Court File and Parties
Court File No.: Brampton 1287/10 Date: 2013-08-23 Ontario Court of Justice
Between: Michael Brown, Applicant
— And —
Renata Walowski, Respondent
Before: Justice S.R. Clark
Motion for Contempt and Cross-Motion
Heard on: August 9, 2013 Ruling released on: August 23, 2013
Counsel:
- Michael Brown ........................................................................................ Self-represented
- Renata Walowski .................................................................................... Self-represented
CLARK, J.:
1:0 INTRODUCTION
1The Applicant father (hereinafter referred to as "the father") claims that the Respondent mother (hereinafter referred to as "the mother") is in contempt of this Court's order, dated June 22, 2011.
2His motion, dated June 21, 2013, alleges that she has cancelled approximately 30 weekend access visits without good or valid reason; has refused to make up any missed weekends; has refused to provide report cards for the children in a timely manner; and has refused to provide a written authorization and direction to allow him to obtain information directly.
3The mother brings a cross-motion, dated July 30, 2013 claiming the following:
This matter to be transferred to the Superior Court of Justice in Ottawa, Ontario, which is now the primary residence for the subject children.
The father should disclose his income tax returns, and notices of assessment for the past three years and three most recent paystubs.
He should pay child support commensurate with his income.
He should pay his proportionate share of the amount of $3,420.74 for the children's special expenses.
Access visits should now be once per month, the third Friday, such visits to be cancelled with reasonable notice and a valid reason relating to the children's health, bad weather, mechanical problems with the vehicle, or special occasions.
If access is cancelled by either party, there will be no requirement to reschedule unless two consecutive visits are missed, in which case the parties will reschedule one access visit.
The mother will accommodate the father if and when he comes to Ottawa to exercise access with the children upon reasonable notice.
The father will reimburse the mother with any and all monies received from his medical insurance promptly and within 21 days.
The father may obtain information directly from the children's schools, teachers, and medical professionals.
The mother may take the children for a visit to Poland in 2014 and may obtain passports without requiring the signature of the father.
4The motions were heard on August 9th.
5Ordinarily, given the serious and solemn nature of a contempt motion, the Court would order a trial of this issue. However, in the circumstances of this case, having regard to the fact that the mother resides in Ottawa, and the Court being satisfied that the parties have been heard in full, both in written form, and oral presentations, time is of the essence. A ruling is now required to rehabilitate and implement the very clear terms of an order made on June 22, 2011, more than 2 years ago.
2:0 HISTORY OF THE PROCEEDINGS
6On June 22, 2011, this Court made a final order that the mother have sole custody of the children, Amy, born October 30, 2002, now almost 11, and David, born January 28, 2006, age 8½, and that the said children reside in Ottawa, Ontario. The Court also ordered alternate weekend access to the father from Friday at 8 p.m. until Sunday at 4 p.m., and in the event that it could not take effect for good and valid reason, access should take place on the next calendar weekend, unless otherwise agreed between the parties. The mother was to be responsible for all transportation costs and exchanges. The father was entitled to liberal telephone or electronic access. The mother was to keep the father informed of the children's medical health status and to provide copies of any school report cards. There were also terms relating to the father paying an amount for special expenses, and costs.
7Prior to this final order being made, the Court made a temporary order, on November 25, 2010, incorporating substantially these same terms.
8The context in which these orders were made is noteworthy, and necessary to understand why this present contempt motion has been brought.
9Historically, a final order was initially made on January 28, 2009 by Justice Brownstone granting custody of the children to the mother. Thereafter, on July 14, 2009, a further final order was made granting access to the father each Monday and Tuesday from 4:30 to 7 p.m.; on the first and third Saturday of each month from 10 a.m. until Sunday at 10 a.m.; and on the second and fourth Saturday of each month from 9:30 a.m. to 12:30 p.m.
