Court File and Parties

Court File No.: FS-14-19641 Date: 2024-02-05 Ontario Superior Court of Justice

Between: I.S., Applicant And: M.S., Respondent

Counsel: Self-represented, Applicant Martine Ordon, for the Respondent

Heard: December 5, 2023 and December 22, 2023

Before: M.D. Faieta J.

Endorsement

[1] The parties are the biological parents of a nine-year-old boy, J.S. (“the Child”). The Respondent father brings this motion for contempt and he asserts that he has not had parenting time with the Child since August 2, 2023, contrary to the existing parenting order, as the Applicant mother has withheld the Child.

Background

[2] After meeting on an online dating site that advertises itself as a place for "sugar daddies" and "sugar babes" to meet, the Respondent father had an extra-marital relationship with the Applicant mother from about 2010 until sometime in 2014. The applicant knew from the beginning that the respondent, 22 years older than her, had a wife and children and that he wanted their relationship to be kept secret. When she announced her pregnancy to the respondent, the parties separated as the respondent felt he had been "set up.": See I.S. v. M.S., 2017 ONSC 7160. Their relationship and the Child remain a secret. [3] In December 2013, a corporation controlled by the Respondent father purchased a home that was registered in the Applicant mother’s name. The corporation took back a mortgage, with a two-year term and no interest, for the full purchase price. Their child, J.S. was born in August 2014 (“the Child”). [4] On February 9, 2015, on consent of the parties, an Order was granted to initialize the title of proceeding and imposed a publication ban on any portion of the court file that identifies the parties, their places of work, their occupations, their private information including their addresses, and other parties identified in the proceedings or in any orders entered and issued from the proceedings. [5] In October 2015 the parties entered an agreement entitled "Minutes of Settlement/Domestic Contract/Full and Final Releases." (“the Agreement”) [6] The Agreement includes the following terms:

• Sole legal custody of the Child is given to the Applicant mother;
• The Respondent father shall pay $5,000 per month in child support which is indexed annually to adjust for inflation.
• The Respondent father agreed to pay 100 percent of the agreed upon special and extraordinary expenses until the earlier of January 1, 2017 or until the Applicant mother. obtained full-time employment, after which the Respondent father would pay 90 percent and the Applicant mother would pay 10 percent. Private school was specifically excluded from the special and extraordinary expenses.
• The Respondent father shall pay 100 percent of the cost of a full-time nanny to a maximum of $2,500 until the Child turns five years old or enters full-time daycare or school.
• The option in the December 2013 was extended. It provides the Applicant mother with an option, exercisable until June 2018, to purchase the home having to pay only two-thirds of the outstanding mortgage or alternatively selling the home and paying only two-thirds of the sale proceeds to the Respondent.
• Both parties released any rights to spousal support, which release was intended to be "forever final and non-variable."
• Neither party shall disclose the terms of their settlement.
• The Applicant mother shall not communicate directly or indirectly with the Respondent father’s family to: (1) advise them of the nature of the relationship between him and the Child., unless he has previously done so and introduced them to the Child; or (2) discuss and disclose the issues in the legal proceedings.

[7] In respect of parenting time the Agreement states:

