G.S. v. S.B., 2024 ONSC 4619
COURT FILE NO.: FC-17-1480 DATE: 2024/08/30
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
G.S. Applicant – and – S.B. Respondent
Counsel: Self-Represented, for the Applicant Tamara Scarowsky and Amanda Martinez, for the Respondent
HEARD: May 17, 2024
REASONS FOR DECISION
LABROSSE J.
OVERVIEW
[1] This is a motion by the Respondent mother seeking a declaration that the Applicant father is in breach of several paragraphs of Engelking J.’s Final Order, dated December 15, 2022. The Final Order followed Engelking J.’s trial decision, also dated December 15, 2022. The Applicant’s appeal of the trial decision was dismissed on October 10, 2023.
[2] The parties are the parents of a 10-year-old boy.
[3] In response, the Applicant has brought a Cross-Motion seeking substantive relief and changes to the Final Order, including a change of decision-making responsibility, primary residence for the child, removal of a restraining order, a reassessment of the trial costs, as well as an order requiring the Respondent to undergo psychiatric evaluation and drug and alcohol testing.
[4] The Respondent has filed a Notice of Motion and affidavit materials which allege over 300 incidents of contempt of the Final Order. Upon being served with the motion material, a case conference was held where the Applicant sought, and was provided with, additional time to prepare his responding materials. In addition, the Applicant sought leave to bring a Cross-Motion seeking to modify certain paragraphs of the Final Order. I specifically denied that request and only authorized the Applicant to file a Cross-Motion for contempt.
[5] The Respondent’s affidavit in support of her contempt motion, dated February 2, 2024 is 35 pages long and contains 149 paragraphs. The Applicant’s responding affidavit to the contempt motion, dated April 8, 2024 is 66 pages long and contains 346 paragraphs. The Applicant’s affidavit for his Cross-Motion, also dated April 8, 2024 is 62 pages long and contains 328 paragraphs. There is overlap between this affidavit and his responding affidavit. The Respondent’s reply affidavit, dated May 3, 2024 is 14 pages long and contains 71 paragraphs. The affidavits have thousands of pages of exhibits.
[6] Although the Respondent makes hundreds of contempt accusations against the Applicant, most of those accusations can be summarized in the following multiple-incident groupings:
a. He has failed to follow the parenting time provisions of the Final Order;
b. He has not paid outstanding costs awards or child support;
c. He has been disseminating information contrary to the Final Order;
d. He has been contacting the child surreptitiously through chat functions in video games;
e. He has refused to abide by the parameters for video calls and in-person supervised visits; and
f. He has disparaged the Respondent.
[7] The parties have approached their motions from very different perspectives. The Respondent has addressed individual incidents, highlighting the date of each offence and providing supporting documentation. However, the sheer volume of purported breaches of the Final Order is excessive and difficult to follow.
[8] Conversely, the Applicant has challenged Engelking J.’s trial decision and the resulting Final Order. Much of the Applicant’s affidavit materials relate to events that predate the trial decision. The Applicant spends less time disputing the alleged breaches or explaining their context, other than the online social media campaign, and more time using various events to paint the Respondent in a negative fashion to justify his breaches. Where he does dispute a breach, his responses are not focused or succinct. The Applicant relies on hearsay and the child’s comments to justify his desperate attempt to reach out and find support for his position on social media. The lack of focus in the Applicant’s evidence makes it very difficult to follow.
[9] As a preliminary issue, the court must address the Applicant’s Cross-Motion in light of the case conference endorsement made on February 29, 2024. At that case conference, I specifically denied the Applicant's right to present his Cross-Motion as a Motion to Change. I also limited his Cross-Motion to a contempt motion in respect of the Respondent’s breaches of the Final Order. Unfortunately, the Applicant did not follow my direction and proceeded with a Cross-Motion seeking the substantive relief with respect to the Final Order set out above.
[10] As explained to the parties, I have been assigned this file solely for the issue of the Respondent’s contempt motion and any Cross-Motion for contempt. While I appreciate that in certain circumstances, a contempt motion may include substantive changes to an existing Order as part of the relief, the case law is clear that a contempt motion cannot be used to circumvent the requirements of a Motion to Change, which requires a material change in circumstance be demonstrated.
[11] While I am also prepared to deal with the issues surrounding certain alleged breaches of the Final Order by the Respondent, I am not prepared to entertain the substantive relief the Applicant seeks in his Cross-Motion. That relief is dismissed, subject to the Applicant’s right to pursue it as part of a proper Motion to Change.
