Court File and Parties
ONTARIO COURT OF JUSTICE DATE: May 2, 2023 COURT FILE No.: D30922/19
BETWEEN:
Shezmin Hamid, Applicant
— AND —
Sarmad Hamid, Respondent
Before: Justice Melanie Sager
Heard on: April 26, 2023 Reasons for Judgment released on: May 2, 2023
Counsel: Veena Pohani, counsel for the applicant Samir Patel, counsel for the respondent
Introduction
1The Applicant (mother) and Respondent (father) were married on April 28, 2004 and separated in March 2019. The mother commenced court proceedings in this court in July 2019 and on March 21, 2021, the parties executed a consent and asked the court to make a final order in accordance with the terms of the consent. The order was granted as requested.
2The final order dated March 19, 2021 (the final order) provides that the parties shall have joint decision making responsibility with respect to their two sons, Azan who is now 14 years old and Issa who is 9 years old and that the children shall spend a week at a time in each parent’s care from Sunday to Sunday.
3On March 19, 2023, the father filed a Notice of Contempt Motion with the court alleging that the mother is in contempt of court as she has failed to facilitate the shared parenting schedule set out in paragraph 2 of the final order since February 12, 2023. The father also alleges that the mother is in contempt of court as she has failed to refrain from disparaging the father in front of the children in violation of paragraph 12 of the final order and she has failed to communicate with the father in a polite and respectful manner as per paragraph 13 of the final order.
4The mother denies being in contempt of court and says that the children do not wish to see their father for their own reasons due to his behaviour. She says she has not disparaged the father to the children and she terminated communication with the father as his communications were not polite and respectful as required by the final order.
5The father asks the court to consider imposing a penalty on the mother for her contempt including “a period of jail time”. He says he can care for the children while the mother is in jail. He also asks the court to order the mother to pay his costs of the motion, a fine of $2500.00, and provide the father and the court with “a handwritten apology letter”.
6The court relied on the father’s Notice of Contempt Motion dated March 29, 2023, his affidavit in support of the motion sworn March 29, 2023, the mother’s responding affidavit sworn April 19, 2023, the father’s reply affidavit sworn April 20, 2023, and the father’s Factum.
The Evidence
7From the date of the final order until February 12, 2023, the parties complied with the terms of the order.
8On February 15, 2023, when the children were in the mother’s care, counsel for the mother sent a letter to the father via email in which she laid out several concerns of the mother regarding his parenting of the parties’ sons. The letter asks the father to consent to changing the parenting schedule “so that they would reside with only my client” otherwise the mother would commence court proceedings to seek an order making the change requested.
9The father responded to counsel’s letter two days later, on February 17, 2023, addressing some of the mother’s concerns and agreeing to make efforts to appropriately address her concern that the children were arriving late to or missing school on too many occasions when in the father’s care.
10In his response to counsel, the father writes:
“All being said, the most important thing to me in[sic] the physical, emotional and mental wellbeing of my children. It comes first and the with the utmost importance over the issues in my ex-wife and my relationship issues. This is what I have been stressing since day one. Priority is the children’s well being and whatever is in their best interest. With teenage and pre-teen sons, their best interest is not to be separated from their father and the only male role model in their lives.
I am NOT willing to rescind or decrease any of my parental rights or access. However, I am willing to concede and come up with a temporary solution that will benefit my sons and help them deal with the current concerns and stressors.”
11The father proposes in his correspondence to counsel for the mother to alter the parenting schedule for “the next few months” such that the children would be in the father’s care three weekends a month and once per week for the evening only and to take them to an extra curricular activity. The father writes, “we can revisit this agreement month over month if necessary, until a time where it is determined that we can safely revert back to the originally agreed upon schedule.”
12After the children were not returned to the father’s care on February 20th, 2023 pursuant to the final order, the father emailed the mother on February 22, 2023, expressing his concerns that the children had not been returned to his care as per the final order and that his calls to the mother’s home have gone unanswered. He says if the mother does not comply with the court order he will attend at her house with the police and a copy of the order.
