Court File and Parties

Court File No.: Halton 5/14 Date: 2018-02-02 Ontario Court of Justice

Between:

David Ronald Price Applicant

— AND —

Brenda May Putman Respondent

Before: Justice Victoria Starr

Heard on: January 26 & 30, 2018

Reasons for Decision on Motion released on: February 2, 2018

Counsel:

• Susan O'Rourke, counsel for the respondent
• David Price, on his own behalf
• Azra Champsi, counsel for the Director, Family Responsibility Office

INTRODUCTION

[1] The mother and access parent moves pursuant to Rule 1(8) of the Family Law Rules, O. Reg. 114/99 for an order directing the father to pay $10,000 in costs for failing to follow a court order. This is the latest of the mother's multiple attempts to enforce an access order, she claims, and the father admits, he keeps breaching.

BACKGROUND

[2] As the following litigation history demonstrates, there have been 21 court attendances to date. Almost every single attendance has had as its focus the father's negative perception that the mother is an irresponsible and unfit parent, his resistance to meaningful access, and his unwillingness to follow and failure to comply with access orders.

[3] On July 25, 2012, Justice Martin made an order granting the father sole custody and the mother specified access to the parties' son.

[4] On May 9, 2014, Justice S. O'Connell made an order that required the mother to pay child support for the parties' son.

[5] There were problems with the mother's access as the father was resistant to complying fully with Justice Martin's order. Consequently, in 2015 the mother brought a motion for enforcement of her access and for an order staying enforcement of support arrears until October 8, 2015. That motion was adjourned on September 28, 2015.

[6] On October 9, 2015, the mother's motion was resolved. On that day I made an order, on consent and on a temporary without prejudice basis, staying enforcement of arrears and limiting enforcement to ongoing support of $380.00 per month. I also ordered that the mother's access resume under Justice Martin's Order.

[7] Despite the consent order there continued to be problems with access. On November 25, 2015, I granted the mother leave to bring a motion to enforce access on December 11, 2015.

[8] On December 11, 2015, I granted the mother an adjournment of her motion until December 22, 2015. I also made an order providing the mother with access visits on December 11 and 12, 2015 and with access exchanges to occur at the Halton Police Station. I further ordered that the father have a third party facilitate the exchange with the mother for him so as to shield the child from any potential conflict.

[9] There continued to be issues around access and on December 22, 2015, Justice Kurz confirmed the mother's access pursuant to the orders of Justice Martin and Justice Starr and made further orders, on consent, including:

(a) The appointment of the OCL;

(b) That the parties contact Halton Family Services for intake appointments so access exchanges could occur at the supervised access centre in Milton;

(c) That the father provide copies of airline tickets for himself and the child to Orlando, Florida from December 23, 2015 to December 26, 2015 (mother's scheduled week-end access).

[10] On December 22, 2015, Justice Kurz further ordered that access exchanges shall continue to take place at the Halton Police station in or as close as possible to the quiet room inside the station until such time as the exchange can take place at the Halton Family Services Access Centre in Milton, Ontario or such further order. The matter was adjourned to January 20, 2016 for a case conference.

[11] The father did not fully comply with Justice Kurz order and on January 20, 2016, I made an order, among other orders, permitting the mother to bring a motion for contempt with permission for the date to be used as a case conference if the mother wished. The matter was adjourned to February 29, 2016.

[12] On February 29, 2016, I adjourned the mother's contempt motion, on consent, to allow time for the parties to receive the report of the OCL Clinical Investigator until May 16, 2016. The order also provided that the date could be converted to a case conference in the event that the mother so wished.

[13] On May 16, 2016, a case conference took place before me and on consent, the following orders were made:

(a) An order withdrawing the mother's motion for the father to sign release of information from third parties without costs (as the father signed the releases on May 16, 2016);

(b) An amendment to the order dated December 22, 2015 allowing for a change in the pickup and drop-off arrangements for access provided same was agreed to by the parties in writing; and

(c) Permission for the mother to bring a motion for summer access returnable on June 2, 2016 at noon.

[14] On June 2, 2016, I granted an order for the mother's summer access. The matter was adjourned to a settlement conference on September 12, 2016.

[15] Access issues persisted.

[16] On September 12, 2016, the settlement conference was adjourned to October 31, 2016. The adjournment was requested by the father as his counsel, who had been assisting him since the December 11, 2015 court date, was called to trial.

