Ontario Court of Justice
Date: July 6, 2021 Court File No.: D 19-31260
BETWEEN:
LAILA SEZIN Applicant
— AND —
MOHAMMAD RAMADAN SHEIKH Respondent
Before: Justice Roselyn Zisman
Heard on: May 31, June 21 and 30, 2021 Reasons for Judgment released on: July 6, 2021
Counsel: Stephen A. Cooper, for the applicant Taheratul Haque, for the respondent
Decision on Contempt Motion
1. Introduction
1This is my decision on a Motion for Contempt filed by Respondent (father) alleging that the Applicant (mother) has continuously breached the court orders regarding access by the father to the parents’ child, Lionel Ayman Sezin born on […], 2020.
2The motion was originally to be heard on February 17, 2021. The motion sought to find the mother in contempt of the November 9, 2020 court order. However, as a term of the adjournment of the contempt motion further order was made on March 29, 2021. Both counsel agree that the contempt motion relates to both orders.
3On February 17th, the parties attended before the court. As the mother had just retained Gary Gottlieb as her new counsel, an adjournment of the father’s motion was granted. Costs were reserved. An order to permit further materials to be filed with timelines was made. The contempt motion was then adjourned to March 29, 2021.
4However, shortly after Mr. Gottlieb brought a motion to be removed as counsel of record that was granted on March 25th. The mother also filed a Notice of Change to represent herself. The mother stated that she could not disclose her address and that her email address was in care of her victim assistance counselor at victim.witness@gmail.com and that address can be used for service.
5Prior to Mr. Gottlieb being permitted to be removed as counsel of record he filed 2 affidavits on behalf of the mother in response to the contempt motion. But in view of the relief being sought the mother was granted another adjournment as she wished to retain another new counsel.
6Counsel for the father sought terms of the adjournment if the court granted the adjournment.
7On March 29th, as a term of this second adjournment of the father’s contempt motion, the mother was ordered to provide the father with parenting time every Sunday from 10:00 a.m. to 4:00 p.m. to be supervised by a person to be selected by the father and if possible to be his sister-in-law Ms Ahad. The mother was also ordered to provide counsel for the father with the name and complete address of the child’s doctor and a copy of the child’s medical file by April 9th, 2021 and to provide her address and her personal email address to father’s counsel by Thursday April 1, 2021.There were other terms with respect to exchanges and terms of the order and that the order was to be enforced by the police. [1]
8The contempt motion was then adjourned to May 31, 2021 for an oral hearing preemptory to the mother. Both parties were given leave to serve and file updated affidavits in accordance with timelines. Costs were reserved.
9Prior to the May 31st, the return date of the contempt motion, mother had retained her present counsel who served and filed a further affidavit from the mother outlining for the first time information about the child’s compromised and serious health conditions. The mother had not complied with the March 29th order to provide the father with the name and contact information for the child’s doctor or a copy of the child’s complete medical file.
10Further, the mother only served and filed her affidavit on May 26th although the deadline was May 20th. Despite the procedural unfairness caused to the father due to this late service and lack of the mother’s compliance, in the best interests of the child the affidavit was admitted.
11Father’s counsel was content to begin the contempt motion and begin his cross-examination of the mother. However, the mother had the child with her and could not soothe him after several attempts so that the father could not begin his cross-examination.
12An order was made adjourning the contempt motion again to June 21st. Counsel for the mother was ordered to provide the father’s counsel with a list of all the doctors, clinics and hospitals that have seen the child. Leave was granted to the father’s counsel to bring a motion for production of third party records regarding the child.
13The father was given leave to serve and file a further affidavit based on any third party disclosure. The mother was given leave to serve and file a further affidavit, limited to 10 pages by June 9th, regarding a recent allegation she made of “abuse” by the father against the child.
14Both parties were ordered to file updated 35.1 parenting affidavits as the mother was alleging further charges of breach of release terms by the father and the mother had been recently charged with failure to comply with a court order.
15The contempt motion was heard on June 21st for the entire day. It was then adjourned for submissions to June 30, 2021.
16On June 21st, the father’s counsel also requested an expedited trial. Both counsel agreed that they would be ready to proceed for the trial week of July 19-23, 2021.
