Court File and Parties

Court File No.: FO-10-0067-00 Date: 2012-07-09 Ontario Court of Justice

Between: Robert Thomson, Applicant

— And —

Trina Carter, Respondent

Before: Justice D. DiGiuseppe

Heard on: June 19, 2012

Reasons released on: July 9, 2012

Counsel:

• Robert Thomson on his own behalf, applicant
• Tracey J. Nieckarz for the respondent

Reasons for Judgment

A. OVERVIEW

[1] Robert Thomson and Trina Carter were involved in an intimate relationship. One child, Logan George Carter Thomson, was born from that relationship on […], 2009. The parties lived together for a brief period of time and separated in February 2010.

[2] The relationship, including the separation and subsequent court proceedings, could be described as tumultuous and high conflict. Ms. Carter brought an application for custody of the child. The matter proceeded to trial and on September 30, 2011 Bode J. made a final order granting custody of the child to Ms. Carter with detailed and specified access to Mr. Thomson. Child support was also ordered. The order, in the form of an endorsement, was made on September 30, 2011. The order was taken out on December 22, 2011. For the purposes of this matter, the parties were operating pursuant to the wording of the endorsement of September 30, 2011.

[3] Mr. Thomson brought a motion for contempt of Bode J.'s order, alleging that Ms. Carter failed to communicate effectively regarding issues affecting Logan, and denying access for a week during the Christmas season 2011. The affidavit accompanying the motion was lengthy and somewhat disjointed. However, these basic allegations can be gleaned from the affidavit and Mr. Thomson's evidence at trial. The motion and accompanying material was left at Ms. Carter's work place after attempts at personal service failed. She was served by registered mail. Ms. Carter was aware of the proceedings and was present with counsel at the first appearance.

[4] The matter was heard on June 19, 2012. Judgment was reserved.

B. THE EVIDENCE

[5] Mr. Thomson testified. He also filed as an exhibit a series of emails between he and Ms. Carter. By email dated October 16, 2011, Mr. Thomson broached the subject of Christmas access. He indicated his intention to visit with Logan for one week, commencing on December 26 or December 27, in accordance with the court order. Mr. Thomson expressed some confusion about the start date and asked Ms. Carter to respond, after which he would forward travel arrangements and contact information.

[6] Mr. Thomson sent another email on November 2, 2011, seeking a response to his previous correspondence. He wanted Logan to be able to visit his family over the holiday season.

[7] Again Ms. Carter did not respond and Mr. Thomson sent a third email on November 13, 2011. In that email he stated he would like to start his visit with Logan at 4:00 p.m. December 26, 2011 and return Logan on January 2, 2012 at 4:00 p.m.

[8] In her evidence, Ms. Carter acknowledged receiving all three emails. She agreed that Mr. Thomson's intention to exercise Christmas access was clear in his email of October 16, 2011. She testified that she did not respond to the first two because Mr. Thomson had not provided contact information and specific dates.

[9] She finally responded to the third email by an email of her own dated November 16, 2011. That email quotes two paragraphs of Bode J.'s order, one dealing with 7 continuous days of access over the Christmas holidays, and the second dealing with the notice requirements to exercise such access. Ms. Carter points out in her email that:

1. 7 days would end on January 1, 2012;
2. the court order referred to a "time picked by Mr. Logan" and as such the child would like to be returned home at 9:00 a.m. January 1st so he could spend time with his family and friends;
3. 45 days notice is required by the court order, and notice was received November 13, 2011, being only 43 days; and
4. no contact information was included in the notice.

[10] In her evidence at trial, Ms. Carter stated that she did not intend to deny Christmas access at that time because of Mr. Thomson's failure to provide 45 days notice. She did want contact information, which she did receive on November 17, 2011. Ms. Carter also testified that she believed the reference to "Mr. Logan" in the court order was to the child and that he was to have some input into the timing of the access, particularly when he was older.

[11] Mr. Thomson responded to Ms. Carter's email on November 17, 2011. He insisted that 7 days access would run from December 26 to January 2 inclusive. The tone of the email clearly exhibits Mr. Thomson's frustration in seeking to organize this access. He points out that the reference to "Mr. Logan" was a typographical error and that a 2 year old child would not be directing access. Mr. Thomson concluded the email by stating that his concerns would be "raised to the court's attention tomorrow".