6. [ The Respondent father] will have reasonable and generous access to [the Child] dates and times to be reasonably agreed to by the parties from time to time, always keeping in mind the best interests of [the Child].
7. Both parties agree that maximum contact between [the Respondent father] and [the Child] is in [the Child’s best interest. Both parties understand and acknowledge that [the Respondent father]’s access will likely need to be changed over time based on the needs and interests of [the Child] and based on his ages and stages of development. The parties agree to work cooperatively to accommodate each other’s schedules and [the Child]’s schedule.
8. Both parties agree to work together to implement a more formal and structured access arrangement at such time as it is feasible or at such time as either party believes that it is in [the Child]’s best interests to do so .
9. [The Applicant mother] will not withhold or interfere with [the Respondent father]’s access to [the Child] unreasonably .
10. With respect to the custody and access arrangements for [the Child] the parties further agree as follows: a. At the present time, access to [the Child] will take place two times per week, each visit to last one- and one-half hours. Pick-ups and drop-offs will be at [the Applicant mother]’s home. The access shall be unsupervised as long as [the Respondent father] advises [the Applicant mother] as to his plans for the visit and refrains from the consumption prior to and during the visit. b. Both parties will provide each other with their email address, and current addresses and a phone number where they can be reached at all times. c. Neither party will unreasonably object to the other’s plans and will respect each other’s ability to care for [the Child] appropriately. d. Neither party will arrange activities for [the Child] during the other parties scheduled time without first consulting with the other party. Make up time for visits missed as a result of scheduling conflicts shall be arranged between the parties at mutually convenient times and in accordance with [the Child]’s schedule and best interests. e. In the event that [the Applicant mother] will not be accessible during [the Respondent father]’s access with [the Child], then [the Child]’s health card shall travel with him. f. Both parties may attend extracurricular activities and scheduled school events regardless of the schedule; and g. Notwithstanding the above paragraphs, the parties will at all times maintain a reasonable and flexible position respecting access arrangements for [the Child] and at all times the best interest of [the Child] will prevail . Accordingly, if special occasions, extracurricular activities, excursions or other opportunities that become available to [the Child] or to either party, neither party will insist that the custody/access arrangement set out herein will be adhered to without exception.
11. [The Applicant mother] and [the Respondent father] may telephone or communicate by email, text and/or FaceTime with [the Child] on a daily basis when [the Child] is old enough to use these devices either supervised or unsupervised and when in the other’s care. [The Applicant mother] and [the Respondent father] may telephone or email each other when they want.

[8] On May 19, 2017, at a Case Conference before McWatt J., as she then was, the parties agreed to the following parenting provisions:

2. On a very temporary and on an entirely without prejudice basis, and subject to the further written agreement or Order of the Court, the Respondent [father] shall have access to the child as follows: (a) Each Wednesday from 5:30 pm until 7:00 pm. The exchange shall take place at the store located at the corner of Neville Park and Queen Street. The nanny will do the drop-off and the Applicant will do the pick-up. (b) Each Saturday from 9:30 am until 12:30 pm at the same location.
3. The Respondent [father] shall continue to advise the Applicant in advance as to his plans for the access and shall refrain from the consumption of alcohol prior to and during the access, without any admission of any allegations of the kind. (“McWatt Order”)

[9] In November 2017, the Applicant mother’s motion to enforce the Agreement was heard. The Applicant wished to discharge the mortgage. The Respondent father brought a cross-motion to set aside the Agreement. He submitted that the Applicant mother had repeatedly failed to comply the parenting time provisions. Gilmore J. dismissed the Applicant’s motion as the court found that it was not clear that the Agreement was enforceable. The Respondent’s motion to set aside was adjourned: I.S. v. M.S., 2017 ONSC 7160. [10] On April 25, 2019, on consent of the parties, Gilmore J. varied the McWatt Order to provide that the Respondent father shall have parenting time with the Child as follows: a. Every Wednesday from pick-up at the child’s daycare to 7:00 pm drop-off at I.S.’s home; b. Alternating Saturdays from 9:00 am to 4:30 pm with pick-up and drop-off I.S.’s home; c. Overnight access on the first Saturday of M.S.’s access each month with pick-up at I.S.’s home at 9:30 am on Saturday and drop-off at noon on Sunday at I.S.’s home; and d. The parties shall abide by the following with respect to access: i. M.S. to provide to I.S. the address where the child will spend his overnight each month; ii. I.S. shall not book activities or appointments at any time during M.S.’s access; iii. I.S. shall not cancel or change access without a court order or unless the parties agree to the change at least 24 hours in advance of the visit. (the “Gilmore Order”)

[11] In May 2021, the court dismissed the Respondent father’s motion to set aside the Agreement. The court also dismissed the Applicant mother’s claim that the Respondent father had breached the Agreement. However the court found that the Applicant mother had breached the parenting time provisions. Nishikawa J. made the following findings:

146 On the totality of the evidence, however, I find that I.S. breached the provision requiring that she "not withhold or interfere with M.S.'s access to J. unreasonably." My finding is based on the evidence that M.S.'s access to J. was reduced to less than what was initially contemplated by the Agreement and because M.S. had to seek the court's assistance to have his access restored and increased, as contemplated by the Agreement. 147 Specifically, the evidence shows that by November 2015, I.S. limited access to once a week on the weekend as opposed to twice a week. I.S. justified ending weekday access on the basis that M.S. drank after work and the Agreement required that he avoid alcohol consumption prior to and during access visits. 148 While I.S. testified that M.S. breached the no-alcohol provision many times, she identified only one instance of M.S. drinking alcohol during an access visit with J. M.S. admitted that on one occasion, which was early on, he took J. to a restaurant down the street from I.S.'s home and had a glass of wine with his meal. When I.S. confronted M.S. about it, he said he would not drink during his access. However, she used this incident to cancel his weeknight access. 149 After I.S. terminated the weeknight visits, M.S.'s counsel wrote to I.S.'s counsel on November 11, 2015, seeking to restore weeknight access. I.S. refused to restore weeknight access and instead offered an additional hour on the weekend. 150 Because of the issues relating to access, in the spring of 2016, the parties agreed to mediate with a parenting counsellor who was later unable to continue to mediate their dispute. In August 2016, M.S.'s counsel sent a letter to I.S.'s counsel to work through a plan for access. At that time, M.S. was having less access to J. than he had before the Agreement was concluded. Multiple letters were exchanged between counsel, which reflect that M.S. sought to resolve the parties' access issues. The letters from I.S.'s counsel reflect that she consistently raised financial issues in response. 151 In October 2016, M.S.'s counsel wrote to I.S.'s counsel regarding his concern that I.S. was engaging in name-calling and inappropriate behaviour during access exchanges. On cross-examination, I.S. admitted that "needlessly" causing a scene during access exchanges was not in J.'s best interest and would constitute interference with access. I.S. alleged that M.S. was abusive toward her and required that access exchanges take place at the police station, or M.S. would not have access. The exchanges continued to be hostile, even at the police station. For example, I.S. insisted that M.S.'s car seat had not been installed properly. 152 On May 19, 2017, the parties attended a case conference before McWatt J. They agreed to the terms of a consent order which provided that M.S. would have access to J. on Wednesdays from 5:00 to 7:00 p.m. and on Saturdays from 9:30 a.m. to 12:30 p.m. I.S. admitted that she had not agreed to Wednesday access or to extend access before attending the case conference that day. The consent order also discontinued access exchanges at the police station. 153 When the parties entered into the Agreement, they agreed that "[a]t the present time" M.S. would have access to J. two times per week for one and a half hours each. Before the case conference with McWatt J., M.S. was not having access two times per week. One three-hour visit per week was not equivalent, especially for a child of J.'s young age. Moreover, the Agreement stated that maximum contact between M.S. and J. was in J.'s best interest and contemplated that access would change over time, based on J.'s needs and interests, based on his age and stage of development. I interpret this to mean that M.S.'s access would increase as J. grew older. I.S. admitted on cross-examination that she understood that M.S.'s access would increase over time and that maximum contact meant as much time as possible. While two visits of one and a half hours each might have been appropriate when J. was one year old, it ought to have been increased as J. got older, without the necessity of going to court. 154 Despite participating in open mediation with Dr. Butkowsky in October 2017, the parties were unable to resolve the access issues. While M.S. testified that the mediation failed because I.S. refused to agree to terms of a memorandum of understanding reached between the parties, I.S. testified that she had been prepared to accept the terms. A draft memorandum of understanding dated November 2, 2017 was prepared by Dr. Butkowsky and summarizes areas of agreement and areas on which no agreement was reached. As a result of further issues and questions raised by both parties, Dr. Butkowsky prepared a further summary dated February 7, 2018. Dr. Butkowsky states that he tried to reconvene the mediation to resolve certain minor issues but that I.S. declined to participate. The summary also clarifies that while I.S. initially had reservations regarding the proposed access schedule, she eventually agreed to it. 155 In April 2019, M.S. again sought the court's assistance to increase his access. The order of Gilmore J. dated April 25, 2019 extended M.S.'s access time to full days on Saturdays and overnight access on the first Saturday of each month. By that time, M.S. had taken the position that the Agreement was repudiated. While I find that I.S. did not repudiate the Agreement, based on M.S.'s position, at that time, both parties would have understood their obligations to have come to an end. As a result, I do not rely on the April 2019 order to support my finding that I.S. breached the access provisions of the Agreement. I note, however, that the Order belies I.S.'s testimony that she agreed to overnight access and only wanted to know where it would be taking place. 156 At trial, I.S. testified M.S. had regular access and that he cancelled more frequently than she did. Access is not only about quantity, but also about quality. The evidence shows that I.S. interfered with M.S.'s access as detailed above because she was consumed by M.S. not telling his family about J. and her conviction that the secrecy was harmful to J. In the Agreement, however, she agreed not to disclose the relationship to his family unless M.S. had done so first. As is evident further in these Reasons, I.S. had significant difficulty with this requirement. Her resentment of the situation led to constant conflict and interfered with J. having maximum contact with M.S, contrary to J.'s best interest.