[12] In the end, there is really no dispute that the Applicant is responsible for a number of obvious and blatant Final Order breaches. He has failed to legitimately justify his actions, leading to certain findings of contempt as set out below. This matter will move on to the penalty phase in respect of the Applicant’s contempt.
[13] Conversely, I am also of the view that the Respondent may not have complied with her obligations under the Final Order to facilitate parenting time by way of video calls. The Final Order was very clear that it was not up to the Respondent to withhold the video calls because the Applicant was not following the Final Order. However, the evidence on this motion shows that the Applicant’s intransigence about the Zoom platform for video calls and his decision to record video calls have significantly impacted his missed parenting time. Blame lies with both parties who have not found solutions to ensure that video calls take place, but in respect of the Respondent’s role, it is not worthy of a contempt finding. The result is that the child has suffered. I intend to ensure that video calls resume as per the Final Order and if an adjudication of the issue is required, it will be done at the case conference which will follow this decision.
RELEVANT FACTUAL BACKGROUND
[14] Contrary to the Applicant’s suggestion in his affidavit, it is not for this court to begin reassessing the factual background of this case. The starting point for this decision is the lengthy and detailed Reasons for Decision of Engelking J., dated December 15, 2022. The evidence which forms part of the trial decision has been subject to the adjudicative process, including an appeal, and there is no reason for this court to look beyond the trial decision to understand the history of this case.
[15] Accordingly, this court must rely on the evidence included in the trial decision as being conclusive, to the extent that it is relevant for the purposes of this contempt motion.
[16] The parties have referred to many, if not most, paragraphs of the Final Order for this contempt motion. There is no need to reproduce them in this decision. For ease of reference, a copy of the Final Order is attached as Appendix A to this decision.
Respondent’s Contempt Allegations
[17] The Respondent’s affidavit sets out the evidentiary basis demonstrating the Applicant’s actions for which the Respondent seeks breach findings of the Final Order and contempt of court. Those actions are the following:
a. Not engaging a therapist and failing to give them a copy of the trial decision within three weeks of the Final Order;
b. Not completing the six-week Parenting Through High Conflict Separation and Divorce Course;
c. Not paying costs awards;
d. Not paying child support;
e. Not deleting recordings made of the trial and confirming by affidavit;
f. Not deleting material he possessed about the Respondent;
g. Surreptitiously recording calls that the Respondent monitored;
h. Speaking disparagingly of the Respondent to third parties;
i. Sending inappropriate messages to the Respondent via OFW;
j. Delaying in-person supervised parenting time;
k. Refusing to abide by the parameters for video calls;
l. Disseminating information about the court proceedings;
m. Contacting the child’s therapist;
n. Refusing to provide the child’s health card and passport;
o. Interfering with the child’s prescriptions;
p. Disseminating recorded video calls to his therapist;
q. Recording video calls monitored by Renew Supervision;
r. Criticizing the Respondent to the child and on social media;
s. Messaging the child through video game platforms;
t. Interfering with Safe Harbour counselling;
u. Publishing and/or disseminating material on social media.
[18] I do not intend to address every specific breach claimed. I will deal with those that I deem to be the most relevant.
Applicant’s Contempt Allegations
[19] The Applicant's contempt allegations turned principally on the Respondent’s failure to provide information on major decisions taken on behalf of the child, and on the termination of video calls between the Applicant and the child.
[20] The Applicant alleges that the Respondent is clearly in breach of paragraph 52 of the Final Order because she withheld video calls between the Applicant and the child. The Applicant relies on the fact that there have been no video calls since February 2023 and that he has only been able to see the child during supervised visits. The Applicant alleges they have been withheld because the Respondent is of the view that the Applicant is not following the order based on his behaviour during video calls.
[21] The Applicant alleges that the Respondent is also in violation of paragraph 31 of the Final Order because major decisions about the child’s life were made without the Applicant. The Applicant relies on the fact that the Respondent did not advise him in advance of her decision to change the child’s school or of her decision to register the child in a summer camp that could have worsened his allergies.
[22] The Applicant also alleges that the Respondent is in breach of paragraph 34 of the Final Order because she travelled with the child during the Applicant’s parenting time.
[23] The Respondent relies on the evidence that it was the Applicant who terminated the supervised video calls with Renew Supervision, and that it is the Applicant's abusive behaviour towards family members acting as third-party supervisors that caused them to be unwilling to supervise video calls. Finally, the Respondent justifies the absence of video calls by relying in part on the ongoing restraining order and the conditions surrounding the Applicant's criminal charges.
[24] The Applicant has also provided evidence of justification for some of his breaches of the Final Order. He claims the need to record the Renew Supervision visits because the supervisors’ notes are not verbatim and because the Respondent does not want to have a record of what was said during those visits.
