COURT FILE NO.: FS-19-12193 DATE: 2023/09/11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anita Kim, Applicant AND: Adan McIntosh, Respondent

BEFORE: Somji J.

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented

HEARD: June 8, 2023

Decision on motion for contempt

Overview

1The Respondent father (moving party) seeks a finding of contempt against the Applicant mother for breach of his virtual and in-person parenting time.

2The father resides in Australia and the mother in Canada. They have four children ages 5, 10, 12, and 14. The parties have been embroiled in litigation on parenting issues for several years. Following an uncontested trial and a Final Order issued by Justice Steele on October 1, 2021, the children reside with the mother in Canada, the mother has decision-making responsibility, and the father has virtual and in-person parenting time (“Parenting Order”). The Parenting Order was upheld by the Ontario Court of Appeal: Kim v McIntosh, 2023 ONCA 356.

3The Parenting Order entitles the father to weekly virtual parenting time and eight weeks of in-person unsupervised parenting time in Canada provided he gives the mother advance notice of the dates of his visits. The father alleges the mother has failed to respect his parenting time. In January 2023, the father sought leave to file a motion to find the mother in contempt pursuant to s. 31 of the Family Law Rules (“FLR”) and to enforce the order of Justice Steele of October 1, 2021, pursuant to s. 36(1) of the Children’s Law Reform Act (“CLRA”).

4The father also seeks to set aside Justice Smith’s order dated October 3, 2022, that requires him to seek leave of the court with 30 days’ notice before bringing any further motions before the Superior Court of Justice.

5At the time the father brought the contempt motion in January 2023, he had seen his children five times since August 19, 2019, a period of 3 ½ years. Part of this was because the COVID 19 pandemic restrictions limited his ability to enter Canada in the absence of a family court order. However, after the issuance of the Parenting Order, the father travelled to Canada in 2022 for the purpose of seeing his children, but claims the mother would only allow him to see the children upon depositing his passport, a condition not in the Parenting Order. The father alleges the mother also disrespected his virtual parenting time.

6The hearing of the contempt motion commenced before me on March 28, 2023. At that time, the parties agreed that the motion could be adjourned pending the Ontario Court of Appeal’s decision on the father’s appeal of Parenting Order. The parties also consented to multiple interim orders that further defined the father’s virtual parenting time as well as his in-person parenting time for the summer of 2023. These interim orders did not amend Justice Steele’s Parenting Order, but further defined precise dates, times, locations, and conditions for the father’s parenting time so as to minimize further conflict between the parties: Endorsements and Orders of Justice Somji dated March 29, May 23, May 25, and June 12, and June 23, 2023.

7Upon review of the materials filed, I find there is sufficient evidence to grant the father leave to bring a motion for contempt, but do not find contempt has resulted.

8First, with respect to the father’s 2022 in-person parenting time, I find there is insufficient evidence to establish that the father provided notice and obtained an agreement with the mother for his 2022 parenting time. Instead, the father arrived unexpectedly at the mother’s door in a large box addressed to the children from which he popped out. The father also came to Canada in October 2022 expecting to exercise parenting time without notice to the mother. Notwithstanding the father’s inappropriate jack-in-the box conduct and failure to provide notice as per the terms of the Parenting Order, the mother was willing to waive the notice requirements and grant the father in-person parenting time for both the spring and fall of 2022 provided he deposit his passport. The mother’s denial of the father’s in-person parenting time when he failed to comply with the notice provisions of the Parenting Order can hardly constitute contempt.

9Second, with respect to the father’s 2023 in-person parenting time, I find that the mother was not diligent in responding to the father’s timely request for 2023 visitation. However, the mother did eventually respond in May 2023 and agreed to a schedule for eight weeks of in-person parenting time in the summer. Consequently, I exercise my discretion not to find her in contempt.

10Third, with respect to the father’s virtual parenting time, I find the mother did not facilitate the weekly virtual parenting calls following the issuance of the Parenting Order. However, since the issuance of an interim order in the spring of 2023 specifying days and times of the week for the father’s virtual parenting time, the mother has facilitated the virtual calls. In these circumstances, I exercise my discretion not to find contempt and impose instead, pursuant to r. 1(8) FLR, a Final Order specifying dates, times, and conditions for virtual parenting time as a supplement to the Parenting Order.

11Finally, I find Smith J’s order requiring the father to seek leave with 30 days’ notice for all motions is a proper exercise of the judicial case management powers under r. 2(5) FLR in managing the on-going litigation related to this matter.

12Detailed reasons for my findings on each of these issues is set out below.

Evidence relied on for the motion

13Both parties represented themselves for the motion.

14In addition to oral submissions, the father relied on the following materials:

1. Motion record March 21, 2023, and Amended Motion Record May 29, 2023;
2. Factum March 22, 2023, and Amended Factum May 29, 2023; and
3. Financial Statement of June 6, 2023.