10Subsequently, the father brought an application on September 2, 2010, seeking an order prohibiting the mother from removing the children from the Greater Toronto Area, as she was seeking to move to Ottawa to reside with her fiancé who had obtained employment there. On September 3rd, 2010 a temporary ex parte without prejudice order was made by Justice Maresca prohibiting either parent from removing the children from the jurisdiction. On September 14, Justice Kerrigan Brownridge, on a motion review, maintained the temporary order and granted the father leave to amend his application to include a claim for custody and/or access. The parties were also encouraged to attend mediation, which they did, without success.
11The matter then came before Clark J. on a first appearance date on November 4, 2010 and was adjourned to allow the parties to file further materials. It was also determined that this should not have been an application made by the father, but a motion to change. In any event, the motion continued on November 18. The Court then reserved and made the temporary order ruling on November 25, allowing the mother to move to Ottawa.
12Looking back at the November 25th, 2010 order, in retrospect, some interesting "red flags" were raised in the materials, and in the oral presentations. Some of these are relevant in assisting the Court in establishing the context applicable to this contempt motion. Some examples include the following:
Part of the reason why the father brought his initial emergency motion was because the mother was not allowing him to see the children at all. She also made it difficult for him to even have telephone contact with them. He claimed that any future access plan proposed by the mother would not be honoured by her if the Court allowed the children to move to Ottawa.
He was sceptical of the mother's plan to follow up and follow through with her willingness to be flexible with any access arrangement. He claimed that her actions and words were two different things. He felt she was being deceptive in the summer of 2010, making it sound that she was enrolling the children in a school in this jurisdiction, when in fact she was making plans to enrol them in a school in Ottawa and to sign a new lease where she and her fiancé would be living. It was her responsibility, therefore, to bring the matter back to Court for such a determination, rather than forcing him to do so.
13Not surprisingly, the mother disagrees that she ever denied access to the father. She made numerous attempts to discuss alternate access arrangements with him, and even offered him accommodation and reimbursement for fuel, and longer access periods if he would consent to her moving, but to no avail. She believed that his motion to prevent her from moving with the children was being done out of spite and not out of concern for their best interests. She claimed in her materials, however, that she understood the importance of the father being involved in the children's lives in a very meaningful way. It was her proposal that if the Court allowed her to move to Ottawa, although she did not necessarily believe or accept that the father had health issues relating to his back, she would, nonetheless, make all necessary arrangements for transportation of the children and absorb the cost of same. It was contemplated that her fiancé (A.W.), now her spouse, would likely accompany her and that they would stay with his parents in the Toronto area, and then transport the children back to Ottawa. In addition to the alternate weekend access, she also proposed that the father could contact the children by telephone or other electronic methods as often as possible. She even offered to make the necessary arrangements to keep a local telephone number so the father would not incur long distance charges.
14In its analysis, the Court found that the distance factor in this case was not insurmountable. The Court further stated that a relocation, no matter how valid the reason, should not result in a termination of the relationship between the children and the non-custodial parent. Therefore, the mother should be prepared to accept a considerable amount of inconvenience to facilitate this. The Court also commented that the father was going to have to "step up" and recognize that if he really wanted the children to be a priority in his life, he would have to find a way to make this work. The Court then went on to say that although the mother's reasons for moving are bona fide, her process for attempting to do so was ill-considered. When she first broached the subject to the father, and knowing he did not consent, it was incumbent upon her to bring the necessary motion to change. Instead, she effectively forced his hand to come to Court. It is no wonder, therefore, that the father believed at the time (and still does) that the mother's proposal for flexible access might be more theoretical than real. The Court also emphasized that both parents should realize that their primary responsibility is to the children, and not the other way around.
15In a rather prophetic way, the Court stated that the only reservation it had about granting the mother's request that she may not prove to be as cooperative as she believed she could and would be.
