Reasons For Order

Court File and Parties

Court File No.: FS-16-201-00 Date: 2017-01-05 Ontario Superior Court of Justice

Between: ANDRE SCHIKOLENKO, Applicant And: ROSINA McLELLAN, Respondent

Counsel: Jared Teitel, for the Applicant Devin Maguire, for the Respondent

Heard: December 23, 2016, at Brampton, Ontario

Before: Price J.

Nature of Motion

[1] Rosina McLellan and Andre Schikolenko entered into a mediated agreement on October 20, 2015. The agreement provided, on a final basis, that the parties would have joint custody of their three young daughters, and that the “[m]other shall not move the children’s residency further than 50 kilometres from the City of Hamilton without the written permission of the Respondent Father”. The parties consented to an Order of Justice Brown, of the same date, which incorporated the terms of the Agreement.

[2] Less than a year later, Ms. McLellan re-married on May 4, 2016, and, on July 26, 2016, informed Mr. Schikolenko that, “as of right now you will never be seeing the girls again; I am taking away your visitations”. In September 2016, he learned that she had relocated the children to Sarnia with her new husband.

[3] Since the children’s move to Sarnia, Ms. McLellan has caused them to call their father “Andre” and to call her new husband “Dad”. The children have sent text messages from their mother’s telephone, stating that their mother had told them that Mr. Schikolenko would not pay for their day care, and telling him to leave them alone, that they have a dad and that he was no longer their dad, and that “[Mom] will lose her job it’s your fault and I will be mad at you.”

[4] Mr. Schikolenko made a motion, on October 18, 2016, to have Ms. McLellan found in contempt. Although the motion was served on Ms. McLellan almost three weeks before the motion was to be heard, Ms. McLellan retained counsel three days before the hearing and sought an adjournment to enable her to deliver responding material.

[5] Ms. McLellan responded to the motion with her own motion for custody of the children, and for an order transferring the proceedings to Sarnia. She relies on a clerical error in Justice Brown’s Order which, while segregating the terms that the parties had agreed to as final in the mediated agreement from those they had agreed would be temporary, failed to actually state that they were final. She additionally asserts that she terminated Mr. Schikolenko’s access because of an alleged assault by him on one of the children in July 2016, which Mr. Schikolenko denies. When the Children’s Aid Society investigated her allegation, it found no safety concerns and gave no directions concerning access.

[6] The motions were adjourned from time to time to permit the children to complete their fall semester at school without interruption. The time has now come for the court to deal with Ms. McLellan’s unilateral removal of the children to Sarnia, her attempt to curtail Mr. Schikolenko’s access to them, and her discussing the issues of the litigation with the children in a way that is calculated to diminish the children’s respect for him.

[7] For the reasons that follow, I find the following:

a) Justice Brown’s Order granting the parties joint custody and enjoining Ms. McLellan from re-locating the children’s residence was a final order. The clerical error in the form of the Order will be corrected so as to reflect the mediated agreement the parties made.

b) Ms. McLellan is in contempt of the Order of Justice Brown for re-locating the children’s residence to Sarnia without Mr. Schikolenko’s permission and by restricting Mr. Schikolenko’s access to them.

c) Ms. McLellan has attempted to alienate the children from their father in a manner detrimental to the children’s interests.

[8] As a result of these findings, an order will be made varying the final Order of Justice Brown by providing that the children shall for the present time be primarily resident with Mr. Schikolenko, who shall enroll the children in a school in Stoney Creek, and may arrange counselling for them to reverse the effects of the alienation and restore their relationships with him. A request will be made for involvement of the Office of the Children’s Lawyer, and Ms. McLellan shall have leave to apply for a review of the parenting arrangement upon providing proof that she has relocated her permanent residence to within 50 kilometres of the City of Hamilton.

Background Facts

[9] Mr. Schikolenko and Rosina McLellan were married on July 17, 2005. They separated on May 3, 2015, but continued to reside under the same roof until June 30, 2015.

[10] The parties have three children together, namely:

a) Helena Schikolenko, born January 5, 2007;

b) Isabella Marie Schikolenko, born April 30, 2009; and

c) Stella Antonia Schikolenko, born May 25, 2012.

[11] In July 2015, Ms. McLellan moved out of the matrimonial home with the children and into her own residence in Hamilton. Mr. Schikolenko moved into his own residence the following month.

[12] On July 30, 2015, Ms. McLellan began a proceeding in Hamilton, Ontario, by Application in which she claimed a divorce and spousal support. Mr. Schikolenko delivered an Answer in that proceeding. Both parties were self-represented.

[13] In August 2015, Ms. McLellan met her current husband, Joel McLellan. The following month, Ms. McLellan and the children moved in with Mr. McLellan in Mississauga.

[14] On October 20, 2015, the parties attended a mediation session and reached a partial agreement embodied in an on-site mediation report. The Report, which was submitted the same day to The Honourable Madam Justice C. Brown, stated:

Subject to independent legal advice, both parties agree that:

ON A FINAL BASIS:

1. The Applicant Mother and the Respondent Father shall share joint custody of the children, Helena Schikolenko, born 5 January 2007, Isabella Schikolenko, born 30 April 2009, and Stella Schikolenko, born 25 May 2012, and as such shall share an equal voice in the major decisions concerning the children, including but not limited to educational programming, religious instruction, and non-emergency medical intervention.

2. The Applicant Mother and Respondent Father shall share with each other all important information and documentation regarding the children, and either may directly inquire with sources of said information and documentation.