(a) CAS involvement

157 M.S. alleges that I.S. also interfered with his access by making false allegations that he abused J. to the CAS. 158 M.S.'s evidence is that the CAS has closed three investigations in relation to his treatment of J. The CAS files were not produced, and I have little evidence regarding those investigations other than the parties' testimony and the testimony of I.S.'s witness, K.T., in relation to one of the investigations. 159 K.T. is a supervisor at the Toronto CAS. She conducted one investigation relating to J. in July 2019, when J. was four years old. K.T. testified that the CAS became involved because J.'s therapist reported potential abuse by M.S. The therapist's report was based on an audiotape submitted by I.S. in which J. stated that M.S. hit and bit him. I.S. testified that she gave the audiotape to the therapist, Dr. Tenne, to find out if she thought J. was telling the truth or making it up, but that Dr. Tenne reported it to the CAS before speaking to J. 160 K.T. interviewed M.S., I.S. and J. She testified that J. said that M.S. hit and bit him "everywhere", but also said that I.S. hit and bit him too. K.T. testified that J. was unfocussed during the interview and could not provide any context or specifics. While M.S. had testified that the allegation was that he fed J. broken glass, K.T. did not recall that. K.T. testified that I.S. told her that J. said that M.S. put glass in his mac and cheese, but that I.S. stated that she did not believe it. 161 K.T. testified that while the investigation was in progress, she suggested that M.S. not have access to J. in order to avoid any issues. K.T. testified that in the end, the allegations were not verified. She concluded that J. was safe in both parents' homes and closed the file. K.T. could not comment on whether she thought J. had been coached. 162 M.S. testified that I.S. fabricated the allegation to interfere with his plans to take J. to see the Lion King and that, on the same weekend, I.S. posted photographs of herself and J. at the African Lion Safari. None of the relevant dates, such as when the recording was made, when it was provided to Dr. Tenne and when Dr. Tenne reported to the CAS, are in evidence. There is insufficient evidence to find that the allegation was fabricated to interfere with M.S.'s planned activity. 163 I have no information about the other two investigations other than the parties' vague testimony. The parties did not obtain the CAS files. I.S. testified that one of the other investigations was initiated by another doctor. Based on the evidentiary record, I am not satisfied that the allegations were fabricated to interfere with M.S.'s access. I would add, however, that the possibility that unsubstantiated allegations are being made to the CAS is concerning, especially if a young child is being recorded for this purpose. 164 Based on the totality of the evidence regarding access, I find that I.S. breached the spirit and the substance of the term requiring that she refrain from interfering unreasonably with M.S.'s access. I.S.'s non-compliance is evident in the fact that M.S. had to seek the assistance of the court in order to maintain or increase his access to J. Despite the terms of the Agreement, I.S. did not consent to any increases, and only agreed to restore weekday access during the case conference before McWatt J. in May 2017 . [Emphasis added]

[12] Nishikawa J. concluded:

256 In short, I.S. has not demonstrated by her conduct an intent not to be bound, but that she recognizes that she is. As a result, I find that the cumulative effect of I.S.'s breaches of the Agreement did not result in a repudiation of the Agreement as a whole. This is not one of the exceptional circumstances in which the entire foundation of the contract has been undermined. 257 My finding that I.S. did not repudiate the Agreement does not in any way excuse I.S.'s conduct. The Agreement anticipated that both parties would act as mature and responsible adults with J.'s best interest in mind. Rather than to cooperate, I.S. sought to cause problems for M.S. at every turn. Her conduct demonstrates that she was acutely aware of her obligations under the Agreement but that she ignored the Agreement when it suited her purposes. She has demonstrated a lack of maturity and an inability to put J.'s interests ahead of her own, while constantly using J. to justify her actions. I.S.'s conduct, in particular, the threats to disclose the relationship and the problems in relation to access, give rise to a concern that she was motivated by a desire to exact more from M.S. than the Agreement provided. 258 At the same time, M.S. frequently refused to acknowledge any legitimate basis for I.S.'s concerns as they related to J.'s well-being. I.S. objected to M.S. taking J. swimming or keeping him outdoors in the cold because of his ear problem and when he was sick. While this was not unreasonable, M.S. interpreted this as I.S.'s micro-managing and interfering with his access. Unfortunately, the mutual mistrust and disdain was too great to enable them to overcome their differences of opinion. 259 Based on my finding that I.S.'s breaches of the Agreement did not amount to a repudiation or fundamental breach, M.S. was not entitled to treat the Agreement as terminated. [Emphasis added]