[25] The Applicant also relies on the fact that he completed an Alberta high conflict course as proof of his compliance with the six-week Parenting Through High Conflict Separation and Divorce Course completion requirement in paragraph 4 of the Final Order. Accordingly, the Applicant claims to be entitled to move on to Stage 2 of the parenting time. The Applicant relies on paragraph 54 of the Final Order in support of his position that completing the online parenting course meets the spirit of the Final Order and as such he should be allowed to move on to Stage 2 of the parenting schedule.
[26] The Applicant spends a number of paragraphs in his affidavit justifying his decision to go public with the information about his child and these court proceedings as part of his social media campaign. He relies on various breaches of paragraphs 31, 46, 49, 52, and 54 of the Final Order for the reasons set out in his affidavit.
[27] In terms of relevant evidence, it is impossible for this court to address everything that the parties have set out in their voluminous affidavits. I have addressed what I feel are the most relevant points based in large part on the issues argued at the motion. I have reviewed the content of each affidavit in detail, however this decision cannot address every point raised in the affidavits.
APPLICABLE LAW
[28] Rule 31(1) of the Family Law Rules, O. Reg. 114/99 as am, states 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.”
[29] In Moncur v. Plante, 2021 ONCA 462, 57 R.F.L. (8th) 293, at para. 10, the Ontario Court of Appeal recently summarized the general principles which govern the court’s power to find a party in civil contempt of court for breaching an order which include the following:
For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.
[30] In Moncur, at paras. 19-20, the Court of Appeal found that the trial judge did not address alternatives to contempt, writing as follows:
[19] I do, however, agree with the appellant’s argument that the motion judge did not appear to consider whether a declaration of contempt was a remedy of last resort or whether there were alternative enforcement options, such as a declaration that the appellant had breached the order or encouraging professional assistance. Without considering any alternative options, he appears to have proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt. Although the motion judge had earlier properly held the contempt ruling in abeyance to allow the parties to arbitrate their parenting conflicts, and offered to help the parties resolve their issues, his reasons do not suggest that he considered other enforcement options in lieu of ultimately making his declarations of contempt. The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court. In fairness to the motion judge, such other options do not appear to have been raised by the appellant, who was self‑represented, or by the respondent. Even so, I conclude that it was an error of law not to have considered such options: Chong, at para. 12.
[20] It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.
[31] In McKinnon v. McKinnon, 2018 ONCA 596, at para 36, van Rensburg J.A., stated “[a] judge retains an overriding discretion to decline to make a contempt finding where the foregoing factors are met 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”.
[32] In Jackson v. Jackson, 2016 ONSC 3466, at para 56, Chappel J. provided the following cautions with respect to the use of the contempt power in family court proceedings:
a. It ultimately remains a matter for the Court’s discretion;
b. Because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;
c. It cannot be reduced merely to a mechanism for enforcing judgments;
d. It should be used sparingly and as a measure of last resort where there are no other adequate remedies available;
e. It 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 a litigant that court orders cannot be flaunted; and
f. The complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.
[33] In Kim v. McIntosh, 2023 ONSC 5121, at para 21, the court listed the discretionary factors the court may consider when exercising the discretionary contempt power as follows:
a. whether the contemnor took reasonable steps in good faith to comply with the order;
b. whether imposing contempt would work an injustice in the circumstances of the case;
c. the presence of exigent or extenuating circumstances;
d. whether alternatives exist such as finding a breach of the order and imposing other remedial options; and
e. whether the defiant conduct is severe or significant.
ANALYSIS
[34] The Respondent has provided a lengthy affidavit setting out numerous instances where the Applicant is alleged to have breached the Final Order or the restraining order. However, as is seen in the case law, there is a difference between a breach of an order and a contempt finding.
[35] In the present case, the Respondent has sought findings of contempt related to the Applicant’s nonpayment of child support and his failure to pay costs awards made against him within these proceedings. As set out in rule 31(1), a contempt finding can be made for breach of an order, other than a payment order. The orders for payments of costs and the portion of the Final Order which orders the payment of child support cannot be enforced by a contempt motion. Accordingly, I decline to deal with these requested findings of contempt.
[36] Similarly, the Respondent seeks contempt findings for the Applicant’s failure to take the parenting course to move on to Stage 2 of his parenting time. She also seeks contempt findings for the Applicant not exercising his parenting time and not promptly setting up supervised parenting time. While the court does not condone the Applicant’s failure to take the necessary steps to increase his parenting time, this is not the type of breach that results in a contempt finding. The Applicant simply does not move on to Stage 2 and could remain within Stage 1 of his parenting time indefinitely. There is no breach of the Final Order for his failure to move on to the next stage.