3. The Applicant Mother shall have primary residence of the children.

4. Commencing 30 October 2015, the Respondent Father shall share time with the children on alternate weekends from Friday at 4:00 p.m. until Sunday at 6:00 p.m. This weekend timesharing may be extended on Holiday Mondays to 6:00 p.m.

5. The Applicant Mother and the Respondent Father shall share or alternate time with the children on all holidays, summer vacation and special occasions as mutually agreed and arranged between them.

6. The Applicant Mother and the Respondent Father shall equally share responsibilities for transportation for time sharing. To this end, unless mutually agreed otherwise, the Applicant Mother and the Respondent Father shall exchange the children at the Burloak/QEW plaza on a schedule that is mutually agreed-upon and arranged between them.

7. The Applicant Mother shall not move the children’s residency further than 50 kilometres from the City of Hamilton without the written permission of the Respondent Father.

8. The Respondent father shall name and maintain the children on any extended health benefit plan(s) he may have or obtain via his place of employment until the children are deemed no longer eligible by said plan.

9. The Applicant Mother and the Respondent Father shall equally share any reasonable Section 7 Expenses for the children if they agree on same in advance.

10. The Applicant Mother and the Respondent Father shall only use the children’s RESP funds for post-secondary education or of other expenses should the children not attend post-secondary education as mutually agreed-upon and arranged between the parties. The amount in said RESP account is $41,676.60 as of today’s date.

ON A TEMPORARY BASIS:

11. Commencing 1 September 2015, the Respondent Father shall pay child support to the Applicant Mother for the children, Helena Schikolenko, born 5 January 2007, Isabella Schikolenko, born 30 April 2009, and Stella Schikolenko, born 25 May 2012 in the amount of $1149.00 per month which is the Child Support Guideline amount for three children based upon the Respondent Father’s 2014 income of $59,000.00 per year.

12. A Support Deduction Orders shall issue.

13. For as long as the children are eligible to receive child support, the Applicant Mother and the Respondent Father shall exchange updated income disclosure, annually by 30 June, in accordance with section 24.1 of the Child Support Guidelines. Such disclosure shall include, but not be limited to, their Notices of Assessment and income tax returns for the prior taxation year.

14. The Respondent father shall share time with the children on at least one weekday evening per week from 4:00 p.m. until 6:00 p.m. and can be extended to overnight timesharing as mutually agreed-upon and arranged between the parties.

15. The parties could not agree on the issue of spousal support and the signing off of the rights on the RESP.

16. Should the parties wish to have their support payments withdrawn from the Family Responsibility Office, they shall complete a Notice of Withdrawal, and the Respondent father shall pay the support directly to the Applicant Mother by way post-dated cheques with receipt provided.

17. This matter shall be adjourned to a Settlement Conference scheduled on 22 December 2015 at 2:30 p.m. [Emphasis added.]

[15] The 50 kilometre restriction on the children’s residence permitted Ms. McLellan to remain in Mississauga, while enabling Mr. Schikolenko to exercise access to the children, with all access exchanges to occur in Oakville, the mid-point between the parties’ residences.

[16] The parties consented to an Order by Justice Brown made on the same day. The Order was in the identical terms as the Mediated Agreement, except that instead of the first 10 paragraphs being preceded by the words, “On a final basis”, and the remaining paragraphs being preceded by the words, “On a temporary basis”, the first 10 paragraphs of the Order were preceded by the words, “This Court Orders that:” and the remaining paragraphs were preceded by the words, “On a temporary basis:”.

[17] In December 2015, Ms. McLellan advised Mr. Schikolenko that she planned to marry Mr. McLellan and therefore intended to withdraw her claim for spousal support and obtain a divorce. Both parties signed Notices of Withdrawal of their remaining claims.

[18] Mr. Schikolenko and Ms. McLellan abided by the Order of Justice Brown in the months that followed without incident. During that time, the children were regularly in Mr. Schikolenko’s care on weekends, weekdays, and holidays, including overnights, and he and Ms. McLellan continued to meet in Oakville for all access exchanges. In addition to their regular access to Mr. Schikolenko, the children spent a portion of the 2015 holidays, including Christmas and New Year’s Day, and part of the 2016 March Break, in his sole care. Mr. Schikolenko took the children to Blue Mountain Resorts on holidays and the parties agreed to enroll Helena in soccer, pursuant to their joint custody arrangement.

[19] On May 7, 2016, Ms. McLellan married Mr. McLellan at Mr. McLellan’s parents’ residence in Sarnia, Ontario.

[20] On July 23, 2016, Mr. Schikolenko took the children to his cousin’s cottage to enjoy a family weekend with their paternal cousins. On July 26, 2016, he returned the children to Ms. McLellan’s residence in accordance with the parties’ agreement. After he dropped the children off and while driving back to his home, Mr. Schikolenko received a text message from Ms. McLellan that stated, “as of right now you will never be seeing the girls again. I am taking away your visitations.”

[21] Ms. McLellan thereafter denied Mr. Schikolenko all access to and contact with the children. Mr. Schikolenko commenced the present proceeding to restore his access. With the assistance of duty counsel at the Superior Court in Hamilton, he served and filed an Application for custody/access and an urgent motion to reinstate his access, which was served on Ms. McLellan at her residence in Mississauga.

