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CUSTODY AND ACCESS - Practice and procedure - Contempt

Tuesday, November 19, 2019 @ 8:28 AM  

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Appeal by the father from an order finding him in contempt of a court order that governed the parties’ parenting arrangements. On a school day when the children were to be picked up by the respondent as provided for in the court order, the appellant picked up the children after school to feed them and then returned them to school to attend a school event that evening. The motion judge found the order was clear, the appellant had actual knowledge of it, and he intentionally picked up the children from school on a day when he was not entitled to do so. The motion judge did not impose a penalty for the appellant’s contempt.

HELD: Appeal allowed. There was no basis to interfere with the motion judge’s finding that the appellant had breached the terms of the order and that the three elements of civil contempt were established. The motion judge erred in law by failing to consider whether she should exercise her discretion to decline to make a finding of contempt. There was no indication the motion judge considered whether a finding of contempt was a last resort or whether any alternatives were considered. It did not appear the motion judge considered the best interests of the children. It was in the best interests of the children to encourage professional assistance as an alternative to making a finding of contempt too readily.

Chong v. Donnelly, [2019] O.J. No. 5048, Ontario Court of Appeal, R.J. Sharpe, C.W. Hourigan and M. Jamal JJ.A., October 7, 2019. Digest No. TLD-November182019004