[12] Ms. Carter responded to Mr. Thomson's email within minutes, standing firm on her interpretation of the calculation of 7 days, and requesting "sufficient information" that had not been provided.

[13] Mr. Thomson responded to Ms. Carter's email within minutes, indicating that travel and lodging information (presumably the "sufficient information" Ms. Carter was referring to in her previous email) would be provided as soon as dates had been confirmed. The email also noted that the discussion regarding Christmas access had started in October 2011, well before the 45 day notice period.

[14] Minutes later, Ms. Carter responded to Mr. Thomson's email, stating that she believed the court order was clear with respect to the start of holiday access. She went on to state that she did not believe that the words "Mr. Logan" was a typographical error. She stated in the email that it would make sense for Logan to chose the start time for Christmas access once he was older.

[15] Within minutes again, Mr. Thomson responded. He provided travel information from Thunder Bay to Bracebridge, Ontario. He was to meet his mother in Barrie and travel with her from there to Bracebridge. He provided an address in Bracebridge and a telephone number.

[16] Mr. Thomson testified that he raised these issues with the court by sending a letter to Bode J. He did not receive a response and did not advise Ms. Carter.

[17] Ms. Carter sent Mr. Thomson an email dated December 22, 2011. In that correspondence she stated that having obtained legal advice, and not having received notice with the required information within 45 day as set out in the court order of September 30, 2011, she was denying Christmas access to Mr. Thomson.

[18] An exchange of emails resulted between December 22, 2011 and December 24, 2011 between Mr. Thomson and Ms. Carter. Mr. Thomson urged Ms. Carter to reconsider, reiterating that he had opened a dialogue with Ms. Carter well within the 45 day period, and had indeed provided contact information, albeit only on November 17, 2011. On Christmas Eve Ms. Carter responded by email as follows:

"As much as I would like for you to spend time with Logan over the holidays. The fact remains that you did not provide me with sufficient information within the required time. I am really sorry but the answer is still no."

[19] In cross-examination, Mr. Thomson agreed that he and Ms. Carter had kept each other informed of their address, telephone numbers, emails and other contact information. He acknowledged that the nature of his contempt motion was to address denied Christmas access. While he agreed that there may have been some possible confusion regarding the dates and times of Christmas access, he tried to clarify this with Ms. Carter by engaging in a conversation with her at an early date. Further, he agreed to accept Ms. Carter's interpretation of the time period for access. This is confirmed in his email to Ms. Carter on December 22, 2011.

[20] Ms. Carter testified that immediately after receiving the court's endorsement of September 30, 2011, she reviewed it with counsel to ensure she understood the terms of the order. She was advised to follow the order exactly. She was concerned about being flexible with this order, given that flexibility had caused problems between she and Mr. Thomson in the past.

[21] Ms. Carter agreed that she did not communicate with Mr. Thomson after the exchange of emails on November 17, 2011, believing he was seeking clarification from the court. Ms. Carter testified that she was also awaiting clarification regarding contact information. Although she agreed that she knew Mr. Thomson's mother lived in Bracebridge, she did not recognize the address. Ms. Carter did agree that she believed Mr. Thomson would be with his family. As for the telephone number, Ms. Carter stated it did not match the area code for Bracebridge. She conceded that she recognized the telephone number as Mr. Thomson's cell phone, but was concerned that Logan would be unable to hear the phone, or that she would be unable to contact him when the cell phone was out of its area code.

[22] In questioning by the Court, Ms. Carter agreed that she did not contact Mr. Thomson with respect to concerns she had regarding contact information, but did not do so because she was waiting for him to contact her regarding the calculation of the access period.

[23] Ms. Carter testified that she believed the 45 day notice required Mr. Thomson to advise not only of his intention to exercise Christmas access, but provide contact information as well. She insisted that her intention was not to deny access, but rather to know where the child was and be able to contact him. She insists that she was not taking advantage of a technicality or relying on a strict reading of the order to deny access.

[24] Ms. Carter candidly acknowledged that upon reflection, she may have handled matters differently. She has been prepared to offer Mr. Thomson another week of access with Logan. To date, Mr. Thomson has not accepted the offer.

[25] Ms. Carter testified that a costs award in her favour was made by the trial judge. Those costs have not been paid.

C. THE LAW

[26] Rule 31 of the Family Law Rules governs contempt proceedings. The process is initiated by serving a notice of motion and supporting affidavit on the respondent by special service in accordance with Rule 6 (personal service), subject to the Court ordering otherwise. Rule 31 also lists the sanctions a Court may impose if there is a finding of contempt.