[37] When it comes to parenting time, I was provided with no authority that the failure to exercise parenting time is a breach of a court order which warrants a contempt finding. This issue was not actively pursued at the motion and as such, I decline to deal with it.
[38] What remains are a significant number of events which are claimed to be either one-time breaches or ongoing breaches for which action is required to purge the contempt. The most relevant must be considered individually in accordance with the following four elements for contempt of court:
i. Whether the order states clearly and unequivocally what actions should and should not be taken;
ii. Whether the party alleged to have breached the order has actual knowledge of the breach;
iii. Whether the party in breach of the order intentionally committed an act that the order prohibits or intentionally failed to commit an act that the order compels; and
iv. Whether, even after the three criteria above are met, the court finds it necessary to retain its discretion to decline to make a contempt finding.
[39] With respect to the second element of the contempt analysis, there is no evidence that the Applicant did not have knowledge of the various provisions of the Final Order and as such, I conclude that in all circumstances of the analysis, that element is met.
Specific Breach Incidents and Contempt of Court Orders
Compliance with paragraphs 44 and 45 of the Final Order
[40] The Respondent’s Notice of Motion sets out that the Applicant has failed to comply with para. 44 of the Final Order, requiring him to delete all electronic, digital, video, media, and photos of a sexual or otherwise compromising nature he possesses of the Respondent, and para. 45 of the Final Order, requiring him to provide an affidavit that he has deleted all recordings of the court proceedings.
[41] I am unable to find any reference in the Applicant's affidavit materials that he complied with the December 7, 2017 Order of Sheard J. and the provisions of para. 44 of the Final Order.
[42] As for para. 45 of the Final Order, the Applicant provided an affidavit dated March 22, 2023 in compliance with para. 45.
[43] I conclude that para. 44 of the Final Order is clear and unequivocal as to what the Applicant must do and that given the Motion for Contempt, it was incumbent on the Applicant to provide sworn evidence that he had complied with para. 44 of the Final Order. In the absence of evidence of compliance, this is a willful and intentional breach of that section for which the Applicant is found in contempt. Clearly, his breach is subject to the Applicant having an opportunity to purge his consent and satisfy the court that he has deleted all the material required by para. 44.
Video Recordings of the Child and the Respondent
[44] The Respondent advances the argument that the Applicant recording video calls, disseminating them to a doctor he was consulting, and making them part of his appeal materials breached the Final Order. I disagree that the Applicant, in recording the calls for the purposes of providing a record to a doctor and including them in appeal materials, disseminated them contrary to the Final Order.
[45] There is no specific provision in the Final Order preventing video calls with the child from being recorded. There is, however, a provision preventing recording the Respondent.
[46] The Respondent objects to the Applicant's recording of video calls on the basis that this breaches para. 54 of the Final Order, requiring that the parties follow the Final Order in spirit as well as letter. She also relies on the supervision services agreement terms with Renew Supervision and the trial decision to support her position that the Applicant is prohibited from recording video calls.
[47] While it is open to third-party supervisors to prohibit recording as a condition of their involvement, the Final Order does not specifically prohibit it. However, the Final Order requires that the Applicant delete the recordings he made of the trial and prevents the publication or dissemination of any materials with respect to the court proceedings. The Final Order also prohibits the Applicant from taping, monitoring, tracking, or following the Respondent.
[48] When considering these various provisions of the Final Order, I am unable to conclude that it is clear and unequivocal that the Final Order prohibits the recording of video calls. While one may argue that it could be considered a breach of the spirit of the Final Order, such a breach is insufficient to warrant a contempt finding. Further, recording a video call is not a clear breach of the prohibition against recording the Respondent, simply because she may monitor the video calls. As such, I decline to make a contempt finding based on those recordings.
[49] While I appreciate that video call recordings may cause problems with having third parties supervise the video calls, this may be an issue for a Motion to Change. The Final Order does not prohibit it and it already contemplates that the Respondent will be monitoring the video calls. The decision to have a third party monitor the video calls was made by the Respondent and is not required by the Final Order.
[50] Finally, a prohibition against the recording of video calls or visits with the child may be in the best interests of the child. This is a matter to be addressed at a Motion to Change.
[51] It should be noted that recording supervised visits is an entirely different issue. If third-party supervisors refuse to supervise an in-person visit because the Applicant refuses to stop recording them, then the Applicant is at fault because he is failing to comply with the contractual arrangement with the supervisors. In addition, the Applicant’s contention that he records supervised visits because the notes are not verbatim is without merit. Supervision notes are not intended to be a visit transcript. If the Applicant’s decision to record the visits results in no supervisor being available, that is the Applicant’s fault.
