ONTARIO COURT OF JUSTICE

CITATION: Sanders v. Aerts, 2014 ONCJ 20

DATE: 2014·01·14

COURT FILE No.: Kitchener 10-3109-01

BETWEEN:

JONATHAN BLAIN ALLEN SANDERS

Applicant

— AND —

MELISSA FAYE AERTS

Respondent

Before Justice P.A. Hardman

Heard on May 14, 2013 and July 23, 2013

Reasons for Judgment released on January 14, 2014

Ms. Helen Gladkykh .......................................................................... counsel for the applicant

Mr. Sheldon J. Tenenbaum ........................................................... counsel for the respondent

Hardman, J.:

[1] The applicant father has brought a motion to change a final order of Justice E. Murray made on consent on January 19, 2012.He also brought a Notice of Motion seeking a finding of contempt against the mother. Both parents were represented by counsel. The mother who now resides in Switzerland participated by telephone.

[2] As contemplated by Rule 15, evidence regarding the motion to change (MTC) as well as the contempt motion was presented by way of affidavits and other documentary evidence.

[3] The mother challenged the jurisdiction of the court to make any order affecting the custody or access to the child but acknowledged that the court did have jurisdiction to deal with the allegation of contempt.

[4] After the submissions were completed, the matter was reserved until October 2, 2013 for a decision. On that date, both parties through their counsel, asked that I not release the decision until after Christmas and the matter was set to January 14, 2014.

[5] On this date, the court was told that the mother had brought the child for three and a half weeks to Canada and that the father had had some limited but uneventful access to the child. Both counsel in formed the court that there was no further agreement to be reached and therefore the court was invited to release its decision regarding the motions before the court.

The Background:

[6] The parties lived together from November 2008 to July 2009. Their child A was born February 2010. On September 1, 2010, Justice Frazer made a final order on consent that the mother was to have custody and the father supervised access alternate weekends for four hours together with such other access as agreed by the parties. The order also dealt with a number of other issues including child support and an order that the father not attend at the mother’s residence.

[7] As a result of the mother’s desire to take the child to Switzerland and the father’s reluctance to agree, the parties came to a compromise position during a court proceeding in the order of January 19, 2012. In that order, the father’s obligation to pay child support was terminated as well as the restriction about attending the mother’s residence. Further, the access provisions were modified to accommodate the child’s stay in Europe.

[8] Unfortunately, despite the terms in the order, the mother did not follow through on her commitment to ensure the father’s continued contact with the child. Indeed as will be noted later, she did quite the opposite.

[9] Frustrated by his sense that the mother was not following through with the arrangements for access as had been agreed, the father brought a motion without notice asking the court for an order of temporary custody prior to the hearing of the MTC as he told the court that the mother was returning to Canada in two days for Christmas and if they left he believed that he would never see his child again.

[10] As the mother had not been served, the court instead made a temporary order on December 19, 2012 that the child was not to be removed from the province of Ontario in order to give the parties time to address any changes to the order. In response to that order, the mother did not return to Canada with the child.

The Order of January 19, 2012:

[11] It appears from the evidence that the mother has not wanted the father to be recognized or given status as the father of A. She refused to add his name to A’s birth records. She has tried to hide his standing as her father from the child. She seems to be trying to eliminate him from the child’s life, perhaps to accommodate her current partner.

[12] Therefore the father insisted in having the “declaration” that he was the father of the child in this new order despite the previous order granting him access and the obligation to pay child support. Certainly the Ontario Court of Justice does not have the jurisdiction under section 4 of the Children’s Law Reform Act (R.S.O.1990, c. C. 12, as am.)(CLRA) to make a freestanding declaration recognizing the applicant as the father of the child. However, the court had already acknowledged that the father had rights and obligations as a parent: access pursuant to section 20 of the CLRA and child support pursuant to his obligation as a parent in sections 31 and 33(7) of the Family Law Act (R.S.O. 1990, c. F.3, as am.) (F.L.A.). His access rights as a parent were confirmed in this order.