[22] On August 19, 2016, Ms. McLellan did not attend the motion and had not filed responding material. Justice Mazza invited Mr. Schikolenko to take the witness stand and swear that he only signed a Notice of Withdrawal at Ms. McLellan’s behest so that she could obtain a divorce. Justice Mazza set aside the Notice of Withdrawal, re-activated the previous Application, and transferred the proceeding to Brampton, as the children resided in Mississauga. Justice Mazza adjourned the motion to September 8, 2016.

[23] On August 30, 2016, a client service representative in Brampton sent to Mr. Schikolenko an endorsement of that date by Regional Sr. Justice Daley, which stated, “the court is not sitting on September 8, 2016, and as such, the motion is adjourned to a new date to be set by the Brampton Trial Coordinator at the request of the parties. The parties shall contact the Trial Coordinator to obtain a new date.” On August 31, 2016, Mr. Schikolenko e-mailed Ms. McLellan and proposed September 20, 2016 as the return date for his motion. Ms. McLellan advised that she was agreeable to that date. Mr. Schikolenko filed a 14B motion asking the Court to set the return date.

[24] On September 6, 2016, as Mr. Schikolenko had not seen the children for six weeks, he attended at their school in Mississauga. The principal advised him that, while the children had been registered and enrolled there for the forthcoming school year, they had never attended for classes. Mr. Schikolenko contacted Ms. McLellan, who advised him that she had moved to Sarnia with the children.

[25] On October 18, 2016, Mr. Schikolenko brought a motion to have Ms. McLellan found in contempt. He requests an order requiring Ms. McLellan to return the children to within 50 kilometres of Hamilton or, in the alternative, for an order directing that the children be primarily resident with him. The motion was served on Ms. McLellan three weeks before the return date, but three days before the hearing, Ms. McLellan retained counsel and at the hearing, sought an adjournment for the purpose of filing responding material. Mr. Schikolenko consented to the adjournment, on terms that reinstated his access to the children on a temporary and without prejudice basis.

[26] On October 18, 2016, Seppi J. made a temporary and without prejudice order, on consent, granting Mr. Schikolenko unsupervised access to the children. The order did not change the children’s continued principal residence with their mother.

[27] On consent, Mr. Schikolenko amended, served, and filed his Application, and Ms. McLellan amended, served, and filed her Answer. In her Answer, Ms. McLellan alleged that Mr. Schikolenko had assaulted the children, which Mr. Schikolenko denies. Ms. McLellan reported her allegation to the Children’s Aid Society in Sarnia, who investigated and found no support for the allegation. The Society later advised Mr. Schikolenko that they had closed their file and had given no direction regarding access to the children.

[28] The matter proceeded to a Case Conference on November 22, 2016, before Justice Van Melle. Justice Van Melle granted Mr. Schikolenko leave to proceed with his motion.

[29] Since Ms. McLellan’s move with the children, Mr. Schikolenko has received numerous text messages from the children, sent from Ms. McLellan’s telephone, stating, in part:

• Mom told me you won’t pay for me to go to plasp • Just leave us alone • We have a dad you are not our dad • Just leave Mommy and us alone • You don’t pay for daycare dad • Mom tells me the truth you don’t • [Mom] will lose her job its your fault and I will be mad at you.

[30] The children have informed Mr. Schikolenko that Ms. McLellan has caused them to call him “Andre” and to call Mr. McLellan “Dad”.

[31] In her affidavit, sworn December 7, 2016, Ms. McLellan asserts that as early as April 2016, she tried to discuss with Mr. Schikolenko moving from Mississauga to Sarnia with the children. She states that the cost of living in Sarnia is significantly less than in Mississauga, which would allow the children to reside in a better neighbourhood and attend a better school, but she states that Mr. Schikolenko refused to discuss such a move.

Issues

[32] The motions require the court to determine the following issues:

(a) Is Ms. McLellan in contempt of Justice Brown’s order by re-locating the children’s residence to Sarnia without Mr. Schikolenko’s consent?

(b) If she is in contempt, what penalty should be imposed or remedy granted?

(c) Should Ms. McLellan’s cross-motion for custody of the children be entertained or allowed?

Parties’ Positions

[33] Ms. McLellan states that at the time of her move to Sarnia in September 2016, she was not aware that she was in breach of a court order. She states that she believed that Justice Brown’s Order had been withdrawn in December 2015 and was not aware until she met with a Duty Counsel in late September, that the Withdrawal had been set aside. Additionally, Ms. McLellan states that Mr. Schikolenko is in breach of the child support and section 7 expense provisions of Justice Brown’s Order and therefore does not come to court with “clean hands”.

[34] Mr. Schikolenko states that Ms. McLellan unilaterally discontinued his access to the children, in breach of Justice Brown’s Order, in order to prevent the children from disclosing to him that Ms. McLellan was moving to Sarnia with her new husband, also in breach of the Order. He requests an Order finding Ms. McLellan in contempt of Justice Brown’s Order and requiring her to return the children to the Hamilton area or, in the alternative, directing that the children reside principally with him.

Analysis and Evidence

Is Ms. McLellan in contempt of Justice Brown’s order?

Legislative framework

[35] The Family Law Rules, O. Reg. 114/99, Rule 31(1) provide that an order may be enforced by a contempt motion, even if another penalty is available.

[36] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17 provides that where there has been a change of circumstances since the original order was made, the court may make an order varying, rescinding, or suspending, prospectively or retroactively, a custody order or any provision of it, on application by either spouse. The court, in making such a change, shall take into consideration only the best interests of the children as determined by reference to that change. Divorce Act, s. 17(5). The Children’s Law Reform Act, R.S.O. 1990, c. C. 12, s. 29 provides that the court shall not vary an existing order regarding the custody of the children unless there has been a material change of circumstances that affects or is likely to affect the best interests of the child.