3:0 THE POSITIONS OF THE PARTIES
3:1 The Father
16In his affidavit, sworn June 21, 2013, he deposes that the mother has cancelled 30 access weekends without good or valid reason, up to and including March, 2013. Her actions have had a very negative effect on the children's emotional well-being and stability, as well as his own. She has consistently refused to provide adequate notice of cancellation, making it impossible for him to make or keep plans with friends and family. His employer has become frustrated with the situation as they are unable to plan his work scheduled for Sundays. He has Friday and Saturday off. He uses holiday time to be available on Sundays. This situation is interfering with his potential for promotion to a higher administrative position. (A.W.) has stated his intention to alienate him from the children and has interfered with his communicating with them. To date, (A.W.) continues to contact him by phone, or impersonates the mother when corresponding by email. All access exchanges are to take place at a Tim Hortons coffee shop located at highway 401 and Victoria Park Avenue in Toronto. The mother is to contact him 20 minutes before their arrival to confirm punctuality. However, as of September 15, 2011, she has refused to call, causing him to wait for the children for hours at a time. He has provided her with several opportunities to make up the cancelled access weekends, as well as requesting a summer schedule for access, however she has refused to respond. He is concerned about the negative emotional effect the mother's behaviour is having on the children, particularly their son. They have spoken to him about their feelings on this issue. He believes that it is affecting their self-esteem and emotional strength. He believes that the Office of the Children's Lawyer should become involved to allow the children to share their feelings without fear of retribution of being punished for voicing their opinions. He believes that the mother's contempt is designed to destroy the close emotional bond he has with the children.
17In his oral submission, he indicated that he has not seen the children since May 15, 2013. The Court asked why it took so long to bring this contempt motion, since he claims that the access weekends broke down approximately 4 months after the final order was made. He explained that he urged the mother to follow the terms of the order and kept asking for make-up weekends, however she would not respond. She would provide a litany of excuses that he thought were "weak". Some of the reasons given were that the pastor of their church was leaving on a particular weekend; that (A.W.)'s parents were coming for another weekend; and that the price of gasoline to transport the children was becoming excessive. He continued to communicate to her that she was cancelling the access weekends for invalid reasons and that her conduct constituted egregious and wilful behaviour. He also believed that the "alienation" was increasing. On many occasions when he was exercising telephone access with the children, she would "intimidate" him by sitting beside the children when they were Skyping. They would also be on a speaker phone, never being able to have a private conversation with him. He claims that he gave her ample opportunity to purge her contempt, however, she continued to ignore his requests. One particular piece of correspondence from her was to the effect that she should not have to live her life by a Court order. He believes that her actions to frustrate access are intentional. Additionally, she has ignored his frequent requests for copies of the children's report cards and to have her to sign authorizations so he could contact their school and medical practitioners directly. He submits that her responding materials were not served on him in sufficient time to allow him to reply. He therefore asks the Court to only consider her oral submissions. Finally, he seeks costs of this motion fixed in the amount of $300.00.
3:2 The Mother
18In her affidavit, sworn July 30, 2013, she sets out that she and the children have adjusted to living in Ottawa very well and are all thriving. The children are very involved in their community and church, and participate in numerous extra-curricular activities. She has another child with (A.W.). Their son, Adam, is now 3 years old. Since the final order was made on June 22nd, 2011, they have driven the children to Toronto every other weekend, although from time to time they have had to cancel visits for reasons which include bad weather, mechanical problems with their vehicle, the children's health, special occasions including the children's activities for concerts, plays, rehearsals and birthday parties, and financial reasons. She claims that they have always cancelled the visits ahead of time. Each time one is cancelled, the father threatens her with the police, that she will go to jail, or will lose custody of the children. In fact, the father has cancelled visits himself and has also asked her on numerous occasions to pick up the children before the end of his designated access time. His reasons have ranged from not being mentally ready for the children, to having a headache. None of this is mentioned in his affidavit, nor does he mention that she has offered to make up visits but he has declined. For the past year she has had to cancel more visits because the children have grown and are now involved in activities and have friends in Ottawa. Amy is involved in acting. Recently, she almost lost a role in a play because of her absences at rehearsals on weekends. This was "devastating" to her. She believes that she has made every effort to comply with the order, however given numerous changes in circumstances it is in the children's best interests that the