17On June 25th, counsel for the father submitted a form 14B requesting the contempt motion be adjourned for him to obtain a copy of the transcript of the mother’s cross-examination.
18In view of the pending trial, this contempt motion needs to be completed and the adjournment request was denied.
19There were numerous other procedural 14B motions by both parties that are not reviewed here but are all outlined in the many endorsements made on this file.
20The father relied on his affidavits sworn February 9th, March 5th, March 26, May 27th, 2021 and the cross-examination of the mother and the exhibits filed during that examination. [2]
21The mother relied on her affidavits sworn February 11th, March 16th and May 26th, 2021 and a factum.
22Counsel for the mother did not request to cross-examine the father.
2. Background
23The background of the parties and this litigation are important to understand the context of this contempt motion.
24The parties were married in Bangladesh on September 23, 2018. The mother arrived in Canada on November 11, 2018 on a visitor’s visa and the father sponsored her on an immigration sponsorship application.
25On July 21, 2019 the father was arrested on 6 counts of assault against the mother including one count of assault with a weapon. The parties at the time were living with the paternal family and according to the mother she was forced to leave that home.
26In September 2019, the mother began a court proceeding and was granted leave to bring an urgent motion. The mother was pregnant and as a result of her immigration status did not qualify for social assistance and was not eligible to receive OHIP.
27On October 10, 2019 a temporary without prejudice order was made that the father pay the mother spousal support of $688 per month based on his stated 2018 income of $42,773. At the time, the father was not represented and had not filed any pleadings.
28The child was born on […], 2020. The father requested an urgent motion so he could see the child. He deposed that he only found out about the birth of the child through his sister-in-law. The mother requested an urgent motion for child support. She also raised issues with respect to the father delaying paying spousal support and that she was not agreeable to consenting to a variation of his bail restrictions that would permit him to see the child in her presence or come near her.
29The father’s request for an urgent motion occurred in the very early days of the pandemic and under strict conditions with respect to court proceedings. On April 15th this court released its decision adjourning the request for an urgent motion but a date was set for an early case conference and the motions were adjourned.
30Prior to the release of this court’s decision, the father proceeded with an ex parte motion for access in the Superior Court of Justice. That motion did not proceed.
31On April 27th, the parties attended in this court for a case conference. Father advised his bail conditions had been varied to permit access in accordance with a family court order. The parties agreed to the mother facilitating virtual access 3 times a week and that the father’s sister-in-law supervise the father’s access.
32The parties agreed to child support and other disclosure items that are not relevant to the issue regarding this contempt motion.
33On June 11, 2020 a further case conference was held. There are many other issues with respect to support and transferring the proceedings to the SCJ that are not detailed in this decision but certainly added to the conflict between these parties.
34Both parties, for different reasons, agreed that the third party supervised access was not working. The father’s sister-in-law was no longer prepared to supervise access as she was being put into the middle of negotiations by both parties regarding terms of the access. The mother took the position that virtual access needed to be supervised so as not to breach the father’s terms of release.
35The parties then agreed to supervised weekly virtual access through APCO. But until APCO was available the mother would place a zoom call to the father’s email address.
36On August 26, 2020 motions by both parties were heard. There was a consent order regarding child support.
37The father alleged that the mother was breaching the terms of the access order. The mother again raised concerns that the order for virtual access breached the father’s release terms and that she had been told by the police and victim’s services not to initiate any calls with the father. The mother again alleged that the father’s sister-in-law, Ms Ahad was not prepared to supervise access.
38It was the mother’s position that the father should wait for APCO to begin virtual access and wait until it opened for in person access.
39At the conclusion of the motion and in view of the mother’s allegations, the father was required to provide a copy of his most recent recognizance and an affidavit from Ms Ahad. These documents were subsequently filed with the court.
40The father’s variation of recognizance clearly stated that the father was permitted contact with the mother in accordance with a family court order for the purposes of facilitating contact with his son.
41Ms. Ahad’s affidavit confirmed she was prepared to supervise the father’s access until APCO became available but she wanted a clear detailed order that did not put her in the position of negotiating and mediating between the parties.
42The endorsement dated September 21, 2020 regarding the motions heard on August 26th states that:
It is important for the mother not to put any further obstacles in the way of the father beginning to exercise regular parenting time with his son. Both parties must comply with the terms of the court orders and not attempt to vary those terms or discuss those terms with each other as the level of conflict between them is too high at the present time.