[17] On November 4, 2016, at the return of the conference that had been moved from October 31, 2016, I granted an order permitting the mother to bring a motion for contempt returnable on January 10, 2017 and scheduling a trial management conference for February 1, 2017, in the Motion to Change to be brought by the mother.

[18] The mother commenced a Motion to Change dated November 4, 2016 for specified access.

[19] Again access issues persisted. On January 11, 2017, I granted the mother permission to bring a motion for findings that the father failed to obey court orders dealing with the mother's access instead of a contempt motion. The father's request for an adjournment of the motion and for questioning was dismissed. The subrule 1(8) portion of the mother's motion was heard and the balance of the motion was adjourned until February 10, 2017.

[20] On January 11, 2017, I released my decision on the mother's subrule 1(8) motion. My decision was to discontinue the hearing of the mother's motion and set down the issue of the mother's access for fixed trial dates: March 21, 22, 23, and 2017. I also set dates for a trial management conference.

[21] There were two trial management conferences before Justice Kurz. One on February 1, 2017 and the other on March 2, 2017. The trial dates of March 21-23, 2017 were vacated and the trial management conference was adjourned until April 20, 2017 as the parties were working towards settlement of an access schedule and parenting provisions of a final order.

[22] Settlement conferences took place before me on February 28, 2017, March 9, 2017, April 13, 2017 and June 6, 2017. During this time the parties entered into temporary agreements which were incorporated into orders for access and other parenting matters. The orders incorporated the recommendations made by the Clinical investigator appointed by the Office of the Children's Lawyer ("the OCL"), Ms. Patel in her report dated August 2, 2016.

[23] On June 6, 2017, I granted final and temporary orders incorporating the Minutes of Settlement signed by the parties and which dealt with parenting issues and the mother's access.

[24] Although it seemed for a time that things with respect to access were improving, there were still problems with the father's compliance. At the settlement conference on August 25, 2017, I made an order requesting the re-involvement of the OCL to provide the court with an updated report. The father alleged that Benjamin was wanting less time with the mother. The mother asked that her access expand on weekends to Monday morning as provided for in the June 6, 2017 order.

[25] Frustrated with the father's continued failure to facilitate access as provided for in the June 6, 2017 order, the mother again took action to enforce her access. This time she brought a motion for directions first returnable on November 29, 2017. I set a hearing date for the return of the contempt motion for December 11, 2017.

[26] On December 11, 2018, the motion came before Justice Wolder. Due to events which took place at court that day, the father was found in contempt. The motion was adjourned so that the mother could serve and file a different notice of motion seeking relief pursuant to subrule 1(8).

[27] The mother served her fresh notice of motion dated December 5, 2017, which replaces her notice of motion of November 2017. In her fresh notice of motion she seeks an order finding that the father failed to follow the June 2017 order on five specified occasions and an order pursuant to rule 1(8) that he be ordered to pay the sum of $10,000 in costs.

[28] The affidavits which form the evidence for use at the hearing of this motion are these: The mother's affidavits sworn November 20, 2017 and December 5, 2017; and, the father's affidavit sworn November 24, 2017.

[29] The mother's freshly constituted motion was heard by me on January 26 and 30, 2018. What follows is the court's decision and reasons with respect to that motion.

THE PARTIES' POSITIONS

[30] The mother submits that the father willingly, intentionally, and repeatedly breached the order of Justice Starr, dated June 6, 2017, by failing to facilitate the mother's access with their son, as set out in that order. She asks this court to sanction his conduct in order to compel him to comply with the court ordered access in future by ordering him to pay $10,000 in costs.

[31] The father admits that he does not always follow the court order when it comes to access. His position is that his decisions not to do so are justified. He would like the court to exercise its discretion in his favour by declining to make the cost order requested by the mother.

APPLICABLE LEGAL PRINCIPLES AND FRAMEWORK

[32] Subrule 1(8) of the Family Law Rules ("the Rules") sets out the pallet of remedies available to the court to address non-compliance by a party with court orders. It reads as follows:

Failure to Obey Order

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

[33] What follows are some of the legal principles gleaned from the jurisprudence. Counsel referred me to and which have guided me in reaching my decision in this case.

[34] First, subrule 1(8) is available where there is "a failure to obey an order in the case." There is no requirement that the order be made on motion; and it matters not who obtained the order. As long as the judge is satisfied that there has been a failure to obey an order "in the case or a related case," subrule 1(8) is triggered [see Hughes v. Hughes, supra, at paragraph 17].