Speaking Disparagingly
[52] The Respondent alleges that the Applicant is acting contrarily to paragraph 46 of the Final Order because he speaks disparagingly of the Respondent.
[53] In the context of litigation, the Applicant has sought affidavits from people who support him and who have provided evidence of their observations relating to the child for the purpose of filing fresh evidence on appeal. This was done in the context of litigation for the purpose of filing fresh evidence on appeal. Further, the disparaging comments are minimal. In my view, this does not breach the Final Order because the true intent is not to disseminate disparaging comments about the Respondent.
[54] I feel the same way about communications to the Respondent’s counsel where the Applicant is criticizing various things done by the Respondent which are not in the child's best interest. I'm of the view that this does not breach the spirit of the Order not to speak disparagingly of the Respondent because it is done within the confines of litigation involving both parties. Accordingly, while it may technically breach the Final Order, I decline to make a finding that paragraph 46 of the Final Order was breached as a result of those communications.
[55] However, when considering paragraphs 46 and 47 of the Final Order together, it is clear and unequivocal that additional actions taken by the Applicant breached the Order. The most obvious is his online social media campaign, which was clearly done intentionally and in direct contravention of the Final Order. The Applicant openly stated that he felt that he had no choice but to do this in order to try to garner attention to his case.
[56] He also attempted to justify other disparaging statements made about the Respondent to the child’s friends and family from school. However, these comments were clearly also made to diminish the Respondent in the eyes of those third parties.
[57] Turning then to the fourth element of a contempt finding, being whether or not the court should exercise its discretion, the criteria set out in Kim v. McIntosh are clearly not met. There is no evidence that the Applicant took reasonable steps to comply with the Order; an injustice would not be created in the circumstances; there were no exigent or extenuating circumstances associated with his contempt; there were not other alternatives available, such as seeking a Motion to Change; and clearly the conduct is severe.
[58] The Applicant chose to post personal information about the Respondent and the child on his social media accounts, including photographs and information which could reasonably embarrass the child and be damaging to the Respondent. He also intentionally sought to denigrate the Respondent. I am of the view that the Applicant did so willingly and in blatant disregard of the Final Order. Accordingly, he is found in contempt of paragraphs 46 and 47 of the Final Order as a result of his online social media campaign and other third-party communications.
Inappropriate Messages on Our Family Wizard (“OFW”)
[59] Paragraphs 41 and 42 of the Final Order clearly set out the process that the Applicant must follow for posting messages on OFW. The Respondent has provided numerous examples where the Applicant does not offer concise messages focusing solely on current issues. To the contrary, the Applicant uses OFW to threaten the Respondent, to the extent that he was charged criminally with harassment.
[60] The wording of the Final Order is specific, and the Applicant would clearly be aware of his communication obligations on OFW. He has chosen not to follow these obligations and as such, I conclude that his breaches are intentional. OFW communications are essential and need to take place as the Final Order prescribes. This is the type of breach that must be corrected to allow the Respondent to meet her obligations as the decision-making parent, including communicating with the Applicant and keeping him apprised of events in the child’s life. These breaches must be enforced, and I conclude that the Applicant is in contempt of paras. 41 and 42 of the Final Order.
Conduct During Video Calls and Supervised Visits
[61] Paragraph 6 of the Final Order provides a road map for the Applicant as to how video calls are to be conducted. That provision is specific and deals with the way the Applicant must communicate with the child and what he needs to avoid in order to engage appropriately with the child. The Respondent’s affidavit provides numerous examples where the Applicant has expressed to the child his disagreement with the parenting schedule and where he has criticized things that the Respondent has done or not done. There are also numerous examples which allege the discussion of adult topics with the child.
[62] I do not agree with every instance of breach raised by the Respondent, particularly those which are subjective in nature such as the use of body language and the tone in phrases such as “I know” when the child makes a complaint. Nevertheless, the Respondent’s evidence as a whole demonstrates the extent to which the Applicant breached the Final Order in the way he conducted video calls and the topics he raised during supervised visits. He is clearly doing what he can to point the blame at the Respondent when the child complains.
[63] However, when considering the spirit of the Final Order, the remedy for inappropriate contact during video calls is to have the Respondent exercise her right to end the calls when, in her view, the Applicant is not engaging appropriately with the child. The same right is available to supervisors to end supervised visits when necessary. I accept that the Respondent is placed in the difficult position of having to police the video calls and be the one to terminate them, likely against the wishes of the child. However, that is the way the Final Order was structured, and it was incumbent upon the Respondent to do so until it is unmanageable, requiring a change to the Final Order.
