Family Law – Custody and Access – Contempt
Katherine Cooligan for the Respondent

This was a contempt application arising in a family law dispute. The Applicant husband sought to have the Respondent wife held in contempt of certain custody and access provisions of an order that was under appeal. Custody of the couple's two younger children was granted to the husband with the wife having access rights, and the husband claimed that his wife was in contempt in allowing their 15 year old child, Taylor, to live with her at times when he should have been living with his father. Comments made by the court in prior aspects of the proceedings noted that the wife had not acted reasonably in the proceedings and had intentionally alienated the children from their father, and the husband alleged that she was presently encouraging Taylor not to return to the father's home. The application proceeded on the basis of affidavit evidence only and there had been no cross-examination of any witness's evidence.

The court refused to make a finding of contempt. It noted that the Applicant was attempting to have a contempt finding imposed on the Respondent for conduct that occurred prior to the judgment in issue having been rendered, which was not appropriate. Rather the parties agreed that the allegedly contemptuous activity needed to be wilful and deliberate to ground contempt, though the court did say that passive conduct on the part of a parent may in some cases constitute contempt. Taylor had indicated a desire to stay with his mother and the court would not say that in allowing him to stay with her that the Respondent was acting in contempt of the custody order. It also noted that the Applicant had been similarly unable to convince Taylor to return to the Applicant's home. The court refused to hold that the Respondent's evidence was not credible given her prior conduct and found that the Applicant had not met the high burden to prove contempt.