[35] Second, the failure to follow a court order should not be taken lightly. I arrive at this based on the language of subrule 1(8) and Justice Quinn's comments in Gordon v. Starr, supra. As he notes, the mere existence of subrule 1(8) and the language used coupled with the wide array of sanctions available, makes it very clear that failure to follow a court order should not be taken lightly. The rational for this is evident from Justice Quinn's comments found in paragraph 23. That paragraph reads in part as follows:

23 Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders.

[36] Third, discretion in favour of the noncompliant party will only be granted in exceptional circumstances. Put another way, it would take an extraordinary event to cause a court to exercise its discretion not to apply the rule in favour of the complainant. [See Mollina, supra at paras 5 and 6 and Wellman v. Robert, supra].

[37] Fourth, in deciding whether or not to exercise its discretion in favour of a non-complying party the court ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party. [See Mollina, paragraphs 5 and 6 and Wellman v Robert]

[38] Fifth, the words in subrule 1(8) "just determination" are sufficiently wide to include protecting the administration of justice, as that is what is at stake if a party wilfully disobeys an order. In Hughes v Hughes, supra Justice Quinn was forced to look beyond subrule 14(23) to deal with noncompliance in part because the technical requirements of that rule could not be met. He turned to subrule 1(8) and at paragraph 18 sets out the rational for this principle:

18 Where a party has failed "to obey an order in the case", the court is entitled to make "any order it considers necessary for a just determination of the matter". The words "just determination" are sufficiently wide to include protecting the administration of justice, and that is what is at stake if a party willfully disobeys an order.

[39] Sixth, the onus is on the non-complying party to show, on a balance of probabilities that subrule 1(8) is not applicable or that the court should exercise its discretion in favour of the noncompliant party. Both this principle and its rationale are also articulated by Justice Quinn in Gordon v Starr, supra, at paragraph 16: Why should any litigant be spared from obeying a court order?

[40] The decision in Molina and the court's subsequent decision in Wellman v Robert both adopt the 3 step approach to dealing with noncompliant parties in the context of subrule 1(8) and 14(23), as outlined in the 2008 case of Ferguson v Charles, supra. I too adopt that approach.

[41] Restated to accord with the most recent incarnation of those sub rules now reflected in subrule 1(8), the three step approach is as follows:

1. The court must ask whether there is a triggering event that would allow it to consider the wording of sub-rule 1(8). That triggering event would be non-compliance with a court order in the case or a related case.

2. If the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under sub-rule 1(8).

3. In the event the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy pursuant to the provisions of sub-rule 1(8).

[42] I would add a further guiding principle to the third step. That is that the court ought to ensure the sanction imposed upon a party found to have failed to obey a court order must be of significance. That is, of such consequence as to ensure the administration of justice is not brought into disrepute.

[43] As with sentences in civil contempt proceedings, the primary objective of the remedies available under subrule 1(8) is to coerce the offender into obeying the court judgment or order [see Kopaniak v. MacLellan (2002), 27 R.F.L. (5th) 97, (Ont. C.A.)]. General deterrence is the second objective. As noted by the court in the case of Itrade Finance Inc. v. Webworx Inc., [2005] O.J. No. 3492 at para. 20 (ON S.C.), "…others who may be tempted to flout an Order of this Court and frustrate its process must appreciate that they cannot benefit from such conduct."

[44] Thus, as with sentencing in contempt proceedings, particularly in family law proceedings, the sanction should be comprised of two components. It should be restorative to the victim of the breach and punitive to the noncompliant party. To accomplish the former requires the sanction to correlate to the conduct that produced the failure to follow the court order and to accomplish the latter requires the sanction not to reflect a marked departure from those imposed in like circumstances.

[45] To this end, I adopt a modified version of the considerations that are often relied on to guide the court in sentencing in contempt proceedings as set out in the case of Cassidy v. Cassidy, 2010 ONSC 2707. Thus, in determining whether the remedy sought under subrule 1(8) is appropriate to achieve a fair and just determination of the case, the considerations may include the following:

(a) the available remedies under the subrule;

(b) the proportionality of the sanction to the wrongdoing;

(c) the similarity of sanctions in like circumstances;

(d) the presence of mitigating factors;

(e) the presence of aggravating factors; and,

(f) deterrence.

THE ISSUES

[46] The issues I must decide on this motion are these:

1. Is there a triggering event that would allow this court to consider the wording of sub-rule 1(8)?

2. If so, is it appropriate for this court to exercise its discretion in favour of the father (the non-complying party) by not sanctioning him under sub-rule 1(8)?