[64] I accept that the Respondent's decision-making authority could extend to her decision to have video calls monitored by either a responsible third party or a service such as Renew Supervision. However, it was not available to her to simply terminate video calls going forward because of her disagreement with the way the Applicant was engaging with the child. In such a circumstance, the remedy is to terminate the call and confirm via OFW what the offending conduct was.
[65] The analysis of the Applicant’s conduct during video calls becomes very subjective and could only properly be addressed on a case-by-case basis. The evidence shows that the child was not happy with the parenting arrangements and wanted to be able to spend more time with the Applicant. This places the access parent in the difficult position of having to find ways to redirect the child when he expresses dissatisfaction with the court process or find ways to respond to the child's inquiries in a manner that does not criticize the Applicant.
[66] When considering topics raised during supervised parenting time, the evidence demonstrates that the supervisors were required to redirect the Applicant on numerous occasions to avoid adult or inappropriate conversation topics. As stated, the analysis of these topics becomes very subjective. The child is now of the age where children will raise such topics themselves and the access parent must redirect the conversation and attempt to answer in a way that does not breach the communication directions in the Final Order.
[67] In the end, a contempt finding must be made out on the criminal standard of beyond a reasonable doubt. I am not satisfied that the Applicant's responses to the child's frustrations with the parenting arrangements have been established to be worthy of a contempt finding, even if they may technically breach the Final Order. While a change to the Final Order to eliminate video calls or supervised visits may at some point be merited if the Applicant cannot properly redirect the child, at this point they continue to be part of the Applicant’s parenting time and the Respondent must take the reasonable steps to ensure that video calls continue to be available and that supervised visits continue. This does not diminish the Applicant’s ongoing obligation to redirect the child to ensure that he is in compliance with paras. 6(a) and 49 of the Final Order.
[68] In the present circumstance, the Respondent has the very clear authority to establish “rules” relating to video calls. It was within her authority to determine that they should be monitored by a third party as this is already contemplated in para. 6(a)(v) of the Final Order. When the Applicant chose to no longer participate in video calls monitored by Renew Supervision or a family member, it was his decision. However, if Renew Supervision refuses to monitor calls because the Applicant is recording them, the Respondent must find another way to have the video calls monitored. She cannot deny the child’s right to a video call because the Applicant wants to record them because the Final Order does not prohibit it. At the same time, it is not up to the Applicant to decide who will monitor video calls.
[69] Given the other provisions of the Final Order preventing disseminating information about the court proceedings, it is safe to say that if the Applicant decides to record the child, he may not then use the recordings and they may not be admissible in any event as they represent hearsay. It is clear that the Applicant cannot share recordings with third parties who are not directly involved in the litigation.
[70] Notwithstanding the above, it is incumbent on the Respondent to ensure that video calls can take place in accordance with the schedule set out in the Final Order until otherwise modified. This includes, if necessary, the Respondent facilitating the modification of certain orders to allow her to monitor the video calls. This forms part of the obligations of both parties to take reasonable steps to ensure that parenting time takes place as per the Final Order or to have the Final Order otherwise modified.
[71] In the end, I decline to find the Applicant in contempt for the conduct or discussions which took place during video calls or parenting time. I confirm that those video calls are to recommence as soon as possible, either with a third-party monitoring or with the Respondent personally monitoring them with the authority to terminate the video calls when the Applicant is not engaging appropriately with the child. When a call is terminated, an explanation is necessary in OFW.
Disseminating Information About the Court Proceedings
[72] The Respondent claims that the Applicant has breached the Final Order by contacting St. Anne’s School and by providing information to Dr. Zuccarini and to third parties who provided affidavits for his appeal.
[73] With respect to St. Anne’s School, the Applicant sought to object to the school change. OFW messages reflect that the Respondent notified the Applicant of the school change in January 2023. There is no issue with the Applicant stating his objection to the school. The Final Order allows him to obtain information from professionals which includes the school. I do not agree that this is a breach of the Respondent’s sole decision-making authority under para. 29 of the Final Order, given that the Applicant has the right to communicate with the school under para. 30.
[74] However, the Applicant also chose to disseminate information about the court proceedings to the school when he shared the police transfer video from the Applicant’s residence. In doing so, the Applicant clearly breached para. 47 of the Final Order, which prohibits disseminating material respecting the court proceedings. The Applicant did not justify his information dissemination. He intentionally portrayed the Respondent in a negative way to the school board, breaching the Final Order and putting him in contempt of para. 47 of the Final Order. The criteria for the court to use its discretion against a contempt finding is not met.
