Court File and Parties

Court File No.: D48483/09 Date: 2013-03-18 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Between: S.R., Applicant, moving party on the motion (mother)

And: J.S., Respondent, responding party on the motion (father)

Before: Justice Robert J. Spence

Contempt Motion Heard on: 7 March 2013

Reasons for Judgment released on: 18 March 2013

Counsel:

• Mr. Anser Farooq, for the applicant mother
• Mr. Mbuso Nkosi, for the respondent father

JUSTICE ROBERT J. SPENCE

Nature of this Proceeding

[1] This is a contempt motion brought by the mother, alleging that the father wilfully breached an access order, without legal justification, by blocking her access to the parties' two children, on two occasions in November 2012. There is no dispute that the father did prevent the mother from exercising her court-ordered access. The issue I have to decide is whether he was legally justified in doing so.

The Subject Order and the Nature of the Disobedience

[2] On July 30, 2012, I made a temporary access order in favour of mother, in respect of the two children who were then 5 and 10 years of age respectively. The relevant portions of that order ("order") provided:

1. [the mother] shall have access to the children as follows:

   a. Every Monday, Wednesday and Friday after school until 6:00 p.m., with pickup at the children's school and drop-off at the [father's] home.

   b. Every Sunday from 12:00 p.m. until 6:00 p.m., with pickup and drop-off at the [father's] home.

   c. The [mother's] boyfriend, Mr. V. shall not have any contact, direct or indirect, with the children, and that [sic] he does not come within 500 metres of any place where the children are present, including the [mother's] place of residence during her access to the children. Mr. V. shall not attend the children's school at any time.

[3] The restrictions regarding the mother's boyfriend ("Mr. V.") arose from an allegation some time in 2009 that Mr. V. had harmed the older child, P. Accordingly, and in order not to unduly impede mother's access, both the mother and Mr. V. willingly agreed to the foregoing restrictions, on a temporary basis.

[4] On Wednesday November 14 and Friday November 16, 2012, when the mother attended to pick up the children to begin her court-ordered access on those days, the father blocked mother's access, contrary to the order.

Father's Stated Justification for Disobeying the Court Order

[5] Father alleges that on November 12, 2012, during mother's scheduled afternoon access, Mr. V. appeared at the mother's apartment building and the older child P. saw him. As a result, according to the father, the child became upset. The child's distress continued for the next few days and, therefore, the father says he acted in the child's best interests by denying access to mother on November 14 and November 16, 2012. Father says that had he permitted access to occur on those two days it would have been harmful to P. by adding to the stress P. first experienced upon seeing Mr. V. on November 12, 2012, and the stress he was continuing to experience on each of November 14 and November 16, 2012.

Father's Version of the Events of November 12, 2012

[6] I excerpt the following from the father's affidavit sworn January 3, 2013 ("first affidavit") following service upon him of the mother's contempt motion [my emphasis]:

1. On November 12, 2012 at 5:55 p.m. I attended the [mother's] apartment building to pick up the children. The children are picked up and dropped off at my home, however on November 12, 2012 I attended the [mother's] home to pick up the children in order to go shopping with them for Diwali which was on the next day, November 13 th . I attended the [mother's] home because she is routinely late in picking up the children as well as in returning them. . . .

2. When I walked into the lobby of the [mother's] building at around 5:55 p.m. I saw [Mr. V.] standing in the lobby. I was immediately startled and shocked to see him there. At about the same time, P. [the older child] emerged from the elevator and also saw [Mr. V.] . Justice Spence's order of July 30, 2012 provides that [the boyfriend] is not to come within 500 metres of any place where the children are present, including the [mother's] place of residence during her access to the children. In his own affidavit sworn November 20, 2012 . . . [Mr. V.] states that at 5:55 p.m. he went into the parking garage and then to the main lobby of the [mother's] apartment building. Although P. and I saw [Mr. V.] in the lobby of the building, his presence in the parking garage in and by itself constitutes a fundamental breach of Justice Spence's order. [1]

3. As a result of seeing [Mr. V.], P. was extremely shaken and very scared . He did not want to go back to the [mother's] apartment. [Mr. V.] has previously repeatedly physically abused . . . the children including burning P.'s feet with a cigarette lighter. [Mr. V.] was charged with assaulting P., however the assault charge was subsequently withdrawn as the [mother] failed to attend the criminal trial to testify on behalf of the Crown.

