AA v TW

The Defendant sought an Order to vary the existing parenting schedule, and requested that the Court hold the Plaintiff in civil contempt, pursuant to Rule 10.52, for her persistent non-compliance with prior parenting Orders.

Under Rule 10.52(1), the Court may declare a party in civil contempt if they fail to comply with an Order of which they have actual knowledge, without a reasonable excuse. The Court found that the Plaintiff repeatedly failed to obey Court Orders over a 15-month period, frequently placing the responsibility on the parties’ eight-year-old child to decide whether the Defendant would be permitted parenting time.

Despite these findings, McLeod J. declined to make a formal declaration of contempt, as findings of contempt in family proceedings should be a last resort, and the Defendant had not exhausted remedies under the Family Law Act, SA 2003, c F-4.5. Instead, the Court granted the Defendant leave to bring a future contempt Application should the Plaintiff fail to comply with the new parenting schedule. The Court further encouraged compliance by ordering the Plaintiff to personally transport the child to the next scheduled parenting visit.

The Court also considered whether to transfer the Action to a different judicial centre, pursuant to Rule 3.5(a), permitting a transfer if the Court is satisfied that it would be unreasonable for the Action to be carried on through its current judicial centre. Justice McLeod found that, since the Defendant resided in Edmonton, the Plaintiff lived in British Columbia, and the future meetings with the child counsel were scheduled for Edmonton, maintaining the registry in Fort McMurray was unreasonable. The Court transferred the matter to the Edmonton judicial centre.

The Court established a permanent parenting schedule, appointed child counsel to advocate for the child, and granted the Defendant leave to apply for financial penalties and makeup parenting time in the event of non-compliance. McLeod J. partially granted the Defendant’s Application and awarded the Defendant costs.