13The mother responded to the father’s email and advised the father that the children have been busy playing with their classmates, attending family gatherings and had gone swimming. The mother writes that the children “don’t want to communicate right now ..when they are ready they will ..I have spoken to them and they are NOT ready. You are welcome to bring the police and the court order …the kids are old enough to speak for themselves now.”
14The mother closes out her email to father by advising that she has not stopped the children from seeing or speaking to the father, “But I will not force them to do anything that makes them feel uncomfortable. Again I AM NOT stopping them from their father …its[sic] their choice.”
15At some point during the flurry of emails exchanged between the parties on February 22, 2023, the mother’s lawyer was copied. The mother wrote in an email that the father has been notified that the children do not want to communicate with him and that she cannot force them to do so. She invites the father to attend at her home with the police “so the kids can give their statement”.
16The mother’s lawyer’s response to the emails between the parties was as follows:
“Stop copying me please. What does copying me resolve. You don’t have a lawyer which is obvious and your[sic] copying me to annoy me. It’s a form of harassment.
Go shovel your driveway with your kids.” [1]
17On March 5, 2023, the next date the children were scheduled to be in the father’s care, he sent the mother an email advising he would be attending at her home to pick up the children for his parenting time. The parties 14 year old son Azan, sent the father a text message advising that “if you come tomorrow, then mom is going to call the police.”
18The father asks the court to find that the mother telling Azan that she would call the police is a violation of paragraph 12 of the final order that prohibits the parties from disparaging the other “either verbally or in writing, either in front of the children or otherwise.”
19The father attended at the mother’s home with his brother on March 5, 2023, to pick up the children. The father was unable to pick up the children and was told that the police were called.
20The mother attached a police occurrence report dated March 5, 2023, to her affidavit sworn April 19, 2023, in support of her claim that the children do not wish to see their father. The names of all individuals except the mother and the children have been redacted. The report states that the police were called by the mother because “the kids didn’t want to go with him and were having anxiety.” The report notes that the father left before the police arrived and the final paragraph of the report says, “Of note, police spoke with both Issa and Azan, who both stated that they did not wish to go and see [redacted name] and that they’d rather stay with their mother.”
21After the failed attempt to pick up his children, the father learned that the Children’s Aid Society of Toronto (CAST) were addressing a complaint about his parenting. He met with the worker and was advised shortly thereafter that the file would be closed.
22The CAST worker sent the mother an email on February 23, 2023 [2], in which she wrote,
“Sarmad has taken full responsibility for the followings[sic]: the children[sic] poor School attendance when they are in his care, yelling at the kids, and the occasion he left the boys unsupervised for extensive period. He has shown remorse and agreed to work on a plan in collaboration with Azan, Issa, and the CAS to ensure that the boys physically[sic] and emotional needs are met when in his care.
Based on the information gathered there is not sufficient evidence to indicate that the children are or would be in imminent danger in their dad’s care.”
23The father retained counsel, Samir Patel, who corresponded with counsel for the mother, Veena Pohani on March 1, 2023 and March 15, 2023. He advised counsel for the mother that the father does not accept the mother’s unilateral termination of his parenting time or that the children’s views and preferences are determinative of whether a court order should be followed.
24In his letter dated March 15, 2023, counsel for the father advises the mother’s counsel that the father will be attending at the mother’s home to retrieve the children for his parenting time commencing March 19, 2023 and that if he is denied his parenting time, counsel has instructions to bring a contempt motion.
