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Epstein’s This Week in Family Law | Parental Alienation | Contempt Order

A contempt order against the mother in a parental alienation case was set aside in recent Court of Appeal decision


Epstein’s This Week in Family Law



By: Philip Epstein



Contempt - Review Orders - Access

Fiorito v. Wiggins, 2015 CarswellOnt 16481 (Ont. C.A.):

I commented on this case in an earlier Newsletter. It was a significant alienation case that had been penned by Justice John Harper of the Superior Court of Justice. The matter eventually went to appeal before the Ontario Court of Appeal. This has been a horrendous case with more than 45 days of trial and voluminous documentation. The Court of Appeal noted that the children who are now 12, 13, and 14, have lived the last seven years of their lives in the shadow of their parents’ high-conflict litigation.

The Court of Appeal set aside the trial judge’s finding of contempt. They noted:

As this court has emphasized, the civil contempt remedy is one of last resort and should not be granted in family law cases where other adequate remedies are available to the aggrieved party: Hefkey v Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3.

In this case there was no order outstanding in respect of which the trial judge could find the mother in contempt, and thus the contempt order was set aside.

An important part of the trial judgment was the trial judge’s reliance on the Child and Family Services Act because he had found that all three children were in need of protection within the meaning of that Act. The unusual part of that judgment was the fact that Justice Harper was sitting in Windsor as a Superior Court judge, and in that jurisdiction only judges of the Court of Justice have child protection jurisdiction. Justice Harper reasoned that he needed to draw on his parens patriae jurisdiction as a Superior Court judge in order to make the finding that the children were in need of protection.

The Court of Appeal found that there was no need to resort to the CFSA or the parens patriae jurisdiction. Since a trial judge had found that the children had suffered under the mother’s conduct and that her conduct had amounted to emotional abuse, it was open to the trial judge to take that finding into account under section 24(2) of the Children Law Reform Act as part of the children’s needs and circumstances, and there was no need for him to resort to the CFSA or his parens patriae jurisdiction.

The trial judge had set out a time frame in which to conduct an access review as he recognized that the children still needed both parents.

The Court of Appeal noted that the matter was required to initiate the review and found that the trial judge had erred in failing to set a fixed time frame in which the issue of access would be further reviewed. As the Court of Appeal noted:

Given his finding that the children needed both of their parents he should have imposed a time line for a further review.

Based on some fresh evidence, the Court of Appeal changed the access arrangement, awarded unsupervised access to the mother and directed a review to take place in an expeditious fashion. The Court of Appeal noted that:

The review must not be like the 20-plus day review held previously in this matter or generate the disproportionate legal fees seen so far in this proceeding. I see no reason why the review should take more than a few days. I exhort the review judge to manage the review process to achieve that result.

Fiorio v. Wiggins was an important case below and the revisions made by the Court of Appeal must also be taken into account. It has been a disastrous case for parents who must be financially ruined by the litigation and has kept the children in an untenable position for more than seven years. Respectfully, this very high conflict case should have been streamed out of the system and expeditiously dealt with many years ago and not left these children in limbo for such an extended period of time.

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