Court File and Parties

COURT FILE NO.: FC-17-1138 DATE: 2018/12/24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sean Alexander Smith, Applicant -and- Brittany Ann Reynolds, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant representing himself André Bluteau, for the Respondent

HEARD: December 13, 2018

Endorsement

[1] This is a motion made by the Applicant, Mr. Smith, for a finding that the Respondent, Ms. Reynolds, is in contempt of the court.

Factual Background

[2] The parties are the parents of one child, born May 9, 2017, now one and a half years of age. The child primarily resides with Ms. Reynolds.

[3] Mr. Smith resides in Cobden, Ontario. Ms. Reynolds resides in Ottawa, Ontario. Cobden is approximately 115 kilometers away from Ottawa.

[4] On March 29, 2018, Justice Linhares de Sousa ordered (“the March 29, 2018 order”) that Mr. Smith have interim access to the child every Wednesday and Sunday, from 10 a.m. to 6:15 p.m. The order provides for the access exchange for pick-up to be in Arnprior, being part way between Ottawa and Cobden. For drop-off, on Wednesdays the access exchange is in Barrhaven, in Ottawa. On Sundays, the drop-off exchange is at the supervised access center, in Ottawa. In this way, the parties share the driving between Cobden and Ottawa, although Mr. Smith bears most of the driving. This order was made under the Children’s Law Reform Act.

[5] Mr. Smith’s position is that Ms. Reynolds has breached, and continues to be in breach, of the March 29, 2018 Order. The events that give rise to this allegation are uncontested, being as follows:

a. Mr. Smith did not have access on Sunday, July 22, 2018 or Wednesday, August 8, 2018 because Ms. Reynolds objected to the person Mr. Smith designated to act as the transfer person on these occasions. The March 29, 2018 order does not stipulate who may, or may not, act in this capacity;

b. Mr. Smith has also not had any access since his last visit on October 21, 2018. On October 2, 2018, Ms. Reynolds’ counsel notified Mr. Smith by email that due to a change in Ms. Reynolds’ work schedule, Mr. Smith’s access would no longer be as set out in the March 29, 2018 order effective October 22, 2018. Instead, Ms. Reynolds’ counsel advised that Mr. Smith’s access would be from 8:30 a.m. to 11:30 a.m. every Monday, Wednesday, and Friday, with Mr. Smith being responsible for picking-up and dropping-off the child from daycare in Ottawa. Mr. Smith was further advised that the daycare would only be allowed to transfer the child to him, and not to a designated third party.

[6] Mr. Smith filed extensive evidence of emails between himself and Ms. Reynolds’ counsel, Mr. Bluteau. This evidence supports my finding that Mr. Smith repeatedly requested access in accordance with the March 29, 2018 order, repeatedly advised Mr. Bluteau of his position that Ms. Reynolds was acting in contempt of the court order, and repeatedly advised Mr. Bluteau that he did not agree to Ms. Reynolds changing his access from that set out in the March 29, 2018 order.

[7] Mr. Smith’s reasons for objecting to Ms. Reynolds’ change in the access schedule, aside from the fact that it was unilaterally imposed by Ms. Reynolds, include:

a. The pick-up and drop-off location, being within the City of Ottawa, as well as the requirement that only Mr. Smith can pick-up the child from the daycare, effectively prevent Mr. Smith from having any access at all. Mr. Smith is currently under conditions of release related to criminal charges that require him to stay out of the City of Ottawa except pursuant to a family court order. Ms. Reynolds’ dictated access is not incorporated into a court order;

b. It would dramatically reduce Mr. Smith’s access time from 16.5 hours per week to 9 hours per week;

c. It would significantly shortened each visit from 8 hours and 15 minutes per visit to only 3 hours per visit, which prevents Mr. Smith from taking the child to his home in Cobden, which had been his practice, where the child enjoyed a “normalized” home visit;

d. It would prevent the child from having any contact with the child’s half siblings, who reside part-time with Mr. Smith;

e. It imposes 100% of the driving responsibility on Mr. Smith, although he is clear that this is a minor objection in comparison to the other concerns stated above.