4. P. is currently undergoing trauma counselling because of the assault by [Mr. V.] .

5. On November 13, 2012 I instructed [my lawyer to write to mother's lawyer] and suggest that access be suspended temporarily until P. was comfortable enough to go back to [mother's] home.

6. Access therefore did not occur on November 14, 2012 and November 16, 2012. P. was still extremely shaken and as a custodial parent I did what I believed to be in the children's best interest and did not allow the children to visit the [mother] . . . . I used those two missed visits to comfort and reassure the children. Access resumed on Sunday, November 18, 2012.

Elements Necessary for a Finding of Contempt

[7] In Prescott-Russell Services for Children and Adults v. G. (N.) et al, (2007), 82 O.R. (3d) 686 (C.A.), at paragraph 27, Blair J.A. set out the test for a finding of contempt of court [my emphasis]:

[8] The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.

[9] Mother's counsel conceded that the necessary element for a finding of contempt embodied in the words "deliberately and wilfully" would be missing [2] if Mr. V. had in fact improperly placed himself in the presence of the child such that the child did in fact see Mr. V. and as a result of seeing Mr. V. the child was "still extremely shaken" [3] (as alleged by the father) on November 14 and November 16, 2012 when the next two access visits were scheduled to take place, such that it was in the child's best interests that access to mother be withheld in order to give the child further time to calm down.

[10] Therefore, the questions I must answer are:

1. Did Mr. V. breach (deliberately or otherwise) the 500 meter restriction during the scheduled time for access on November 12, 2012?

2. If he did breach that restriction, did P. see Mr. V.?

3. If P. did see Mr. V., was P. "extremely shaken and very scared" and "still extremely shaken" for the next four days such that it would have been contrary to his best interests for access with his mother to occur?

[11] If I answer "yes" to all three questions, then I must conclude that the father acted in P.'s best interests and, by so acting, he did not deliberately and wilfully disobey the court order, at least insofar as the disobedience pertains to mother's access to P.

[12] If I answer "no" to these questions, I must still decide whether the evidence establishes beyond a reasonable doubt that the father was in contempt of my order.

Additional Evidence and Analysis

[13] Mr. V. swore an affidavit and he also testified at this hearing. He said that he was present at the mother's building on November 12, 2012 between about 3:20 p.m. and 3:50 p.m. However, he was in constant contact with the mother to ensure that she was not with the children at her building while he was there. At 5:45 p.m. he was in contact with the mother again who advised him that she was at the building but was in the process of leaving the building with the children, as her access was nearing an end. As a result, he came to the building parking garage at 5:55 p.m., believing that by then she would have left the building with the children. [4] Mr. V. stated that he did in fact see the father in the lobby of the building at some point after 6:00 p.m., but P. was not with him at that time. Mr. V. was clear and consistent in his evidence, and in the thorough cross-examination by father's counsel, that at no time while he was in the building on November 12, 2012 did he see P.

[14] Following delivery of the father's first affidavit, the mother replied with an affidavit on January 7, 2013 indicating that she was in the process of obtaining a court order for the building management to deliver the surveillance video of the apartment for the relevant time periods on November 12, 2012. She succeeded in obtaining that video, which she then disclosed to the father. Subsequently, the father swore a second affidavit on March 2, 2013. I excerpt the following from his second affidavit [my emphasis]:

1. I have reviewed the security camera video files . . . . The files contain surveillance for two elevators. I believe that there are four elevators in the [mother's] building. Video surveillance of the two other elevators nor the lobby was not provided. All the footage is for November 12, 2012.

