Family Law Woodstock | Court Orders Do Not Fix People coachgrant, November 16, 2023April 10, 2024 I have been in practice for over 38 years. In that period of time, I have handled thousands of files. One of the things that I have learned over the years is that court orders do not fix people! What do I mean? If you are involved in a relationship with someone and the relationship starts to break down, some people think that family court provides answers to the issues that arise upon separation of the parties. Who will get custody of the children? How can I stop him from harassing me? Who will get the house? Can she really stop me from seeing my kids? Some people run off and immediately start an application in family court. Contempt of Court It is true that, whether a case goes all the way to trial or not, at the end of the court process, a family court judge will make an order that disposes of the issues that brought you to court in the first place. The critical question then becomes whether that order will be obeyed! Yes that is a real question! You may be surprised to learn that it is not entirely uncommon for someone to disobey a court order. It is called contempt of court. It is one of the reasons people should avoid going to court in the first place if that is possible. If someone is disobeying a term of a court order, what happens next? For example, I am sometimes asked by fathers who have a previous court order that provides for the father’s access or visitation rights to the children: “She’s preventing me from seeing the kids. What can I do about it?” What to Do? A father in this scenario has two choices. He can attempt to negotiate with the mother in an effort to reinstate his access or he can start another application in family court. Where the level of hostility between the parties is high, attempts to negotiate a settlement are usually unsuccessful. After all, a mother who goes to the extent of denying a father access to his children is usually someone who is overcome with anger and bitterness. Father’s sometimes call police thinking that police will enforce the court order. Police, however, do not have jurisdiction to enforce a court order unless the order specifically provides for police assistance. A ‘police assistance clause’ in a family court order is only entertained by the court when parties come have come back to court again and again. In circumstances like that, a court can make an order that provides for police to assist in enforcing the terms of the order. It is difficult to imagine the emotional impact on children when the circumstances have deteriorated to such an extent that police intervention is imposed. If a father elects to return to court to enforce an access provision, in a motion for contempt in most jurisdictions, the father’s court papers will recite that the mother is disobeying the terms of an order made in a previous court proceeding. The remedy the father seeks will usually include a request for an order (1) citing the mother in contempt and (2) an order specifying when the father can see the children (3) his legal costs and, sometimes (4) a police assistance clause. In my practice, depending upon the severity of the circumstances, I sometimes recommended to the client that he include a request for an order granting him custody of the children. The underlying rationale for this recommendation is that the mother has disobeyed a previous order. The father is essentially asking the court to now infer that, if the father is granted custody, he would not interfere with the mother’s access. In my experience, however, courts will rarely accede to this request. In most jurisdictions, the remedies for contempt of court give the court the power to fine, or even imprison, someone found in contempt of court. These remedies are thought to be extreme in the context of a family court proceeding. In fact, I am not aware of any case where a mother has been fined or jailed for contempt. Instead, if this is the first time a father comes to court with the complaint that his access to the child or children is being thwarted or denied, the court will choose an alternative, less extreme, remedy available under the court rules. Most often, the earlier access regime will be reinstated. Judges will sometimes caution the mother that, if the case is brought before the court again on the basis that access is being denied, the judge might be tempted to award custody of the child or children to the father. In cases like this, a court can also award the father his legal costs. This means that the mother has to indemnify the father for the costs he has incurred in bringing the matter back to court. Then the question becomes how to enforce the costs order. This result can be frustrating for father’s if they have paid a lawyer to handle the motion for contempt. In other words, the moms in these cases invent every excuse under the sun for preventing dad’s access even though there is a court order that requires that dad see his kids a minimum of every second weekend. “Well Johnny is sick with the flu so I don’t think it’s a good idea for him go to your place this Friday” or “Johnny says he doesn’t want to go to your place this weekend” or “I’ve signed Johnny up for soccer and he has a game this Saturday”. These are examples of some of the excuses employed by moms who are intent on denying a father access to this children. I have had father’s complain that, sometimes, mom will go out somewhere with the children just before pick-up time on Friday. So, of course, when dad shows up, the children are not at home! The point here is this. Some people cannot focus on the fact that the child or children still want to see their dad! They cannot see past the issues that led to the separation. In other words, they think that, by withholding the child or children from the father, they