[13] The order made on consent set out a number of court-ordered obligations for the mother. Using the paragraph numbers as set out in the order, they included the following:

• Paragraph 3: The mother was obligated to keep the father informed about the residence and phone number in Switzerland: The mother did not stay at the address that she provided. Nor did she keep the father informed about her whereabouts with the child. She did not obtain a telephone that could be used to contact her or the child despite the promise of up to daily telephone calls.

• Paragraph 4 and 5: The mother was to arrange for Skype access between the father and the child every Sunday and a minimum of one other time per week. Any schedule changes resulting fromof the parties’ work or school schedules were to be communicated through email. The father was to have the ability to contact the child by telephone up to a maximum of once every day: The mother failed to set up a system to accommodate the intended liberal access for the father. She did not make the child available for telephone or Skype access in the manner ordered by the court. While the mother’s evidence identifies some efforts on her part and blames the father for not following through, overall it seems clear that the mother has done little to facilitate the kind of access and hence relationship that the order was intended to provide.

• Paragraph 6 and 7: The mother was to return to Canada with the child each year for a period of no less than three weeks between June and November at her own cost commencing in 2012.It was intended that the father have unsupervised access with the child during those visits, increasing in 2013. Reimbursement to share those costs was contemplated: The mother did not return with the child as set out in the order. First she told the father that she was not able to come during that period set out in 2012 and would come in December instead. Then when the father obtained the temporary order to keep the child in Ontario in order to sort out the issues between them, the mother responded by not returning to Canada at all. The mother filed evidence to support her position that she was sick with pneumonia and unable to travel for the December visit. While that may have been, she has done nothing to make up for her failure to obey the court order.

• Paragraph 8: There is no evidence that the mother has returned to Canada with the child at any other time. The father has not been notified of any other opportunities to visit with the child in Canada.

• Paragraph 12: The father is entitled to information regarding the child’s health, education and welfare and if necessary, the respondent mother shall provide the necessary authorizations so that he can obtain the information directly from third parties: There is little evidence that the mother has provided any of this information in the beginning. More recently she gave the father a copy of medical information from the doctor and the eye specialist. For the most part, the mother took the position that she did not need to provide any information because it was not necessary. Certainly that is not what the order stated. The father was to have access to the information including from third parties dealing with the health and welfare of the child. The mother was to sign directions if they were needed to deal with the third parties. However, the mother did not provide sufficient information to the father to allow him to know who was even involved with the child. The mother’s attitude regarding the simple sharing of information about the child and the child’s health and service providers is consistent with the rest of her behaviour. She simply does not want the father to be a part of her daughter’s life.

• Paragraphs 11, 13, 14, 15, 16 and 17: It is clear from these paragraphs that the child was ONLY permitted to leave Canada on the mother’s agreement to adhere to the terms of this order. The evidence is overwhelming that the mother told the father that she and the child were leaving Canada only for the period of time that her husband, a Swiss national, was attending school. This is the reason that

there was an expectation of review on the fourth anniversary of the court order or when she returned if earlier;

the mother was to provide notice of her return to Canada and the address where she intended to reside;

the parties agreed that the Ontario Court of Justice would remain “seized” of this matter to determine any variation;

the mother was obligated by court order to take out a “mirror” order reflecting these terms in Switzerland within three months, providing a copy with certified translation of the same; and

the mother agreed to indemnify the father for any and all costs that he incurred to enforce the terms of the order.

[14] Despite the clear intention of the order the mother did not comply with her obligation to protect the father’s relationship with the child. Not only did she fail to take out the mirror order as required, she started a proceeding in Switzerland to eliminate the father’s contact with the child.

[15] It is of interest to note that the mother in her August 28, 2011 affidavit, originally prepared for the proceedings resulting in the January 2012 order, expressed regret that the move would “cut the relationship” between the child and the father and asserted that she “would do all that was in (her) power” to make the child “aware of the presence of the biological father in her life”. Further she said that she would be visiting her family in Canada and, for those times, she would have the child “spend her time” with the father.