2. At 6:13 p.m. I can be seen entering one of the elevators to go up to the [mother's] apartment to pick up the children. I arrived at her building at approximately 5:50 p.m. and waited outside the building for the children . When the children did not come down by 6:10 p.m. I proceeded to enter the building and was let into the building by one of the tenants. I saw Mr. V. in the lobby. I proceeded to go up to the [mother's] unit to pick up the children .

3. At 6:20 p.m. I can be seen coming down the elevator with the children . I saw [Mr. V.] in the lobby of the building as I emerged from the elevator with the children and Mr. V. was still in the lobby and then started to walk away.

4. At 3:37 p.m., Mr. V. can be seen in one of the elevators. [Mother's] access to the children commences at 3 p.m. when she picks the children up from school. The school is located approximately one kilometre from the [mother's] home. Mr. V. was therefore at the [mother's] apartment building during the [mother's] access to the children contrary to . . . the order of Justice Spence dated July 30, 2012.

5. At 4:06 p.m. Mr. V. can be seen in the hallway.

6. At 6:04 p.m. Mr. V. can be seen walking into an elevator.

[15] The father also testified at this hearing. The thrust of his evidence in the first affidavit was that the father saw Mr. V. standing in the lobby at 5:55 p.m., and about the same time, his son, P. emerged from the elevator and P. himself also saw Mr. V., as a result of which P. was "extremely shaken and very scared". However, once the father saw the video footage, his story changed. What elements of his story changed?

• Father did not see Mr. V. in the lobby at 5:55 p.m.
• In fact father was not even in the lobby at 5:55 p.m., as he did not actually enter the building until 6:10 p.m.
• Father saw Mr. V. in the lobby at 6:10 p.m., 10 minutes after the scheduled end of the access.
• The older son, P. did not emerge from the elevator at about 5:55 p.m.
• Instead of P. emerging from the elevator at 5:55 p.m., the father waited in the lobby until 6:10 p.m., at which time he entered the elevator to go up to mother's unit. He then came back down to the lobby, with P., at 6:20 p.m. He says he then saw Mr. V. in the lobby.
• The second affidavit does not state that P. saw Mr. V.
• The second affidavit does not state P. was "extremely shaken and very scared".

[16] In other words, the very essence of the evidence in father's first affidavit completely changed after father viewed the surveillance video footage.

[17] In the first affidavit, father deposed that P. was undergoing "trauma counselling because of the assault by Mr. V.", dating back to 2009. At the January 14, 2013 court appearance it was understood that the report of that counselling would be disclosed to both parties. That report was disclosed in time for the hearing of this contempt proceeding. I excerpt the following from The Etobicoke Children's Centre Closing Summary Report ("Report"), dated December 7, 2012 [my emphasis]:

The custody battle continues as [mother] is pursing joint custody. [Father] has previously discussed the custody situation openly in his son's presence, but has gained an understanding that this can be anxiety-provoking for P. . . . P.'s mother attended one session. They were able to develop a plan that would help P. feel safer when staying at his mother's home. P. stated after this meeting that he did want to proceed with overnight visitation with his mother. It was during this joint session that P.'s anxiety/discomfort in relation to parental conflict was visible. This was discussed at a subsequent session with P.'s father to increase his understanding of the impact their conflict has on him.

[18] I conclude from this that at least as recently as December 7, 2012 when the Report was prepared:

• Father seemed to be the parent who was responsible for exposing P. to the parental conflict; and
• P.'s anxiety came not from spending time with his mother, not from "trauma because of the assault by Mr. V." [5] but, rather, from father "openly" discussing the custody conflict in front of his son; and
• P. makes clear his wish not only to see his mother, but to spend overnights with her. [6]

[19] Simply stated, there is nothing in the Report which suggests that P. was suffering from ongoing trauma because of the alleged assault by Mr. V., or that he was in any way reluctant to spend time with his mother.

[20] In support of her contempt motion, the mother filed affidavits from two persons who attended with her when she attempted to exercise access on November 14 and November 16, 2012, by picking up the children at their school. Father's counsel chose not to cross-examine either of these persons on their affidavits. The first person, H.A., stated that she attended with mother at the school to pick up the children on November 14, 2012. The father approached the mother, told her to go away and also told the children not to speak to their mother. He threatened to telephone the police if she did not go away.