25Ms. Pohani responded to Mr. Patel’s letter dated March 15, 2023, on the same day. She advised Mr. Patel that as the children do not want to see their father and will not go with him despite the mother’s encouragement, she is not in violation of the final order. Ms. Pohani writes,
“She has involved the proper governmental authorities to assist her in this regard and in my view she has done nothing wrong other than protect her children that do not want to go to their Father’s home for visits due to the many many complaints they have expressed to their school workers, the police, the Society and to their Mother. I suggest your client listen to the children and stop undermining their feelings. Their views and preferences matter a whole lot and minimizing them won’t change how they feel.”
26The father attended at the mother’s home to pick up the children for his parenting time on March 19, 2023 and there was no answer at her home. Once again he left without the children.
27The mother’s evidence is that the children do not want to see their father because of his behaviour towards them and she cannot force them to attend. She says the children, especially Azan, are experiencing stress and anxiety because of the father’ conduct. The mother attached a letter from Azan’s doctor as an exhibit to her affidavit stating that he has “gone through lot of stress and unhealth[sic] eating when with his father including not going to school.” The letter from Dr. Umar Muhammad provides no information as to who he spoke to and when in support of the conclusions in his three line note.
28The mother relies on the father’s admissions to the CAST that he does need to improve his parenting in support of her decision to suspend his parenting time.
29The mother relies on the police occurrence report in which the children say they would rather remain with their mother in support of her decision to suspend the father’s parenting time. She blames the father for attending at her house with his brother to pick up the children and describes this as “one clear example of the RH’s perpetual bad judgment”. She says attending at her home with his brother only caused to aggravate the situation.
30The mother says the father’s relationship with the children has been deteriorating due to the way he treats them. She says this has culminated in the children’s refusal to go with the father.
Analysis
Is the mother in contempt of the final court order dated March 19, 2021?
31The father’s motion is brought within subrule 31(1) of the Family Law Rules which provides that, “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.”
32In Moncur v. Plante, 2021 ONCA 462, at paragraph 10, the Ontario Court of Appeal set out the general principles that govern the use of the court’s power to find a party in civil contempt of court for breaching a court order as follows:
For a party to be in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.
33The Court of Appeal in Moncur v. Plante directed that before making a finding of contempt, a court must consider relevant discretionary factors such as the best interests of the child and that a contempt finding is a remedy of last resort. The Ontario Court of Appeal found that failing to consider other enforcement options in lieu of a finding of contempt is an error in law. At paragraph 19, the court wrote, “The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court.”
Parts 1 and 2 of the test for a finding of contempt – Does the final order state clearly and unequivocally what should and should not be done and did the mother have knowledge of the order?
34The final order, which the mother had knowledge of, setting out the parties parenting schedule is clear and unequivocal. The mother does not argue otherwise.
Part 3 of the test – Did the mother intentionally do the act that the order prohibits or intentionally failed to do the act that the order compels?
35The evidence demonstrates that the mother intentionally failed to make the children available for the father’s parenting time. She does not deny this. Rather, she claims that her children’s refusal to see the father justifies her failure to do what was required of her under the order. She claims her decision to suspend the father’s parenting time is supported by the children’s words and what they have reported to neutral third parties.
36The mother gives no evidence of her efforts to comply with the order. She simply states repeatedly that the children were not made available as they did not wish to see their father.
37The mother’s actions are clearly intentional. She intentionally breached the final court order.
Does the children’s alleged resistance to parenting time with their father absolve the mother of her breach?
38At paragraphs 30-35 of McCarthy v. Murray, 2022 ONSC 855, Madam Justice Catrina Braid of the Ontario Superior Court of Justice sets out the relevant case law on this issue as follows:
A parent has a positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order. The parent is not entitled, in law, to leave access up to the child: see Hatcher v. Hatcher, 2009 ONSC 14789 (Ont. S.C.) at paras. 27-28.
A parent does not have to force a child to go for access with the other parent, but should require the child to go. A failure to require the child to do this is considered contempt: see Sickinger v. Sickinger, 2009 ONSC 28203 (Ont. S.C.) at para. 30, aff’d 2009 ONCA 856.
