Lerners’ Weekly Family Caselaw Review #6
Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. Lerners Family Law lawyers presents one of the most interesting cases from the week of October 19, 2020:
Parenting after separation can sometimes be challenging, especially when a child does not accept the parenting schedule set out in an agreement or Court Order.
The Superior Court of Justice deals with this predicament in Teal v. Teal[1]. In this case, the parties’ 12-year-old daughter refused to go live with her Father, with whom it was Ordered she primarily reside. The Father brought a motion to the Court to find the Mother in contempt when the Mother did not return the daughter to the Father’s care. The Father argued that the Mother was “abdicating her parental responsibilities by permitting their daughter to decide where she wished to reside”. He requested the Mother spend a weekend in jail or pay a fine should she be found in contempt.
The Court reviewed the evidence and dismissed the Father’s motion. It found the Mother encouraged the adamantly resistant daughter to return to the Father and the Mother took no steps to alienate the daughter from the Father. Although the Mother breached the Order when she failed to return the daughter, this breach was not deemed to be willful conduct on the Mother’s part.
The expectation is that parties must abide by Court Orders. This means parents have an obligation to ensure that children are returned to the care of the other parent. However, it is not required that a parent does the impossible to achieve this. Rather a parent must do “all that they reasonably can” (emphasis in original). What is considered “reasonable” will depend on the facts of the case.
The message? Although the Court maintained that it is in the best interest of children to have maximum contact with each parent, it was noted that children entering adolescence will develop and enforce their own opinions, including where they want to live: adamantly resistant adolescents may well have a strong say.
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[1] Teal v. Teal, 2020 ONSC 6395