[21] At the next scheduled visit on November 16, 2012, H.A. again attended at the school with mother to pick up the children but they were not there. Mother then dialed the father's telephone number and allowed H.A. to listen to the telephone conversation by speaker. H.A. deposed that father told mother that she would not have access to the children until Sunday. [7]

[22] The second witness, J.W., also attended with mother at the school on November 14, 2012. The father told the mother to go away, told the children not to speak with their mother, and he threatened to call the police if she did not go away. He also told her that she would not get the children until Sunday. J.W. saw the younger son go up to his mother and give her a hug. P. also attempted to go up to his mother but the father uttered some "serious words" to him, as a result of which, P. went back to the father.

[23] J.W. again attended with mother at the school on November 16, 2012. She also listened to the telephone conversation between mother and father. When mother asked father where the children were, the father responded that she would not have any access to the children until Sunday.

[24] Neither of the two witnesses state that father advised mother that he was refusing access because P. had been traumatized as a result of seeing Mr. V. in the apartment building on November 12, 2012.

[25] In father's cross-examination at this hearing, he testified that he told mother on November 14 or November 16 (or both) that P. was "scared" and "was shaking" as a result of his having seen Mr. V. at the mother's apartment on November 12, 2012. However, the evidence of J.W. when she was at the school on November 14, 2012 paints a very different picture.

Was the Father Legally Justified in Disobeying the Court Order?

[26] As I stated earlier, the only justification for disobeying the court order is if the child P. saw Mr. V., and was shaken, distraught or distressed at having seen him unexpectedly on November 12, 2012 and that distress carried over to November 14 and November 16, 2012. The only evidence that P. saw Mr. V. is the bare assertion of the father himself. And the only evidence that P. was distressed on November 12, and again on November 14 and November 16, 2012 is the bare assertion of father. As part of my analysis I must, therefore, consider father's credibility.

[27] In his first affidavit, father was

• very specific about where he was situated when he saw Mr. V. in mother's apartment
• very specific about what time it was when he saw Mr. V.,
• very specific about where he was when P. came out of the elevator,
• very specific about the time when P. stepped out of the elevator, and
• very specific about P.'s reactions to seeing Mr. V. when he stepped out of the elevator.

[28] Suddenly, however, the specifics of that entire story changed when father subsequently saw the video surveillance files.

[29] Although father was unwavering in his evidence that P. was suffering from ongoing trauma and was too shaken to see his mother after what father alleges occurred on November 12, 2012, the independent evidence runs counter to father's assertions.

[30] Father says that mother and Mr. V. are the ones responsible for causing P. to feel stress and anxiety. However, the Report references the father, rather than the mother, as the parent who visits the parental conflict on P. and, by these actions alone, causes P. to feel anxious.

[31] In his oral testimony, father's evidence was all over the map, making statements about what he said occurred, about times and events and then changing his testimony and contradicting himself only moments later.

[32] On the evidence, I am compelled to reject father's credibility insofar as he purports to justify his failure to produce the children for the mother's access visits on November 14 and November 16, 2012. [8] In my view he has concocted this story in his continuing effort to undermine the relationship between the children and their mother. He clearly dislikes Mr. V. [9], and he appears willing to go to great lengths to keep the children away from the mother so long as Mr. V. remains in the picture as mother's partner. The story he created in his first affidavit came entirely undone when mother succeeded in obtaining the surveillance video files. Father was forced to scramble in his second affidavit to reconstruct that story in a way that he hoped would still be favourable to his position. However, he has failed in that regard.

[33] Having rejected the father's evidence I must nevertheless still decide whether the mother has made out the contempt beyond a reasonable doubt. I conclude that she has done so.

[34] Father's counsel chose not to cross-examine mother on her affidavits; and he also chose not to cross-examine the mother's witnesses, H.A. and J.W. While he did cross-examine Mr. V., Mr. V.'s evidence about the events of November 12, 2012 remained clear, consistent and entirely unshaken. Accordingly, unless there is something in those various pieces of evidence that is inconsistent or discreditable on their face, it follows logically that I should accept and give considerable weight to that evidence.