[13] Nishikawa J.’s Order dated May 21, 2021 states, in part, that:

2. The Agreement shall remain in full force and effect; …
3. M.S and I.S shall adhere to all terms of the Agreement and shall at all times perform their obligations in good faith and in J.’s best interest. … (the “Nishikawa Order”)

[14] In April 2023, the Applicant mother took the position that the parenting provisions found in Gilmore J.’s Order dated April 26, 2019 had no force and effect given the Nishikawa Order. [15] On April 5, 2023, the Applicant mother sent an email to the Respondent where she stated: Regarding access- once the agreement was upheld, it replaced prior orders including Gilmore. The Agreement is the Order. [16] On April 17, 2023, at TBST court at the instance of the Respondent father, Shore J. ordered that a case conference be held. Shore J. ‘s Endorsement states, in part, that:

[3] The parties disagree as to whether the order of Gilmore J. remains in effect as it was an interim order. However, they both agreed that they have been following the parenting time set out in that order. This should continue on an interim without prejudice basis. [4] Order to go as follows: a) The parties shall attend a case conference on August 11, 2023, at 2pm to sort out the procedural issues and to clarify what issues are outstanding. b) Although there is no determination, as of yet, as to whether Justice Gilmore’s order remains in force and effect, on a without prejudice, temporary basis, the Respondent shall continue to have parenting time as set out in that order. …

[17] On August 11, 2023, a Case Conference was held before Akazaki J. whose Endorsement states:

[5] On May 21, 2021, the Respondent father’s application to set aside the Agreement was dismissed by Justice Nishikawa. He had brought the application on the basis that repeated breaches by the Applicant amounted to repudiation. Justice Nishikawa upheld the Agreement and incorporated its terms into her judgment. On this basis, the terms of the Agreement operate in the same way as an other court order. [6] The Nishikawa decision did not change or rescind the Gilmore order. Since the Agreement did not set out a schedule, both the Nishikawa order and the Gilmore order co-exist. In effect, the Gilmore order has no time limit and is currently the one that defines when the father is to have parenting time with the child. [7] Because there are two orders, either party must enforce the order if they believe the other is breaching one or both of the orders. Because there is no case, there is nothing really to settle from the court’s perspective apart from identifying the enforcement process that must be followed. [8] If either party wishes to change one of the orders, they have to bring a motion to change. … The Respondent father intends to bring a short motion to enforce the order due to difficulties encountered on Wednesdays. [Emphasis added]

[18] The Respondent father states: (a) During the month of July 2023, the Applicant mother cancelled every one of his Wednesday parenting times; (b) The last time that he had parenting time with the Child was on August 2, 2023. (c) He had to cancel his parenting time on Saturday, July 29, 2023 and Saturday, August 12, 2023, due to health issues. (d) Despite attending at the Applicant mother’s apartment, every Wednesday and each of his Saturday’s since August 12, 2023, the Applicant mother has refused to make the Child available to him for parenting time. (e) When the Respondent father has had to cancel his parenting time, the Applicant mother emails him to tell him of the Child’s disappointment.

