How Do You Enforce an Order from Another Jurisdiction?
That was the main question in the case of Becker v. McGrath, 2016 ONSC 2807. You can read the details here.
In this case, the parties resolved their child custody and access dispute via a court order in British Columbia. The daughter resided with the Mother in Ontario while the Father stayed in British Columbia.
The Father brought a contempt motion in Ontario. He alleged that the Mother was not abiding to the access ordered in the British Columbia order.
The Honourable Justice Hood examined section 41(1) of the Children’s Law Reform Act. He affirmed, in essence, that an Ontario Judge shall recognize and enforce a family law judgment made in another jurisdiction unless it would be unjust to do so. Justice Hood declared that the Ontario court should recognize the British Columbia court order.
Justice Hood also held, however, that an Ontario judge cannot find the Mother in contempt for actions or inactions that took place before the British Columbia order is recognized. In essence, the judge held that he could not examine the Mother’s conduct prior to the Mother’s attendance at court that day.
Justice Hood also examined the test for contempt. It must be proved beyond reasonable doubt. The contemptuous actions or inactions must show a pattern of deliberately frustrating access ordered by the court. Justice Hood held that the Mother’s actions showed that she did what she could to obey the court order.
This case creates a problem. Matters affecting a child should be brought in the jurisdiction where the child ordinarily resides. The Father correctly brought his contempt motion in Ontario in spite of the disadvantage to him. If a judge cannot judge the actions of a party before the court order is recognized, then how can the other party enforce the court order? In this case, what injustice or prejudice will either the court or the Mother suffer if the court examined the Mother’s actions (which took place in Ontario)?