[75] In respect of the information shared with Dr. Zuccarini, I do not find that this represents the type of dissemination of material that is contemplated in para. 47. This was done in order to obtain an opinion from the Applicant’s therapist and in the context of the litigation.
[76] In that same vein, the Respondent objects to the affidavits filed in support of the Applicant’s appeal in January 2023. I disagree that this is the type of information dissemination or disparaging communications contemplated by paras. 46 and 47 of the Final Order, as it was done within the context of the litigation. Furthermore, the disparaging comments are minimal. Those breaches are not established.
Unsolicited Communications with the Therapist and Interference with the Child’s Therapy
[77] Paragraph 2(b) of the Final Order clearly and unequivocally states that the Applicant will not contact the child’s therapist except at the therapist’s specific request. The evidence confirms that in January and February 2023, the Applicant made unsolicited requests to speak to the therapist about the child’s treatment. I reject the Applicant’s hearsay evidence that the therapist stated that she was about to contact him. It is very important for the Applicant to respect the ongoing therapeutic process, and accordingly such a breach of the Final Order must be strictly enforced. I conclude that the Applicant’s interference with the therapeutic process is in breach of and merits a contempt finding of para. 2(b) of the Final Order.
[78] In 2023, the Applicant objected to the Respondent’s decision to enroll the child in Safe Harbor counselling, which fell within the Respondent’s sole decision-making authority. For some reason, the counsellor in question required both parents’ consent, to which the Applicant not only objected but refused to sign a consent for the child to attend. While the Applicant has a right to object and set out his position to the Respondent on OFW, he does not have the authority to interfere with the Respondent’s proper decision-making process, accorded by the Final Order, by refusing to sign a consent after a proper decision is made according to the process set out in the Final Order. Consequently, the Applicant’s failure to sign a consent for counselling deemed to be in the child’s best interest by the Respondent breached the Final Order to the extent that the Applicant sought to interfere with the Respondent’s decision-making authority. Such a breach of the Final Order is significant because it impacted the child’s ability to proceed with a therapeutic process that the Respondent was clearly authorized to commence for the child. The Applicant’s explanation that the proposed therapy was not what the child needed is without merit. He had a right to express himself to the Respondent but not to withhold his consent and interfere with the counselling. While I question the requirement to obtain the Applicant’s consent, it still represents an important breach of para. 29 of the Final Order worthy of a finding of contempt, requiring support for the Respondent as the decision-making parent, and not interfering with her authority.
Supervised Parenting Schedule Breach
[79] The evidence on this motion confirms that the Applicant has yet to take the necessary steps to move on to Stage 2 of his parenting time. He has refused or failed to complete the Parenting Through High Conflict Separation and Divorce Course, and steps have not been taken to modify this requirement if compliance was not possible. To the contrary, the evidence demonstrates that while the Applicant may have been required to travel within eastern Ontario to attend the course in another city, it remained available to him and he failed to do so. His attempt to take an online course does not comply with the requirements to proceed to Stage 2 of his parenting time. Despite this and as previously stated, his failure to do does not breach the Final Order.
[80] However, the Applicant’s parenting time is limited to both supervised in-person parenting time and to two weekly video check-in calls, which are also to be monitored to ensure that the Applicant is engaging appropriately with the child. Those are the limits of the Applicant’s parenting time, and they are clearly and unequivocally set out in the Final Order.
[81] In addition, para. 11 of the Final Order prohibits the Applicant from texting the child pending further court Order or an explicit agreement with the Respondent through OFW. This prohibition is clearly and unequivocally set out in paragraph 11 of the Final Order and there is no confusion surrounding it.
[82] The evidence on this motion demonstrates that on numerous occasions, the Applicant has either communicated with or attempted to communicate with the child through video games, clearly breaching the Final Order’s parenting time provisions and the prohibition against texting the child. The Applicant has done this surreptitiously and with a clear intention to deceive the Respondent. In such a circumstance, his communications with the child are neither supervised nor monitored, clearly breaching the Final Order. The Applicant provided no credible basis for the court to exercise its discretion and declined to make a contempt finding.
[83] Accordingly, I conclude that the Applicant’s numerous video game communications directed to the child are in contempt of paras. 6 and 11 of the Final Order.
Failure to Return the Health Card and Passport
[84] Paragraphs 38 and 40 are clear with respect to document management. The Respondent shall keep the child’s original health card and passport. The Respondent requested these documents via OFW and the Applicant did not address this issue adequately in his materials. This is a very simple issue whereby the Applicant could have demonstrated his compliance. He has not done so and as such I conclude that the applicant has intentionally withheld those documents from the Respondent and that he has breached the Final Order. This breach is easily rectified, and it appears that the Applicant is simply choosing not to do so. There is no reason offered whereby the court should exercise its discretion against a contempt finding. The Applicant is in contempt of paras. 38 and 40 of the Final Order.