3. If discretion will not be exercised in favour of the father (the non-complying party), is a cost order of $10,000 necessary for a just determination of the matter?

ISSUE #1: IS THERE A TRIGGERING EVENT THAT WOULD ALLOW THIS COURT TO CONSIDER THE WORDING OF SUB-RULE 1(8)?

[47] Pursuant to my June 6, 2017 order, the mother is supposed to have access to the parties' son on alternating weekends from Friday to Sunday and now Monday. While a clear and unambiguous order, it is a complex order. What is relevant for this motion is that for one of the occasions for which a breach is alleged, exchanges were to occur at the Thrive Supervised Access Centre. For all other alleged breaches, pick up on Friday was to occur at the end of the school day, at the child's school. A back up location, a Tim Horton's store, was designated for days when there is no school.

[48] Based on the mother's unchallenged evidence and the father's admissions made during his submissions at this hearing, I find that the father did not obey the court order by failing to make the parties' son available for access as required under the order, on the following five occasions:

(a) the weekend of August 25, 2017 to August 27, 2017;

(b) the weekend of October 6, 2017 to October 7, 2017;

(c) the weekend of October 27, 2017 to October 29, 2017;

(d) the weekend of November 10, 2017 to November 12, 2017;

(e) the weekend of November 24, 2017 to November 26, 2017;

[49] The father's failure to obey the court order constitutes a triggering event that allows this court to consider the application of sub-rule 1(8).

ISSUE #2: IS IT APPROPRIATE FOR THIS COURT TO EXERCISE ITS DISCRETION IN FAVOUR OF THE FATHER (THE NON-COMPLYING PARTY) BY NOT SANCTIONING HIM UNDER SUB-RULE 1(8)?

The Breaches and Father's Justifications

The weekend of August 25, 2017 to August 27, 2017

[50] On Friday, August 25, 2017 the mother attended at the Milton access pickup centre for the access exchange at 7 PM. The father was not present so at 6:50 PM that evening, the mother texted him to remind him that pickup is at the access centre at 7 PM as per the court order. The father replied with the text that read: "I think you better start telling the truth and you might get to see him. And there will be no pickup". The mother did not see or hear from the child that weekend. The father admits that he did not provide make up access.

[51] The father explains that he did not take the child to the access centre for the exchange because the exchange service was no longer available at the access centre at the time. He asserts that this is because the service had been cancelled due to the mother's repeated, deliberate and wilful refusal to pay her share of the cost, her deliberate and wilful flaunting of the child support order, and, his lack of resources to pay her share of the cost in the face of her contempt of the child support order. Further, he claims, as the mother deliberately and wilfully refused to pick Benjamin up from the (alternate) Tim Horton's access exchange area provided for in the minutes of settlement and the order of June 6, 2017, it was therefore by her own choice that access did not occur that weekend.

[52] There is no evidence that the access exchange centre had cancelled the service and the mother's evidence is that it had not. There is no evidence that she had not paid her fees and she denies that she was ever advised by the centre that they were cancelling the service due to her non-payment of their fees. I interpret the father's evidence to mean, he deemed the service cancelled because it was no longer one he was willing to pay for or utilize.

[53] Based on this the mother's evidence and the reasons the father cites as to why the service was no longer available, I find that it was the father, not the centre, that had decided exchanges would no longer occur at the centre. His decision to deviate from the order was unilateral and not one he had the authority to make. As such his reason for not complying with the court order by making the son available for the exchange at the centre was unjustified.

The weekend of October 6, 2017 to October 7, 2017

[54] The parties' son, Benjamin, had his green belt exam in taekwondo scheduled for 5 PM on October 6, 2017. On October 5, 2017, counsel for the father wrote to counsel for the mother advising that Benjamin would not be available to be picked up from school and that instead of picking up Benjamin from school, the father would text her when it was over and would bring Benjamin to meet her at the Tim Horton's for the exchange.

[55] The father sent a text message to the mother at 7 PM on October 6 advising the mother that Benjamin was done his exam and to attend at the Tim Horton's to pick him up. Unfortunately, the letter from his then counsel did not come to the attention of the mother's counsel until after the time for the mother to pick Benjamin up from school had come and gone. After she got the father's text the mother did attend at the Tim Horton's and was able to start her access at 7:15 PM.

[56] As a result of the father's unilateral decision to change the pickup time and location, the mother lost close to four hours of access time that weekend. The father admits that he did not offer make up access.