Although a child’s wishes should be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. A parent has a positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can: see Godard v. Godard, 2015 ONCA 568, 387 D.L.R. (4th) 667 at paras. 28 and 29.
At para. 30 of Godard, the Court of Appeal asked, what does the mother do when the child does not want to go to school or to the dentist? What are the mother’s mechanisms to get the child to go? Does the child have an allowance? Does she have a hockey tournament that maybe she is not allowed to attend if she does not go to see dad before? Are there things that the mother could do to force the child to go, short of the police attending at her house and physically removing the child?
Actively promoting and facilitating compliance with a custody and access order requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following: (i) Did they engage in a discussion with the child to determine why the child is refusing to go? (ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? (iii) Did they offer the child an incentive to comply with the order? (iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?: see Smart v. Belland, 2021 ONSC 1124 at para. 10.
Parents are not required to do the impossible in order to avoid a contempt finding. They are however required to do all that they reasonably can: see Godard, at para. 29.
39The mother has done absolutely nothing to ensure the children see their father. She has allowed the younger child, Issa who is only 9 years old, decide whether to see his father. As Justice Braid says about the mother in paragraphs 41 to 42 of McCarthy v. Murray, the mother in this case has also “failed to take concrete measures to apply normal parental authority to have the child comply with access orders” which lends to the conclusion that her failure to do all that she reasonably could do to comply with the final order, supports a finding of willful disobedience of the court’s order.
40This court unfortunately deals with too many cases of parents improperly allowing children to decide whether or not to see the other parent. In many of these cases, the primary caregiving parent has failed to “apply normal parental authority” to ensure compliance with a court order for parenting time. Too often than not, counsel argues that the parent who is not complying with the court order is justified due to the child’s resistance to contact and that they are just acting in the child’s best interests.
41This court reiterates what Justice Braid writes in paragraph 37 of McCarthy v. Murray, that counsel arguing noncompliance with a court order is justified when a child does not wish to see a parent and a parent who fails to comply with a court order in that circumstance is only acting in the child’s best interests “is a completely unacceptable stance to take, and it is irresponsible for counsel to suggest (emphasis mine) that the mother’s actions are appropriate or in the best interests of the child.”
42Family law litigants must be counselled to comply with court orders or immediately move to vary an order that evidence demonstrates is no longer in a child’s best interest due to a material change in circumstances. Counsel must ensure that parents understand that a court order for parenting time must be complied with and cannot be unilaterally changed or ignored. The onus is on the parent who believes that a parenting order no longer promotes the children’s best interests to immediately come before the court to explain why.
Should the court exercise it’s discretion to make a finding that the mother is in contempt of the final order?
43The court is obliged to consider whether a contempt finding is not appropriate in all the circumstances of this case. The court must ask whether there is a lessor order that would achieve the desired results.
The children’s best interests
44Ongoing family litigation is harmful to families. These children are aware that their parents are in conflict. The police and the CAST have been involved. The children being questioned about their father by the police and the CAST sends negative messages about their father and suggests to them that they have the power to decide whether to see their father. This messaging must stop.
45The contempt Motion acts to perpetuate the litigation which is having a negative impact on the children as is the conflict between the parents. The mother’s involvement of the older child in the conflict and telling him that she will call the police if his father comes to their home is grossly inappropriate and extremely bad judgment on her part.
46There is no evidence before the court that comes close to justifying a complete suspension of the father’s parenting time. Furthermore, the mother did not even consider the father’s proposal that he exercise parenting time three weekends a month while he works through the parenting issues raised by the mother. Finally, if the mother felt the father’s parenting time must be changed on an urgent basis, it is incumbent on her to immediately commence a Motion to Change.
Is there a lessor or alternate enforcement order the court should consider before making a finding of contempt?