order be varied. She is, therefore, asking that they drive the children to Toronto once per month on the third Friday. At the time the order was made the children were younger. She claims that she has always supported the father's role in the children's lives. She originally agreed to drive from Ottawa to Toronto every second weekend to ensure that the children continue to develop a close bond with their father. She believes that they are now bonded and will continue irrespective of whether they see him one time less per month. They have grown up and now have other needs that are important to consider. They want to see their friends on weekends, attend at their friend's birthday parties, and participate in rehearsals and other activities. She claims that the children have started noticing that their father has never participated in any of their milestones. He did not attend Amy's junior graduation in June, 2013. He has shown no interest in seeing any of her plays. She claims that in order to be at the meeting point at 8 p.m. on alternate Friday's, they have to pick up the children from school and drive between 5 and 7 hours. They also must stop on the way to allow them to eat. Sometimes the traffic is heavy. From time to time they are late. When this happens the father complains and talks badly about her and her husband to the children. This confuses them. He often calls their house to speak with the children. When they are not home he accuses her of not allowing him to talk to them and claims that they abuse the children emotionally. He has harassed and offended her by sending rude and bizarre text messages. She has had to change her phone number. He has also contacted her husband via text saying that he should leave her. They were trying to comply with the term of the order about calling him by phone 20 minutes before arriving at the access meeting point, however, after he made a complaint to the police that (A.W.) was harassing him, they were advised that it was best not to contact the father anymore via text. She has been told by the children that the father stopped at a liquor store and was buying a bottle with a clear liquid inside. Despite the father's history of drug and alcohol abuse, she has continued to trust him with the children and has never withheld them or interfered with his relationship with them. On the other hand, he does not hesitate to disparage her in front of the children, which is hurtful to them.
19She cites the following changes in circumstances and difficulties in having to comply with alternate weekend access as follows:
The cost of gas has substantially increased. They spend approximately $190.00 per trip for gasoline alone. It is 443 kilometres from their home to the meeting point one-way. With other travel expenses and wear and tear on the vehicle, their monthly traveling cost every two weeks is close to $1,000.00. She is not employed outside of the home. She has completely relied on her husband financially. The cost of access is more expensive for her than the actual child support she is receiving.
David wanted to play soccer this summer but because the games are played on Friday afternoons, he could not do this. The children are also involved in the choir at church and take part in musicals and concerts. They attend Polish school on Saturdays during the school year.
The children have expressed interest in competitive swimming and speed skating, but with the current travel schedule it is impossible. The children are upset.
On one weekend, for example, Amy wanted to stay in Ottawa. She told her father on the telephone and he said he would deal with it at Court. Amy had a performance at her church on Sunday. She is a very shy child and acting has helped her come out of her shell.
(A.W.) goes to work earlier on Fridays when they have to travel to Toronto. He works at 6 a.m. They have seen numerous accidents on the highway and it is stressful to think of how often they are on the road with three children in the car.
Their youngest child, Adam, is now 3 years old and less cooperative when travelling. She does not have the option of leaving him behind in Ottawa. It is difficult for all of the children to spend so much time in the car at their ages.
When they travel to Toronto, they reside with (A.W.)'s parents for the weekend who reside in a semi-detached home. His mother has been diagnosed with kidney cancer and his father is undergoing testing for cancer as well. His sister has had to move back in with the parents. The space is very limited. It is likely that (A.W.)'s parents will have to move in the near future. If they relocate out of Toronto this will cause their own costs to increase. They cannot afford hotels.
They have offered the father the opportunity to come to visit the children in Ottawa and have even offered to pay his hotel costs and to cover all expenses for the children including their food and activities, however, he has flatly refused.
She has no issues with the father having time with the children over the summer holidays. The problem is that he makes no arrangements for transportation. She has offered makeup access by giving him the option of taking summer holidays, however he has refused, stating that he cannot handle the children for long periods of time. On occasions where she has told him to keep the children an extra day for long weekends, he has brought them back early in the morning.
It is her belief that the medical evidence provided by the father about his back problems is outdated. Based on the activities he does with the children, and the fact that he has now returned to work full-time, he obviously does not have the same health issues he had in 2010.
To her knowledge, the father has weekends off. He has not worked Sundays since they moved to Ottawa in 2010.