15Beleaguered by ongoing litigation and struggling to raise four children without any child support from the father, the mother did not initially file a response to the contempt motion. She relied on Smith J’s order denying the father the right to bring further motions without leave of the court. The mother did eventually file a two-page affidavit dated June 6, 2023, setting out her position on the motion which she supplemented by oral submissions. She did not file any supporting exhibits or a financial statement.

Issue 1: Should leave be granted to bring a motion for contempt, and if so, should the mother be held in contempt?

A. Law on contempt

16Section 31(1) FLR prescribes that a family court order may be enforced by a contempt motion even if another penalty is available. The onus is on the moving party to establish contempt which in this case is the father. The standard of proof is the criminal standard of proof beyond a reasonable doubt: Moncur v Plante, 2021 ONCA 462 at para 10 (1); Smith v Reynolds, 2018 ONSC 7706 at para 21.

17To find civil contempt, the court must be satisfied that (1) the court order alleged to have been breached states clearly and unequivocally what should or should not be done; (2) that the person alleged to be in contempt had actual knowledge of the terms of the order; and (3) that the person alleged to be in contempt intentionally committed an act that the order prohibits or intentionally failed to do an act that the order requires: Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79 at paras 32 to 35; Moncur v Plante at para 10 (1). Unless the contempt motion satisfies all three criteria, the motion must be dismissed: Smith v Reynolds at para 22.

18The contempt power is discretionary. Even after the three criteria are met, judges retain the discretion to decline to make a finding of contempt if to do so would work an injustice or if other alternatives exist: Moncur v Plante at para 10 (2); Smith v Reynolds at para 23.

19In exercising their discretion, judges must keep in mind that contempt is a remedy of last resort and contempt powers should be exercised sparingly: Carey v Laiken at paras 36-37. In family proceedings, judges should consider alternatives to finding contempt unless access problems or motions for enforcement have failed: Chong v Donnelly, 2019 ONCA 799 at paras 9-12; Hefkey v Hefkey, 2013 ONCA 44 at para 3; Moncur v Plante at para 10 (2); Ruffolo v David, 2019 ONCA 385, 25 R.F.L. (8th) 144 at paras 18-19.

20When the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Moncur v Plante at para 10 (3); Ruffolo v David at para 19; Dunn v Shaw, 2021 ONSC 8286 at para 47.

21Factors a court may consider in exercising its discretion before finding contempt include:

a. whether the contemnor took reasonable steps in good faith to comply with the order: Carey v Laiken at para 37; Smith v Reynolds at para 23; b. whether imposing contempt would work an injustice in the circumstances of the case: Carey v Laiken at para 37; Moncur v Plante at para 10 (2); c. the presence of exigent or extenuating circumstances: Newstead v Hacey, 2019 ONSC 5213 at paras 12 and 30; d. whether alternatives exist such as finding a breach of the order and imposing other remedial options: Moncur at para 10 (3) and 19; Dunn v Shaw at paras 33-34, 46; Jean v O’Callaghan, 2017 ONSC 4027 at paras 25 and 31; Hassan v Khalil, 2022 ONSC 3316 at paras 36 and 38; Ruffalo v David at para 19; and e. whether the defiant conduct is severe or significant: Jackson v Jackson, 2016 ONSC 3466 at para 56.

22If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy. The contemnor’s efforts to purge contempt is a mitigating factor in the remedy to be imposed: Ironside v Roskam, 2018 ONSC 247 at para 49. Rule 31(5) FLR sets out the various remedies available for contempt: r. 31(5); see also Stone v Stone, 2019 ONSC 3214.

23Finally, unlike criminal contempt where the court’s jurisdiction may be penal, a court’s jurisdiction in finding civil contempt is primarily remedial and aimed at encouraging compliance with the court order: Kopaniak v MacLellan at para 28.

B. Factual background of the parties

24The history of the parent’s relationship is set out in the recent Ontario Court of Appeal decision and is relevant for understanding the context of the father’s contempt motion.

25The parties met in 2005. They had four children together between September 2008 and July 2017. The parties did not marry. The relationship terminated in August 2019. The father is an Australian national and returned to live in Australia shortly after separation. The mother has been the children’s primary caregiver since the father’s departure, and the children have always lived in Ontario: Kim v McIntosh at paras 3-4.

26In September 2019, the mother commenced an application seeking sole decision-making authority for the children, child support, and other relief. During the course of the litigation, the father was granted an extension to file his answer and updated financial statements, to pay outstanding costs in the amount of $26,500, and to pay security of costs of $6,000, failing which the mother would be entitled to proceed to an uncontested trial. The father failed to pay costs or post security of costs and the matter proceeded to an uncontested trial before Justice Steele: Kim v McIntosh at paras 13-14.

27Applying the best interests of the child test, Steele J ordered the mother to have decision-making responsibility for the children. With respect to parenting time, Steele J found that it was in the children’s best interests to have meaningful time with both parents. Notwithstanding the practical difficulties of the father’s residence in Australia, Steele J was satisfied that the father should have up to eight weeks of parenting time per year with the children as well as virtual parenting time when not exercising physical parenting time: Kim v McIntosh at paras 16 and 17.