[35] As I noted at the outset of these reasons, there is no dispute that father disobeyed the access order. Counsel agreed that the only thing that could save this disobedience from a finding of contempt, is a legal justification for disobedience, in this case, the legal justification that exposing P. to the continuing stress he allegedly felt as a result of having seen Mr. V. on November 12, 2012 would be emotionally harmful to him. However, the only evidence in support of that purported justification comes from father's assertions. And since I have found those assertions to be untruthful, there remains no evidence that would support the argument that the father was legally justified in disobeying the court order.

[36] Furthermore, the evidence of Mr. V. contradicted father's evidence, specifically, that Mr. V. did not see P. at all on November 12, 2012. And Mr. V.'s evidence is consistent with the surveillance video that was subsequently produced after father delivered his first affidavit.

[37] Even if Mr. V. was in the apartment building while the children were with their mother on the 17th floor, he was in the basement parking garage, at 5:55 p.m., and he did not actually enter the lobby until after 6:00 p.m., that is, after the scheduled end of the access. And, if Mr. V. was in fact in the lobby concurrent with the children's continuing presence with their mother on the 17th floor – as appears to be the case - I find on the evidence that Mr. V.'s concurrent presence in the lobby was inadvertent, given Mr. V.'s uncontradicted evidence that he had been informed by the mother at 5:45 p.m. that the children's access was ending. In any event, there was no nexus between Mr. V.'s presence in the lobby at 6:10 p.m. and what occurred afterwards. Specifically, there is no evidence [10] that P. saw Mr. V. in the lobby, or that P. experienced emotional distress on November 12, 2012, or that he experienced emotional distress on November 14, 2012 or on November 16, 2012.

[38] Furthermore, the evidence of the witnesses, H.A. and J.W. suggest that father was taking active steps to block his children's interaction with their mother, against the wishes of the children themselves. This further undermines father's story that he was preventing mother's access only to protect P. from further "trauma".

[39] And beyond all of this, while the father has offered no evidence to justify the withholding of access to the younger child, he nevertheless chose to withhold that access, somehow assuming that if the court accepted his story regarding P., it would automatically follow that the denial of access to the younger child would also be found to be justified.

Conclusion

[40] I am mindful that courts should exercise caution before finding someone in contempt of a court order. (see for example, Hefkey v. Hefkey 2013 ONCA 44). In his thorough argument in support of father's position, Mr. Nkosi, urged the court to consider what he submitted were more appropriate remedies for dealing with this kind of situation, rather than bringing down the heavy hammer of a contempt finding, and the potentially serious consequences that can flow from such a finding. For example, he argued, the mother's missed access visits could be rectified by providing her with makeup access. Indeed, there are those cases where disputes can be resolved without the necessity of finding that someone is in contempt of court.

[41] However, in the circumstances of this case, and having regard to my findings of fact, I have concluded that a finding of contempt is the appropriate one, for a number of reasons. First, the father's obvious dislike of Mr. V. has motivated him to embark on a campaign of undermining the mother's relationship with the children. He believes that he is in the driver's seat because, at the present time, he is the custodial parent and, so far, he has managed to successfully restrict mother's access to non-overnights only. During the course of this lengthy litigation he has been consistently opposed to any increasing form of access between the children and their mother, and any normalization of that relationship. He has made it perfectly clear, including in his testimony at this hearing that he adamantly refuses to participate in any form of joint counselling so long as Mr. V. is on the scene, notwithstanding the fact that Mr. V. and mother are in a permanent relationship, even if that counselling might assist in resolving the parenting issues, something which would doubtless benefit both children. On the evidence, father instead decided to take matters into his own hands and fabricate a story that would have the hoped-for effect of further distancing the children from their mother.