47At the hearing of this motion, counsel for the mother made the submission that her client “would do anything” for the children to see their father. As a result, the parties were invited to negotiate the terms of a temporary order that would provide a gradual increase in the father’s parenting time back to the terms of the final order. They were able to do so, and a temporary order was granted while a decision on the contempt motion was reserved.
48The parents’ willingness and ability to enter into the temporary consent and seek an order from the court incorporating the terms agreed to, demonstrates that there is an alternative enforcement order to a finding that the mother is in contempt.
49The mother is clearly in breach of the final order. The evidence on the contempt motion does not support a conclusion that her breach was anything but intentional. Had the father brought an enforcement motion pursuant to subrule 1(8) of the Family Law Rules, the parties would have likely achieved the same result, specifically a negotiated temporary consent order that would provide for a step up in the father’s parenting time until the terms of the final order are reinstated.
50The father should have brought an enforcement motion before moving to a contempt motion.
51As an alternative enforcement order was made by the court on consent on the day of the contempt motion, there is clearly a lessor order available to the court other than a finding of contempt. In these circumstances, I find that it is not appropriate to find the mother in contempt of the final order as a means of enforcement when other lessor orders are available and in fact have been made to enforce the order.
The father’s request for an order finding the mother in contempt of paragraph 12 of the final order that prohibits the parties from disparaging each other in front of the children.
52While the mother has involved the parties’ older son Azan in the litigation and told him that she would call the police to ensure he did not have to go to his father’s house, the court cannot find that this amounts to her disparaging the father to Azan. As stated above, the mother’s conduct amounts to negative messaging about the father to Azan it cannot be concluded beyond a reasonable doubt that this amounts to her disparaging the father to Azan.
The father’s request for an order finding the mother in contempt of paragraph 13 of the final order that provides that the parties will only communicate about the children via e-mail and will do so in a polite and respectful manner.
53The mother’s evidence on this issue is that she blocked the father from communications as “they are generally rude and insulting”. She says that “this is a high conflict situation and inviting communication from him is not productive to my mental health.”
54The mother did not provide the court with any of the father’s written communications that she found to be rude and insulting.
55The mother’s conduct is willful and amounts to a breach of the final court order. Her willingness to disregard the court order and unilaterally make changes is very concerning. She must come to understand very quickly that a court order is not a suggestion, guideline or invitation to acceptance or rejection. See: Janowski v Janowski, 2019 ONSC 4046 at paragraph 10.
56For all the reasons set out above, a finding of contempt is not appropriate in this case. An enforcement motion would have been a more appropriate measure for the father to take before serving a contempt motion. The mother is in breach of paragraph 13 of the final order and much like the parenting schedule, she is expecting to purge the breach immediately and ensure that the father can communicate with her about the children.
Conclusion
57The mother is in breach of paragraphs 2 and 13 of the final order.
58In light of the court’s findings that the mother has breached the final order and to ensure mother’s future compliance with the court’s orders, the father’s contempt motion shall be converted to an enforcement motion. If the mother fails to comply with the temporary order gradually increasing the father’s parenting time until the schedule in the final order is reinstated, then father may bring a contempt motion and she will be exposing herself to a finding of contempt and potentially harsh penalties available to the court if such a finding is made.
59The court reminds the mother that she is expected to do all that is reasonable of her and within normal parental authority to ensure the court order is complied with.
60A finding of contempt is not the appropriate remedy in this case. As the mother has breached the final order repeatedly, the contempt motion shall be converted to an enforcement motion to ensure compliance with the terms of the final order. The motion is adjourned to June 8, 2023 at 3:00 p.m. by ZOOM on the terms ordered by the court on April 26, 2023.
61If the parties cannot resolve the issue of costs of this motion, they may speak to the issue on the return date.
Released: May 2, 2023 Signed: Justice Melanie Sager
Footnotes
1It is disappointing for the court to read emails like this from family law lawyers.
2The court realizes the date of this email predates the events of March 5, 2023. This discrepancy was not clarified for the court.