43A detailed order was then made for zoom calls 2 times a week and in person visits every Sunday for 2 hours supervised by Ms Ahad. The mother was not to cancel a visit unless there was a medical report stating that the child was too ill to leave the home and if a visit was cancelled, a make-up visit was to be arranged through counsel.
44A settlement conference was scheduled for October 9, 2020 but that did not proceed. By 14B motion, the conference was adjourned at the request of the mother’s counsel to November 9th. The father’s responding 14B motion again raised issues with the mother not complying with the outstanding order.
45In the endorsement granting the adjournment, the mother was again warned that she was required to comply with the court order or she may be found to be in contempt. The mother’s counsel was to contact the father’s counsel to arrange for make-up time for any missed in person access.
46Counsel were advised that the settlement conference would not proceed but a further case conference would be held.
47In a written decision released on the morning of November 9th, 2020, the mother was ordered to pay the father costs of $2,000 regarding the motions heard on August 26th. The order was made due to the mother’s unreasonable conduct in failing to comply with access orders and as a result of the mother adding conditions and stipulations to the father’s virtual and in person access that were not required by the court order.
48Despite the mother’s limited financial resources, the court stated,
In this case, the amount of costs must send a message to the mother that non-compliance with court orders and not encouraging and facilitating a relationship with the father of the child cannot be tolerated without a financial consequence.
49On November 9th a further case conference was held. As set out in the endorsement, the mother again took the position that only APCO should be used for virtual and in person access. The mother maintained this position despite being told that APCO was not open for in person access. The mother again submitted that Ms Ahad was unwilling to supervise.
50The mother was again warned that she was required to comply with both the in person and virtual access orders. A recommendation was made to use a private supervised access facility and the mother was warned that if this was necessary the cost could be deducted from her spousal support as a supervised access facility was not needed as Ms Ahad was available to supervise the father’s access.
51In view of the mother’s refusal to abide by the outstanding orders, I held that the court needed to control its own process and prevent the ongoing abuse of its process.
52On my own motion, I then vacated the June 11th order regarding virtual access through APCO.
53The order of September 21st was to continue in full force and effect except as varied. The new terms again required the mother to initiate zoom calls 3 times a week and for in person access to the father to be supervised by Ms Ahad on Sundays for 2 hours. The order included other terms regarding the access and continued the requirement of make-up access for any missed visit unless there was a medical note that the child could not be removed from his home to attend the visit.
54The order also provided that if the mother refused to comply with the order, then access could be temporarily arranged through Side by Side supervised access services. Both parties were to complete the intake process within 48 hours, access to occur for 2 hours on a Saturday or Sunday and to take place in the father’s home, if possible. The mother was ordered to be responsible for all costs of this supervised access but to ensure compliance, the father was to initially pay all costs. The father’s spousal support obligation was reduced for 2 months based on estimated costs of the supervised access.
55It is against this background that the current contempt motion is being argued.
3. Applicable Legal Principles
56In family law proceedings, motions for contempt are governed by subrule 31 (1) of the Family Law Rules that states:
(1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.
57Subrule 31(5) provides the penalties that may be ordered if a person is found in contempt of court. They include, among other things, a term of imprisonment, payment of a fine or penalty or an order that a person obey an order.
58In addition, s.38 of the Children’s Law Reform Act, enables the Ontario Court of Justice in addition to its powers on contempt to punish by fine or imprisonment or both, “any willful contempt of or resistance to its process or orders in respect of custody or access to a child.”
59The purpose of the civil contempt power is to uphold the dignity and respect for the court process. The contempt remedy is “a mechanism designed to emphasize that court orders must not be ignored or disobeyed.” [3]
60On a motion for civil contempt, the moving party must prove contempt beyond a reasonable doubt. [4]
61In the case of Carey v. Laiken, 2015 SCC 17 the Supreme Court of Canada held that to meet the test for civil contempt, the following three elements must be established:
(i) the order states clearly and unequivocally what should or should not have been done; (ii) the party alleged to be in contempt has actual knowledge of the order; and (iii) the party alleged to be in contempt must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
62It is not necessary to demonstrate that the contemnor intended to disobey the order, as this would put the test “too high.” [6] All that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in breach of an order.