[57] The father says his decision to deviate from the court ordered pick up time and location was justified by his concern that the mother would not show up at the school and get their son to the exam. His concern, he deposed, was based on the fact that the mother had not yet arrived at school or communicated her intention to him to attend at the school. It was also based on the fact that the mother had failed to attend at Benjamin's school to pick him up as she was supposed to a few weeks earlier, on Friday September 8, 2017.

[58] Counsel for the mother, in response to the court's inquiry, confirmed that although there is no requirement in the court order for the mother to confirm her intention to pick Benjamin up on the days when her access was to start, the occasional practice had been to do so. The mother's evidence also confirmed that the mother had indeed failed to pick Benjamin up at school on September 8 due to a misunderstanding on her part.

[59] In light of these two events, one can see why the father might be concerned as he claims he was. However, looking at the pattern of the father's resistance to access, his habit of unilaterally altering the arrangements for pick up, and his seemingly unjustified view of the mother as a completely irresponsible parent, I do not accept the approach to have been reasonable.

[60] The more reasonable approach would have been to be proactive. That is, to notify her of the upcoming exam in a timely fashion, to seek confirmation from her that she would be there on time and take Benjamin to his exam, or to reschedule the exam. As it was he did none of these things, leaving it instead to the last minute and then to notify her of his unilateral decision not to follow the court order, thereby depriving her of almost four hours of access. He has not persuaded me that anything out of the ordinary occurred to justify the exercise of my discretion in his favour.

The weekend of October 27, 2017 to October 29, 2017

[61] On Tuesday, October 24, 2017, the mother received a text from the father which read as follows: "Brenda, have just spoken to lawyer as there are important appointments that have to be done Saturday and he has to have proper rest to see the doctors so you may pick up Benjamin on SUNDAY at Tim's 9:00 am to 5:00 pm. He has to see another doctor on Tuesday night". The mother was ready and able to have Benjamin in her care for the access weekend of October 27-29, 2017 but it did not occur because of the father's decision not to make him available until Sunday the 27th. Left with no choice, the mother picked Benjamin up on the Sunday.

[62] The consequence of the father's decision to disobey the court order is that the mother lost her access time on the Friday through to Sunday morning. No makeup access was provided for this missed time.

[63] According to the father he had two meetings with Benjamin school educators in October about two weeks apart. Following the first of those meetings he arranged to have Benjamin referred to a pediatrician by his family physician. The earliest appointment he could obtain with the pediatrician was on the evening of Friday, October 27, 2017, at 7 PM. He also scheduled a second appointment for the next day with the family doctor.

[64] I find that there was some urgency to getting Benjamin medical attention. The appointment with the pediatrician had been made at the request of Benjamin's educators. The dates the appointments were scheduled on were the first available appointments. The urgency is evident from the behaviours descried by the special education resource teacher in her letter dated October 12, 2017. Her description of Benjamin's behaviours are very concerning and I cannot fault the father for being anxious to get to the bottom of it. It was reasonable for the father to take the first available appointments. It was also reasonable, as he is Benjamin's primary caregiver and custodian, for him to be the one to take him to these appointments. The situation was extraordinary.

[65] What is not justified is the father's decision not to make Benjamin available for access with his mother immediately following and on the same day as the second appointment, the Saturday, and to instead insist that the mother only have access on the Sunday. The father's overall position is that Benjamin does not want overnight visits with his mother. His pattern is to only offer make up access (for visits missed but which are not the subject of this motion) during the day on Sundays. These two factors coupled with his many other complaints about the mother make it clear to me that his intention in not offering access until the Sunday was to address those concerns, not Benjamin's medical needs. The denial of access on that basis amounts to an unjustified, wilful and intentional breach of the court order.

The weekend of November 10, 2017 to November 12, 2017

[66] On November 9, 2017 the mother's counsel wrote to father's counsel to advise that the mother would be exercising her access the weekend of November 10-12, 2017 and that she would be picking Benjamin up from school on November 10, 2017.

[67] On Friday, November 10, 2017 at about 3:00 PM the mother received a text message from the father which read ": don't bother going to the school today." The mother responded by way of further text that day at 3:17 PM: "I am going to get him David per the court order". The father then responded: "whatever."

[68] On November 10, 2017, the mother attended at the school to pick up Benjamin. She went into the school office and spoke to the school secretary. She explained that she was there to pick him up. The school secretary advised her that the father had picked Benjamin up from school at lunch time.