28The Ontario Court of Appeal (“Court”) dismissed the father’s appeal of Steele J’s decision. The Court found the father could not escape his obligation to comply with court orders by pleading impecuniosity. Steele J had found the father was intentionally unemployed and capable of earning a good income. Consequently, the father’s failure to comply with the costs or security of costs orders must be viewed as intentional, and therefore, Steele J correctly found the mother could proceed to an uncontested trial: Kim v McIntosh at para 24-25. The Court upheld the Parenting Order finding it reflected a full consideration of the statutory provisions and evidence, including that the children would benefit from continued significant contact with their father: Kim v McIntosh at para 26.

C. Has there been a breach of the father’s in-person parenting time?

29The Parenting Order grants the father unsupervised in-person parenting time eight weeks per year in Canada provided he gives the mother advanced notice. The Parenting Order states:

1. The Respondent father, Adan McIntosh, shall have up to eight weeks of parenting time with the children, per year, in the Province of Ontario, Canada, to be exercised in periods of up to four (4) weeks at a time, as follows: (a) Any weeks sought for the period between January-April must be agreed by no later than November 1st the year prior; (b) Any weeks sought by for the period between May-August must be agreed by no later than March 1; (c) Any weeks sought for the period September-December must be agreed by no later than July 1st that year; (d) The father is responsible for covering all cost of these visits, including his flight, or any other associated cost, such as accommodation; (e) During any period of the father’s parenting time in Ontario, the children shall continue to have parenting time with their mother once per week, overnight, from 5:00pm to the following morning at 11:00am; (f) If the father chooses to exercise his physical parenting time with the children over the Christmas/winter school break, the parents shall share the Christmas and New Year holidays as follows: i. In odd-numbered years (2021, 2023, etc.), the mother shall have parenting time with the children from December 24th at 12:00pmnoon until December 25th at 12pm noon, and in even-numbered years (2022, 2024, etc.), the mother shall have parenting time with the children from December 25th at 12pm noon to December 26th at12pm noon; ii. In odd-numbered years (2021, 2023, etc.), the mother shall have parenting time with the children from December 31st at 10:00am until January 1st at 10:00am, and in even-numbered years (2022, 2024,etc.), the mother shall have parenting time with the children on January 1st from 10:00am until January 2 at 10:00am.

30Given concerns raised about the father having previously taken steps to remove the eldest child to Australia, Steele J also ordered the father would not be able to remove the children from the jurisdiction pursuant to s. 37 of the CLRA and restricted his ability to apply for the children’s passports: Endorsement Steele J at paras 24 to 26; Term 13 of Parenting Order.

i. In-person parenting time spring and fall 2022

31I find that the terms of the Parenting Order are clear and unequivocal with respect to the father’s in-person parenting time, and that the mother was well aware of the terms of the Parenting Order having been present with counsel at the uncontested trial. It was the mother who proposed the father have eight weeks of in-person parenting time with the children each year and the parameters for how that would be exercised: Endorsement of Steele J October 21, 2021, at paras 13 and 20.

32However, I do not find that the mother deliberately intended to breach the Parenting Order with respect to the father’s parenting time for 2022. The father argues that the mother unfairly insisted that he deposit his passport, a term not in the Parenting Order, and then denied him in-person parenting time when he refused to do so. The father’s pleadings do not tell the full story.

33The father explains that he came to Canada from May to August 2022 and from October 2022 to January 2023 to exercise his in-person parenting time. The summer visit was to align with his own sister’s visit from London, England to see the children. Coates J had ordered, with the mother’s consent, that the father’s sister, Ms. McIntosh Berry, would be allowed access time with the children between June 8 and July 6, 2022: Endorsement and Order of Coates J April 24, 2022. The father claims that upon arrival in Canada, the mother refused both him and his sister to see the children and brought motions requiring them to deposit their passports as a condition of visitation.

34The father states in his affidavit of May 29, 2023 that he came to Canada in May 2022 to see his children “under a consent order” the mother made with his sister in file FS-20-15651. However, the Consent Order issued by Coates J on April 24, 2022, refers only to the mother and sister. It does not refer to any consent and terms with respect to the father’s visitation.

35Furthermore, the father filed as an exhibit to his May 29, 2023, affidavit, a letter from the mother’s counsel dated May 27, 2022, which states that the father has not provided the mother with notice of parenting time for 2022 and moreover, it was inappropriate for him to unexpectedly attend the mother’s home in Ontario. Counsel’s letter goes on to state that notwithstanding father’s failure to give notice, the mother was agreeable to allowing the father to see the children upon certain conditions being met including depositing his passport. As a result of the father’s refusal to agree to such a condition, the mother’s counsel filed an urgent motion on May 31, 2022, requiring both the father and his sister to surrender their passports before accessing the children.