can exact a punishment upon the father. What the mom doesn’t realize is that the children are becoming casualties in the war between the parties. Now I’m not exclusively picking on the moms out there. Father’s can be guilty of gamesmanship as well. For example, weekends with dad amount to a weekend at Disneyland. Dad lets the kids stay up as long as they want, there is often no discipline imposed, dad try’s to buy the kids with expensive toys, electronics etc. I have heard mother’s say that, part of the conversation during the weekend at dad’s was “wouldn’t you rather live here?” And on Monday morning the kids are so tired it’s a chore for mom to get the kids out of bed and ready for school. Sadly, some people stay embroiled in the court system for many years. Court proceedings are stressful, can involve significant delays, can be expensive and often do much to aggravate the already heightened levels of animosity between the parties. For most people, involvement in family court is one of the most emotionally and, potentially, financially draining experiences they will face in their lifetimes. In this set of circumstances, the child or children get no respite from exposure to anger, bitterness and endless conflict. The very sad reality is that, for people who get embroiled in this type of scenario, there are no wins. There are only losses in a never-ending cycle of conflict. In these situations, the emotional toll on the warring parties is considerable. It affects their ability to function well at work and in their relationships with their own child or children. It is the child or children who become the real victims in the war between the parents. So is there anything that can be done to avoid this kind of experience in your life? Second Marriages It is difficult, if not impossible, to communicate these lessons to younger people embarking on a relationship for the first time. Especially in adolescents, who enter into relationships with insufficient maturity to properly assess their new partners, the libido becomes the decision-maker and not life experience and, accordingly, the exercise of objectivity and critical thinking takes a back seat. Watch Closely! Many people in today’s world enter into a subsequent relationship after a separation or divorce from a previous partner. Sometimes people just do not learn from prior experience and, although much less likely, the difficulties we have been discussing sometimes surface, yet again, in the second relationship. Court Orders Don’t Fix People Before you make the decision to move in with someone, watch them closely. Does your potentially new partner have issues that concern you? Do he drink a little too much on the weekends? Do she do drugs? Are there signs that the person may be a controlling or narcissistic type of personality? Does he or she wrestle with issues like depression or anxiety or other mental health issues? Is he a complainer? Does he have difficulty holding a job? Is she constantly putting a negative spin on things? Does he or she have difficulty managing their anger? Does she “go off” at the slightest thing? These are the kinds of things to watch for in your potentially new partner. Do not rush into things. Take some time to survey the landscape. Most people are much more cautious about entering in to a new relationship if a prior relationship has failed. Once bitten twice shy! If some of these traits present themselves, you should be keenly aware that, if you have children with this person, he or she will still be a drinker or will still wrestle with emotional instability or will still have difficulty managing their anger. If you have been to family court with a previous partner your question becomes ‘do I really want to go through that again?’ Court orders do not fix personal issues. Court orders do not fix people! Grant Edward Rayner | Member Law Society of Ontario since 1985.* If you are separating from your spouse in the Upper St. John River Valley of New Brunswick, call Langdon Law at 506.497.2560 for a consultation. Offices in Woodstock, Hartland and Florenceville-Bristol to serve you. *Grant is a member of the Law Society of Ontario. He has permission from the Law Society of New Brunswick to practice as a visiting lawyer with the firm Langdon Law pending the transfer of his membership with the Law Society in Ontario to the Law Society of New Brunswick. I hope you have found this content to be useful and informative. If you would like to be notified of updates to the content on this platform enter your first name and best email in the form below. You may also wish to access further information found on my office website, YouTube channel or Facebook page. Links are set out below. If you intend to represent yourself in family court, my office has a program available to assist the self-represented at every stage of the family court proceeding. Details can be found at the bottom of this page. Finally, you can arrange for a no-obligation one hour consultation with my office in which you can engage from the comfort of your own home via video conference. Call today at 506-991-0240. NameEmailEmail Marketing by TrafficWave.net Family Law Woodstock Family Law Woodstock on YouTube Family Law Woodstock Facebook Page If you intend to represent yourself in family court, I offer a program where you can access advice, assistance with court forms and support at every stage of the proceeding. It is designed to help you navigate the court process on your own in any of the Canadian provinces or territories for as little as $50.00 CDN per month. Consultations via video conference limited to 90 minutes monthly. Call my home office today to learn more. 506-991-0240 Custody, Access Family Law accesscontempt of courtcustodycustody of childrenfamily courtjoint custodypolice
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