there is some case law stating that you can look to the combined presentation in the Notice of the proceeding and the supporting affidavits). Hearsay evidence, unless not challenged or not central to the issues, is generally prohibited. The Court Orders in question need to be specifically clear as to the actions necessary to comply, or to avoid breaching, though there is some jurisprudence that states that one must comply with the spirit and intent of a Court Order.

Therefore, in most circumstances, there is not much to be gained by pursuing a Contempt procedure as opposed to a Compliance Motion, unless previous Compliance Motions have proven to be futile.

Satisfying the Burden of Proof in a Contempt Proceeding

In a Contempt proceeding, proof to a standard of beyond a reasonable doubt is often enhanced by third-party evidence and showing a persistent pattern of behaviour, despite communications about the prior breaches. In Canada, it is not necessary to prove any intent to interfere with the administration of justice, but merely intent or recklessness regarding a known requirement of the Court Order. The proof required is not that the alleged contemnor knowingly chose to disobey a Court Order, but merely that the offending parent committed an intentional act or omission that itself involves a breach of the Order.

There is a difference between the complaining parent’s legal burden of proof, however, and the evidential burden of proof. Once the complaining parent has demonstrated a clear Court Order and an intentional act or omission [or reckless act or omission] that involves a non-compliance with that Order, the defendant must respond with evidence to demonstrate sufficient legal justification for the non-compliance in the circumstances. This is a shift of the “evidential burden”, not a shift in the burden of proof.

Defences in such circumstances involve proving mitigating factors or having purged the Contempt and offering compensation, such as makeup time.

Older case law struggled with describing the expected exercise of parental authority and the expected effectiveness of a parent, when examining the asserted defences of the defendant. In almost all cases the offending parent states that they were “encouraging” the child to attend for their parenting time with the other parent and had told the child that going to the other parent was acceptable to them, but that they “couldn’t get the child to go”. This rather facile defence was in some cases actually considered satisfactory. More modern case law, however, is quite clear on the necessity to demonstrate good faith and effective parenting, as if the issue was the child’s refusal to go to school or refusal to go to a doctor. Parents must demonstrate compliance with parenting Orders by indicating what guidance, boundaries, incentives and consequences they are deploying in their parenting and how those have been escalated over time if the children nonetheless continue to refuse to obey their parental directives.

The jurisprudence is clear that “leaving it up to the child” to decide whether or not to attend parenting time with the other parent can be Contempt of Court, since it results in an abdication of parental authority on the issue of parenting time. Passively permitting Court Orders to be undermined, without taking all reasonable steps to cause the children to comply, is generally held to be Contempt. The typical permissiveness and submissiveness betrayed by alienating parents results in overpowered children who act in dysfunctional and anti-social ways.

Parents facing a contempt proceeding would also 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 defence 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 behaviour 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 such as the threat of incarceration.

Where, however, there has been a denial of parenting time for an extended period of 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 behaviours) going on and a thorough response, including a time-out for the offending parent, required to protect the children from the dynamic.

Conclusion

It is very important for counsel, mental health practitioners and targeted parents to 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.