[16] Although the mother agreed to unsupervised access by the father in January 2012, in her more recent material she accused the father of extraordinary physical and emotional abuse during their relationship, torture and rape, and stated that she is terrified of him as is the child. Frankly for the mother to suddenly try to rely on this material in the face of her agreement to unsupervised access calls all her evidence into question. As was noted in Solem v. Solem 2013 ONSC 1097, [2013] O.J. No. 723, a parent’s agreement to unsupervised access is proof that there are no serious concerns about the child’s wellbeing with the other parent.

[17] Given the order and her behaviour it is quite clear that she never had any intention of preserving the father’s status. She complained that the father sent “hugs” and expressions of love to the child through her emails. Surely instead of complaining, the mother should have delivered the message to the child.

Does the court have jurisdiction to deal with the MTC custody and access?

[18] The father is asking the court to change the custody of and access to the child. The first issue for the court is to decide whether there is jurisdiction to do so. Should the court decide that question in the affirmative, then the court can consider whether to exercise the jurisdiction. (2249659 Ontario Ltd. v. Sparkasse Siegen 2013 ONCA 354)(May 31, 2013).

[19] The jurisdiction of a court to deal with the issues of the custody and access is set out in section 22 of the C.L.R.A. Unlike civil matters in which there may often be a number of options in jurisdiction given the parties’ connections in different places, the determination of jurisdiction to deal with children is narrow.

[20] While the preamble in subsection 22(1) indicates that the section relates to the “exercise” of jurisdiction as opposed to the jurisdiction itself, case law appears to conclude that a court has no jurisdiction to exercise unless the circumstances fit squarely into the categories set out in section 22. As the child was not in Ontario at the commencement of the application, one of the six factors that must be satisfied to find jurisdiction without habitual residence, subsection 22(1)(b) is not applicable given the facts of this case. Therefore the court must find that the child is habitually resident in Ontario for the court to have jurisdiction.

[21] Subsection 22(1)-- A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b)(not applicable)

(2)—A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent , implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time.

Whichever last occurred.

[22] The father has asked the court to assume jurisdiction as that was clearly the intention of both parties when they consented to the order. While the court is prepared to find that the parties did indeed attempt to confer the court in Ontario with the jurisdiction to deal with changes in custody and access and even further that the father only agreed to allow the mother to move with those assurances in the order, it is clear law that parties cannot confer jurisdiction on a court that the court does not have in law.

[23] The father also submitted that the court should not find that the child is habitually resident in Switzerland. He argues that he never consented a change in the child’s habitual residence and that the intention of the order was to allow only a temporary stay outside Ontario.

[24] However, the child was living with the mother in Switzerland pursuant to a court order giving her custody. The consent order of January 19, 2012 was designed to accommodate up to four years of the child being with her mother in Switzerland. Therefore, pursuant to subsection 22(2)(b), the child is “habitually resident” in the place where she resides with the mother.

[25] Habitual residence has been found by the court to include short or temporary stays.

[26] In A.H. V. F.S.H.(C.), 2013 ONSC 1308, a decision in the Superior Court dealing with an application under the Hague Convention, Kruzick, J. set out the principles for determining habitual residence as stated by the Ontario Court of Appeal in Korutowska-Woof v. Wooff, 2004 5548 (ON CA), [2004] O.J. No. 3256:

the question of habitual residence is a question of fact to be decided based on all the circumstances;

the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;

a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;

a child’s habitual residence is tied to that of the child’s custodian(s).

[27] In that matter, a very short stay in Australia was considered to establish a new habitual residence given the court’s finding that the parties had intended to move there. An appeal of this matter was dismissed by the Ontario Court of Appeal (2013 ONCA 227).

[28] In Peres-Lopez v. Cordero 2012 ONSC 2577, the court found that a parent who filed for custody August 2010 and left to live in Mexico September 2010, was habitually resident there by December 2010. Perkins, J. noted that once the mother had custody it was open to her to remove the children from Ontario and “begin the process of changing their habitual residence”(paragraph 8). In that matter, the father had delayed the proceedings and failed to follow through. Further the mother had deceived both the father and the court about what she was doing. However, the court declined jurisdiction.