20She has not received any financial disclosure from him. She knows that he has returned to work full-time. He is no longer a recipient of ODSP. He apparently earns $55,991.00 per annum. He refuses to pay any of the children's special and extraordinary expenses. He has never once approved an activity. Apart from paying child support, he has not contributed to any of the children's activities or summer camps, despite being provided with all receipts and requests to be reimbursed. She has spent, to date, $3,420.74 for summer camp, soccer camp, art camp, music school, swimming lessons, eyeglasses and dental expenses. The children are beneficiaries of the father's medical/dental plan. When she pays for these services, he takes his time before reimbursing her.
21She indicates that she has no issues with the father receiving information directly from the children's teachers, doctors, dentists or any other professional. She has never refused to provide an authorization, or report cards. She believes that it is good for the children for him to be involved in this manner and now asks the Court to make an order confirming that the father can contact the various service providers directly.
22She also asks that this matter be transferred to the Ottawa jurisdiction in the future, as it is difficult for her to make arrangements to attend court in Brampton. (A.W.) must take unpaid time off work, and they must arrange for child care while in this jurisdiction. It is also difficult to retain counsel in this area when lawyer's offices are closed.
23Finally, she asks the Court to make an order allowing her to travel to Poland with the children without the consent of the father. Her parents now reside back in Poland. After living with them in Ottawa, they have decided to return there.
24In her oral submissions she apologized for any of the times she has had to cancel access, however she did not believe that 30 or 31 weekends had been missed. She claims that any of the reasons she has provided have never been good enough for the father. She believes that he continues to try to control her life and her marriage, and is manipulating the children. The children are confused and sometimes cry. She claims that he talks to them about these Court matters and tells them that she is not good or being fair and that it is her fault because they moved to Ottawa. She has always offered, as an alternative, that he come to Ottawa and that they would pay his expenses, however he claims that he cannot operate a motor vehicle for more than 3 hours at time because of his back issues. She believes, however, that his medical documentation in support of this claim is all outdated. It seems that no matter what she says or does, he is never happy. He continues to threaten her that he will go to the police or will bring a further Court application. She believes that he does not care about the children as much as he cares about trying to make her unhappy, scared, and trying to break up her new family. She does not believe that her actions or behaviours are harmful to the children, or that she is being emotionally abusive. She asks, rhetorically, "where are the facts?" She is not working and has the opportunity to spend all day with them. She is a busy mother of three children. She is concerned about the number of accidents she sees on the highway when they have to drive to Toronto. She wishes that he would come to Ottawa on alternate weekends. She is concerned that he does not contribute any money for the transportation costs. She believes that a happy medium would be having them travel only one weekend per month to Toronto. She is concerned that it would be very problematic for the Court to consider ordering any makeup visits for the weekends that have been missed. She does not believe that the Court should vary the final order to now have them drop the children off at the father's residence instead of the present location. This would require them to drive a further 15 minutes into the city. She does not believe that she should have to pay costs for this application. The Court should consider that the cost of gas has gone up and that (A.W.) had to take a day off work to attend Court.
25The Court allowed (A.W.), who accompanied the mother to Court, to make brief submissions. He explained that he is the "money monkey" and driver. He wishes that the parties could come to a mutual agreement where they would travel to Toronto once a month, and the father would come to Ottawa once a month. He claims that the father calls the house non-stop. The children speak with their father on speaker phone, so that he and the mother can "monitor" things. He stated that the father has told them now for some time that he would "100%" bring them to Court for contempt.