36The mother does not specifically address in her recent two-page affidavit dated June 6, 2023, whether the father gave her proper notice in 2022, what transpired in the spring and summer of 2022, or why the father only saw his children five times that year. She provided no materials that challenged the correspondence filed by the father in this contempt motion. In oral submissions, she indicated she had concerns about the father removing the children from the jurisdiction.

37Given the parties are self-represented, the mother did not file materials, that there was evidence of litigation initiated in the summer of 2022 regarding the father’s parenting time, that counsel’s letter suggested the father did not provide notice for his 2022 parenting time and arrived unexpectedly at the mother’s door, I reviewed the motion materials of May 31, 2022, to obtain a more complete record of the factual circumstances surrounding the events of 2022.

38In support of the May 31, 2022, motion, the mother had filed a 97-paragraph affidavit signed and commissioned on May 31, 2022, wherein she states that she was agreeable to the father seeing the children provided he gave her advance notice as per the Parenting Order, but he refused to do so. She explains that instead, the father showed up her door on May 24, 2022, in a large box with the children’s name on it and when the package was opened, the father popped out of the box. This was the first time the father had been in Ontario since February or March 2020 and the first time he was seeing his children since September 2019. Notwithstanding her concerns about the manner of his arrival, the mother allowed him to see the children. The following day she contacted her counsel to address the situation.

39The mother explains at paras 12 to 15 of her May 31, 2022 affidavit:

12. Despite our highly acrimonious litigation and his near daily communications with my lawyer, Adan provided me with no notice whatsoever that he would be coming to Ontario for the first time since the Spring of 2020 (as far as I am aware). While I have been clear that I would be flexible regarding the notice period and the requirement that I consent, I have always asked for notice of his trips. Attached hereto and marked as Exhibit “C” is a true copy of an email exchange in this regard.
13. On Tuesday, May 24, 2022, I had a knock on my door. I looked out and saw a large box with the children’s names on it. We were curious about the package and we opened it together. I was very shocked when Adan popped out of the box. As far as I am aware, this was the first time he has been in Ontario since February or March of 2020, and his first time seeing the children since September of 2019. Despite his incessant emails to me and my lawyer about all issues, including his wishes to see the children, he provided me no notice whatsoever of this trip.
14. Although I was frightened by this, the children were home and I did not wish to call the police or deny him entry in their presence. They were happy to see their father for the first time in more than two years. I allowed him in to see the children and they spent time together.
15. The following morning, I emailed Adan to tell him that I did not appreciate the unannounced visit and I asked for notice going forward. I even offered for him to come by to help prepare dinner and put the children to bed. I offered to meet him with the children at the park near my home. Adan responded to this email arguing with me. I told him not to come and then he accused me of changing my mind due to my lawyer. But that is not the case – I was trying to allow some contact on my own terms, but Adan’s response continued to concern me. Attached hereto and marked as Exhibit “D” is a true copy of this email exchange on May 25, 2022.
16. A few hours later, I sent Adan and Natasha an email outlining my concerns with their behaviour. I asked them to surrender their passports to me or an appropriate authority during the time they are with the children here. I further asked for an itinerary of both of their plans while they are in Ontario with the children. Attached hereto and marked as Exhibit “E” is a true copy of this email to Adan and Natasha sent May 25, 2022.

40The challenge in this case is that the court does not have a complete record of the correspondence between the parties as to notice. While the mother stated in her affidavit of May 31, 2022, that the father “provided me no notice whatsoever of this trip”, the father included in his May 29, 2023, affidavit an email to the mother dated February 26, 2022, indicating he continues to await the mother’s reply on an earlier request from October 10, 2021, to see his children and is looking to organize flights and accommodation: The February 26, 2022, email states:

You didn’t reply last time so I don’t have much faith you will reply this time, but these are the dates I would like to see the kids pursuant to Justice Steele’s order. I still need to organize flights and accommodation which may still be preventative.

41This paragraph was followed by a detailed schedule of the father’s proposal for in-person parenting time between June 7 to August 9, 2022.

42The father’s email of February 26, 2022 was in compliance with the request for notice for parenting time in the summer of 2022. However, it is unclear what the mother’s response was to the above-noted email or if she ever received it. The father did not provide the correspondence that followed this request or any correspondence indicating the mother’s consent for him to spend four weeks with the children at the same time as his sister.

43In contrast, the mother stated in her May 31, 2022, affidavit that she has always been willing to have the father see the children but that he would not define precise dates. In support of her position, she attached a text dated March 17, 2022, sent to the father, stating as follows:

On 17/03/2022 11:33 pm, Anita Kim wrote: Hi Adan – to be clear, I am willing to facilitate you having parenting time with the children whenever you would like, as long as you provide some notice. Although the uncontested trial order requires certain notice periods, I am willing to waive that notice period for 2022 in these circumstances. Please just advise when you wish to come. Anita

44The mother makes no reference to the father’s February 27, 2022, email. There is also a suggestion that the father was in communications with the mother’s counsel regularly during this period. What communications transpired after March 17, 2022, as between the parties is unclear, but there does not appear to be evidence that there was a firm agreement with respect to the father’s parenting time for 2022. As the moving party on contempt, the onus is on the father to establish contempt beyond a reasonable doubt.