[69] On the evening of Saturday, November 11, 2017, the mother received a text from the father asking if she wanted to take Benjamin from 9 to 5 on Sunday, November 12, 2017, at 9 AM. She agreed. On November 12, 2017, she texted the father at 9:26 AM to apologize for being late. She explained that she had overslept and asked if she could come and get Benjamin. He responded that he had waited, had now laughed and he had notified the lawyer. As a result of all of this, she had no access whatsoever to Benjamin on this weekend. No makeup access was offered or provided.

[70] As far as the father's claim that the school was closed or that there were no classes on the Friday, I prefer the mother's evidence over the father's. His evidence that the school was closed or that there were no classes that day due to parent-teacher interviews is a baldly asserted fact. The mother's evidence, on the other hand, is supported by the copy of the school calendar that showed that there were no professional development days schedule for November 10 and that parent-teacher interviews were shown as being scheduled for November 24, 2017, not November 10, 2017 as alleged by the father.

[71] I note that even if the father was to be believed, he has offered no explanation as to why he did not make Benjamin available for access on the Friday and in accordance with the alternate pick up arrangements that are to occur if the school is closed. He has not explained why he was only willing to make him available on the Sunday. The lack of explanation coupled with the patterns I have already discussed and his insistence that Benjamin does not want to spend overnights with his mother, make it evident that his failure to follow the court order was unjustified, wilful and intentional.

The weekend of November 24, 2017 to November 26, 2017

[72] Even after her initial notice of motion and supporting affidavit dated November 20, 2017 was served upon the father via his counsel and thus, the father can be expected to have been on notice that the mother would be seeking a finding that he had failed to obey a court order as well as remedial orders, the father again denied the mother access the weekend of November 24, 2017.

[73] On this occasion the father sent a text wherein he states: "Brenda, don't go to the school today as it is closed and Benjamin is with me. Pick him up at 10:00 AM at Tim's as he is doing his Christmas shopping tonight."

[74] The mother attended at the Tim Horton's at 3:30 PM on November 24, 2017 to pick up Benjamin but he did not arrive. She attended the Tim Horton's the next day at 10 AM and picked him up.

[75] As a result of the father's failure to make Benjamin available on the Friday for access as required under the court order, the mother lost one day of her access that weekend. No makeup time was offered or provided.

[76] I find the father has no valid reason for failing to follow the court order on this occasion. His breach was unjustified, wilful and intentional.

Other Excuses

[77] The father offers a number of other excuses or justifications for his failure to follow the court order. For example, he argues that the mother herself has continuously failed to comply with the order of Justice Starr, dated June 2017. For example:

(a) He refers to times when she has failed to show up for access (i.e. Such as when she overslept) and the time when she failed to pick Benjamin up for access on September 8, leaving him to get home from school himself. She has also failed to communicate before or after when she has missed access.

(b) She deliberately and wilfully refused or failed to pay her share of the Access Centre cost.

(c) Prior to June 2017, she failed or refused, whenever she has been working, to inform the Family Responsibility Office that she is working, the nature of her employer, or the address of her employer. Accordingly, he has not received child support for Benjamin since June 2017.

(d) The mother has consistently and deliberately failed to live up to her obligation to provide financial support for Benjamin, notwithstanding that she was subject to a court order to pay support and that she had employment providing her with the means to pay support for Benjamin.

(e) As a result of the respondent's deliberate and wilful refusal or failure to comply with her legal duty to report her employment to the FRO and her flaunting of the child support order, he has been left in desperate need of the funds to provide a home for Benjamin and to ensure that his other needs are met.

(f) She has not paid the costs he was twice previously awarded.

[78] He also claims that Benjamin does not have a lawyer who is properly representing his views and preferences, which he claims are that he does not want anything more than day access with his mother. This he claims is because the mother does not have proper accommodations for a bed for him, and that she exposes him to male companions, which makes Benjamin uncomfortable.

[79] These various and more general excuses and justifications of his failure to obey the court order are not acceptable. The issue of whether the mother has failed to obey court orders or whether the court order in place remains in Benjamin's best interests and whether it remains consistent with his views and preferences, is not properly before me for adjudication. Those breaches and claims should be raised in a motion, with supporting evidence to which the mother may respond.

[80] However, it is not likely that I would excuse the father from obeying the June 2017 access order merely because the mother was in non-compliance in respect of another order or because it does not accord with Benjamin's views and preferences. Each instance of non-compliance must be looked at separately, to ascertain the appropriate sanction. As Justice Quinn notes at paragraph 20 of his decision in Gordon v Starr, supra: "Breaches are not something that the parties may trade; neither are they to be treated as debits in an accounting".