63In the cases of Hefkey and Hefkey, 2013 ONCA 44 and Ruffolo v. David, 2019 ONCA 385 the Court of Appeal set out the following principles regarding contempt motions in family law proceedings:
- Courts have consistently discouraged the routine use of the contempt power to obtain compliance with court orders;
- Great caution and restraint should be exercised when considering contempt motions in family cases;
- The contempt power is an enforcement power of last rather than first resort;
- A contempt order should not be granted where other adequate remedies are available to the aggrieved party, i.e. in relation to an alleged access denial, a variation or enforcement of the access order;
- When the issue raised in the contempt motion concerns access to children, the best interests of the children is the “paramount consideration”;
- Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.
64Even when the test is met, the motion judge retains discretion to decline to make a finding of contempt where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order. [9]
65A failure to consider the discretionary factors before making a finding of contempt is an error of law. [10]
4. Discussion
66I have considered the applicable legal principles as they apply to this case.
67Counsel for the father only sought to find the mother in contempt of the parenting orders for virtual and in person parenting times as set out in the orders of November 9, 2020 and March 29, 2021. Although his cross-examination related to other breaches, he submitted that these were to be considered by the court in an assessment of the mother’s credibility.
4.1 Are the orders of November 9th, 2020 and March 29, 2021 clear and unequivocal?
68Although it would be better practice to set out the breaches of the order in the Notice of Motion, all of the dates of the alleged breaches of both the virtual and in person access are set out in the father’s affidavits of February 9th and March 5th, 2021.
69The mother is aware of the alleged breaches as she outlines her response in her affidavits sworn February 11th, March 16th and May 26th, 2021.
70The mother did not raise any issues with respect to any ambiguities in the orders.
71I find that the orders of November 9th, 2020 and March 29th, 2021 are clear regarding both virtual and in person parenting time.
4.2 Did the mother have actual knowledge of the order?
72It is not disputed that the mother had actual knowledge of the Orders.
4.3 Did the mother intentionally fail to grant the father virtual and in person parenting time?
73The father alleges that the mother either was not present for his virtual zoom calls, the room was dark, the camera was not on or the calls did not last for a minimum of 15 minutes as required by the November 9th order.
74The mother disputes this and alleges she provided the father with the virtual call-in details and he either did not attend, tried to talk to her during the call or the child was sleeping, needed to be fed or was ill.
75With respect to the in person parenting time, the father alleged that the mother never abided by the terms of access to be supervised by Ms Ahad.
76With respect to the supervised parenting time by Side by Side, the father deposes that the mother insisted on the visits only being 1 hour as opposed to the order stipulating the visits were to be 2 hours. The father further alleges that except for 4 visits, the mother did not bring the child as she alleged the child was ill.
77The mother does not dispute that she did not arrange the supervised visits with Ms Ahad as she maintained that Ms Ahad was not prepared to supervise. The mother further alleges that the Side by Side visits needed to be only 1 hour as she only breast feeds the child and needed to feed him every hour. With respect to the missed visits, the mother alleges that the child was ill or on one occasion once the mother told the Side by Side that the child was ill and they cancelled the visit. The mother produced various medical notes and doctor’s letters confirming the child was ill.
78The visits at Side by Side occurred on November 19 and 26, 2020 and February 11 and 25th, 2021 out of a potential 13 visits up to March 11, 2021. So many visits were cancelled that Side by Side cancelled the parents’ participation in their service.
79With respect to the order of March 29th, 2021 the mother deposes that the parenting time did not occur as the child was either ill or she and the child needed to quarantine for 15 days due to contracting Covid-19.
80In view of the conflicting affidavits of the parties, it is necessary to assess the credibility of the parties.
81The mother’s evidence during the cross-examination was evasive and contradictory. She could not offer plausible explanations for contradictions between her affidavit evidence and documents produced from third party records.
82The following are examples of some of the mother’s contradictory evidence:
a) The mother relies on a letter from Dr. Amy Lavorato dated May 10, 2021 (Ex. G to May 26,2021 affidavit) under the letterhead SHN [Scarboro Health Network]..This letter states that the child was born with low birth weight, diagnosed with neonatal hypoglycemia caused by the mother being malnourished and underweight during her pregnancy. The letter sets out that general symptoms include vomiting, diarrhea, poor feeding and recommends the child only be breastfed every 1.5 hours and not be away from his mother for more than 1 hour.