Interference with the Child’s Prescriptions
[85] I have considered the evidence of the parties on this issue, and I conclude that it is not something worthy of a contempt finding. The parties have both presented hearsay evidence that does not allow for a finding of a Final Order breach.
Additional Claimed Breaches
[86] There remains evidence of Final Order breaches where the Respondent claims contempt that I have not specifically dealt with. In such circumstance, this means that I am either not satisfied that the contempt elements have been established, or that it may represent a breach, but I exercise my discretion to not make a contempt finding. I have addressed those areas which I find merit the court’s attention.
[87] It is also important to note that the Applicant’s response to this contempt motion extends over 120 pages and over 600 paragraphs with thousands of pages of exhibits. There may be some justification or evidence of compliance with alleged breaches that I have missed due to the sheer volume of materials, much of which is irrelevant because it predates the trial decision and the Final Order. The court has done its best in the context of an unreasonable volume of material. This can be dealt with at the penalty stage.
Final Order Breaches by the Respondent
[88] As previously stated, the Applicant did not bring the contempt Cross-Motion for contempt that he was authorized to bring. Rather, he brought a Motion to Change seeking substantive changes to the Final Order. It would appear that he did so as a result of the Respondent also seeking a number of changes to the Final Order through the contempt process. Regardless, I am prepared to consider certain areas where the Applicant claims that the Respondent has breached the Final Order.
[89] I have already expressed my concern with the Respondent’s actions relating to video calls. She has an obligation to take reasonable steps to encourage that video calls take place and to pursue the issue for the child. She was entitled to prefer not to monitor them herself, and to have a third party do so, and it matters not if it was her younger adult brother. However, if the third-party ceases to be willing to monitor video calls, the responsibility comes back to the Respondent as per para. 6(a)(v) of the Final Order to encourage that they take place.
[90] In respect of video calls, the evidence does not allow me to conclude that the Respondent has breached this obligation. She had Renew Supervision monitor the calls and the Applicant refused to proceed under third-party monitoring. I am unable to conclude beyond a reasonable doubt that the Respondent has breached the Final Order in this regard. Furthermore, the Applicant’s evidence confirms that he refused video calls because he disagreed with the Zoom platform and preferred Facebook Messenger. It is unbelievable to this court that a parent would prefer not to engage in parenting because of his refusal to follow the platform the other party chose. I conclude that the Applicant is also responsible for the fact that video calls have not been taking place. If the Respondent determines that the Zoom platform is the one that will be used, the Applicant must accept.
[91] As for the duty to keep the Applicant informed of the decision-making process, the OFW communications demonstrate that the Respondent did notify the Applicant of the school change. She properly stated that she accounted for his objections and determined that there should still be a school change based on the child’s principal and the teacher’s recommendations.
[92] While this communication may have transpired after the school change was in effect, the Applicant has not established a breach of the Final Order in respect of the school change.
Exercise of Discretion
[93] I have concluded that the Applicant is in contempt of paragraphs 2(b), 6, 11, 29, 38, 40, 41, 42, 44, 46 and 47 of the Final Order. As set out in Moncur, the court must still determine if the contempt finding is a remedy of last resort or whether alternative enforcement options are available.
[94] In the present case, the timing of this decision requires that the court strictly enforce how parenting time is to occur. The Applicant states in his materials that he is in the process of complying with the Final Order to proceed to Stage 2 of his parenting time.
[95] This is particularly true in this obviously high-conflict case where the parties need to reassess how they act under the Final Order’s authority. The parties need to understand what is and what is not a contempt-worthy breach of the Order.
[96] I conclude that this decision and the contempt findings are properly made as a last resort, to both assist the parties in moving forward with the next stage of parenting time and in appreciating that the Applicant has an obligation to correct his past behaviour and focus on the best interests of the child. Accordingly, I conclude that there are no other options but to proceed with the contempt findings, and on to the penalty phase, to deal with the Applicant’s problematic behaviour. The objective is to see if he is able to purge some of his contemptuous behaviour and gain some insight as to how things need to change.
Conclusion
[97] For the reasons set out herein, the Applicant is found in contempt of paragraphs 2(b), 6, 11, 29, 38, 40, 41, 42, 44, 46, and 47 of the Final Order and the matter will move to the penalty phase. A virtual case conference will be scheduled with Justice Labrosse at a 9:00 a.m. time to discuss next steps.
[98] The costs of these motions are reserved to the conclusion of the penalty phase.
Justice M. Labrosse
Released: August 30, 2024