Motions and Court Appearances since August 24, 2018

[8] On August 24, 2018, Mr. Smith served a motion for contempt on Ms. Reynolds’ counsel, Mr. Bluteau. This motion was not personally served on Ms. Reynolds. The motion was scheduled to be heard on October 30, 2018. This notice of contempt motion states:

“A motion will be made by Sean Alexander Smith for a finding that you are in contempt of the court because you wilfully and deliberately breached the Temporary Court Order of M. Linhares de Sousa dated March 29, 2018; in particular paragraph 1. You denied my access to [the child] on July 22, 2018 and August 8, 2018 because you did not like who my third party was for the exchange. You were cautioned ample times in both cases that you were not following the temporary court [order] and still did not change your mind.”

[9] On October 12, 2018, Ms. Reynolds served her own motion seeking “to ratify, effective October 22, 2018, and to approve the new access schedule with respect to [the child].” Her motion was scheduled to be heard on November 1, 2018.

[10] On October 30, 2018, Justice MacLeod adjourned Mr. Smith’s contempt motion to be heard with Ms. Reynolds’ motion to vary the interim access on November 1, 2018. In addition to the two motions being interrelated, Justice MacLeod identified two issues with the contempt motion. One issue was that the March 29, 2018 order had not yet finalized for reasons that were in dispute, and the second being that Ms. Smith had not personally served Ms. Reynolds. These factors are no longer in issue – the March 29, 2018 order has been issued and Mr. Smith has served Ms. Reynolds personally, as well as her counsel, with his updated notice of contempt motion, original notice of contempt motion, and supporting affidavits.

[11] More importantly, in his endorsement, Justice MacLeod stipulated:

“Pending the return of that motion the Respondent is to arrange at least one access visit from 10:00 to 6:15 on one of the intervening days in accordance with the travel arrangements set out in that order.”

[12] No access took place between Justice MacLeod’s endorsement and the return of the motion on November 1, 2018.

[13] On the return of the motion on November 1, 2018, Ms. Reynolds’ counsel, Mr. Bluteau, had an agent appear on his behalf to seek an adjournment of both motions on the basis that he was ill. Justice Beaudoin adjourned both motions to December 13, 2018 for one hour, stating:

“In the interim – the Respondent is to strictly comply with the order of Justice Linhares de Sousa. If she is unable to drive the child on Wednesday or Sunday as currently ordered she is to have a third party provide the driving. Costs of $500 are ordered against the Respondent payable to the Applicant before the return.”

[14] Despite the orders made on October 30 and November 1, 2018, Mr. Smith has still not had any access to the child since October 21, 2018 because Ms. Reynolds has not transported the child to the pick-up location, or had a third party do so on her behalf.

[15] Ms. Reynolds has also not paid the $500 costs awarded in the November 1, 2018 endorsement.

[16] At the return of these motions before me on December 13, 2018, Mr. Smith’s most urgent concern was the continued refusal of access as set out under the March 29, 2018 order. Mr. Smith filed extensive evidence that supports my findings that Mr. Smith continues to seek such access, continues to have third parties attend on his behalf for the stipulated pick-up times, continues to communicate his requests for access to Ms. Reynolds’ counsel, continues to be very clear that he objects to Ms. Reynolds’ unilateral changes to the access, and that his position is that Ms. Reynolds continues to be in contempt of that order.

[17] On December 13, 2018, Ms. Reynolds’ counsel, Mr. Bluteau, did not argue, nor seek to argue, Ms. Reynolds’ motion to change the interim access. Instead, Mr. Bluteau took the position, amongst others, that Mr. Smith’s motion was moot, and that the motion to vary should be scheduled to be argued at a later date with sufficient time set aside to do so, being two hours, rather than the one hour stipulated under Justice Beaudoin’s order of November 1, 2018. Mr. Bluteau did not provide any evidence that he had attempted to schedule two hours for these motions on December 13, 2018 or at any other time.

[18] Mr. Bluteau’s main argument is that it is improper for Mr. Smith to “update” or amend his motion for contempt, and therefore Mr. Smith’s motion is moot because Ms. Reynolds now agrees to Mr. Smith’s designated third party assisting on exchanges. These exchanges are, of course, not happening at this time in any event because of Ms. Reynolds unilateral change to the access. Mr. Bluteau appears to argue that Ms. Reynolds’ continued failure to allow access in accordance with the March 29, 2018 order cannot be addressed by the court at this time. I do not agree.