[27] The test for finding contempt of court is well established. A three-part test is contemplated:

1. The order that was breached must state clearly and unequivocally what should and should not be done.
2. The breach must be deliberate and wilful.
3. The burden of proof rests with the person seeking to establish the breach of the court order beyond a reasonable doubt.

See: Prescott-Russell Services for Children and Adults v. G.(N.) et al. (2007), 82 O.R. (3d) 686 at para. 27 (C.A.)

D. ANALYSIS

1. Procedural Issues

[28] Counsel for the respondent argues that the failure of the applicant to serve the motion personally as required by the Family Law Rules is fatal to these proceedings. In support of this submission reference was made to decisions of the Ontario Superior Court of Justice in Kreft v. Mezo, [2006] W.D.F.L. 2284 and Lampron v. Lampron, [2006] W.D.F.L. 3144.

[29] In Kreft, G.P. Smith J. noted that since contempt motions were quasi-criminal in nature, the requirement for personal service was mandatory. The judge declined to make a finding of contempt because the respondent was making reasonable efforts to comply with the court order. It is unclear whether the motion would have been dismissed if lack of personal service was the only issue.

[30] In Lampron, R. Smith J. noted that a failure to serve the contempt motion personally or as specified in Rule 6(3)(a) of the Family Law Rules was a fundamental defect in the proceeding. The judge ruled that notwithstanding the lack of personal service, he would hear the matter on the merits to avoid recommencing the process.

[31] It should be noted that in Kreft, the respondent was present throughout the proceedings and represented by counsel. In Lampron, the respondent was present and self represented.

[32] I prefer the approach taken by R. Smith J. in Lampron. I note the following in this case:

1. The respondent was represented by counsel throughout the proceedings, from the first appearance, through the case conference and settlement conference and at trial. There is no doubt she was aware of the proceedings.
2. The fundamental purpose of personal service is to ensure that a responding party is aware of the process, and steps are not taken or orders made in her absence.
3. The issue of personal service was not raised, to my knowledge, until the trial.
4. Rule 6 of the Family Law Rules permits service of the notice of motion other than by personal service (Rule 6(4)).
5. Permitting non-personal service after the fact is consistent with the primary objective of the Family Law Rules to deal with cases justly, which includes procedural fairness, cost effectiveness and appropriate use of court resources. (Rule 2(2) & 2(3)).

[33] I reject the respondent's submission that lack of personal service in this case is fatal to the applicant's motion. I will permit service of the motion in the manner effected by the applicant.

[34] The respondent also submits that the contempt allegations are not particularized sufficiently to permit informed and adequate rebuttal. Given the quasi-criminal nature of contempt proceedings, it is fundamental that the respondent knows the case she has to meet. In this case, notwithstanding Mr. Thomson's prolix and somewhat rambling affidavit, there can be no doubt that the allegations were twofold: a failure to communicate effectively and a denial of Christmas access in 2011.

[35] Accordingly, the procedural objections raised by the respondent must fail, and I will deal with the motion on its merits.

2. The Contempt Allegations

[36] Following are the portions of Bode J.'s order that are the subject matter of this application:

"Both parties are to keep the other party fully informed of their address, telephone numbers, e-mail address and other contact information necessary so that they can communicate effectively about issues affecting Logan."

"Regardless of whether Mr. Thompson is residing in Thunder Bay or elsewhere he shall, starting in 2011, have the right to exercise seven continuous days of access with Logan over each Christmas holiday. Unless the parties agree otherwise this access is to commence after December 26 on a day and at a time picked by Mr. Logan and communicated to Ms. Carter in writing. Again, unless the parties agree otherwise, this seven-day access is to commence and end at the same hour of the day. In 2011 Mr. Thompson's right to exercise weekday and weekend access will be suspended for the two weeks commencing December 23, 2011. Starting in 2012 Mr. Thompson's right to exercise weekday and weekend access will be suspended for two weeks commencing the last Friday prior to Christmas day."

"Mr. Thompson is to provide Ms. Carter with written notice of his intention to exercise the specific access that is set out in the preceding paragraphs at least 45 days before each access visit to commence. His written notice is to specify the dates and times that access will commence and end and will include sufficient information to allow Ms. Carter to know where Logan will be residing while he is on this access visit and how Mr. Thomson and Logan can be contacted during the access visit. A failure to give timely notice of his intention to exercise any of the specific access mentioned above will, in the absence of some other agreement with Ms. Carter, result in that access being forfeited but will not affect his right to exercise future access."