[19] The Respondent father states that the Applicant mother is only motivated by money and that imposing a fine of $500 for each and every breach of the Gilmore Order since the Endorsement of Akazaki J.is the only way that the Applicant mother might comply. [20] The Applicant mother does not deny withholding the Child since August 2, 2023 and states that she will not allow any unsupervised parenting time by the Respondent father. [21] Although the Applicant mother was personally served with this contempt motion on October 29, 2023, and requested an adjournment on October 30, 2023, which was granted by the Respondent father. [22] On November 27, 2023, the Applicant mother sent the following message to the Respondent father: … I caution you to STOP. And give you an opportunity before I file my material. And further actions. Choose your path. We both know none of your material is based on reality. Choose your path, [Respondent father]. Martine cannot protect you. Choose wisely. [23] The Respondent father seeks following orders:

1. The Applicant. I.S. shall immediately reinstate the Respondent’s parenting time with the minor child, J.S., pursuant to the Order of Gilmore, J. dated April 25, 2019, and she shall abide by the terms of the Order.
2. The Applicant shall pay $________ to the Treasurer of the Province of Ontario in respect of her prior acts of contempt in failing to adhere to the terms of the Order of Gilmore, J. dated April 25, 2019
3. The Applicant shall pay costs to the Respondent in respect of this motion in the amount of $________ payable no later than 30 days following the date of this Order.

[24] In her oral submissions on this motion, the Applicant mother states that she has not withheld the Child from parenting time since August 2, 2023. [25] In her affidavit filed on this motion, the Applicant mother states:

• The Respondent father “… used 2 alleged “access interference” occurrences to warrant the TBST, being the day of my father’s funeral which [the Child] was attending and it fell on [the Respondent father]’s access day, and on another occasion being the day [the Respondent father] was notified [the Child] was sick through Family Wizard, refusing to acknowledge he received communication evidence at Exhibit W1. Confirmation of communication regarding my father’s funeral at Exhibit X1”.
• Exhibit W1 is a message from the Applicant to the Respondent dated Wednesday, April 5, 2023, at 1:26 pm which states that the Child is not feeling well and will be staying home.
• Exhibit X1 is an email from the Applicant mother to the Respondent dated Wednesday, March 1, 2023 at 7:32 pm which references her father’s funeral without any reference to the Child or when the funeral was held.

[26] On August 29, 2023, following the receipt of Justice Akazaki’s Endorsement which states that the terms of the Agreement related to parenting time remain in effect, the Applicant mother notified the Respondent that: Since the issuance of the Reasons in May of 2021, your client has continued to keep the existence of our child a secret, continues to refuse to integrate [the Child] into his life, [the Respondent father] refused to tell me his plans for the visit and the location of the visits as required, refused to use a parenting mediator/coordinator to deal with the issues with me, or a psychologist. The net result of your client’s noncompliance and premeditated actions is that our son has been determined to be distressed, documented by multiple treating professionals. [The Respondent father] does not want [the Child]; he cannot take care of him yet he continues to distress his life. There is no alternative but me. Yet, [the Respondent father] distresses [the Child]’s life by creating all kinds of traumas including through litigations and noncompliance. As such, I am relying on Para 10a and access shall be supervised moving forward because of his noncompliance. [The Respondent father]’s visits will be supervised according to the separation agreement. I suggest that we use Brayden Supervision. … [27] The Applicant mother further states that there is no “digital footprint” of the Respondent father’s attempts at access consistent with his previous behaviour as she states that the Respondent would often email her during access exchanges. [28] She further submits that the Respondent’s lawyer did not contact her at the times when access was allegedly withheld which is inconsistent with past practice. [29] The Applicant mother states that she does not believe that the Respondent father made any attempts to see the Child because Justice Akazaki re-affirmed the application of the Agreement and because the Child’s therapist had recommenced OCL intervention. [30] The Applicant mother states that she provided “extra” access on Wednesday, August 2, 2023 because the Respondent had cancelled the prior visit. [31] The Applicant mother further states: [The Respondent father] took no action to enforce or even request access until the filing of this Motion for Contempt. I verily believe not only am I not in contempt of any Orders, but rather state that I am acting in the best interests of [the Child] while the [Respondent father], is again, breaching the same as it is clear that he is aware that his conduct is contrary to the same and is attempting to utilize the Courts to disregard and promote his retaliatory interests and hidden agendas. The parenting terms of the agreement being breached include: 10(a), 10(b), 10(g), 19(a), and 23 [of the Agreement]. [32] Following the initial hearing of this motion on December 5, 2023, on December 15, 2023, the following Endorsement was issued