45The Parenting Order requires the father to provide the mother with notice each year by March 1st for parenting time he wishes to exercise from June to August and by July 1st for parenting time he wishes to exercise from September to December. Paragraphs 12 to 15 of the mother’s May 31, 2022, affidavit along with the March 17th text suggest he had not provided her proper notice or obtained agreement from her for 2020 visiting times.

46While I appreciate the father may have been frustrated at the mother’s lack of response to his emails of October 2021 and February 2022 proposing in-person parenting time, the onus was on him to obtain the mother’s consent in writing, or in the alternative, seek leave to bring a motion for the enforcement of his in-person parenting time. In the absence of an agreement, it was inappropriate for the father to show up in a box at the mother’s house in May 2022, expecting to exercise his parenting time. Notwithstanding the father’s shocking behaviour and failure to give proper notice, the mother was willing to accommodate the father’s parenting time. Under the circumstances, the mother was also entitled to bring an urgent motion to seek an additional condition on the Parenting Order requiring the father to deposit his passport.

47On July 4, 2022, Sutherland J heard a motion in relation to the sister’s visitation. At the outset, he stated that the motion would address only two issues, the mother’s request that Ms. McIntosh Berry deposit her passport and Ms. McIntosh Berry’s counter motion for contempt against the mother. His Honour ordered Ms. McIntosh Berry to deposit her passport and dismissed her motion for contempt. While Sutherland J stated at the outset of his endorsement that these were the only two issues before him on the motion, His Honour addressed the issue of the father’s passport stating that “Mr. McIntosh was not willing to deposit his passport and as such he is prevented from being in the vicinity with his children.:” Endorsement Sutherland J July 4, 2022.

48Despite these remarks in the endorsement, I find Sutherland J did not make a formal order requiring the father to deposit his passport as a condition for in-person parenting time for the following reasons. First, the issue was not before him on the motion. Second, there is no order attached to the Sutherland J’s endorsement specifying this interim condition on the father as a supplement to the Parenting Order. Third, the correspondence of the parties from November 2022 indicates that the mother’s motion of May 31, 2022 requiring the father to deposit his passport was still in queue to be heard by the court. Finally, it is clear from the parties’ fall 2022 correspondence that the mother did not understand there to be a court order in place requiring the father to deposit his passport. Had Sutherland J issued such an order, the mother would have referred to it in her fall 2022 correspondence with the father rather than continuing to negotiate the issue with him.

49Needless to say the dispute between the parties continued into the fall of 2022. The father returned to Canada in October 2022 and contacted the mother in early November 2022 expecting to exercise his parenting time. The mother stated again she was agreeable to waiving the notice period to facilitate the father’s visitation with the children but only so long as he deposited his passport with the court or her lawyer, provided a general itinerary, and agreed not to remove the children from the GTA. The father refused to surrender his passport without a guarantee that it would be returned in a timely fashion because his own father had a heart operation and there was a possibility he might have to leave quickly. The father indicated that the last time he deposited his passport with the court, it took three weeks to return. In the alternative, the father offered to place his passport in a lock box with the mother so he could see his children. The mother refused insisting that she would only agree if her lawyer held the passport.

50The conflict continued until the father’s return to Australia in early January 2023. In the end, the father saw his children on five occasions in 2022 for approximately 40 minutes each time and only in the presence of the mother.

51While I agree that there was no condition on the Parenting Order requiring the father to deposit his passport as a condition for visitation, I do not find that the mother intended to breach the father’s in-person parenting time for the fall of 2022. Once again, the father returned to Canada in October 2022 with the expectation of seeing the children having failed to comply with the notice provisions of the Parenting Order. In the absence of notice, the mother was entitled to refuse the father parenting time. Moreover, the mother was willing to waive notice and allow the father to see the children upon certain conditions being met but the father refused. Under these circumstances, I do not find the mother was in breach of the Parenting Order by refusing visitation with the children in the fall of 2022.

52For all these same reasons, I also find that the mother did not unlawfully withhold the children from the father in the spring or fall of 2022 pursuant to s. 36(1) CLRA.

ii. In-person parenting time 2023

53By the winter of 2022, the father appears to have recognized the need for strict adherence to the terms of the Parenting Order. On December 27, 2022, the father wrote to the mother requesting parenting time for the children in the summer of 2023, well in advance of the March 1st notification deadline. The mother requested that he provide a signed document stating the children would be habitually residing in Ontario and reiterated her request that he deposit his passport.