[19] I find that Mr. Smith has acted appropriately by personally serving Ms. Reynolds with the updated notice of contempt motion and “updating” that notice to identify his concerns with the continued breaches of the March 29, 2018 order, particularly in the face of the orders made on October 30 and November 1, 2018. The concern with Ms. Reynolds’ ongoing refusal of access is directly raised in the October 30 and November 1, 2018 endorsements. I find that there is no basis to support Mr. Bluteau’s suggestion that somehow Ms. Reynolds was not given fair notice of the alleged breaches, being, very clearly, her repeatedly failure to comply with the access under the March 29, 2018 order.

Legal Test

[20] This motion is made pursuant to subrule 31(1) of the Family Law Rules. That rule provides that, “an order, other than a payment order, may be enforced by contempt motion made in the case in which the order was made, even if another penalty is available”.

[21] Civil contempt requires that the moving party establish beyond a reasonable doubt that:

1. the order alleged to have been breached states clearly and unequivocally what should or should not be done;
2. the alleged contemnor had actual knowledge of the order's terms; and
3. the alleged contemnor intentionally did the act the order prohibited or intentionally failed to do the act the order required: see Hobbs v. Hobbs, 2008 ONCA 598.

[22] Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed.

[23] Even where all three parts of the test are satisfied, a judge retains an overriding discretion to decline to make a contempt finding where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order: Carey v. Laiken, 2015 SCC 17, at paras. 33-37.

Analysis and Disposition

[24] I do not find that it is particularly material to the outcome in this matter whether or not Ms. Reynolds’ refusal to allow access on July 22 and August 8, 2018 constituted acts of contempt. Those incidents related to an issue that has now been addressed given that Ms. Reynolds’ states she no longer objects to the third party in question acting as the exchange person.

[25] More concerning is Ms. Reynolds’ failure, since October 21st, 2018, to comply with the access as ordered in the March 29, 2018 order. This concern is heightened by Ms. Reynolds’ failure to comply in the face of clear directions to do so from Justice MacLeod (on October 30, 2018) and Justice Beaudoin (on November 1, 2018).

[26] As has been stated repeatedly, orders are not suggestions. Orders are orders, with which one must comply. If a party is of the view that there has been a change that warrants a variation of court ordered access, the correct step is to bring a motion to vary the order including, if warranted, seeking a variation on an urgent basis. It is not correct, and should not be condoned except in the most extreme of circumstances, for one party to simply unilaterally impose a change in access.

[27] A unilateral change is exactly what Ms. Reynolds purports to have implemented. The correspondence between her counsel and Mr. Smith provides evidence, beyond a reasonable doubt, that Ms. Reynolds was of the view that she could simply impose new access terms, regardless of the terms of the court order and regardless of the fact that Mr. Smith strenuously objected to these changes. Her conduct in doing so, and persisting in doing so despite the October 30 and November 1, 2018 orders, cannot, and should not, be condoned.

[28] The evidence before me establishes, beyond a reasonable doubt, that since October 21, 2018, Ms. Reynolds’ has failed to comply with the clear and unambiguous terms of access set out in the March 29, 2018 order and that this failure, particularly in the face of the October 30 and November 1, 2018 orders, constitutes clear acts of contempt that must be sanctioned by this court.

[29] In particular, I make the following findings:

a. I find, beyond a reasonable doubt, that the March 29, 2018 order is clear and unequivocal that Mr. Smith is to have access every Wednesday and Sunday, from 10 a.m. to 6:15 p.m., with the exchange taking place as set out in that order. This finding is not changed by the fact that the order also states that the access shall be reviewed within 6 months. The order does not contain any provisions that suggest that absent a further court order or agreement between the parties, Ms. Reynolds has the authority to unilaterally change the access.

b. I find, beyond a reasonable doubt, that Ms. Reynolds had knowledge of the March 29, 2018 Order. The order on its face states that Ms. Reynolds was present in court on March 29, 2018. Ms. Reynolds has sworn two affidavits which make reference to her knowledge of the order; and

c. I similarly find, beyond a reasonable doubt, that Ms. Reynolds has intentionally failed to comply with Mr. Smith’s access as set out in the March 29, 2018 order. This finding is based on Ms. Reynolds’ own affidavits.