[42] However he may have rationalized his actions in his own mind, however he may feel justified in going down this road, father's conduct was contemptuous of mother's access order. Father's actions undermine the very essence of what it is that the courts constantly attempt to do in family disputes where children are involved. Judges reach into their judicial tool boxes to find the particular instrument that might assist each family, in an effort to resolve conflict, rather than to allow it to continue. And once having found the appropriate tools, judges will make orders – for example, slowly increasing access to a parent, with the goal of attempting to normalize relationships between that parent and the children.

[43] It is the court's expectations that when such orders are made, they will be honoured by the parties. Because without that, not only is the administration of justice undermined, but in a more real, on-the-ground way, the lives of children continue to remain unsettled, children remain emotionally adrift, even suffer emotional harm, as they are caught up in the tug of war between their parents who are incapable of resolving their disputes without court intervention.

[44] Perhaps even more so than in other types of civil cases [11], it is of paramount importance that parents assiduously comply with court orders when children are involved, and when such orders affect the very wellbeing of those children. The indignity "suffered" by the court when a parent disobeys a court order is insignificant next to the harm that such disobedience can visit upon their children. And it is for these reasons that in the circumstances of this case, where the father has engaged in conduct which is so detrimental to the children, that a finding of contempt is appropriate.

[45] I am satisfied beyond a reasonable doubt that father wilfully disobeyed the court order of July 30, 2012 by preventing the mother from exercising access to the children on November 14, 2012 and November 16, 2012, without legal justification. And in so doing, I find that he was in contempt of that court order.

[46] I have adjourned this matter to June 17, 2013. I will refrain from embarking on a consideration of penalty at this time. Instead I would prefer to see how father conducts himself over the next few months. For example, it would be instructive in determining penalty to ascertain whether father has a change of heart and is willing to engage in holistic counselling involving everyone, including the children, and whether he will ensure that the children are entirely insulated from the parental conflict whenever they are in his presence. In general, it will be helpful to ascertain what steps, if any, father is willing to undertake between now and the next court date to assist in normalizing the relationship between the children and their mother, including the expansion of access into overnight visits. [12]

[47] Father has almost three months to consider the ramifications of this judgment, to discuss with his counsel the potential penalties the court has available to it on a finding of contempt and, hopefully, for the sake of his children, to work cooperatively with the mother to implement a constructive plan of action. [13]

[48] I will hear submissions on all of these matters, as well as any other relevant matter pertaining to disposition on the next court date.

[49] Finally, in respect of any claim for costs arising from this motion, I am prepared on the next date, to hear brief submissions and to receive in support of those submissions any offers to settle as well as bills of costs.

Justice Robert J. Spence

March 18, 2013

Footnotes

[1] In fact, it does not, unless his presence in the building is at the same time as mother is actually exercising her access to the children in the building

[2] At least insofar as it pertains to mother's access to P. However, see my subsequent comments at footnote 8 regarding mother's access to the younger child

[3] Or at least experiencing obvious distress

[4] The access order required the mother to drop off the children at the father's home by 6:00 p.m., rather than the father attending at the mother's apartment building to pick up the children.

[5] As alleged by father in his first affidavit

[6] Something which has yet to occur since the onset of this custody/access dispute

[7] November 18, 2012

[8] Father's best case scenario, even if his story was credible, would not justify his failure to produce the younger child for access with the mother

[9] And perhaps with good reason as there is some evidence that Mr. V. was indeed responsible for inflicting some abuse on P., notwithstanding the ultimate withdrawal of the charges by the Crown. Apart from that, Mr. V. and father have a history between themselves, including a number of incidents which have resulted in criminal charges, counter-charges and convictions, although it appears that those matters have nothing to do with either of the children.

[10] Apart from the bare assertion of the father, whose evidence I have rejected

[11] I do not mean to suggest that other court orders are less worthy of obedience but, rather, to emphasize the potential – sometimes very serious - harm that can befall children when parents disobey family court orders

[12] In keeping with P.'s wishes, as discussed in the Report, supra

[13] It is implicit in these comments, that mother would do well to cooperate with any positive steps/proposals emanating from the father, as solutions require the involvement and cooperation of both parents