54The father indicates he made repeated attempts in the spring of 2023 to obtain dates regarding parenting time but the mother did not respond. Finally on May 27, 2023, after the father had filed his contempt motion and the parties had appeared before me, the mother offered four weeks of parenting time. With the court’s assistance, the parties consented to interim orders specifying dates, times, and conditions to eventually provide the father a full eight weeks of parenting time in the summer of 2023: Interim Order Somji J dated June 23, 2023.

55Notwithstanding that a court date was scheduled two days after the father’s arrival in Canada to confirm the commencement of the father’s 2023 parenting time as per the Interim Order, the mother called the police in less than 24 hours after depositing the children with the father requesting that they be returned to her. The police declined to intervene.

56I find the mother’s conduct in failing to respond to the father’s notice for his 2023 visitation with the children in a timely manner and her insistence on additional conditions that are not on the Parenting Order is obstructive. The mother is well aware of the father’s challenge in finding eight weeks of accommodation in Ontario and preparing a visitation schedule in accordance with the children’s needs and the terms of the Parenting Order. She is in the best position to know what the children’s schedules are like and their interests in attending summer camps or activities. The mother is also well aware of the father’s frustration in 2022 for failing to respond to his email requests to see the children. In one email to her on November 18, 2022, the father stated to the mother “There is no difference between refusing to let me see the children, or not responding to requests to see the children.” In order for the father to be able to exercise his in-person parenting time annually, the mother needs to respond in a timely manner to his requests for visitation and cooperate with him in organizing the in-person parenting schedule.

57Ultimately, the mother did cooperate with fixing a schedule for the father to have his full 8 weeks of parenting time in the summer of 2023 demonstrating her continued support of the father’s relationship with the children. Consequently, I do not find that the mother denied the father his parenting time or willfully disobeyed the court order so as to warrant a finding of contempt.

58Going forward, the parties are encouraged to one, adhere strictly to the terms of the Parenting Order with respect to notice for the father’s annual in-person parenting time; two, respond in a respectful and timely fashion to each other with respect to notices for parenting time; and three, keep meticulous records of their correspondence such that should any issues arise, the court has a complete and accurate record of that correspondence. In this regard, the parties are encouraged to use MyFamilyWizard or a similar co-parenting app for their communications.

D. Has there been a breach of the father’s virtual parenting time?

59The father alleges that the mother breached his right to virtual parenting time. Term 2 of the Parenting Order specifies:

2. When not exercising physical parenting time in the Province of Ontario, the father shall have video or telephone access with the children three times per week for up to two (2) hours;

60The father states that since the issuance of the Parenting Order, the mother made no arrangements for the scheduling of virtual parenting time and that many inquiries for calls went unanswered. In the 18 months following the Parenting Order, the father reports that there were only three occasions where the mother had the children call him: March 19, 2022, November 19, 2022, and March 3, 2023. In addition, the father called the children directly two or three dozen times, but was only able to reach them about six times.

61The father acknowledges that in 2021/2022, he was able to speak to some of his children every week or fortnight from January until August 2022 by calling them on computers his family had bought for them with video conference software installed. Since his daughter is too young to have a laptop, he would ask one of the elder children to let him speak to her. The father states that after August 2022, the calls with the children ceased. He received only two calls from Ms. Kim’s phone and she refused to provide him with the children’s phone numbers.

62The parties’ correspondence of January 8, 2023 indicates that among the gifts the father gave to the children for Christmas 2022, he included at least one phone with unlimited talk and text paid for a year to be provided to the second eldest child. The mother stated she would keep the phone until she thought it was appropriate for the child.

63The mother submitted that she was unable to facilitate virtual parenting time because of issues related to internet affordability, lack of access to devices, time differences with Australia, lack of stable housing, and the ongoing financial and time burden of responding to the father’s litigation. In her June 6th affidavit, the mother reiterates that she has financially struggled to afford basic necessities including cell phones and her internet was disconnected due to non-payment. In the spring of 2023, the mother acquired a stable residence for her and the children and as a result, the internet connections are now better.

64During the first motion hearing date of March 28, 2023, the parties agreed to an interim order that specified dates, times, and conditions for the exercise of the father’s virtual parenting time, including that the mother would facilitate the call: Interim Order dated March 28, 2023. The father now has virtual parenting time every Tuesday and Thursday from 8 to 9 pm and on Saturdays from 9 to 11 am. The mother is responsible for initiating the call or assisting the children with initiating the calls on their computers. The father reported on May 17, 2023, that since the issuance of the interim order, he was able to speak with the children more frequently, but not always at the precise times scheduled. In her two-page June 6, 2023, affidavit, the mother confirms that since she and the children are in a more stable situation, virtual access has been regular.

65The Parenting Order entitled the father to three hours of virtual parenting time twice a week. I find that the terms of the Parenting Order are clear and unequivocal with respect to the father’s virtual parenting time and that the mother was well aware of the terms of the Parenting Order having been present with counsel at the uncontested trial. It was the mother who proposed these hours and virtual calling via Skype: Endorsement Steele J October 21, 2021, at para 21.