4:0 HIGHLIGHTS OF CORRESPONDENCE BETWEEN THE PARTIES RE ACCESS
26For further context, given this fact-specific exercise, the Court has given consideration to excerpts (in no particular chronological order) of some of the written materials filed by the parties. For example, at Tab 5 of Volume 2 of the Continuing Record, Exhibit "F" to the father's affidavit, sets out an email from the mother dated June 16, 2013. It starts, "Yes, I am aware of what is required of me (how can I forget, you remind me almost every week)." It then sets out the children's schedule for the next few weekends, indicating that the children have a music recital on the Saturday, as well as the last day of Polish school on the Saturday. On the next weekend, the children's pastor is leaving the church and the children are having a goodbye party right after the Sunday service. David is also invited to one of his best friend's birthday party on Sunday. On the following weekend (the long weekend) (A.W.)'s parents are planning to visit them in Ottawa. The email concludes in the last paragraph "I hope you understand. I also hope that the Court, the Judge Clark and whoever else reads this message will understand and not accuse me for not coming to Toronto every other weekend. I know this is something I promised in Court, however our life is busy and it is impossible to be travelling to your place that often. I am truly sorry for that. I understand you miss them. To make up for the cancelled visits, as I have mentioned to you many times before, please consider visiting the children in Ottawa from time to time. Our offer to help you financially for your effort of coming over here is always valid".
27In an email dated June 2nd, 2013, the mother indicates "unfortunately we will not be coming to Toronto this weekend. We have a bit of a problem with our van. Probably it is a transmission and we do not want to take chance and drive that far before the mechanic looks into it…if you would like to come to Ottawa, you are welcome to. We will be around; there is a fun fair happening in our neighbourhood and the children are excited to go there. You could join them, it will be here the whole weekend."
28Regarding makeup access weekend for Friday June 7 to Sunday June 9, 2013, the mother emailed…. "thank you for accepting the fact that our vehicle was not operating properly. It has not been repaired yet; we are in the process of looking for different options so we don't have to spend too much money on it (it is though very possible that the repair will cost us two thousand dollars). Therefore, we still can't be travelling that far (we are currently using the van only to get to work and the supermarket). Also, as you know, David is sick since yesterday and will not go to school and extra activities for the rest of the week. You are welcome to visit the children here, in Ottawa. We will be around since David is sick and the car's situation. We could drop and pick the children up at the place convenient to you (if David is feeling better of course). We would gladly take them home to feed them and for nights so you would have less to worry about. We would also provide the children with some money to help you and your budget. Please consider our offer".
29In another email regarding access weekend from Friday March 15 to Sunday March 17, 2013, the mother stated… "we will not be coming to Toronto today. There is a family service in our church this Sunday and Amy will be participated by singing during the service".
30Regarding access weekend Friday February 22nd to Sunday February 24th, 2013, the mother emailed… "due to financial restraints we will not be able to bring the kids to Toronto this weekend, saying that you are welcome to come here and see the kids."
31Regarding makeup access weekend February 15 – 17, 2013, the mother emailed… "we are not coming this weekend. We might be coming next weekend."
32Regarding makeup access weekend Friday November 30-Sunday December 2nd, 2012, she emailed… "we are already came once this month…it's still November…I have told you well over a year ago that if you don't like what is going on then make changes. No one is stopping you from seeing the kids. Have a great weekend and let me know if you will be coming to see the kids this weekend. Please keep in mind that Amy has a birthday party this Saturday 1-4 p.m. We can provide the address for you along with directions."
33Regarding access weekend Friday November 23rd - Sunday November 25th, 2012, she emailed… "we are not coming this weekend. Enjoy your weekend off. P.S. We already came this month."
34Perhaps one of the more telling exchanges is the blackberry exchange between the parties regarding makeup access weekend Friday March 22nd – Sunday March 24th, 2013. The father indicates… "to date you have cancelled (approximately) 30 access weekends, most without good or valid reason and have refused to abide by the final order in making up these weekends. To date you have made up a sum total of zero access weekends. I have provided you with several opportunities to address this in a constructive and cooperative manner but unfortunately you continue to cancel access weekends to the detriment of the children's emotional bond with me." The mother responded…. "once again, you are welcome to visit the children if you think you don't see them often enough. We will make sure they are ready for you. We can even help you to reduce your costs by giving the children some money for snacks or events you wish to take the children here, in Ottawa. Maybe taking me to court would be good solution. I have valid reasons for not coming to Toronto every other weekend. I'm trying my best." She continues… "This weekend we will not come to Toronto again. Next week we are moving. We are invited to the first communion in Wasaga Beach on the second weekend in April. The children are very happy about going there with us. If you want, you can have them Friday evening to Saturday noon on that weekend. We will email you with more details, these are just the quick updates."