[1] The Respondent father’s motion for a finding that the Applicant mother has withheld access to their child and is in contempt of the parenting time provisions of this Court’s Order dated April 25, 2019 is adjourned to December 20, 2023 at 9:00 am [2] At the hearing on December 5, 2023, I ordered that the Respondent would have parenting time with the Child on the dates described below and that this motion would continue at that time for the purpose of advising the Court of whether the Applicant mother complied with this court’s direction. The Applicant stated that she understood and would make the Child available for parenting time on the dates described below. Order to go as follows:

1. The Respondent father shall have parenting time with the Child on: a) December 6, 2023, from 5:00 pm to 7:00 pm; b) December 13, 2023, from 5:00 pm to 7:00 pm; c) December 16, 2023, with pick-up from the Applicant’s home at 9:30 am on Saturday and drop-off at Noon at the Applicant’s home on the following day. d) December 20, 2023, from 5:00 pm to 7:00 pm.
2. The Respondent is to send a text message to the Applicant upon his arrival at the Applicant’s home to pick up of the Child.
3. The Respondent’s contempt motion is adjourned to December 22, 2023 at 9:00 am. before me. Each party may file an affidavit of up to six pages (total length including attachments) in length by December 21, 2023 at Noon that solely addresses whether the Respondent had parenting time with the Child as described above and, if not, why not.

[33] Subsequently the dates referenced in paragraph 3 were corrected to December 21, 2023 and December 20, 2023, respectively. [34] Despite the clear direction in the above Endorsement to file only one affidavit of no more than six pages in length the Applicant mother filed two affidavits – the first affidavit being 23 pages in length and a second affidavit being ten pages in length. The Respondent father spent parenting time with the Child on Wednesday, December 6, 2023 and December 13, 2023. However, a few hours prior to the visit, the Applicant told the Respondent that she had moved to a condominium and that the Child should be picked up from that new home. The Respondent father did so. The Child’s parenting time with the Respondent father on Saturday, December 16, 2023 did not proceed. For reasons which are unclear, the Respondent father did not travel through the security gate as he was waiting for the Applicant to confirm his plans for the Child that day and to confirm that he would pick up the Child at 9 am and return the Child at 4:30 pm. Such confirmation was apparently not received by the Respondent father and he did not travel through the security gate to pick up the Child who, according to the Applicant mother, was waiting in the lobby with her.

Analysis

[35] In Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, Epstein J.A. stated at para. 121: There is no formally mandated process for contempt proceedings. The procedure followed may vary. However, contempt proceedings typically have two stages - the liability hearing and a subsequent hearing to determine penalty: … If a contempt finding is made, the matter is adjourned to provide the contemnor an opportunity to purge the contempt and prepare for the sentencing portion of the process. Any action undertaken by a contemnor to purge his or her contempt may serve as a mitigating factor in sentencing: … [36] The principles that govern the liability phase of a contempt motion were described by Jamal, J.A., as follows in Moncur v. Plante, 2021 ONCA 462, at para. 10: The following general principles govern the use of the court's power to find a party in civil contempt of court for breaching a court order:

1. 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.
2. 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; …
3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: …

[37] At the penalty phase of a contempt motion, Rule 31(5) of the Family Law Rules states that the court may order that a person in contempt of the court: (a) be imprisoned for any period and on any conditions that are just; (b) pay a fine in any amount that is appropriate; (c) pay an amount to a party as a penalty; (d) do anything else that the court decides is appropriate; (e) not do what the court forbids; (f) pay costs in an amount decided by the court; and (g) obey any other order. [38] In 777829 Ontario Ltd. v. McNally, [1991] O.J. No. 3458, Borins J. as he then was stated at para. 16: It is my opinion that unless proper penalties are imposed where a court order is deliberately disobeyed the orders of the court will have no real meaning. ... Without such sanctions our system would quickly and seriously break down if court orders could be ignored with impunity. [39] In Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164, Cameron J. stated at para. 41: The following factors are relevant to a determination of the appropriate sentence for civil contempt: a) the proportionality of the sentence to the wrongdoing; b) the presence of mitigating factors; c) the presence of aggravating factors; d) deterrence and denunciation; e) the available sentences; f) the similarity of sentences in like circumstances; g) the reasonableness of a fine; and h) the reeyasonableness of incarceration. [40] I will address whether liability for contempt of the court has been established beyond a reasonable doubt and, if so, then hold a hearing regarding the appropriate penalty at a later time.