When questioned, the mother could not recall if she saw Dr. Lavorato in person and could not explain why Dr. Lavorato’s name is never mentioned in all the child’s medical records from SHN or why no visit is listed for May 10, 2021 (Ex. 1 on the cross-examination). The mother could not explain why the search results for Dr. Lavorato dated June 21, 2021 state that she is works at the One Care Medical Clinic, Department of Pediatrics. The mother testified that Dr. Lavorato was or is with SHN and that this clinic is part of SHN. It may be that if Dr. Lavorato testifies at the trial this issue will be explained but based on the evidence on this motion, it is highly suspect.
Further, the mother was ordered on April 27, 2020 to provide the father with the name of the child’s doctor and she did not comply. She was again ordered on March 29, 2021 to provide the father with the name and contact information of the child’s doctor and also to provide him with the child’s medical file by April 9th. She failed to do either. On May 31, 2021 the mother was ordered to provide a complete list of all of the doctors, clinics and hospitals that child attended.
The mother now alleges that the records produced by the father from SHN are incomplete. The father was required to obtain an order for production from all of the child’s medical providers as the mother did not provide him with the child’s medical file as ordered. Therefore, it was within her control to produce any other records or explain the discrepancy. Either the mother breached the May 31st order by not providing a complete list of the medical providers to the father or the onus was on her to provide a plausible explanation for the discrepancy which she failed to do.
b) The mother testified and outlined for the first time in her affidavit of May 26, 2021 at paragraph 16, her allegations about the serious condition of the child at birth as a result of her own malnutrition during pregnancy but admitted under cross-examination that the child was not in ICU after birth. The Primary Care Provider Newborn Assessment (Ex. 7) did not disclose significant concerns about the child’s health but the mother insisted that the child was born with many medical issues. Despite the father requesting information about the child’s health, it took several court orders for the father to obtain any access to the child’s health records.
c) The mother’s May 26, 2021 affidavit deposes that the child still suffers from hypoglycemia and he suffers from vomiting and diarrhea “every day.” She then changed her evidence to states that she meant “regularly” not every day. She also deposed that she only feeds him only breast milk although she has once or twice given him formula if she did not have enough breast milk. During her cross-examination the mother testified that the child had kidney issues although this was not mentioned in her affidavits. Overall, the impression given was of a very sickly child with some major medical issues.
The notes of Dr. Patel, the child’s paediatrician were produced. The medical note of April 9, 2020 (Ex.3) indicates that the child was born full term, weighted 5 lbs. 13 oz. with no major complications. The note states the mother is breastfeeding but topping up with 2 oz. of formula. The baby did have moderate hydronephrosis and a referral was made to Dr. Wong, a nephrologist.
The medical note of Dr. Patel dated April 14, 2020 (Ex.4) notes that the child was not feeding well and the mother was giving him a bottle. Dr. Patel diagnosed he was having gas and no concerns were noted.
The note of Dr. Wong dated April 15, 2020 (Ex. 5) indicates that the child is breast and bottle feeding, had no fever or urinary tract infections but that a physical exam needed to be deferred. The child was put on antibiotics and was diagnosed with moderate hydronephrosis and further testing was arranged.
The medical note of Dr. Wong dated September 16, 2020 (Ex. 6) confirms again the child is being breast and bottle fed. The test results indicated that the child had a nonobstructing, nonrefluxing bilateral hydronephrosis but was overall stable. The mother did not wish to pursue further testing as the child was well. The mother agreed to a further ultrasound in 1 year and to follow up with Dr. Wong at that time.
The medical note of Dr. Wong dated June 9, 2021 (Ex.7) confirmed again the child was only seen by video conference. The mother had not yet arranged for the abdominal ultrasound for which he had given her a requisition last year so another requisition was given to her. The mother advised that the child had episodes of uncontrollable crying but no evidence of any urinary infections, unexplained fevers and was not on any medications. The mother asked the doctor for a letter to assist her in her custody battle.