66While the father could organize his calls with the eldest child, he clearly needed the mother’s cooperation to facilitate the virtual calls with the other children. The children live with the mother and she is best aware of their school and other commitments. If the mother was having internet or other technological problems, it was incumbent upon her to communicate those concerns with the father and to make alternative arrangements to access the internet in public spaces or the homes of friends and family. In fact, it is clear from the correspondence filed by the father that when the mother raised technological challenges, the father offered effective solutions. Given the father resides in Australia and the importance of him being able to have regular communication with his children, I do not find the mother’s personal challenges as a reasonable explanation for her failure to facilitate the father’s weekly virtual parenting time for such an extensive period following the issuance of the Parenting Order.

67Having said this, I must keep in mind that contempt is a remedy of last resort. As aptly stated by Justice Chappel in Jackson v Jackson, 2016 ONSC 3466 at para 56:

Contempt is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to the litigant that the court orders cannot be flaunted.

68Furthermore, I must consider whether there are alternative enforcement options: Moncur at para 19. Rule 1(8) FLR provides judges remedial options for breach of a parenting order other than a finding of contempt: Sasan Amid v Behnaz Houdi, 2016 ONSC 2849 at para 25. The itemized list is not exclusive and provides judges broad discretion to make orders it considers necessary to fully address non-compliance: Bouchard v Scovio, 2021 ONCA 709 at para 51. As explained by Justice Charney in Sasan Amid v Behnaz Houdi at para 25:

Given the availability of alternatives like Rule 1(8), I am repeatedly puzzled why litigants and counsel prefer to swim upstream and rely on the more onerous rule 31. With a little imagination, effective enforcement is available without recourse to a contempt of court motion. Often the path of least resistance can be the most effective.

69In this case, I find the mother did breach the Parenting Order by failing to facilitate the father’s virtual parenting time. However, it is clear that when a precise schedule was put in place with additional terms as to who would initiate the calls and how, the mother complied with the father’s virtual parenting time. For this reason, I exercise my discretion and decline to find contempt. Instead, I find there has been a breach of the parenting order and the appropriate remedy is to issue a Final Order pursuant to r. 1(8) that prescribes a fixed schedule and terms for the father’s virtual parenting time.

70There is presently a Temporary Order dated March 28, 2023, which provides a schedule of the father’s virtual parenting time when the father is not exercising in-person parenting time. Pursuant to r. 1(8), the terms of the Temporary Order will be converted to a Final Order that supplements the Parenting Order for the exercise of father’s virtual parenting time. The conditions in Justice Steel’s Parenting Order continue to apply.

71Pursuant to r. 1(8) FLR, there will be a Final Order governing virtual parenting time as follows:

1. The Respondent father, Adan McIntosh will have virtual parenting time with the children weekly on Tuesdays and Thursdays from 8 pm to 9 pm and on Saturdays from 9 am to 11 am (Ontario time).
2. The Applicant mother, Anita Kim shall have all four children available for the Respondent father’s virtual parenting time during these hours.
3. The Applicant mother will initiate the parenting time call on Skype or alternatively, another free mobile service which has been agreed to by the parties at least 24 hours in advance of the call. Should the mother request to use a mobile service other than Skype, the mother shall provide the father with the name of the mobile service and any account information required so that he can download the service onto his device in a timely manner.
4. The virtual parenting time shall take place on the Applicant mother’s phone or on the children’s computer devices. The mother shall initiate the call or assist the children with initiating the call on their computers.
5. The virtual parenting time schedule can only be amended upon both parties consenting in writing or upon further order of this court.
6. These conditions are in addition to and supplement clause 2 of Justice Steele’s Final Order dated October 1, 2021.
7. All the conditions in Justice Steele’s Order continue to apply.

Issue 2: Should Justice Smith’s Order requiring leave for every motion be set aside?

72On October 3, 2022, Justice Smith ordered pursuant to rule 2(5) FLR that court staff are not to accept any further materials from the father unless it is a motion brought with 30 days’ notice to the mother for leave to bring a motion. The father argues that Justice Smith had no jurisdiction to make this order and requests that I set it aside.

73This was not the first time such an order has been made. Justice Hood made a similar order requiring 30-days’ notice and leave for all the father’s motions on December 2, 2021, and this order was confirmed by Justices Boucher and Corkery in April 2022: Endorsements of Hood J December 2, 2021, Boucher J April 11, 2022, and Corkery J April 26, 2022. The reason for the order is rooted in the father’s history of ignoring court orders and incessant applications and appeals of court decisions. Endorsement of Hood J December 2, 2021; see also Endorsement of LAJ Audet, May 26, 2022 at para 15.

74The father did not appeal Smith J’s Order nor did he seek to return it before him to have it set aside pursuant to r. 25(19) FLR. Even assuming I have authority to decide the issue, I find the father’s arguments for setting aside Justice Smith’s order are without merit.