Conclusion

[81] Is there any reason that the court should exercise its discretion in favour of the father and decline to sanction his failure to obey the court order? The answer is a resounding NO.

ISSUE #3: GIVEN THAT DISCRETION WILL NOT BE EXERCISED IN FAVOUR OF THE FATHER (THE NON-COMPLYING PARTY), IS A COST ORDER OF $10,000 NECESSARY FOR A JUST DETERMINATION OF THE MATTER?

[82] Although stated in the context of contempt proceedings, the words of R.A. Blair J. in Surgeoner v. Surgeoner (1991), 6 C.P.C. (3rd) 318 (Ont. Gen. Div.) equally apply in the context of proceedings for relief under subrule 1(8). Those words are these:

5. No society that believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court's orders at their whim because in their own particular view, it is right to do so. A society that countenances such conduct is a society tottering on the precipice of disorder and injustice.

6. The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal that often threatens to drown the process and the parties themselves in a sea of anger and "self-rightness". In this environment it is all too easy for a spouse to believe that he or she "knows what is right", even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination.

7. Those who choose to take this tack must know that it will not be tolerated.

[83] All this mother wants is to have the opportunity to develop and grow a healthy relationship and bond with the parties' son. To do this she and Benjamin need to be able to see each other regularly, consistently, and in accordance with a predictable and specified schedule. This father is incredibly bitter and angry towards the mother. He is self-righteous and focused on self-rightness. He believes that he "knows what is right", even after a matter has been determined by the court. He believes that he has the right to decide to ignore, disobey or defy a court order he does not or no longer agrees with, even if it was previously made with his consent.

[84] The father's failure to obey the court order on the enumerated occasions addressed in this reasons must be examined in the context of his overall behaviour in the case. That examination reveals numerous aggravating factors, all of which point to the need for an order of significant consequence. For example, almost every order made has been with his consent. Almost every order has been made following some effort by the mother to enforce court ordered access. The history of this case as outlined earlier in the background section of these reasons reveals a consistent and cyclical pattern of behaviour on his part: to consent to orders to escape consequences, and then to ignore, defy and breach them. It is quite evident that throughout the long history of this case the father has successfully managed to string both the mother and the court along, with impunity.

[85] Another aggravating factor signalling the need for a consequential remedy is evident from the effect and toll of his behaviour on others. His non-compliance has repeatedly led to greater acrimony, discord, conflict, and litigation. The toll is great for the mother, the child, the Children's Lawyer, and the court.

[86] There have been 21 court attendances to date. Having been the case management justice for the majority of these, I know firsthand that the focus in almost all of them has been how to get him to comply with the access orders he has agreed to or the court determined is in his son's best interests. Nothing has really worked and when it has, it has not worked for very long.

[87] Mother and child have been deprived of a meaningful opportunity to develop and strengthen their bond. There is, after years of litigation, still no consistent and predictable pattern to access.

[88] Benjamin is stressed beyond acceptable levels. He is smack in the middle of a loyalty bind. Although it remains to be seen whether his extreme emotional and behavioural difficulties are the consequence of this, there can be no doubt that the situation is not helping. His lawyer tells the court that he has not given her permission to tell it very much of what he has told her. All he wants her to say is that he wants his parents to comply with the court order.

[89] Further, his lawyer's ability to carry out her role has been impeded by the father's behaviour. Because of his denials of access she has not been able to meet with him at a point where he has been in his mother's care for a significant period. Most meetings seem to be held at times when the father's influence is high. This, no doubt, makes it difficult for her to assess the strength, consistency and independence of his views and preferences. Thus, his actions are effectively impeding a process designed to provide the court with information it needs to decide what is in Benjamin's best interests. In this way he is obstructing justice.

[90] The father flaunts his noncompliance, even in court. At the hearing he told the court to go ahead and order him to pay $10,000 in costs. From his perspective it really doesn't matter because the mother owes him more than that in unpaid child support and costs. On the second day of the hearing he brazenly told the court of his decision to once again unilaterally alter the court ordered access. Further he made no attempt to purge his noncompliance, for example, by offering make up access. This even after receiving the mother's November 2017 notice of motion wherein she indicated she would be seeking make up access as one of the remedies. In fact, he went on to breach the order yet again shortly thereafter.

