Court File and Parties
COURT FILE NO.: D24396/14 DATE: 2019/04/08
B E T W E E N:
J.D.M. Applicant
J. Leigh Daboll, for the Applicant
- and -
T.L.L.M. Respondent
Self-represented
Kathleen P. M. Bingham, for the Office of the Children’s Lawyer
HEARD at Welland, Ontario: April 5, 2019
The Honourable Justice R. J. Harper
Judgment on Contempt Motion
Issues
[1] This is a motion by the Applicant J.D.M. to have the Respondent T.L.L.M. found in contempt of the Order of Justice Ramsay dated June 19, 2017.
Background
[2] This case is a shocking example of children being placed in the middle of a court battle that has raged on since the children were in their infant and toddler stage of development. The Respondent attempting to cast the Applicant as an abuser that her children needed to be protected from. The father attempting to have a meaningful relationship with his daughters.
[3] The parties were married on August 20, 2005 and separated on August 1, 2009.
[4] They have two children of the marriage, namely, A.M. born […], 2006 and E.M. born […], 2009.
[5] A.M. was only 3 years old when her parents separated and E.M. was just 4 months old.
[6] The Respondent (mother) brought her first Court Application in October of 2009.
[7] The mother and the Applicant (father) have now been in litigation with respect to custody and access for approximately 10 years.
[8] Aside from the Ontario Court of Justice and later the Superior Court of Justice, there have been multiple community and other resources that have been involved with this family. Some of those services include:
a) Family and Child Services of Niagara (FACS) b) The Niagara Police Services (NPS) c) Women’s Shelters d) Various counsellors associated with the Women’s Shelters
[9] According to the father there has been approximately 20 investigations by FACS and or NPS as a result of allegations made by the mother of inappropriate conduct by the father or his present wife or stepson. None of the allegations have resulted in any protection concerns or criminal charges. The mother admits to at least 16 investigations initiated.
[10] The parties entered into minutes of settlement on June 19, 2017 to finally resolve all of the parenting issues. Those minutes of settlement were incorporated into the aforesaid order of Justice Ramsey. The promise of this moment for the children would soon revert back to the struggle that I alluded to in my introduction of this matter.
[11] Both the mother and the father stated that counselling for the children was necessary for their wellbeing. In spite of the articulated necessity of counselling by both parents on this occasion almost 2 years have gone by without the children being placed into the counselling so necessary for their wellbeing.
[12] The father brought this Contempt Motion. It was originally returnable on Wednesday June 27, 2019. His motion contained 10 separate claims that the mother had not complied with certain paragraphs of the Order of Justice Ramsay dated June 19, 2017. The only claim that he advanced at the hearing of the motion was contempt relating to counselling. There were no submissions relative to all of the remaining claims and there was no questioning by either party relative to those claims. As a result I dismiss all of those claims except for the claims that relate to counselling.
[13] Paragraph 7(f) of the Order reads:
The parties shall enroll the children in counselling and both parents shall participate in counselling as directed by the counsellor. The parties shall advise the counsellor that the goal of counselling is to facilitate effective co-parenting and communication between the girls and both parents and that any issues can be resolved directly with the parent involved.
[14] It is most important to note that that order was made pursuant to minutes of settlement of the parties. It is very significant for the purposes of my consideration of the contempt issue, that the order was made one full year prior to the original return date of the contempt motion.
[15] The contempt motion was then adjourned 9 times from June 27, 2019 until it was finally heard on April 5, 2019. Another 7 months have elapsed and the children as still not in counselling.
[16] This hearing of the contempt motion spanned a full day. In addition to the affidavit material filed by both parties the parties were given the opportunity to provide oral evidence that consisted of direct and cross-examination of both the mother and the father. Upon completion of the submissions of the parties I adjourned until April 8, 2019 to give this decision.
[17] Both parties admit that more than one judge, during the course of this disastrous saga, has indicated that this litigation must stop and that these children need to get into the proper counselling.
[18] I start from the position that both the parties and the court thought it was in the best interest of these children to get counselling for them and that is why paragraph 7(f) was a part of the Order of Justice Ramsay.
[19] Unfortunately counselling, as it was ordered in that court order was never started. I find that counselling never started because the mother willingly did not comply with the Order and purposely obstructed the commencement of such counselling. I will elaborate on this finding.