[37] The court makes orders concerning the custody of a child and access based solely on “the best interests of the child”. It determines what is in the child’s best interests by reference to the factors set out in section 24 of the Children’s Law Reform Act (the “CLRA”).

[38] The Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3, at pp. 47, 99; Gordon v. Goertz, [1996] 2 S.C.R. 27, at pp. 67-68 held that a child’s best interests must be ascertained from the perspective of the child. Parental preferences and rights do not play a role in the analysis, except to the extent necessary to ensure the best interests of the child.

[39] Under Section 20 of the CLRA, both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child lives with one parent with the consent of the other, the parents’ entitlement to access continues, with each having the right to visit with the child and obtain information about the child’s health, education, and welfare. CLRA, ss. 20(1), (4) - (5).

[40] Section 24(1) of the CLRA provides as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) The love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) The child’s views and preferences, if they can reasonably be ascertained;

(c) The length of time the child has lived in a stable home environment;

(d) The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) The permanence and stability of the family unit with which it is proposed that the child will live;

(g) The ability of each person applying for custody of or access to the child to act as a parent; and

(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. CLRA, ss. 24(1) - (3).

Jurisprudence

[41] The court applies a three-part test to determine whether a party is in contempt:

(a) The order that was breached must state clearly and unequivocally what should and should not be done;

(b) The party who disobeys the order must do so deliberately and wilfully;

(c) The evidence must show contempt beyond a reasonable doubt. G.(N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 82 O.R. (3d) 686 (Ont. C.A.), at para. 27, per Blair J.A., followed in Hobbs v. Hobbs, 2008 ONCA 598, 240 O.A.C. 202, at para. 26, per Armstrong J.A.

Applying the legal framework to the facts

[42] Justice Brown’s order clearly and unequivocally states what should be done and not done. It states, in part:

7. …Mother shall not move the children’s residency further than 50 kilometres from the City of Hamilton without the written permission of the Respondent Father.

[43] Sarnia is approximately 250 kilometres from the City of Hamilton. There is no dispute that Sarnia is farther than the 50 kilometres specified in Justice Brown’s Order. There is also no dispute that Ms. McLellan moved the children’s residence to Sarnia without the written permission of Ms. Schikolenko.

[44] Ms. McLellan asserts that she tried to discuss a move to Sarnia with Mr. Schikolenko in April 2016. Mr. Schikolenko denies that assertion and I find no evidence to support it. The parties typically communicated by text messages, not by telephone or in person. Both parties tendered copies of their text messages in evidence, but Ms. McLellan offered no copies of text messages in which she proposed a move to Sarnia or tried to discuss such a move with Mr. Schikolenko.

[45] Ms. McLellan asserts that while she deliberately relocated the children’s residence to Sarnia without Mr. Schikolenko’s permission, which Justice Brown’s Order enjoined her from doing, she did not “wilfully or deliberately” breach the Order, because she believed the Order had been withdrawn and considered the move to be in the children’s interests, for economic reasons. She further denies that Mr. Schikolenko ever had a close relationship with the children or that the move to Sarnia has disrupted the children by removing them from their friends and extended family, as Mr. Schikolenko’s family has never proven to be a support for the children’s care or upbringing, and the children are not closely bonded with them.

[46] I reject Ms. McLellan’s assertion that she believed the Order of Justice Brown to have been “withdrawn”. It is clear that the parties’ mediated agreement provided for non-removal on a final basis and that the terms of the agreement were incorporated unchanged into Justice Brown’s Order. Moreover, she admits that she was aware, at least by the end of September 2016, that Mr. Schikolenko had reinstated the proceeding in Hamilton and that the Order of Justice Brown was in force, yet she took no steps, even at that point, to bring herself into compliance with the Order.

[47] I reject Ms. McLellan’s allegation that the incident she argues justified her curtailing Mr. Schikolenko’s access to the children amounted to an assault on Helena. Ms. McLellan alleges that when the children returned home on July 26, 2016, following their access visit with Mr. Schikolenko, they appeared sullen and distressed, and that when she asked them what was wrong, they informed her that their father had thrown Helena onto a bed by the front of her neck in anger and had sworn at her in the presence of Isabella and Stella. Ms. McLellan’s allegation is denied by Mr. Schikolenko.

[48] Ms. McLellan acknowledges that she told Mr. Schikolenko in July 2016 that he would never see his daughters again and that she moved to Sarnia in September 2016. Ms. McLellan states that the two older children do not want to see their father and that she must force them to go on access visits while they plead and cry not to go. She states that she also must force them to talk on the phone with their father. She states that none of this occurred prior to the incident on July 26, 2016, which she says has traumatized the children and caused them to be fearful of him.

[49] Ms. McLellan’s allegation is, even on her own evidence, inconsistent with Mr. Schikolenko’s prior conduct toward the children and his relationships with them. The alleged incident was not reported to any authority until after Ms. McLellan’s re-location of the children to Sarnia. Daniella Mancusi, the Vice Principal of Holy Trinity Catholic School, wrote a letter dated November 30, 2016, confirming that a call was made to the Sarnia Children’s Aid Society in November 2015, regarding a “disclosure made by Helena Schikolenko”. This report was apparently made four months after the incident, and after a long interruption in Mr. Schikolenko’s access to the children.