[37] The parties were referring to the trial judge's endorsement when communicating regarding Christmas access. The final order was not issued until December 22, 2011, and the relevant portions of the endorsement are set out in paragraphs 2, 6, 7, 8 and 9. Only paragraph 2 of the issued order differs from the endorsement. The typographical error identifying "Mr. Logan" was corrected in paragraph 6.

[38] I will deal firstly with the allegation of contempt regarding a failure to communicate. A plain reading of the relevant section of the order clearly requires each party to keep the other fully informed of their contact information. The purpose of the clause was to ensure effective communication regarding issues affecting the child. The order did not require effective communication; it merely provided the means, contact information, to facilitate that communication. It would still be open to either party to not communicate, or to communicate ineffectively. By wording the clause as he did, the trial judge was hoping to encourage communication in a volatile and high conflict relationship.

[39] The evidence at trial was clear and uncontradicted. Each party did inform the other of their contact information as directed by the trial judge. That they chose to communicate as they did, ultimately resulting in no Christmas access for the applicant, is unfortunate. It was not, however, in contempt of the court order. This allegation of contempt has not been established and is dismissed.

[40] That leaves the real issue to be determined by the court: was the respondent in contempt of the order of Bode J. dated September 30, 2011 by denying the respondent Christmas access to the child Logan?

[41] The first prong of the test to establish contempt is that the order itself must be clear and unequivocal and not open to interpretation. A review of the Christmas access and notice provisions of the order reveals the following:

1. Mr. Thomson was to have 7 continuous days of access over the Christmas period commencing after December 26, unless the parties agreed otherwise.
2. The exact day and time was to be picked by "Mr. Logan and communicated to Ms. Carter in writing." This is clearly a clerical error, and the reference to Mr. Logan should have read Mr. Thomson. This was corrected by the trial judge in the final order issued December 22, 2011.
3. Mr. Thomson was to provide written notice of his intention to exercise access at least 45 days prior to the commencement of the access. The notice was to include dates, times and (emphasis added) contact information. Failure to give timely notice would result in forfeiture of access.

[42] The respondent testified that she believed that the reference to "Mr. Logan" was in fact a reference to the child (a 2 year old) and that he had some input into when the access would occur. I reject that argument. There can be absolutely no doubt that the reference was to Mr. Thomson. It is ludicrous to suggest that a 2 year old child would have input into selecting access dates and that he would then communicate that in writing to his own mother. Further, the child is referred to elsewhere in the order as Logan, and not Mr. Logan. There can be no confusion on this point. To suggest that there could be an alternate interpretation is disingenuous at best and dishonest at worst.

[43] The respondent also suggests that there was some ambiguity in the calculation of the 7 day access period. I disagree. The matter was only the subject of some debate between the parties because of Mr. Thomson's efforts to accommodate Ms. Carter. This is clear in Mr. Thomson's email of October 16, 2011.

[44] Indeed, the only real concern that Ms. Carter had with respect to the Christmas access was the timing and contents of the written notice, particularly the sufficiency of the contact information. This is abundantly clear in her email communications with Mr. Thomson during the month of November 2011, and in her final email referencing access of December 22, 2011. Notwithstanding the exchange regarding the calculation of 7 days or the reference to "Mr. Logan", both parties were well aware of the Christmas access provisions and the notice requirements. Taking into account all of the circumstances, the wording of the order of Bode J. is clear and unequivocal. Accordingly, the first prong of the test has been satisfied.

[45] The second and third prongs of the test to establish contempt require that the applicant prove beyond a reasonable doubt that the respondent disobeyed the court order and did so in a deliberate and wilful fashion. There is no doubt that Mr. Thomson was denied Christmas access to his son, on its face a breach of the court order. However, Ms. Carter testified that she denied access only because she believed Mr. Thomson had not complied with the notice provisions of that order; and the order itself also provided for the forfeiture of access for failure to give proper notice. Ms. Carter also stated that she received legal advice that she was within her rights under the order to deny Christmas access.

