Date: 17 Nov, 2019| Author: Fred Streiman

This author has opined on numerous occasions about situations in which access is not being encouraged and facilitated between separated spouses.  More often than not it leads back to mental health difficulties on the part of at least one of the contestants.  In the decision of Justice Trimble, in Janowski vs. Zebrowski, the judge had clear evidence that the mother had repeatedly disobeyed Court Orders with respect to access.  She had put forward that it was detrimental to the child to see the father and had proffered evidence from a therapist.  The Court looked at the therapist’s evidence with considerable skepticism for various reasons. 

The Court reviewed the numerous recent decisions on the issue of contempt in the family law area.  These principles are set out Haywood², Stuyt², Geremia vs. Harb and Godard².  In the last decision, the Ontario Court of Appeal stated that a parent’s obligation is do what is reasonable and necessary and to actively require the child to comply with the Order for access by exhortation and the threat of execution of discipline.   Reasoning with a child is insufficient and is a breach of the access Order.  There is a positive obligation to ensure that a child complies with the Order.

However, what the Court giveth it taketh with the other hand.  The Court of Appeal in Ruffolo vs. David, a 2019 decision of the Ontario Court of Appeal, found that the Courts contempt powers are exceptional and are rarely to be applied.  Justice Trimble resorted to a common judicial tactic of giving the mother yet again one more firm warning and made a very detailed access Order.  Justice Trimble warned the mother that if the access Order was not followed, then in the absence of the mother’s cooperation, the matter could immediately be brought back before Justice Trimble.  Justice Trimble also sought further information from the Children’s Aid Society and the Police. 

This decision is another example of the almost impossible inability of the court to deal with humans unlike their money.  The Court is very good at moving money from one party to another, but controlling human behaviour is far more challenging and at times impossible.