[50] The Sarnia-Lambton Children’s Aid Society’s report dated October 26, 2106, disclose that Ms. McLellan had caught Helena lying and wondered herself whether Helena had fabricated or exaggerated the incident with her father. The report discloses that Helena, when describing the incident, informed them that Isabella was in the shower at the time of the incident and that she thought that Stella would not remember it.

[51] The Society notes that Helena was angry with her father, not fearful of him, and was not worried about any future discipline by him. The Society notified Mr. Schikolenko on December 7, 2016, that their protection file was closed.

[52] On December 14, 2016, Ms. McLellan’s lawyer, Devin Maguire, wrote the following to Mr. Schikolenko’s lawyer, Mr. Teitel:

I recognize your client’s position that access has been going well and without incident. However, Helena returned last weekend with visible scratches on her face and neck. I should inform you that Ms. McLellan has notified CAS of the same who, I’m told, has recommended that no further access occur prior to their interview with Mr. Schikolenko. [Emphasis added.]

[53] Contrary to the statements made by Ms. McLellan’s lawyer, on December 15, 2016, Leah Meidinger, a Child Protection Worker with the Sarnia-Lambton Children’s Aid Society, and Leena Singh, an Intake Supervisor with the Society, wrote to Mr. Teitel: “I am writing to you in response to your letter dated December 15, 2016, and am advising I have not provided any direction to the parents pertaining to their access.”

[54] The most likely explanation for Ms. McLellan’s allegation of assault is her desire to curtail access and thereby prevent the children from disclosing to their father their impending move to Sarnia, which she had reason to believe Mr. Schikolenko would oppose and attempt to stop.

Intention required for contempt

[55] The court does not require proof that an alleged contemnor intended to put herself in contempt in order to make a finding of contempt. It must only be established that she deliberately, wilfully, or knowingly did some act which amounted, objectively, to a breach of a court order of which she had knowledge. Kassay v. Kassay, 11 R.F.L. (5th) 308, [2000] (Ont. Sup. Ct.), at paras. 15 and 18.

[56] Proof of recklessness satisfies the necessary intent to disobey a court order and supports a finding of contempt. Wilful intent or malice, i.e. a deliberate intent to defy an order, is not necessary to establish a civil contempt, though its existence may be relevant to penalty. It is enough that a party knew of the terms of the order and intended to do those things that, objectively speaking, constituted the breach. Morrison v. Charney, 2007 MBQB 47, [2007] M.J. No. 68 (Man. Q.B. (Fam Div.)), at para. 33.

[57] A finding of contempt does not require the court to find that the defendant intended to disobey or flout an order of the court: “the offence consists of the intentional doing of an act which is, in fact, prohibited by the order. The absence of the contumacious intent is a mitigating, but not an exculpatory, circumstance.” [Re Sheppard and Sheppard (1976), 67 D.L.R. (3d) 592 (Ont. C.A.) at 595-596]; [iTrade Finance Inc. v. Webworx Inc. (2005), 255 D.L.R. (4th) 748 (Ont. Sup. Ct.), at para. 8].

[58] The standard of intention is knowledge of the terms of the order and knowingly or intentionally doing an act which is, objectively speaking, in contravention of those terms. In Brooks v. Vander Muelen (1999), 141 Man. R. (2d) 25 (Q.B.) cited in A.G.L. v. K.B.D. (2009), 65 R.F.L. (6th) 182 (Ont. Sup. Ct.), at para. 31, the Manitoba Queens Bench stated, concerning contempt:

An individual need not be found in breach of a specific term in a court order. It is sufficient if the actions are “designed to obstruct the course of justice by thwarting or attempting to thwart a court order”. Evidence of contempt in family matters should be “clear and unequivocal”. Restraint is appropriate in making such findings. If a custodial parent can show that she acted at all times in the best interests of the child and not with the intention of disobeying the court’s order out of self-interest, the courts have been reluctant to make findings of contempt even if custodial parents can be said to be acting only out of spite and hostility.

The standard of proof is that a breach be proved beyond a reasonable doubt. The standard of intention is knowledge of the reasons for the order and contravention of the order. Direct intention to disobey the order is not required. Wilful disregard is sufficient. “Wilful” is intended to exclude only casual, accidental, or unintentional acts of disobedience. [Emphasis added.]

Findings of the Court

[59] I find that there was no justification for Ms. McLellan’s breach of the clear terms of Justice Brown’s Order. Ms. McLellan did not have sole custody of the children and had no authority to relocate them without Mr. Schikolenko’s consent or an order of the court. There can be no dispute that Ms. McLellan’s unilateral relocating of the children to Sarnia without Mr. Schikolenko’s consent, objectively speaking, was a breach of Justice Brown’s Order.

[60] The only thing that can save the behaviour from amounting to contempt is legal justification, in the form of a serious risk of harm to the children, which I find to be absent. The rationale she offers for the move, being the economic advantage of a lower cost of living in Sarnia, was no justification. Moreover, the move was contrary to the interests of the children in that it imposed five hours of car travel on them on each alternate weekend when their father exercised access to them.

[61] Justice Spence, in R.(S.) v. S.(J.), 2013 ONCJ 133, at para. 35, in 2013, rejected the father’s attempt to justify his disobedience of an order granting the mother access, by blocking her access to the parties’ two children on two occasions. There was no dispute that the father had prevented the mother from exercising her court-ordered access. The issue that Justice Spence had to decide was whether he was legally justified in doing so. He stated:

As I noted at the outset of these reasons, there is no dispute that father disobeyed the access order. Counsel agreed that the only thing that could save this disobedience from a finding of contempt, is a legal justification for disobedience, in this case, the legal justification that exposing P. to the continuing stress he allegedly felt as a result of having seen Mr. V. on November 12, 2012, would be emotionally harmful to him. However, the only evidence in support of that purported justification comes from father’s assertions. And since I have found those assertions to be untruthful, there remains no evidence that would support the argument that the father was legally justified in disobeying the court order. [Emphasis added.]