[46] The evidence discloses that Mr. Thomson communicated his intent to exercise Christmas access in his email of October 16, 2011, well within the 45 days contemplated by the order. That communication also sets out the specific dates and times access was to begin and end. Mr. Thomson's offer of alternate dates, while unnecessary, was reasonable and did not invalidate the notice. That notice did not include however any contact information to allow Ms. Carter to know where Logan would be residing during his access visits. While Mr. Thomson's email of November 2, 2011 referenced a visit to his family, no particulars were given. Mr. Thomson's third attempt to open a dialogue with Ms. Carter contained no further information regarding where the child would be. It was only when Ms. Carter finally responded to Mr. Thomson's email on November 16, 2011 that the issue of contact information arose. Mr. Thomson then provided contact information on November 17, 2011.

[47] I find that the contact information provided, namely, a travel itinerary, an address in Bracebridge and Mr. Thomson's cell phone number was more than sufficient to satisfy the notice requirement. I reject Ms. Carter's evidence that she found the information deficient because she didn't recognize the address given as Mr. Thomson's mother's and was fearful that there would not be cell coverage to enable her to communicate in Bracebridge. She recognized Mr. Thomson's cell number. If she had concerns about where Logan would be, she should have expressed those concerns to Mr. Thomson, who then would have had the opportunity to provide further information. She chose not to. Rather, she remained silent and waited until December 22, 2011 to deny Mr. Thomson access.

[48] Mr. Thomson's notice to exercise access was adequate and in accordance with the court order in every respect save for one: he failed to give that notice within 45 days before the access period was to commence. Had Mr. Thomson's initial notice of October 16, 2011, or his gentle reminder of November 2, 2011 contained the contact information that was eventually provided on November 17, 2011, I would not hesitate in finding Ms. Carter in contempt of the court order. It is clear on the evidence that she engaged in a course of conduct designed to frustrate Mr. Thomson's desire to exercise Christmas access, by ignoring the original email, delaying her response, advancing farfetched and unreasonable interpretations of parts of the court order and not engaging in a dialogue to obtain further information if she though the information she had was deficient.

[49] However, the notice provisions in the court order require that the notice contain not only an expression of intent to exercise access, but also particulars of that access, including contact information. Failure to provide contact information in a timely fashion, i.e. at least 45 days before the access visit, vitiates the notice. As such, on a strict reading of the order, Ms. Carter was within her rights to deny Christmas access to Mr. Thomson. The contempt motion must fail.

[50] I feel compelled to offer some further comments and observations. It is well established that the object of prosecution for civil contempt of a court order is to ensure compliance with that order and not punishment. That was Mr. Thomson's intent. It became clear during the trial, and abundantly clear in submissions, that Mr. Thomson wanted to leave the acrimony of the previous relationship with Ms. Carter behind and move forward in Logan's best interests. To her credit, Ms. Carter also candidly acknowledged that in hindsight, she should have dealt with this issue in a different way. She says she was prepared to offer Mr. Thomson a week of make up access to compensate for the lost Christmas access. If Ms. Carter's comments are genuine, I would hope that this offer still stands.

[51] I am mindful that a particular dynamic exists between the parties, one that is forged not only of the considerable conflict between them over the last few years, but also by their relationship as parents to a young child. It is clear that vestiges of the conflict remain long after the legal proceedings end. It would be naïve to think that in every case, the final court order ends the conflict. It did not in this case. Mr. Thomson's request to discuss Christmas access was a real opportunity for he and Ms. Carter to move forward, unencumbered by the chains of their previous conflict and focusing instead on their child and the heavy responsibilities that come with parenting that child. Instead, the parties reverted to past form and the conflict continued. An opportunity was lost.

[52] However, if the parties truly love their child, they will move forward, hopefully in a spirit of cooperation, fostering the child's relationship with the other parent. This must include open, frank and honest dialogue to address the child's needs. It will become painfully obvious to both Mr. Thomson and Ms. Carter that, as poisonous as continued conflict will be to their relationship as parents, it will be equally toxic for Logan.

E. DISPOSITION

[53] Mr. Thomson's motion that Ms. Carter be found in contempt of Bode J.'s order of September 30, 2011 is dismissed.

[54] Either party seeking costs may file written submissions limited to 3 - 8 " by 11 " pages, one sided and double spaced, with any Bill of Costs and authorities attached. Such submissions will be served and filed within 15 days of the date these reasons are released.

[55] The responding party may file written submissions with the same restrictions on length within 10 days of receipt of the moving party's costs submission.

Released: July 9, 2012

Signed: "Justice D. DiGiuseppe"