[30] I do not find that this is a case that warrants exercising my overriding discretion to decline to make a contempt finding. I find that Ms. Reynolds has not acted in good faith to take reasonable steps to comply with the order. Although Mr. Bluteau argued that it was “impossible” for Ms. Reynolds’ to comply with the March 29, 2018 order, he could not point me to evidence in her affidavit of any attempts by Ms. Reynolds to comply with the order.

[31] In contrast, Ms. Reynolds’ evidence is that she has not made any efforts to ask anyone, including her mother, to transport the child to the exchange location on Wednesdays, when she states she cannot do so because she is working. Ms. Reynolds simply asserts that her mother is the only possible third party who could transport the child and that she has not asked her mother to do so because she “knows” that her mother would not want to do so and her mother works during the week. Ms. Reynolds’ only evidence that Sunday access is “impossible” is that it is her day off and she wishes to spend that day with the child.

[32] This evidence falls far short of supporting a finding that Ms. Reynolds has taken reasonable steps to attempt to comply with the March 29, 2018 order pending the determination of her own motion to have that interim access varied. I find that Ms. Reynolds has not made any efforts to attempt to comply with the access order, even after specific judicial direction to do so.

[33] I do wish to comment that I found the nature and tone of Mr. Bluteau’s correspondence with Mr. Smith very concerning. Mr. Bluteau’s correspondence was dismissive of Mr. Smith’s objections and verged on being despotic in tone in advancing Ms. Reynolds’ incorrectly held view that she could simply impose a new access schedule and ignore the terms of the court order. I mention this as a caution against similar communications in the future.

Remedy

[34] Upon finding that Ms. Reynolds’ is in contempt of the court, the court may make a number of orders as set out under rule 31(5) of the Family Law Rules. The following orders are made to reflect the need for both general and specific deterrence, as well as denunciation, of Ms. Reynolds’ conduct in failing to comply with the court ordered access, particularly in the face of the October 30 and November 1, 2018 orders. In addition, I find that the following orders are in the best interests of the child by ensuring that the child’s relationship with Mr. Smith is preserved and supported. I therefore make the following orders:

a. Ms. Reynolds is found in contempt of court for failing to comply, since October 21, 2018, with the access as set out under the March 29, 2018 order;

b. The interim access as ordered under the March 29, 2018 order shall continue pending a further court order or written signed agreement between the parties varying the interim access;

c. In addition to the access set out under the March 29, 2018 order, due to the interruption in access, Mr. Smith shall have the following additional access:

i. Friday, December 28, 2018 from 10 a.m. to 6:15 p.m.; ii. Saturday December 29, 2018 from 10 a.m. to 6:15 p.m.; iii. Friday, January 4, 2019 from 10 a.m. to 6:15 p.m; iv. Saturday, January 5, 2019 from 10 a.m. to 6:15 p.m; v. Friday, January 11, 2019 from 10 a.m. to 6:15 p.m; and vi. Friday, January 18, 2019 from 10 a.m. to 6:15 p.m.

The exchange locations for the above access shall be the same as under the March 29, 2018 order. In particular, the drop-off exchange will be through the supervised access exchange location when that service is available. For dates when the supervised access exchange is not available, which include during the Christmas holiday period and mid-week, the exchange shall take place at the Barrhaven Costco.

d. Ms. Reynolds shall pay to Mr. Smith the sum of $2,000 for the breaches to date. The payment of this sum shall be suspended as long as Ms. Reynolds fully complies with all ordered access pending a further court order or written signed agreement between the parties varying the interim March 29, 2018 ordered access. In the event that Ms. Reynolds fails to comply with one incident of court ordered access during this period (being the access under the March 29, 2018 order as well as the additional access set out above), this sum of $2,000 shall be payable to Mr. Smith in full, forthwith. In the event that Ms. Reynolds complies with all court ordered access between the date of this order and the date of a further court order or written signed agreement between the parties varying the interim March 29, 2018 ordered access, the payment of this $2,000 sum shall be forgiven in full;

e. In the event that Ms. Reynolds fails to comply with any further court ordered access pending a further court order or written signed agreement between the parties varying the interim access, she shall be required to pay an additional amount of $200 for each additional missed access visit (as of the date of this order onward);

f. In the event that Ms. Reynolds fails to comply with the above ordered access, Mr. Smith may return this matter to me, on not less than 3 days’ notice to Ms. Reynolds, at which time further penalties will be considered.

g. A settlement conference took place in this matter on May 28, 2018, at which time the parties were required to file Trial Scheduling Endorsement Forms within 30 days. These forms were filed on June 25, 2018. As such, this matter shall be added to the next available trial sitting. A trial management conference shall be scheduled by the Trial Coordinator, who will advise the parties of the date.

h. Ms. Reynolds is granted leave to bring her motion to vary the interim access as set out under the March 29, 2018 order prior to trial. She will need to schedule a date for this motion through the family counter.