35To round out some of the other reasons, there is an email from the mother dated October 11, 2011 indicating… "due to (A.W.)'s busy schedule this coming weekend, unfortunately, we won't be able to come to Toronto, we will be there next weekend as per the Court order, we are doing everything that we can to abide by the Court order." On March 30, 2012, she emailed the father… "and do what feels good for you Mike… I guess I'll see you in court and I hope this will end your crap." On August 29, 2011 she emailed … "just so you know we are not coming next weekend, we are on vacation, (A.W)'s job dictates our time off, he had a job cancellations for this week so we took the week off, sorry for any inconvenience that this may cause." On August 31, 2011 she emailed… "we might not be coming this weekend, the reason is; the kids start school on Tuesday and they need to get ready, and we need to do back to school shopping, we will commence the regular visits the weekend following, and the "makeup" weekends as well. If you would like to talk about it feel free to.
5:0 ANALYSIS
5:1 Contempt – The General Principles
36The remedy of contempt is one of last resort. It should not be sought or granted where other adequate remedies may be available to the aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Such findings should be made only sparingly.
37Contempt must be proven beyond a reasonable doubt, when the circumstances are clear and unambiguous.
38A refusal to permit access out of a legitimate concern for the children, rather than a desire to frustrate access or deny contact does not amount to contempt.
39The Court is mindful that not every breach of an order is serious enough to deserve a finding of contempt. For example, a single breach of an access order, followed by compliance with same, might amount to contempt, technically, but in the circumstances, may not attract consequences.
40Therefore, the term "wilful" is intended to exclude casual, accidental or unintentional acts.
41There are also situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order. Thus, there is both a subjective and objective component.
42Part of the test, therefore, is that notwithstanding that a parent has a subjective belief that access cannot take place, if the belief is not objectively legitimate, a denial of access may amount to contempt. (see R.(K.A.) v. S.(B.T.), 2005 ONCJ 44).
43The form of contempt addressed by Rule 31 is civil rather than criminal, notwithstanding that imprisonment is one of the possible remedies. Whereas the purpose of the sanction for criminal contempt is primarily to penalize the offender, the sanction for civil contempt is primarily remedial to attempt to gain compliance with orders of the Court.
44In order to make a finding that a party is in contempt, the Court must be satisfied of the following 3 factors:
The order in question is clear and unequivocal.
The breach of the order must be done wilfully and deliberately.
The evidence must establish the contempt on the criminal standard beyond a reasonable doubt.
5:2 Application of the Principles to the Evidence
45Regarding factor 1 above, there is no doubt, whatsoever, that the subject order was clear and unequivocal in its terms regarding access.
46Regarding factor 2, in the present case, there is no evidence that the children refuse to attend for access. Rather, the Court finds that many, if not most of the reasons for non-compliance are hatched or motivated by the mother's persistent influence on the children, and her efforts to exclude their father from their lives. In other words, it is her influence as to what the children need or want, which she has unilaterally allowed to guide her judgement, as opposed to the terms of the final order.
47Regarding factor 3, the Court finds that the evidence establishes the contempt on the criminal standard beyond a reasonable doubt. Employing the evidentiary standard set out in the seminal case of R. v. W.D., the Court does not believe the evidence of the mother. She either made or allowed plans to be made for the children on each access weekend, or allowed the various invitations and activities that often fall on weekends to trump her obligation to keep the access weekends free. Furthermore, the Court finds that her evidence does not raise a reasonable doubt. Although she may have had a subjective belief that each of her excuses or reasons was valid, they are only valid to her. Objectively, the Court finds that any other reasonable parent in similar circumstances, would and must understand his or her obligation that the access weekends are sacrosanct and inviolable. On the third branch of the W.D. test, the Court finds that the father has exercised significant forbearance in not bringing this contempt motion much earlier. Having considered the correspondence between the parties, it is clear that the father continued to remind the mother of her continuing obligation and gave her every opportunity to fall into line, as it were. The Court has also given consideration, incidentally, to whether the father's wish to actually have the children on alternate weekends is something he truly desires, or whether he has merely created and is only interested in perpetuating a "campaign" to try to control or otherwise disrupt the schedule and wellbeing of the mother. The Court finds, however, that this is not the situation.