[20] Prior to the Order of Justice Ramsay, the children were in counselling. They were placed in counselling by the mother only. That counselling was arranged through a women’s shelter. The father was specifically excluded from any details relating to such counselling. The mother admitted during her evidence that this counselling for the children was targeted to deal with the abuse that the mother alleged the children have suffered and still are suffering at the hands of their father, his present wife and her teenage son.
[21] This admission by the mother is one factor that I consider in making my determination that the mother willingly put road blocks in the way of getting the counselling ordered by Justice Ramsay underway. I find that the mother did not want the counselling as contemplated by the Order of Justice Ramsay. She was completely satisfied that the children were getting all the counselling they needed for abuse she alleged was perpetrated by the father and his second family.
[22] As stated earlier, the mother admitted that she had caused to be launched at least 16 investigations by either FACS Niagara or the Niagara Police Services. None of those investigations found that the alleged abuse had occurred. The last allegation was made by the mother to the police and FACS only within the last two weeks prior to the hearing of this motion. It was alleged that the son of the father’s present wife had inappropriately sexually touched the children A.M. and E.M. approximately 5 years ago. When the mother testified at this contempt hearing she was crying uncontrollably when she stated that the abuse continues and now it is getting worse, it is now sexual.
[23] The father was advised on April 1, 2019, just 4 days before this hearing that no abuse was confirmed after yet another investigation. I find that the mother has a distorted view of reality and that she is creating an environment that is distorting the children’s view of their father.
[24] The children are resisting access with their father. Their hesitation is supported by the mother. Despite the fact that that the mother articulates in her evidence that she wants the children to have a good relationship with their father her actions do not support her statements.
[25] The mother must have felt it was in the best interest of the children to have extensive access to their father as set out in the minutes of settlement that led to Justice Ramsay’s order. In addition to extensive holiday access split between the parties, the children were to be with their father every other weekend form Friday after school until Sunday at 8 p.m. and Monday if it was a statutory holiday.
[26] In addition, every Wednesday from after school until Thursday at 8 p.m.
[27] The father was also allowed telephone access at specified times.
[28] The evidence before me is replete with incidents whereby the father had to struggle to even see his children after the Order was made.
[29] When the children would attend at their father’s home, they would try to sabotage the access purposely. They would misbehave and tell their father and step mother that they did not need to listen to them. They would frequently demand to be taken back to their mother. The father testified that only 6 months after the Order of Justice Ramsay, on January 26, 2018 the Respondent mother sent a text message to the father just before he was to pick up the children for regular access. The text message told the father that his access was being denied because: “it’s the girl’s decision”.
[30] The father also stated that the mother would not allow the telephone access despite specific provisions for such access in this court order.
[31] On July 25, 2018 Justice Sheard ordered that the police shall enforce the access for the father. This motion was strenuously opposed by the mother. Notwithstanding that Order, the mother continued to resist the access and the children increased their disrespectful and inappropriate conduct at the father’s home.
[32] On October 16, 2016, the father was attempting to exercise his access. Road blocks were placed in his way by the mother. He called the police in order to enforce the access pursuant to Justice Sheard’s Order. When he was driving home at approximately 5:30 p.m. he received a message from the mother advising him that she and the children were at the police station. When he arrived he saw the mother and their two children sitting in the lobby. When he asked the mother what was going on, the mother replied:
Well, you called the police to apprehend us, so we’re surrendering ourselves. You asked for this.
[33] Subsequent to this horrific event, the father felt that his attempts to see his children were making things worse. The father felt this was too stressful for everyone especially the children. I agree with and accept his testimony in this regard. I find that the mother has conducted herself in a manner that has been a pattern of obstruction of access. Her conduct has gone further and has been designed to block any positive relationship between the father and the children. It is within these findings that I assess her actions relative to the compliance with the Order to get the children into counselling.
[34] Despite the clear terms of the counselling that was to be set up in the Order of Justice Ramsay, the mother continues to the present day to take the children to the counselling that she arranged with the women’s shelter to deal with alleged abuse that has never been confirmed after at least 16 investigations.
[35] The mother claims that it was the father who made the setting up of the counselling difficult as he refused any counselling with publically based counsellors. I reject her evidence in this regard. The father denied this and he gave examples where he attended at an intake session with one of the public counselling services recommended by FACS Niagara. He filled out the forms and weeks went by with him hearing nothing until he was notified that such counselling was no longer available.