[29] In Dovigi v. Razi 2012 ONCA 361, the Ontario Court of Appeal allowed the appeal from a motions judge who wrongfully invoked the parens patria without evidence that the child was in need of the court’s protection. The Court of Appeal noted that the child did not meet the definition of a habitual resident in either Ontario or California and found that the Ontario court should not have taken jurisdiction as a California court had made an order and had similar laws and procedures.

[30] In Jean-Francois v. Anthony Exford Barnes 2012 ONCJ 124, Sherr, J. ruled that the court had jurisdiction because the mother was habitually resident in the jurisdiction at the start of the application. She immediately afterward surreptitiously listed, sold her home and moved to the US. The court went on to determine that the jurisdiction he found should be exercised by the court given his analysis of the balance of convenience considerations. Of interest in that matter is that the court noted that “absent a clear advantage” to her in the analysis of those factors, the mother should not be rewarded for acting in the manner that she did and noted that self-help should be discouraged wherever possible by the courts.

[31] In Shoshi v. Vuksani 2013 ONCJ 459, Zisman J. found that it was in a child’s best interests to ignore the BC jurisdiction agreed to the parents’ separation agreement and retain jurisdiction in Ontario. That court found that the serious criminal charges of the father warranted a change in the joint custody.

[32] It is important to note that Ontario courts have confirmed that the definition of “habitually resident” in subsection 22(2) of the CLRA is the same as that in the Hague Convention (Solem v. Solem 2013 ONSC 1097, [2013] O.J. No. 723, relying on Medhurst v. Markle (1995), 1995 9273 (ON SC), 26 O.R.(3d) 178 and others).

[33] In this matter, the following circumstances are relevant:

the mother had custody of the child by consent court order;

both parties expected the child to reside with the mother out of the country for a period at least up to four years.

[34] While the father expected that he could enforce the order in Ontario, he did agree that the child could move with the mother and set up residence in Switzerland. Therefore, the court must find that the child is habitually resident in Switzerland.

[35] While it is unfortunate that the court cannot take jurisdiction given the circumstances, it does not appear available in law. The mother appears to have manipulated the circumstances in a manner that has demonstrated amazingly bad faith:

she has failed to follow through with the access in the order contrary to her expressed intention to “do everything” in her power to have the child have a relationship with the father;

she did not comply with the agreement to obtain a “mirror order” in the timelines set out in the order;

she has told a court in Switzerland a number of misleading things including that the proceeding in Ontario was to put her in an institution and that she was somehow forced into the order of January 19, 2012, despite being represented by counsel.

[36] The only order the court has made was in response to a temporary order to ensure that both she and the father had an opportunity to sort out the difficulties in the order in the court they had chosen. No order had been made to change custody even on a temporary basis.

[37] It is very difficult in these circumstances to deny the father access to the enforcement provisions set out in the order itself. That is unfortunate. This is not a case where the father has delayed in attempting to rectify a situation that was not working. The evidence is clear that from the beginning he has been trying to get the mother to honour her commitment in the order. He tried to sort it out but was concerned when she did not come as agreed over the summer that she was not going to follow through with the balance of the order. He brought the motion to change to fix the situation that was not going according to the court order.

[38] Unfortunately the court cannot take jurisdiction to address the misrepresentations of the mother both in this court in 2012 and the court in Switzerland, wrongdoing that has interfered with the father’s relationship with the child and the child’s best interests.

[39] While the mother has in her material commented negatively about the father’s participation in the child’s life, that history is not relevant. It is she who is now acting contrary to the child’s best interests. Further, while it is wonderful that her new partner is also part of the child’s life, that does not excuse her efforts to eliminate the father. There should be room for both.

Decision:

[40] For the reasons stated above, the court finds that I do not have the jurisdiction to deal with the MTC before the court. That motion must be dismissed. The temporary order made December 19, 2012 is terminated.

Has the contempt of the mother been established?

[41] Section 38 of the CLRA sets out the remedies and limitation of those remedies available to the court attempting to enforce an order:

38(1) In addition to its powers in respect of contempt, the Ontario Court (Provincial Division) may punish by fine or imprisonment, or both, any wilful contempt of or resistance to its process or orders in respect of custody of or access to a child, but the fine shall not in any case exceed $5,000 nor shall the imprisonment exceed 90 days.

