January 31, 2011 By: Marta Siemiarczuk
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All too often, clauses in separation agreements or court orders related to how parents are to govern themselves in dealing with each other and when interacting with their children go ignored or are simply chalked up to good intentions.

That wasn't the case in Gill v. Chiang, a decision of Justice A. Duncan Grace. The matter dealt with a contempt motion against the father, James Chiang, for allegedly breaching the terms of an arbitration award arising out of a mediation-arbitration process and subsequently turned into a formal court order.

The case apparently dealt with extremely high conflict and, as a result, the very detailed arbitration award tried to leave no stone unturned in an attempt to minimize future discord. The two allegations of contempt I found most interesting were that Chiang alienated the children and sent communications to Johanne Gill and the kids that violated the parenting principles in various ways. In particular, they were denigrating and critical in some cases, while those that included the children placed them in a position in which they found themselves embroiled in their parents' frequent disputes over scheduling, extraordinary and special expenses, and extracurricular activities.

According to Grace, Gill filed as evidence almost 400 pages of e-mail communications between the parties and the children to support her allegation that, since the arbitration award, Chiang had continually undermined the principles of tolerance, co-operation, and restraint it articulated. To be clear, this was not a motion to change terms of custody or access on the basis of the parties being unable to work together and communicate effectively. This was a contempt motion with very serious implications for Chiang.

Grace provided some very telling examples of how Chiang had undermined the principles of the award. They included forwarding e-mails Gill sent to him to their son while "commenting briefly, colourfully, and inappropriately about it" and doing the same with messages dealing with s. 7 expenses while providing his view on who should pay. He also sent his son e-mails stating, in reference to his other son, "Just don't let Nick get saddled with ur mother alone," along with other similar types of messages.

As for an explanation for his actions, Grace noted Chiang didn't deny sending the messages. Rather, he indicated it was his ex-wife who was "projecting" her own behaviour onto him and that she was the one undermining the terms of the award.

Grace had this to say about Chiang's actions: "His description of Ms. Gill and her communications are unnecessary and insulting, and his negative views of Ms. Gill are not only shared with the children but . . . evidence his attitude that time spent with Ms. Gill . . . is something to be endured not enjoyed."

In considering the matter, Grace applied the test for contempt found in Sickinger v. Sickinger. It asks whether there was evidence beyond a reasonable doubt that the order in question clearly outlines what the parties are to do and not do; that the moving party has provided clear details of the contempt to the respondent; and that the respondent has wilfully and deliberately disobeyed the order. Confirming that the fact that an arbitration award underlies the court order didn't diminish its enforceability — notwithstanding submissions to the contrary by Chiang's counsel — Grace held that Chiang did in fact deliberately and wilfully contravene the parenting principles incorporated into the order and was in contempt.

As noted earlier, I think it's fair to say it's rare that these kinds of clauses in orders get to the point of actual contempt motions. It's also unusual to see them actually end in a finding of contempt with a penalty imposed. Given the difficulties in family law matters that are so personal to the people involved and the challenging dynamic of interacting with each other, this case is certainly something to keep in mind.

Unfortunately, Grace ordered the parties to return later in February to speak to the issues of costs and penalty, so we don't yet know what will happen to Chiang. Still, at least we know the court won't tolerate this type of high-conflict communication.

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca

[This article is reprinted with permission and first appeared in the January 2011 issue of The Law Times.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law