[91] A cost order is a proportionate remedy. Of the array of orders available to the court under subrule 1(8) it is by far the lessor of the sanctions. It is the right place to start given no other formal sanctions have been imposed to date to address the father's behaviour.

[92] The need for a consequential order to deter the father, deter other likeminded individuals, and to protect the reputation of the administration of justice is not in question. A significant cost order is most definitely what is called for. The remedy must sting.

[93] What is difficult is crafting an order that will effectively ensure that the father complies with court orders. The mother owes the father $6401.05 on account of two outstanding cost orders made in his favour. Although she disputes the quantum, the Family Responsibility Office's records show she is in arrears of child support of about $7800. In other words, she owes the father somewhere between $6400 and $14,201.15.

[94] The father has received nothing in child support since June 2017 and the mother admits that except for two payments of an unspecified amount, she has not paid anything towards the support of Benjamin since then. As there have been periods when she has been working, it stands to reason that she will likely owe the father even more on account of child support from June 2017 onwards.

[95] In these circumstances setting $10,000 as the cost remedy seems fair and necessary for a just determination of the matter. It is close to midpoint between what the mother owes for certain and what she may owe if she is not successful in getting her arrears ultimately rescinded or reduced.

[96] I am concerned, however, that the order will not be effective in terms of compelling the father to comply with the order going forward. The father is not daunted by the prospect of such a hefty cost order. From his perspective it is less than he is owed and thus, if it is set off against what the FRO and he say he is owed, the mother will still owe him money. There is no sting if there is set off.

[97] On the other hand, it would be unjust to order the father to pay her the $10,000 without setting it off against what the mother owes him. If it is ultimately determined that she owes him more than this, and she does not have the money to repay him (something that seems likely based on the mother's dire financial straits and the fact that she is impecunious at this time), he will not only be out of pocket the $10,000 and the money she owes him, but also left bereft of any way to recover any of what he is owed.

[98] I am also mindful that this father is the sole financial supporter of the parties' son. This is already an unfair burden as both parents, in law, have an obligation to support Benjamin to the extent that they are able. On the face of the current order for support, the mother is not holding up her end of this fiduciary duty. It is thus, important to avoid making an order that could cause undue financial hardship to him and by extension, Benjamin.

[99] In crafting the cost remedy that will be both effective in achieving a just determination of the issue and fair, my goal is thus, to find a way to balance the various interests at stake. That is, a cost order that will be responsive to:

(1) The need to minimize the negative impact the cost award will have on the father's ability to support Benjamin and Benjamin's lifestyle in his father's home;

(2) The need to ensure that the remedy is of sufficient bite to compel the father to comply with the access order going forward; and,

(3) The need to ensure that the ultimate effect is not to cause him to lose what he is entitled to from the mother, namely, the outstanding costs and arrears of child support.

[100] The order I have made below strikes this balance and is, I find, the fairest way to accomplish what is necessary for a just determination of the matter.

CONCLUSION

[101] For all these reasons I make the order below.

Order

1. Pursuant to subrule 1(8) the applicant father shall pay costs to the respondent mother fixed in the amount of $10,000. Said costs are to be paid and applied as follows and subject to these conditions:

(a) $3,598.50 shall be paid by the father, within 30 days, into court, where it shall be held until such time as the court orders its release in part or in full and to whom.

(b) Provided the father has paid the sum of $3598.50 into court within 30 days, the balance of the $10,000, namely, $6401.50, shall be set off against the aggregate of the amounts outstanding on account of the two cost orders and those cost orders will be deemed to have been paid by the mother in full.

(c) If the father does not pay the sum of $3598.50 into court within 30 days, then the balance of the $10,000 payable, namely, $6401.50, shall be payable directly to the mother within 45 days of the date of this order.

2. This matter is adjourned to February 13, 2017, at 10:00 a.m. for the court to hear submissions with respect to costs of this motion and to hear a motion the mother is hereby granted leave to bring to address support and support enforcement issues.

3. If the mother seeks costs of this motion the issue will be decided on the return date. Any bill of costs the mother intends to rely upon on the return date along with any case law, is to be sent to the father at least two weeks in advance of the next court date.

4. The father's approval of the draft of this order shall not be required for it to issue.

5. The Judicial Secretary is requested to email a copy of this decision to Mr. O'Rourke and Ms. Champsi and to telephone the father to advise him that it is available for him to pick up and where to go to do so.

6. Court services is requested to mail a copy of this decision to the father, forthwith.

Released: February 2, 2018

Signed: Justice Victoria Starr