What if there is an Order setting out custody and parenting and one of the parents refuses to comply with the Order? Is a finding of civil contempt – when the sanctions can include fines or imprisonment – an appropriate remedy when parenting is the issue?
In this case, Ms. Saunders asked the Court to hold Mr. Saunders in contempt and incarcerate him for withholding the parties’ son from her contrary to the access terms set out in their 2014 Consent Order.
Mr. Saunders had primary care of the parties’ son. The Saunders agreed to a graduated schedule of parenting time for Ms. Saunders starting with weekly three-hour visits for a period of two months, moving to weekly overnight visits for a further period of two months. Ultimately, Ms. Saunders would have the parties’ son in her care every second weekend from Friday to Sunday and a visit each week for 3 hours. The visits were to be arranged at dates and times ‘‘as agreed to by the parties’’.
Ms. Saunders was never able to exercise the access provided for in the Consent Order. She alleged that Mr. Saunders refused to facilitate her access. She would try to establish times to see their son and Mr. Saunders would respond indicating that their son did not want to see his mother. Ms. Saunders believed that Mr. Saunders actively alienated their son from her.
Conversely, Mr. Saunders alleged that Ms. Saunders did not really try to make arrangements for access in the first ‘tier’ of access and that by the time that she tried to do so after she had, in his view, ignored the son for one year. Apparently, the child told Mr. Saunders that he did not want to see his mother and Mr. Saunders honoured these wishes.
Justice Rooke looked at the history of the matter and all the complaints levied by each parent against the other. Ultimately, Justice Rooke had to determine whether Mr. Saunders, by not facilitating Ms. Saunders’ access was enough to find him in contempt.
Rule 10.52 of the Rules of Court of Alberta sets out that a Judge can declare a person to be in civil contempt if the person, without reasonable excuse, does not comply with an order (as long as it is not an order to pay money since other remedies are available to recover those costs) and so long as the person was properly served with the order and has actual knowledge of the order. Case authority on the matter of civil contempt adds that the act or (failure to act) that constitutes contempt must be intentional. Moreover, the terms of the Order must be clear and precise – not ambiguous – to ground the finding of contempt.
The Saunders were aware of the Order – they had consented to it – and there was no dispute that the terms of the Consent Order were not complied with. As such, in part the test for a finding of civil contempt was met. However, it likely comes as no surprise that the terms of the Saunders’ Consent Order – with no specific dates and times for access – were found to be ambiguous. Moreover, Justice Rooke found that both parties played a role in the failure of the access plan.
Most importantly, Justice Rooke acknowledged that making a finding of civil contempt against Mr. Saunders would not improve the relationship between the child and Ms. Saunders. Rather, efforts needed to be made to get to the underlying reasons why the Consent Order had not been followed and why the child was refusing to see his mother (if indeed that was true). The Order granted by Justice Rooke intended to ‘‘establish a means to ameliorate the cleft in parental affections’’ (paragraph 22). Justice Rooke was aware of the complexity of the matters of the best interests of the child and parent-child reunification. Accordingly, he directed the parties to participate in a Family Law Practice Note 7 Intervention process to address those issues. He was also clear that if Mr. Saunders did not cooperate in the process or follow through with the terms and conditions of the eventual Intervention Order, a future contempt finding could be made.
Justice Rooke understood that a finding of civil contempt, while available to him, was not the advisable route in the context of this family’s situation. Just because he could, did not mean he should. This case shows, however, that in particular circumstances a finding of civil contempt could be made in the family law context specifically around compliance with an Order regarding parenting.