[62] In the present case, I find beyond a reasonable doubt that Ms. McLellan wilfully relocated the children’s residence to Sarnia, beyond the limit prescribed by the parties’ mediated agreement and Justice Brown’s Order, and that she unreasonably curtailed Mr. Schikolenko’s access to the children until October 18, 2016, when the court ordered her to restore it as a term of the adjournment of the motion Mr. Schikolenko had requested.

[63] I do not find any support for Ms. McLellan’s assertion that Mr. Schikolenko assaulted Helena Schikolenko. Mr. Schikolenko exercised access to the children without incident from October 2015 until July 2016, after Ms. McLellan re-married and wished to move to her new spouse’s residence in Sarnia. I find that her allegation of assault was a transparent effort to justify her removal of the children to Sarnia in breach of the parties’ agreement and the Order of Justice Brown.

What penalty or remedy is appropriate?

[64] In Ivan v. Leblanc, 2012 ONSC 4445, 2012, McKelvey J. found the mother in contempt of an order requiring her to give 60 days’ notice of an intention to relocate the children. McKelvey J. was unable to make a clear determination, based on the information before him, as to whether the child would receive better educational opportunities in the mother’s district or the father’s. However, it was apparent that the move had significantly altered the father’s ability to exercise access. Having regard to the importance of maintaining the child’s close relationship with the father, he concluded that it was in the best interests of the child to restore the previous status quo until the court had a full opportunity to consider all of the potential consequences of the proposed move. He therefore ordered the mother to return the child to his previous district and school.

[65] Mr. Schikolenko requests only an order that Ms. McLellan return with the children to the Hamilton area or, in the alternative, directing that the children reside with him. For this relief, it is necessary for the court to undertake an analysis as to what parenting order is in the best interests of the children. Jones v. Jones, 2013 ONCJ 383, rev’d 2014 ONCA 822.

What parenting order is in the best interests of the children?

[66] Children are entitled to have access to both their parents, to the extent consistent with their best interests. Young v. Young, [1993] 4 S.C.R. 3, at pp. 46, 117-18. Custody and access issues are to be determined based on the best interests of the children, and not the interests of the parents. The Divorce Act provides the following, in that regard:

17(9) In making a variation order varying a custody order, the court gives effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[67] Misconduct by one parent toward another, and a deliberate breach of the court’s orders concerning custody, access, and the residence of the children, when it impairs the ability of the other spouse to exercise access to the children, cannot help but be injurious to the long term interests of the children. The separation of parents deprives children of their major source of security, derived from an intact family. That security can only be replaced by the security they derive from strong and healthy relationships with each parent separately. Children’s positive self-image, crucial to their ability to adjust successfully to the changes in their family, depends in large measure on the positive regard they have toward each of their parents. If their respect for either parent is diminished, their regard for themselves may also suffer. That said, the court must additionally consider the impact on the children of changing their primary residence. Jones v. Jones, 2014 ONCA 822, at para. 9.

[68] I will now review the evidence with reference to the factors which the CLRA, in s. 24, directs the court to consider when determining what parenting order would be in the best interests of the children.

a) Love, affection, and emotional ties

[69] For the reasons discussed under the children’s views and preferences, below, I find that the children have an underlying love and affection for both parents and that their emotional ties have been strained by the tension between their parents and the curtailment of their father’s access to them.

b) Facilitating contact with the other parent

[70] The court, when making a custody and access order, whether pursuant to sections 20 and 24 of the CLRA, or pursuant to section 16(10) of the Divorce Act, “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each parent who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests. Young v. Young, at pp. 46, 117-18.

[71] As for how the parties should share parenting of the children, I refer to the comments of McLachlin J., as she then was, in Young v. Young, where she discussed the “maximum contact principle,” in the context of an application under the Divorce Act. Justice McLachlin, speaking for the majority of the Court, said:

... s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982) (at pp. 117-18). [Emphasis added.]

[72] Unlike the Divorce Act, which the Court applied in Young, the CLRA sets out specific factors that the court should consider when determining what is in a child’s best interests. The CLRA does not include the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, as s. 16(10) of the Divorce Act does. Nevertheless, s. 20(1) and (4) of the CLRA require the court, if it finds that maximum contact with both parents is not in the child’s best interests, to explain why this is so. Wiedrick v. LeMesurier (2006), 27 R.F.L. (6th) 312 (Ont. Sup. Ct.), per Wood J..

[73] A significant factor for the Court to consider in seeking to maximize each parent’s contact with the children is the role that the parents’ extended families are likely to play under any parenting regime that the Court imposes.

[74] I have found that Ms. McLellan was without justification in curtailing Mr. Schikolenko’s access to the children in July 2016, and in continuing to do so, even after she admits having learned that the final Order of Justice Brown was still in effect, until the parties made their temporary and without prejudice minutes of settlement on October 18, 2016.

[75] The Children’s Aid Society records, from October 26, 2016, disclose that Stella was excited to see her father. They also note that Ms. McLellan herself had caught Helena lying and was wondering if her allegations about her father having been violent with her were fabricated.