Based on the medical evidence and the mother’s own statements to the doctors, I find that the mother has greatly exaggerated the medical condition of this child. If the mother was so concerned about the child’s kidney issue then it is not plausible that she would have neglected to arrange for an abdominal ultra-sound. The mother’s affidavit evidence that she only breast feeds the child, which is used as a reason visits could only be 1 hour or not occur at all, is contradicted by the medical notes as it is clear that she is feeding the child formula or expressed breast milk.
d) Tania Gilbert is a children's aid society nurse who has been attending at the mother’s home. An email exchange was shown to the mother dated June 18, 2021 (Ex. 10). Ms Gilbert indicates that she saw the child that week and he was well. But she states that the mother asked her to pass on a doctor’s note that the child was to remain home for 10 days due to a fever and antibiotic treatment. Further, a photo of the formula that mother is using was sent so the father would have it for this next visit. The mother did not deny the contents of Ms Gilbert’s email. This is further proof that the mother is not being truthful when she deposes that the child is only being given breast milk.
e) The mother denied knowing about the criminal charges she is currently facing except for 4 charges of disobeying a court order, namely the order of this court. She testified that she just went into the police station and signed something and did not read it and let her lawyer handle this. The mother is presently facing charges of forgery, using a forged document and obstruct police. (Ex. 9). I find that it is not plausible that the mother would not be aware of these serious charges she is facing.
f) The mother deposes that the father’s criminal trial is scheduled for 2 weeks and he is facing penitentiary time. The mother was insistent that this information was correct. The father has been charged with 5 counts of assaulting the mother, one count of assault with a weapon and breach of recognizance. The father produced a copy of his trial dates from the trial coordinator (Ex. 14) indicating that the trial was set for 3 days in June 2020 although that date has now been postponed. I do not minimize the seriousness of these charges but this is another example of the mother exaggerating even basic facts.
g) The most egregious evidence by the mother relates to the letter of Dr. Cristin Ledesma-Cadhit dated April 10, 2021 (Ex. B to the mother’s affidavit of May 26, 2021) to explain why the father’s visit could not occur. The letter states that the child was seen that day with a fever of 103 degrees that he had since the night before. The doctor concluded that as the child had had a vaccine about a week before and the fever was related to the vaccine.
However, a copy of that letter was part of the SHN records (Ex. 11). The following paragraph was not in the letter the mother produced to the court, “ Mom denies exposure to anyone with covid, no sick contacts, no siblings. Leonel is otherwise active, not in distress.”
The mother’s only explanation was that she scanned the doctor’s letter to send to her counsel and those sentences may have been omitted. The sentences are in the middle of the page and the mother’s version shows spaces where these sentences are in the unredacted letter. I find that the mother manipulated the doctor’s letter that she attached to her affidavit.
h) The mother attached to her March 16, 2021 affidavit a series of medical notes from SHN dated December 17, 2020, December 22, 2020, February 18, 2021, March 4, 2021, March 11, 2021 (Ex. A-E) that are unsigned or illegible signature, all appear to be in the same font stating the child was ill for a variety of reasons and should not travel. The mother could not explain why there is no notation of any of these medical attendance in the child’s SHN medical file and the mother denied creating these notes herself. However, without a further explanation I draw the conclusion that these notes are not genuine or if prepared by medical professionals are solely based on information from the mother that I find is not credible.
i) The mother also attached to her May 26, 2021 affidavit a further series of hand-written notes or preprinted notes purporting to provide proof that the child was ill and therefore could not attend for a visit. The handwritten note from Centenary After Hours Clinic dated April 3, 2021 states the child had a fever due to a vaccine shot A note from North York General hospital dated April 4, 2021 indicates the child had a fever due to receiving his vaccines. (Ex. A).
Further notes were attached as exhibits to the mother’s May 26, 2021 affidavit (Ex. C and D). A preprinted form from Humber River emergency department dated April 25, 2021 stating “patient examined -off work/school/gym class”. A note from Centenary After Hours clinic dated May 1, 2021 states that the mother needed to quarantine for 15 days. A note from Hope Medical Clinic dated May 1, 2021, the same day as the note from Centenary After Hours Clinic, reporting a variety of symptoms by the mother that led the doctor to conclude that both the mother and child have contracted Covid. A further note from Humber River Hospital dated May 23, 2021 states that the mother was seen and s….( exhibit does not include the entire text)…from covid (Ex. F). The mother did not provide a full copy of this exhibit or any explanation as to why she went to two different clinics on May 1st, 2021. The mother did not produce any Covid test results.