75First, the father argues that in making the order Justice Smith relied on Justice Hood’s earlier order which was set aside by Justice Audet. I disagree. Justice Smith considered the father’s argument that the operative part of Justice Hood’s order had been set aside. The mother’s counsel argued before Justice Smith that even if Justice Hood’s earlier order had been set aside, the circumstances of this litigation “called out for judicial intervention” and Justice Smith should make his own order requiring the father to seek leave for all motions pursuant to r. 2(5) FLR. Justice Smith agreed stating at p. 6 of the transcript of October 3, 2021:

Court: Well that’s certainly my intent, and I think it flows from all of the orders that go before, but if it doesn’t, I’ll make that order. This is – I’m not sympathetic to the Applicant’s argument on this matter. This is a long…. : Transcript October 3, 2021, at p. 7.

76When the father repeated that that Mr. Hood’s order was set aside, Justice Smith replied:

Court: Justice Hood’s order is out there. I’m making my own, and we’ll leave it at that: Transcript October 3, 2021, at p. 7.

77Second, the father argues that Smith J’s order was without jurisdiction because such an order can only be made pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as am. I respectfully disagree. It is well recognized that the primary objective of the FLR is to enable the courts to deal with cases justly: r. 2(2) FLR. In this regard, r. 2(5) has been interpreted generously to give judges wide latitude to manage family cases that come before them. While r. 2(5) does not specifically prescribe an order requiring leave, I find such an order can be ordered as part of a judge’s power to set timetables or otherwise control the progress of the case: r. 2(5)(c).

78In fact, the Ontario Court of Appeal commented on the scope of orders judges can make in exercising their case management powers in the father’s appeal of the Parenting Order. In that decision, the Court endorsed Shore J’s right to make an order as part of her case management powers under r. 2(5) that the mother is entitled to proceed to an uncontested trial should the father fail to abide by certain court orders. The Court explained:

50The actions of Shore J. are consistent with the philosophy of the FLRs and the exercise of her case management function: see the FLRs, rr. 2(2)(3)(5). This proceeding had been before the court for almost two years. The record provided a firm basis upon which Shore J. could conclude that the appellant was not conducting the litigation in a manner that was consistent with a timely and fair resolution of the issues, particularly the issues relating to the interests of the children. The history of this matter fully justified Shore J.’s placing of a firm judicial hand on the tiller of this litigation: Kim v McIntosh at para 50.

79Third, the availability of a similar remedy under s. 140 of the Courts of Justice Act did not preclude Smith J.’s reliance on r. 2(5) FLR to achieve the same end.

80In conclusion, I find that Smith J.’s order requiring the father to seek leave with 30 days’ notice to bring a motion is an appropriate exercise of the judicial case management powers under r. 2(5) FLR and is warranted given the conduct and history of the father’s litigation. Such an order is necessary to manage the onslaught of the father’s motions so that the family litigation as against the mother, particularly now that final Parenting Order has been put in place, is just and fair.

81Furthermore, Smith J.’s order ensures that the litigation which does proceed, if leave is granted, is adequately pleaded. I make this point because it has become abundantly clear that the mother is unable to keep up with the father’s litigation and has, in some instances, stopped responding, filing answers, or fully participating. As her former counsel pointed out, she is unable to afford counsel and has been depleted by what she describes as the father’s vexatious litigation: Transcript October 3, 2023.

82As a full-time parent of four children receiving no child support, the mother is of limited means. Attendance at each court proceedings takes her away from her work as a paramedic and the care of the children. This contempt motion was a clear example. The mother is so fatigued by the litigation she was barely able to cobble together a two-page handwritten affidavit in response to the motion. The risk in these circumstances is that the court is left to decide matters with incomplete pleadings and evidence. For example, had I not consulted the motion materials for May 31, 2022, the facts surrounding the father’s unexpected visit in May 2022 and some correspondence surrounding requests for parenting time might never have surfaced. By requiring the father to seek leave on each motion, and where leave is granted, the mother is alerted to the fact that the motion merits attention and a response.

83The father’s application to set aside Justice Smith’s order is dismissed.

Status of other legal proceedings

84The father also filed on January 20, 2023, for leave to bring a motion to set aside other court orders, including the Parenting Order, on the basis of a material change in circumstances. (Files FS-19-12193 and FS-20-16188). Those matters were scheduled to proceed on August 17, 2023, but I directed they be adjourned to the fall of 2023 so that the parties could focus on the father’s in-person parenting time while he is in Canada and to provide the mother respite from litigation. The parties should contact Trial Coordination to find a hearing date before me to address a timetable for when the father’s leave application for the motion to vary can be heard and to confirm any other outstanding leave applications.

Costs

85On its face this does not appear to be a case for costs to either party. Neither party was represented. The father’s motions have been dismissed. No finding of contempt is made. While the mother was found in breach of the father’s virtual parenting time provision in the Parenting Order, a remedial order has been made pursuant to r. 1(8) FLR to address that issue. Nonetheless, should either party wish to make submissions as to costs, they may do so orally at the fall proceeding before me.

Somji J.