[76] If the denigration of each parent by the other continues, it will be increasingly detrimental to the children’s regard for their parents, both as role models and a source of security.

c) The children’s views and preferences

[77] The children are 4 to 10 years old and their views and preferences should be taken into account in the decision as to the parenting arrangements. The CAS report from October 26, 2016 discloses that the youngest child, Stella, was excited to see her father. Isabella was “happy and nervous”, the nervousness relating to whether Helena and their father would get along. When the CAS interviewer spoke with Helena about her up-coming access with her father, Helena said that she had “no worries” about it. The report from November 7, 2016, concludes that Isabella’s unwillingness may have resulted from the fact that she is reaching an age when she is aware of the tension between the homes and may see that Helena doesn’t want to go and align herself.

[78] Mr. Schikolenko reports good relations with the children up until July 2016, when his access was curtailed. Ms. McLellan acknowledges that the children would benefit from counselling to improve their communications with their father. Such counselling is impractical if the children are in Sarnia and Mr. Schikolenko is in Stoney Creek.

d) Length of time the children have lived in a stable home environment

[79] The children resided with both parents until June 30, 2015. They then moved with their mother to Hamilton, where they resided from July to September, 2015, when Ms. McLellan moved in with her current husband in Mississauga. They moved again after Ms. McLellan married her current husband on May 7, 2016, and moved to Sarnia with him in about September 2016. I conclude that the children have not lived in a stable family environment for the past year and a half.

[80] Mr. Schikolenko moved to his present home following the parties’ separation at the end of June 2015. The children had regular access to him there until July 2016, when Ms. McLellan curtailed that access.

[81] Mr. Schikolenko notes that Ms. McLellan’s extended family all reside in or near Hamilton, Ontario, and that she does not have family in Sarnia, where she moved with the children in September 2016. If the children reside with Mr. Schikolenko in Stoney Creek, they will be closer to Ms. McLellan’s family in Hamilton than they are in Sarnia.

e) Ability and willingness of each parent to provide the children with guidance and education, the necessaries of life, and to meet any individual needs they have

[82] Mr. Schikolenko states that he was actively involved in all aspects of the children’s care prior to the parties’ separation. He was involved in their routines, facilitating and attending medical and dental appointments, arranging and attending extracurricular activities and events, attending at school functions and meetings, engaging the children in recreational and social activities and assisting with homework and their education.

[83] Ms. McLellan denies Mr. Schikolenko’s assertion that he was a very involved father during their relationship and was actively involved in their care and up-bringing. She states that prior to her curtailing his access, Ms. McLellan often requested that he take a greater role in the children’s lives. I find this puzzling, having regard to Ms. McLellan’s characterization of Mr. Schikolenko as a negative influence on the children. It is, however, consistent with her agreement, in the parties’ mediated parenting agreement, which appeared designed to ensure that Mr. Schikolenko would have joint custody of the children and regular access to them.

f) Plans proposed for the child’s care and upbringing

[84] Ms. McLellan proposes that the status quo which she unilaterally established should be maintained. Mr. Schikolenko seeks the children’s return to Hamilton with Ms. McLellan, or an order directing that they be principally resident with him in Stoney Creek. He plans to enroll the children in a school in Stoney Creek and he has family in the area who are available to support his care for the children.

[85] This court noted in Ceho v. Ceho, 2015 ONSC 5285, at para. 100, in 2015, that temporary and without prejudice orders should not create a presumption that influences a court in its later determination as to the best interests of the children. I cited Justice Chappel, in Batsinda v. Batsinda, 2013 ONSC 7869, in 2013, who made it clear that, absent an adjudication or a consent based on a determination or acknowledgement that the custody/access or parenting schedule is, in fact, in the best interests of the children, a temporary order, especially one that has prolonged a status quo that one of the parties imposed unilaterally when the parties separated, should not give rise to a presumption that must be rebutted. I adopt Justice Chappel’s analysis in support of my conclusion that the temporary and without prejudice order of Justice Seppi dated October 18, 2016, which restored Mr. Schikolenko’s unsupervised access to the children but made no change in the children’s principal residence with their mother, should not create a presumption that influences the court’s determination as to what parenting arrangement is in the children’s best interest.

g) Permanence and stability of each family unit

[86] Mr. Schikolenko has lived alone since the parties separated at the end of June 2015. Ms. McLellan entered into a new relationship with her present husband in August 2015, the month after the parties moved from the matrimonial home, and she married her present husband nine months later, on May 6, 2016. I find that each of the parties’ family unit has permanence and stability.

h) The ability of each person applying to act as a parent

[87] Until the parties’ conflicting allegations about each other are clarified by cross-examination or the results of an investigation by the Office of the Children’s Lawyer, I find that both parents are able to act as a parent to the children. It is of some significance that until late July 2016, when Ms. McLellan was on the verge of moving to Sarnia with her husband, she had raised no issue as to the unsupervised access which Mr. Schikolenko had exercised pursuant to the mediated agreement the parties had made on October 20, 2015, and the order of Justice Brown that they consented to on that date.