Based on the mother’s lack of credibility and evidence of her doctoring the note of Dr. Christina Ledesma-Cadhit, the veracity of these notes must be questioned.
83The mother was also cross-examined about the number of different clinics and hospitals that she taken the child to and replied that she calls to see what hospital or clinic has the shortest wait times. Although this explanation is plausible, it may be the reason for the lack of clarity in the medical records produced and it does raise concerns about the quality and consistency of the health care being provided by the mother to this child.
84Despite the initial order for virtual access being made on April 27, 2020, it was not until November 2020 that the first virtual access occurred. This was due to the mother’s non-compliance which then required the court to make several different arrangements in order to attempt to obtain mother’s compliance.
85Despite the order of March 29, 2021 for the father to have parenting time supervised by a family member, his first visit was not until the end of May. The mother only began to comply after she was charged criminally.
86After the first visit, the mother accused the father of “abusing” the child. She testified that there were bruises but then corrected herself that there were gouges and scratches on his back that were caused during the visit. As a result, the mother testified that this was proof that the paternal grandmother who was the supervisor was not properly supervising.
87The mother took the child to both the Centenary After Hours Clinic on May 30th and the Rouge Valley Hospital. According to the report of the Rouge Valley dated May 30, 2021, although abrasions and scratches were noted, the doctor noted concerns about the mother’s vagueness about the child’s history. Both SCAN and Children's Aid Society were notified. For the same day, May 30, 2021 there is also a handwritten note from SHN. (Ex 1). The reason for these various reports from different institutions will need to be further explored as there is insufficient evidence on this contempt motion to draw any conclusions. However, as there is no SCAN report or Children's Aid Society report, I draw the inference that there is no concern about the father’s ongoing parenting time supervised by the paternal grandmother.
88In summary I find that the mother’s evidence is not credible or reliable. I also find that the various medical notes that she has produced are not reliable and no weight can be placed on them for this motion.
89The issue of whether the mother intentionally breached the orders of November 9, 2020 and March 29, 2021 turns on the credibility of the parties. Counsel for the mother chose not to cross-examine the father on his affidavits in support of the contempt motion.
90Based on my assessment of the mother’s lack of credibility I find that there is proof beyond a reasonable doubt that the mother has deliberately disobeyed the terms of the order of November 9, 2020 with respect to both the duration of the in person visits and her non-attendance for those visits on the dates set out in the father’s affidavits. The mother also breached the order by not providing make-up time for missed visits.
91The mother breached the March 29, 2021 order until the end of May at which time she began to abide by the order.
92A parent that would go to the lengths of manipulating and changing a doctor’s note and attaching it as an exhibit to her sworn affidavit simply cannot be believed.
93As noted the initial order for virtual access was made on April 27, 2020 and it was not until the November 9, 2020 that the mother even began those visits. In view of the history of the mother’s conduct, I find that the mother’s excuses for not producing the child cannot be believed. I find that the father’s list of the missed virtual access to be accurate as compared to the mother’s list. I find that there is proof beyond a reasonable doubt that the mother did not produce the child for the virtual visits on the dates as set out in the father’s affidavit.
94I have considered the law with respect to a finding of contempt should only be exercised sparingly and as a last resort.
95The court has attempted to use all other means to enforce the need for the mother to abide by the court orders through conferencing, several court orders, a cost order that remains unpaid, an order reducing spousal support to pay for supervised access and several warnings that the mother may be found in contempt. The court has established mechanisms to protect the mother due to her stated fear of contact with the father by attempting third party exchanges and supervised access. The court has used these means to encourage the mother to permit the father to establish a relationship with this young child. But even when the mother agreed to an order, she then sabotaged that order or found other excuses for not complying.
96The mother also relied on the fact that she was exclusively breast feeding the child or that the child is always sick to explain the lack of ongoing visits but these excuses have not been accepted by the court.
97The mother has used every possible excuse to prevent the father from establishing a regular consistent parenting schedule so he and the child can develop a close relationship and bond.
98I have considered if any other alternative or option is available other than a finding of contempt. This court has tried every possible alternative, short of imprisonment or a change of decision-making or primary residence to attempt to require the mother to permit the father to exercise court ordered parenting time.
