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Family Law - CUSTODY AND ACCESS - Considerations - Expert report or assessment - Custody - Sole custody - Practice and procedure - Evidence - Contempt - What constitutes

Thursday, December 01, 2016 @ 7:00 PM  


Appeal by the mother from findings of contempt of earlier orders, as well as from an order varying custody from joint to sole custody in favour of the father. The parties divorced in August 2014. The child was placed in their joint custody, with each party having full parental responsibilities and being liable to pay for a parenting coordinator. The parties’ incomes for support purposes were set at $200,000 each in a subsequent order. In that same order, net family property was valued at $1.4 million, and the mother was ordered to pay the father $593,893 in equalization and to return certain artwork and personal items to the father. The joint parenting regime did not work out and the child was in distress. The mother failed to sign the Parenting Coordination Agreement until two months after the father filed his application for sole custody of the child and for contempt findings against the mother. The parenting coordinator was permitted to file a report, indicating that the mother was causing the child distress by forcing her to pretend she was unhappy at school and with the father. He recommended that the child live primarily with the father during the school year, with the mother having parenting time on weekends only until the summer vacation, when she would have the child for six of 10 weeks. The mother was found in contempt of the initial order and the subsequent order dealing with financial matters 32 times in total. The allegations included failing to engage the parenting coordinator, failing to communicate with the father respectfully, disparaging the father to the child and in public, discussing the family proceedings publicly, failing to return the father’s art and belongings, and failing to pay her share of the child’s expenses. She was fined $250 for each count of contempt, for a total of $8,000, and was ordered to post security for her future good behaviour of $16,000, double the amount of her fines. The judge found that the father established changed circumstances warranting a variation of parenting arrangements, based on the mother’s non-compliance with the plan originally envisioned.

HELD: Appeal allowed in part. The number of contempt citations was reduced to 15 from 32, and the fine and security imposed were reduced accordingly. Some of the judge’s findings of contempt did not meet the criminal standard of proof beyond a reasonable doubt. The judge did not expressly reject the mother’s explanation that she could not afford the parenting coordinator, and as such, a question remained about her wilfulness in failing to comply with the initial order in this regard. Contempt findings that the mother made disparaging comments about the father that were based on statements the child made to the father were set aside, as they were based on hearsay. Not all of the alleged breaches of the respectful communications term were clearly disrespectful. The parenting coordinator did not clearly overstep the bounds of his role by making recommendations to the court. The judge was entitled to accept the parenting coordinator’s opinion in the absence of evidence from the mother challenging his report.