6:0 CONCLUSION
48In the final analysis, the Court finds that the mother has effectively admitted that her conduct amounts to contempt. Through her correspondence, her affidavit, and oral submissions on the motion itself, she has continued to try to justify seeking a variation of the terms of the order to have access reduced to once a month, rather than truly trying to defend against the finding of contempt.
49Once again, the mother has done nothing to make this Court appearance happen. Instead, she has merely sat back and waited, effectively forcing the father's hand to return to Court.
50On all of the evidence, therefore, the Court finds that the mother has not complied with the terms of the order regarding access, nor has she come to Court with "clean hands".
51The evidence overwhelmingly points to the mother grudgingly accepting that the father should have a relationship with the children. What the mother promised and undertook two years ago when the final order was made has not been reflected in her actions. She over-promised in an effort to obtain the order she wanted, and then under-delivered in her obligation to adhere to the clear terms.
52Although it is understandable that as the children grow they become connected to their peers and community activities, the mother has used this as a blanket excuse at will, whenever it was inconvenient for her to honour the terms of the order. Although some of the reasons for missed weekends are within the realm of legitimacy (car trouble, or illness) most of the others are not.
53The net effect of her behaviours and unwillingness or lack of motivation to comply with the terms of the order expose her effort to minimize the father's role as a parent and to limit his contact with the children.
54For all of the above reasons, the Court finds that the mother is in contempt.
55All other claims by the father in his motion will be dealt with at a later time.
56The Court also declines to rule on the merits of the mother's cross-motion at this time. This will be the subject of a future ruling once the penalty component of the contempt order has been dealt with.
57Pursuant to Rule 31(5), if the Court finds a person in contempt, it may order the following:
(a) be imprisoned for any period and on conditions that are just;
(b) pay a fine in an amount that is appropriate;
(c) pay an amount to a party as penalty;
(d) do anything else that the Court decides is appropriate;
(e) not do what the Court forbids;
(f) pay costs in an amount to be decided by the Court; and
(g) obey any other Court order.
58Having made this finding, the Court should give her an opportunity to purge the contempt.
59Accordingly, the penalty phase shall be adjourned to the early part of the new year, in 2014, and in the interim, the status quo shall continue. This should be ample time to assess compliance.
60The parties had better find a way, and fast, to address their dysfunctional parenting behaviour, their inflexibility, and ongoing power struggle. To think that the children are not affected by their actions is both naïve and irresponsible.
61The Court shall remain seized of this motion and cross-motion. The reason for a return in the early part of the new year is on the basis that the parents will perhaps still have Christmas vacation time and be available to attend Court before the children return to school.
62As a suggestion, in an effort to attenuate the mounting costs, the mother should give consideration to sending the children by train to visit their father. This will not only foster enjoyment and independence for them, but may also give her some needed "down time". She will find that the VIA Rail schedules fit the access timelines. The safety and security issues for the children can be accommodated, the Court believes, by special arrangement with VIA Rail.
7:0 ORDER
63The Court makes the following order:
The respondent mother, Renata Walowski, is found in contempt of the June 22, 2011 final order regarding access.
The penalty phase of these proceedings is adjourned to Friday January 3, 2014 at 9:00 a.m. in courtroom 207 to determine the appropriate penalty, and thereafter, to determine the next steps on the motion and cross-motion. If this date is, for some reason, not acceptable, any other reasonable date over the Christmas vacation time when the Court may be sitting can be arranged through the trial coordinator.
Costs are fixed in the amount of $300.00 and payable by the said respondent mother to the applicant father within 30 days.
Released: August 23, 2013
Original signed by
Justice S.R. Clark