[88] L'Heureux-Dubé J., with whom four of the seven justices of the Supreme Court of Canada agreed in Young v. Young, [1993] 4 S.C.R. 3, noted that determinations as to the best interests of children must take the needs of the custodial parent into consideration in relation to orders for access. She stated:

In assessing all the relevant considerations, courts must be careful that the ideals of parental sharing and equality do not overcome the lived reality of custody and access arrangements and that the child's needs and concerns are accommodated and not obscured by abstract claims of parental rights. … As Abella J.A. held in M. (B.P.) v. M. (B.L.D.E.) (1992), 97 D.L.R. (4th) 437, for the majority, at p. 459:

[The best interests of the child] by no means excludes the parental perspective. The needs of children and their parents are obviously inextricable, particularly between children and the parent on whom they depend for their day-to-day care, where only one parent has this primary responsibility. The structure of an environment that fits the child's interests would undoubtedly be reinforced if the economic and emotional needs, especially of custodial parents, were factored in, given the symbiosis of their sense of well‑being ….

In the final analysis, when considering the best interests of the child, it may be a virtue rather than a sin for the judge to be pragmatic and take into consideration both the strengths and shortcomings of the parties and the limits of human nature. To do so is only to recognize that, in some circumstances, the perfect may be the enemy of the good. Courts must always be mindful that not only the benefit but also the real cost and burden of all custody and access arrangements ultimately falls on the children themselves. [Emphasis added.]

[89] I find that there is little likelihood that Ms. McLellan and her spouse will immediately return to Hamilton, having relocated to Sarnia, where Mr. McLellan’s family resides. Making an order that requires Ms. McLellan to do so will only increase the likelihood of a continued breach of the non-removal order, with further disruption of the children’s schooling, and further damage to Mr. Schikolenko’s relationship with the children.

[90] For all of the above reasons, I find that it is in the children’s best interests that, for the time being, the children have their principal residence with Mr. Schikolenko where he can have access to them without imposing five hours of automobile travel on the children. The children have not been resident in Sarnia for a lengthy period of time, and Ms. McLellan’s unilateral removal of them there should not be prolonged, in the face of the parties’ agreement and the Order of Justice Brown that they consented to in October 2015, by which the children were to reside in the Hamilton area.

[91] For these reasons, it will be ordered that the children’s primary residence will be with their father pending a move by Ms. McLellan back to the Hamilton area, at which time the parenting issues can be reviewed. No further penalty will be imposed on Ms. McLellan, beyond the costs of the motions.

Should the court entertain Ms. McLellan’s proposed motion to change Justice Brown’s Order and grant her custody of the children?

[92] Rule 15 of the Family Law Rules prescribes the procedure to be followed in a motion to change a final order. The rule prescribes special forms, including a motion to change form (Form 15) and a change information form (Form 15A). If the motion includes a claim for custody of or access to a child, the parties are required to deliver the documents referred to in Rule 35.1. Ms. McLellan has not followed these procedures fully.

[93] Ms. McLellan requests a temporary order granting her custody of the children. Rule 15(28) of the Family Law Rules provides that a motion for a temporary order under rule 14 may be made on a motion to change a final order. I find that to give effect to Ms. McLellan’s motion would reward her breach of Justice Brown’s Order and that entertaining her motion at this time would be inconsistent with the appropriate remedy for her breach of the Order and contrary to the best interests of the children.

[94] For the reasons stated above, I decline to make the order that Ms. McLellan seeks. I will, however, request the involvement of the Office of the Children’s Lawyer, to conduct an investigation of the needs of the children and the ability of the parents to meet their needs in the changed circumstances which Ms. McLellan’s move to Sarnia has created and which her return, if it occurs, may also create.

Conclusion and Order

[95] For the foregoing reasons, it is ordered that:

1. The Order of Justice Brown dated October 20, 2015, is varied by inserting the heading “On a final basis” preceding paragraph 1.

2. The respondent, Ms. McLellan, is found in contempt of Justice Brown’s Order dated October 20, 2015, para. 17, by re-locating the children’s residence more than 50 kilometres from Hamilton without obtaining Mr. Schikolenko’s consent, and by withholding access to the children from Mr. Schikolenko from July 26, 2016, until October 18, 2016, when ordered to reinstate it.

3. The Order of Justice Brown is varied by providing that, beginning December 25, 2016, at noon, the children shall have their primary residence with Mr. Schikolenko. Mr. Schikolenko shall forthwith enroll the children in a school in his district. Mr. Schikolenko shall continue to observe the conditions which, on the consent of the parties, were imposed by Justice Seppi on October 18, 2016.

4. Ms. McLellan shall have access to the children in accordance with the following schedule:

a) December 23, 2016 at 5 p.m. to December 25, 2016, at noon;

b) December 27, 2016, at noon to December 30, 2016, at noon

c) January 5, 2017 at 9 a.m. to January 8, 2017 at noon

d) Alternate weekends beginning January 20, 2017, from Friday after school to Sunday evening at 6:00 p.m., or, if Monday is a statutory holiday, to Monday at 6:00 p.m.

e) Half of all school holidays. If the parties are unable to agree, they may apply to the court.

5. Pick-up and drop-off of the children shall be the responsibility of Ms. McLellan.

6. A request shall be made to the Office of the Children’s Lawyer, pursuant to s. 112 of the Courts of Justice Act, to conduct a clinical investigation of the needs of the children with regard to parenting arrangements. The parties shall complete and file their intake forms with the OCL by December 31, 2016.

7. Mr. Schikolenko has leave to move for child support, if so advised.

8. The primary residence of the children and the parenting schedule may be reviewed by the court when Ms. McLellan has provided proof that she has changed her permanent residence to within 50 kilometres of the City of Hamilton.

9. If the parties are unable to agree on costs, they shall deliver written submissions, not to exceed 4 pages, and a Costs Outline, by January 31, 2017.

Released: January 5, 2017 Price J.