[36] I accept the father’s evidence that he received a FAX from the mother after he had tried to set up counseling with Baxter Individual, Couple and Family Counselling on January 22, 2018. That FAX read:
A.[M.] will be directed by her professionals since she is currently seeing a counsellor [sic]. She has appts [sic] coming up, also recommendations are being made…”
[37] Since this Contempt motion was started, the parties had attended court 10 times. Except for this hearing, the matter had to be adjourned due to what I find to be the mother making unreasonable excuses as to why she had not been able to contact any counsellors. She claimed that over the summer she tried to contact numerous counsellors and none were around. I do not believe her. The father had no difficulty in contacting counsellors.
[38] When the matter had slowly progressed to the point of the father presenting a number of counsellors on a list, the matter came before Justice Maddalena on December 19, 2019.
[39] Justice Maddalena ordered that the counsellor would be Elizabeth Christie of Playful Solutions. At a subsequent hearing on January 30, 2019 before Justice Maddalena, the mother complained that Ms. Christie could not do the counselling as her written policy states that she would not engage in counselling if custody was an issue.
[40] The father pointed out to Justice Maddalena that custody of the children is not an issue and there is no litigation relative to that before the court. Despite that representation, the mother protested that Ms. Christie would not take the case. Justice Maddalena disagreed and the mother testified before me that Justice Maddalena sternly told her that she should be ashamed of herself for the manner in which she has conducted herself to cause such an inexcusable delay in getting these children counselling.
[41] Instead of complying with Justice Maddalena’s clear direction, the mother sought to get further proof that Ms. Christie would not take the case.
[42] The mother told Ms. Christie that custody of the children was still an issue. Ms. Christie replied to this email by the mother stating:
I am happy to help once all custody arrangements have been finalized through the courts.
[43] When the mother sent her email to Ms. Christie she stated:
I have a question regarding setting up an appointment for the girls. Just ‘re-clarifying’ the policy of services.
I have (*) and circled the Part that is in question.
Question
Since we are still in legal court proceedings, involving custody pertaining to the children are you able to provide your services to the children at this time?
( this is for clarification purposes for the children’s father, his lawyer, the judge and whom ever else requires a definitive answer .) [Italics are mine]
[44] In the exhibit the mother filed she did not have a date on the email. I asked her to check to see if she could find the date that she sent that email. When she checked her phone she admitted that her email was sent on February 22, 2019.
[45] I find that the mother delayed from December 19, 2018 until February 2019. In that period, instead of attempting to start the counselling that Justice Maddalena clearly ordered, she misled Ms. Christie in her attempt to get evidence to show that Ms. Christie could not take the case.
[46] In cross-examination, the mother was shown an email from Ms. Christie sent to the father at the beginning of March of 2019 just a few weeks prior to this motion stating she was willing to start counselling with the children and able to start that counselling on April 10, 2019.
The Law Analysis
[47] Bloom v. Bloom, 2018 ONSC 3666, Justice Corthorn reviewed some of the oft cited principles relative to the issue of contempt in the family law context. He made the following comments commencing at paragraph 15:
Contempt in the Family Law Context
a) Generally
[15] The father’s motion is made pursuant to sub-rule 31(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”). That rule provides that, “[a]n order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.”
[16] The parties are in agreement that the three-part test to be met for a finding of contempt to be made is as set out in Prescott-Russell Services for Children and Adults v. N.G. et al., 2006 ONCA 81792, 82 O.R. (3d) 686 (S.C.J.), at para. 27:
The order that was breached must state clearly and unequivocally what should and should not be done;
The party who disobeys the order must do so deliberately and wilfully; and
The evidence must establish contempt beyond a reasonable doubt. If there is any doubt it is to be resolved in favour of the party alleged to have breached the order.
[17] When a contempt motion proceeds by way of affidavit evidence, as opposed to by oral evidence, the Court is not in a position to make a ruling based on contradictory facts (Prescott-Russell, at para. 45).
[18] Neither party referred in their argument to the 2013 decision of the Ontario Court of Appeal in Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65. At paragraph 3 of his decision in Hefkey, MacPherson, J. expressed the following cautionary opinion with respect to contempt motions in the family law context:
The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the alleged aggrieved party. The Courts have repeatedly stressed that great caution must be exercised when considering contempt motionsin family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motion for enforcement have failed. [Citations omitted.]
[48] In the case before me I find that the Order of Justice Ramsay is clear and unambiguous. Both parties were ordered to enroll the children in counselling and both parents had to participate in counselling as directed by the counsellor. The parties had to advise the counsellor that the goal is to facilitate effective co-parenting and communication between the girls and both parents and that any issues can be resolved directly with the parent involved.
[49] As set out earlier in this decision, I have found that the mother willfully put multiple road blocks in the way of getting the prescribed counselling started.