Costs

[35] If the parties cannot agree on costs of this motion, the Applicant may file submissions with respect to costs on or before January 9, 2019. The Respondent may file submissions with respect to costs on or before January 18, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bill of costs, and shall comply with Rule 4 of the Rules of Civil Procedure.

Justice P. MacEachern Date: December 24, 2018

COURT FILE NO.: FC-17-1138 DATE: 2018/12/24 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Sean Alexander Smith, Applicant -and- Brittany Ann Reynolds, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant representing himself André Bluteau, for the Respondent

ENDORSEMENT Justice P. MacEachern Released: December 24, 2018

Footnotes from Original Document:

[1] The supervised access exchange program is not available during the week.

[2] R.S.O. 1990, c.C.12, as am

[3] These criminal charges were in place prior to the March 29, 2018 Order.

[4] Mr. Smith filed extensive evidence of his efforts to have the March 29, 2018 order issued and his concerns regarding Mr. Bluteau’s cooperation in that regard. The March 29, 2018 order was finally issued, along with the October 30, 2018 and November 1, 2018 orders, on November 19, 2018, after Mr. Smith filed the orders with the court, along with proof of service on Mr. Bluteau, in accordance with Rule 25(8) of the Family Law Rules.

[5] The issued March 29, 2018 order reflects the wording from Justice Linhares de Sousa’s March 29, 2018 endorsement.

[6] Mr. Bluteau also argued that Mr. Smith’s motion had been dismissed by Justice MacLeod, which is not correct as is clearly identified by Justice MacLeod’s endorsement of October 30, 2018.

[7] Mr. Smith served an updated notice of contempt motion that states: “A motion will be made by Sean Alexander Smith for finding that you are in contempt of the court because you wilfully and deliberately breaching the temporary court order of M. Justice Linhares de Sousa dated March 29, 2018; in particular paragraphs 1 and 2. You denied my access to [the child] on July 22, 2018 and August 8, 2018. You have not followed the orders of Justice MacLeod dated October 30, 2018 and Justice Beaudoin dated November 1, 2018 in regard to access of [the child]. There has been artificial delay of the draft orders.

[8] O.Reg. 114/99 as am.

[9] See Hobbs v. Hobbs, 2008 ONCA 598, [2008] CarswellOnt5037 (CA).

[10] Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 (S.C.C.), at paras. 33-37.

[11] O.Reg. 114/99 as am.

[12] Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[i] The relevant provisions of the order are: “1. The Applicant, Sean Smith, shall have access to [the child] on Wednesday every week from 10 a.m. to 6:15 p.m. The Respondent, Britney Reynolds, shall drive the child to Arnprior Mall, the exchange transfer being made by his father or mother as third parties. The Applicant shall drive the child back to Barrhaven Costco, and the exchange transfer will be made by his father, or mother, or other third party upon written notice to the Respondent. “2. The Applicant, Sean Smith, shall have access to [the child] on Sunday every week from 10 a.m. to 6:15 p.m. The Respondent, Britney Reynolds, shall drive the child to Arnprior Mall, the exchange transfer will be made by his father or mother or third-party upon notice to the respondent. The applicant shall drive the child back to Ottawa supervised access Centre where the exchange will take place. If Centre is closed, exchange to be at Barrhaven Costco and the exchange transfer will be made by his father, or mother, or other third party upon written notice to the Respondent. “3. The access schedule shall be reviewed within six months of this order. “5. The Applicant shall have the right to come to Ottawa for the purpose of attending family court proceedings or a mediation, if and when a mediation is agreed by the parties, and only in the presence of a mediator. The Applicant may communicate with the Respondent’s lawyer to arrange mediation.”