The order alleged to have been breached must state clearly and unequivocally what should and should not be done

[41] As noted, Justice Akazaki has found that the Respondent father’s parenting time with the Child is governed by the Nishikawa Order (which incorporates the Agreement) and the Gilmore Order. [42] The language of the Gilmore Order is clear and unequivocal in that the Respondent father shall have parenting time with the Child as follows: a. Every Wednesday from pick-up at the child’s daycare to 7:00 pm drop-off at I.S.’s home; b. Alternating Saturdays from 9:00 am to 4:30 pm with pick-up and drop-off I.S.’s home; c. Overnight access on the first Saturday of M.S.’s access each month with pick-up at I.S.’s home at 9:30 am on Saturday and drop-off at noon on Sunday at I.S.’s home; and d. The parties shall abide by the following with respect to access: i. M.S. to provide to I.S. the address where the child will spend his overnight each month; ii. I.S. shall not book activities or appointments at any time during M.S.’s access; iii. I.S. shall not cancel or change access without a court order or unless the parties agree to the change at least 24 hours in advance of the visit. [43] The Child has not been in daycare for several years, with the result that the Respondent father has picked up the Child on Wednesdays from the Applicant’s home after school to have parenting time with the Child for about two hours. While its requirements in this respect are clearly stated, the Gilmore Order is out of date given that it does not reflect what the parenting arrangements once the Child is no longer attending daycare. [44] The remainder of the Gilmore Order clearly and unequivocally states what should and should not be done in respect of parenting order.

The party alleged to have breached the order must have had actual knowledge of it

[45] The Applicant mother had actual knowledge of the Gilmore Order given the history of these proceedings described above.

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

[46] The Applicant mother denies that she failed to comply with parenting time provisions of the Gilmore Order since August 2, 2023. She states that there is no evidence that she failed to do so. Conversely, relying on paragraph 10(a) of the Agreement, the Applicant takes the position that she will not allow any unsupervised parenting time by the Respondent father. [47] Following Justice Akazaki’s ruling the Applicant mother has insisted on the Respondent providing her with notice of the location and plans for the Child’s parenting time. This issue of location is addressed by the Gilmore Order. The Respondent father is only required to provide notice of the Child’s location in respect of overnight parenting time which occurs monthly. The Respondent father is required under the Nishikawa Order, which incorporates the Agreement, to notify the Applicant mother of his plans for any parenting time visit to have unsupervised parenting time with the Child. Such provision made better sense when the Child was an infant but is an unusual requirement given that the Child is now 9 years old. [48] I make no findings of contempt in relation to parenting time scheduled for the period December 6, 2023 – December 16, 2023. With respect to earlier dates since August 2, 2023, I am satisfied that the Applicant mother has intentionally withheld the Child from parenting time with the Respondent father. The Applicant mother’s anger with the Respondent father is palpable and, as a result, she has failed to comply with the parenting time requirements of the Gilmore Order in a good faith manner and in the Child’s best interests as required by the Nishikawa Order. Similar views were expressed at paragraph 257 of Justice Nishikawa’s decision. [49] A finding that the Applicant mother is in contempt of court is established beyond a reasonable doubt on the evidence. I do not see the Applicant mother’s failure to comply with the parenting time provisions of the Gilmore Order and the Nishikawa Order being the result of trying to promote the Child’s best interests or protecting the Child but rather her actions appear to be a means of harming the Respondent’s interest and desire in having a stable relationship with his Child, as much as is possible in these unusual circumstances. [50] The penalty hearing of this contempt motion shall be held on a date to be set by the Trial Coordinator. As noted earlier, the Respondent father that requires the Applicant to comply with the parenting time provisions of the Gilmore Order, that requires the Applicant to pay a fine to the Treasurer of Ontario for past acts of contempt for failing to comply with the Gilmore Order along with costs of this motion. At that time, I will entertain a request for a temporary, temporary Order that establishes a new “formal and structured access arrangement” as contemplated by the Agreement that reflects current circumstances, such as the fact that the Child is nine years old.

Decision

[51] Order to go that the parties shall attend a further motion for the hearing of the penalty phase of this motion that shall be heard within 60 days on a date to be set by the Trial Coordinator.

Mr. Justice M.D. Faieta Released: February 5, 2024