99I find that the mother has willfully and intentionally disobeyed the parenting arrangements in the orders of November 9, 2020 and March 29, 2021. I find that the mother is in contempt of those orders and that this has been proven beyond a reasonable doubt.
100The imposition of a penalty is complicated by the fact that a trial in this matter is scheduled in a few weeks. Further, I have concerns that the trial may be derailed as the mother has a history of changing counsel. Mr. Cooper is her fourth counsel. The mother also has been unable to proceed on some court dates as the child was ill.
101Counsel for the father submits that a change of residence or increased parenting time is the appropriate penalty. It is submitted that the father with the assistance of the paternal grandmother and his family can meet the needs of the child. The paternal grandmother’s affidavit confirms that she is able and willing to assist the father with the care of the child.
102Counsel for the father submits that if the child is to remain in the care of the mother it will be a constant battle for the father to have parenting time with his child. There is much merit in this concern as the father has been attempting to have a regular and consistent parenting schedule since the birth of the child. However, this issue is more properly addressed with the trial judge.
103Counsel for the mother submits that the March 29, 2021 order continue and if the mother breached that order that the child’s residence be transferred to the father.
104Although there is no evidence that the father would be unable to care for the child for expanded parenting time, overnight or even full-time, the father has through no fault of his own has still only had limited contact with the child.
105If this court made any changes to the current parenting arrangements, they could be contradicted by an order after trial.
106I have therefore determined that I will adjourn the penalty phase of the contempt motion to be dealt with after the trial is concluded. The issue of costs will also be addressed at that time.
107I will require that the parenting provisions of the March 29, 2021 continue. I expect that the mother will comply with the order as that order has a police enforcement clause. The police charging the mother with breaches of the family court orders appear to have had some effect on the mother’s compliance.
108If the trial does not proceed during the week of July 19th, counsel may submit a 14B to obtain an early date to address the court on the parenting arrangements pending trial. Otherwise, I am adjourning the penalty phase to October 14, 2021 as I expect the trial decision should be released by that time.
109There will be an order as follows:
- The Applicant mother is found in contempt of paragraphs 2 (includes 1) to 9 c) of the order of November 9, 2020 and paragraphs 1 to 8 of the order of March 29, 2021 in that she willfully and intentionally failed to make the child available for the designated virtual and in person parenting time.
- The Applicant mother will comply with the parenting arrangements in the March 29th, 2021 order namely, the child is to be in the Respondent father’s care every Sunday from 10:00 a.m. to 4:00 p.m. Any missed visit is to be made-up on the Saturday of the following week from 10:00 a.m. to 4:00 p.m. The paternal grandmother or the Respondent’s sister-in-law shall continue to supervise the visit. The exchange location can be changed if agreed to by counsel.
- The police enforcement clause in the March 29, 2021 order shall continue.
- The penalty phase of the contempt motion and submissions as to costs shall be adjourned to October 14, 2021 at 4:00 p.m. If the trial decision is released earlier, a 14B motion to request an earlier date can be submitted.
- If the trial does not proceed during the week of July 19th, counsel may submit a 14B to obtain an early date to address the court on the parenting arrangements pending trial.
Released: July 6, 2021 Signed: Justice Roselyn Zisman
[1] This order of March 29, 2021 is under appeal. The mother’s counsel motion to stay this order was dismissed by Justice Sharon Shore on April 16, 2021, except that the parties agreed that the mother could provide her email address for service. Justice Shore ordered with Ms Ahad or the paternal grandmother could supervise the visits on terms set out in the endorsement. [2] A hard copy of all the exhibits 1-14 were filed with the court as there was some confusion when the electronic copies were initially filed. [3] Jackson v. Jackson, 2016 ONSC 3466 at para. 46 [4] [Einstoss v. Starkman, 2002) at para. 10 (SCJ) upheld , 2003 O.J. No. 3297 (OCA) [5] 2015 SCC 17 [6] Supra at para. 38 [7] 2013 ONCA 44 [8] 2019 ONCA 385. The court of appeal has recently reaffirmed these principles in the case of Moncur v. Plante 2021 ONCA 462 [9] McKinnon v. McKinnon, 2018 ONCA 596 at para. 36 [10] Chong v. Donnelly, 2019 ONCA 799, at para. 12