[50] I am mindful that in family law, contempt should be used as a last resort. This case falls within that last resort category.
[51] I find that the mother’s conduct has contributed to this protracted litigation that has placed these children in turmoil and emotional distress. This is precisely what the ordered counselling was intended to alleviate. Her conduct is an egregious assault on the welfare of the children. This must stop.
[52] I find the mother, T.L.L.M. in contempt of the Order of Justice Ramsay by not complying with paragraph 7(f). I find that she did not facilitate the intended counselling. I also find that she did this willfully and that she actually obstructed the counselling from happening. I make all of these findings beyond a reasonable doubt.
Sentencing
[53] The Family Law Rules provide the court with numerous options when a finding of contempt has been made. Rule 31 reads:
RULE 31: CONTEMPT OF COURT
CONTEMPT ORDERS
(5) If the court finds a person in contempt of the court, it may order that the person,
(a) be imprisoned for any period and on any conditions that are just; (b) pay a fine in any amount that is appropriate; (c) pay an amount to a party as a penalty; (d) do anything else that the court decides is appropriate; (e) not do what the court forbids; (f) pay costs in an amount decided by the court; and (g) obey any other order. O. Reg. 114/99, r. 31 (5).
The Position of the Applicant Father
[54] The father submits that the mother should have to pay as a penalty all of his costs that he had to incur in order to get his children into counselling that was ordered on June 19, 2017.
[55] The father submitted a Bill of Costs that totaled $16,000.00. The amount charged in the Bill of Costs only relate to the contempt motion.
[56] The father does not want the mother to be incarcerated. He only wants the Order to be complied with in order that the children’s relationship with him might be restored.
Position of the Mother
[57] The mother tearfully submitted that she did not intentionally disobey the court order. She stated that she would do anything the Court directs her to do.
[58] The mother submits that she does not have money to pay for the father’s legal expenses. She does not own any assets and she states that she earns approximately $42,000.00 per year.
Ruling on Sentencing
[59] There are many complicated factors that must be considered when a person is found in contempt of a family court order. The considerations are even more complicated when the contempt relates to the best interest and welfare of the children.
[60] A party cannot conduct themselves in a manner that flaunts the orders of the Court. This is especially so when the order that is not complied with is designed to help foster the children’s best interest.
[61] Both the mother and the father have a positive duty to promote their children’s best interest. In this case, the mother has been the major catalyst to fostering her children’s distress instead of their best interest.
[62] With respect to the father’s submission that the mother should pay all of his legal fees and disbursements as a penalty for her contempt, I agree to a certain extent. I have reviewed the Bill of Costs. Some of the costs relate to the items of claims in his contempt motion that he did not advance at this hearing. I reduce the amount that is directed to those portions of the hearing that were advanced. The total amount that I find to be appropriate is $12,000.00.
[63] In sentencing, my primary consideration is to attempt to fashion a sentence that will provide for the best opportunity for the order to be complied with. I also consider the need to deter the mother from continuing her contemptuous conduct.
[64] My primary objective, however, is to impose a sentence that is mindful of the children’s welfare.
[65] Having regard to all of the considerations and factors I have set out above, I impose the following sentence:
T.L.L.M. shall be on probation for a period of 6 months from the date of this order.
The terms of her probation are:
a) She shall abide by all of the Orders of the court;
b) She shall enter into counselling specifically directed at dealing with her need to learn to communicate with the father and deal with her negative emotions relative to the father and his present spouse and his step son;
c) She shall at all times positively promote the relationship between the children and the father;
d) She shall fully participate in counselling with the counsellor appointed by Justice Maddalena, Elizabeth Christie. Any consent she may be required in order to effect such counselling is hereby dispensed with.
e) She shall provide a report to this court from any counsellor that she has engaged pursuant to paragraph (b) above, within 30 days prior to the completion of her probation setting out what progress, if any she has made.
f) She shall pay to the Applicant father, as a fine his costs fixed in the amount of $12,000.00 payable as follows:
(i) $2,000.00 payable forthwith;
(ii) The sum of $250.00 per month until the balance of the $12,000 is paid in full.
[66] Given my decision that has already factored costs into the fine payable, there shall be no further order as to costs.
Harper J.
Released: April 8, 2019
COURT FILE NO.: D24396/14 DATE: 2019/04/08 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: J.D.M. Applicant - and – T.L.L.M. Respondent JUDGEMENT ON CONTEMPT MOTION Harper J. Released: April 8, 2019