(2)An order for imprisonment under subsection (1) may be made conditional upon default in the performance of a condition set out in the order and may provide for the imprisonment to be served intermittently.

[42] Rule 31 of the Family Court Rules sets out the circumstances in which an order can be enforced by a contempt motion. The mother has been properly served and has had with the assistance of her counsel ample opportunity to respond to the allegations and indeed to rectify her contempt of the January 19, 2012 order. The parties were content to have the matter heard by way of affidavit evidence and submissions.

[43] Given the criminal sanctions available following a finding of contempt, the court must proceed cautiously regarding the nature of the evidence upon which a finding is to be made. Further, the court must be satisfied beyond a reasonable doubt that a contempt has occurred.

[44] As noted by the mother’s counsel, there is some disagreement about the particulars of the failed access. The mother alleges that she did set up Skype visits that the father did not access. The father complains that the mother was always changing the times with short notice. If this were the only issue, it would be difficult for the court to find the mother in contempt given the disagreement in the evidence.

[45] However, as is acknowledged by her counsel in submissions, there are a number of areas in which the mother clearly did not follow through as required by the court order. Her failure to deliver the child to the father in Canada as per the order is a significant breach affecting the best interests of the child. Further she did not take out a “mirror order” in Switzerland as ordered. Indeed she did the opposite of her obligation to preserve the rights of the father by instead obtaining an order from the Swiss court suspending his access based on misrepresentations to the court.

[46] The serious impact of the breach is clear. The father gave up his right to challenge the mother’s move away from his home jurisdiction, Ontario, based on the mother’s assurances. Her failure to respect the order has cost both him and the child dearly both since the order and potentially well into the future.

[47] The findings for the court to consider are the following:

Is the order clear and unambiguous? That is not contested. The expectations of the order were clear and unequivocal as was its intention.

Was the mother aware of her obligations in the order at the time of the breach? Absolutely.

Did the mother intentionally do or fail to do anything in contravention of the order? Yes, this has been the finding of the court.

Was the mother given proper notice of the terms of the order? The mother had counsel at the time she signed the consent and dealt with the court in January 2012. The father has been pestering her about his access and what she agreed to in the order in the months leading up to the father’s decision to bring the MTC. She was fully aware of his expectations and the expectations of the court order.

[48] The mother’s conduct has been wilful, a clear expression of the fact that she is not interested in having the father a part of her child’s life.

[49] The point of finding a person in contempt is to attempt to enforce an order or punish the contemnor. The contempt of a court order is a demonstration of a lack of regard for the administration of justice. One purpose for finding a person in contempt and taking action is to “remediate the mischief” and “coerce the offender into obeying the court order” (VT v. VS1 Newmarket 19456/04 and 21263/05, Superior Court March 27, 2006).

[50] Having found the person in contempt, Rule 31 sets out a number of options. A fine would not be appropriate as the mother’s family would probably pay it and nothing would be gained. It does not appear that the mother would be responsive to a conditional imprisonment order as she is not prepared to take the steps toward rectifying the problems that she has created. She has had that opportunity for a number of months.

[51] The only order that may affect her decision about dealing fairly with the father and his right to the access ordered is an order of imprisonment. She has family in Ontario, some of whom have visited her in Switzerland. However, it is clear from the mother’s material that she wants to return at least for a visit at some time of her choosing in the future. The mother’s connection with Canada means that this order of imprisonment may “coerce” her into reconsidering her approach to the court’s efforts to ensure that the father and the child have the opportunity to build the relationship they both deserve.

Order:

1. The respondent mother is in contempt of the order of January 19, 2012.

2. The respondent mother is to be incarcerated for 90 days.

3. Earned remission or any truncating of this sanction pursuant to the applicable laws for criminal sentences does not apply to this term of incarceration.

4. The court may be approached by either party on short notice with respect to the purging of contempt or with respect to any orders about the child.

5. Costs may be requested on twenty days notice to the other party. Submissions should have the accounts attached. Any response to costs to be filed within 14 days of receipt of the request for costs. Reply to the response to be within 14 days of receiving the response.

Released: January 14, 2013

Signed: “Justice P.A. Hardman”