Court File and Parties

Court File No.: 17/11 Date: 2014-06-20 Ontario Court of Justice

In the Matter of the Children's Law Reform Act, R.S.O. 1990, c. C.12

Between:

Mark Raymond Houle (Applicant/Father) D. Maslak, for the Applicant

— And —

Alicia Jessica White (Respondent/Mother) Self Represented

Heard: June 17, 2014

Before: Justice John Kukurin

Decision

Background

[1] This is my decision on a Motion to Change brought by the Applicant father in this case. Time constraints permit only abbreviated Reasons for this decision.

[2] The Motion to Change contemplates the existence of a prior final order. In fact, there was an application brought by the father (file no 17/11) filed Jan 19, 2011. In that application he sought an order for specified access to Karma, the daughter of the parties, who was born Feb 15, 2009. She was not quite two when he started that application. She is now age 5. The mother opposed his application. She sought an order that any access by the father be supervised for the first six months. The mother started her own application (file no. 121/11) in May 2011 seeking a restraining order against the father. These two proceedings ran in tandem until Nov 13, 2011 when an order was made that these applications be tried together.

[3] It is not necessary to set out in detail the chronological developments in these two cases. A final order of sole custody to the mother was made on consent early on in the proceeding, as was an order for child support payable by the father to the mother. A first order for interim paternal access was made on July 4, 2011. This paternal access was tweaked in subsequent interim orders with respect to time, location, access supervisors, access exchange locations and other incidents of access. An interim non harassment order was made against the father, later repeated in another order. Some paternal access visits did take place through 2011. However, the mother refused to deliver the child over for the father's access periods as provided in these interim orders. He brought a motion to find her in contempt. She was found in contempt by order dated Jan 6, 2012 made by Fuerth J. who permitted her to purge her contempt by delivering the child to the local Supervised Access Centre for the father's next period of access. She did so. It appeared that access was back on track. But not for long. A second finding of contempt was made by Kowalyshyn J. on June 19, 2012 for failure to comply with an order made January 30, 2012. Three other contempt claims based on allegations of maternal non-compliance were put over for hearing at trial along with the claims in the applications.

[4] A trial was held over four days in June, August and September 2012 before Glenn J. That resulted in three findings of maternal contempt. The sanction for each was two days imprisonment (consecutive), but suspended on conditions imposed on the mother relating essentially to re-instating paternal access progressively over an eight month period The father had not had any contact for the child for the previous eight months. The trial did not result in a final order for paternal access. The expectation of the trial judge was that progressively more expansive interim access orders would be made over the eight months, that the mother would produce the child for paternal access, and would otherwise comply with judicially imposed conditions and thereby purge her three contempts. Glenn J. provided extensive Reasons which not only set out what she was doing, but why she was doing it. The object was to have a final paternal access order made after this process of normalization had run its course.

[5] Following the trial decision, the paternal access order was changed once again on Jan 25, 2013 to provide that, until the next court date, the father's access was to be on Saturdays from 1 pm to 3 pm. The mother was to drop off and pick up the child. On March 8, 2013, the January 25, 2013 order was "left in place", presumably still as an interim order. The mother thereafter failed to deliver the child to the father for his Saturday access. The court record discloses that the mother was present in court on both January 25, 2013 as well as on March 8, 2013.

Matters clearly did not proceed as planned. The father sought and obtained a warrant of committal on July 29, 2013 pursuant to which the mother was imprisoned later on in 2013 for six days. There is a lengthy endorsement of Glenn J. on that date from which it was clear that the mother had defaulted on her obligations.

[6] This seemed to be the end of the proceeding albeit with only an interim access order extant. However, in a later endorsement, made on Feb 26, 2014, Glenn J. indicated that the order of March 8, 2013, while it was an interim order when it was made, became final in nature on July 29, 2013 when the suspension of the contempt order of imprisonment was terminated and the warrant of committal was signed to place the mother in custody.

The Present Proceeding

[7] The practical outcome of the trial was very unsatisfactory for the father who had an order entitling him to see his child every Saturday for two hours, but who could not do so because the mother would not deliver her to him as she was supposed to. He brought the present Motion to Change the order of Jan 25, 2013 and the order of March 8, 2013 that extended the duration of that order. The change he is requesting is for an expansion of his access time to alternate weekends from Friday at 6 pm to Sundays at 7:30 pm. In addition, he seeks a police assistance order pursuant to s.36(2) of the Children's Law Reform Act to enforce what access rights he may be awarded. In addition, he is seeking another finding of contempt for the mother's refusal to comply with the Jan 25-March 8, 2013 access provisions since March 2013. On such finding being made, he asks the court to impose a sanction of 30 days imprisonment.

[8] The mother opposes all claims in his Motion to Change. She makes claims of her own. She asks that any access order be varied to provide that the father have no access. She also asks for a restraining order against the father to prohibit him from attending on her property or near it, or at her place of work, or at the school of the child. She also wants his communication with her restricted to e-mail or through counsel.

Motion for Contempt Finding

[9] The mother is self represented. This is a disadvantage when one is a litigant particularly when the other side has legal representation. However, this is no reason to accord the mother anything more than judicial courtesy and any explanations needed to ensure the hearing progresses in an expedient and fair manner. The mother is expected to present her case like any other litigant and to acquaint herself with the applicable laws and rules. The mother in this case appears to be intelligent and is very obviously not an ingénue to the courtroom. She has a more than adequate command of the issues and the positions of the parties. While she professed to be unfamiliar with some of the litigation history and court orders made in the proceedings involving herself and the father, I do not accord her any special status because of this. Litigants, whether represented by counsel or self represented are expected to know what is going on and has gone on in proceedings in which they are parties. This mother is familiar with contempt proceedings as she was involved in several and has been sanctioned by the court following a contempt finding in the past. She knows what this claim is all about.

[10] Rule 31 of the Family Law Rules governs contempt of court. There are some procedural requirements in this Rule that the father may not have strictly complied with. I do not dismiss his claim for a contempt finding because of any procedural non-compliance. The bottom line is whether a procedure, even if not according to the rules, is fair to the other side. Or more properly, is it unfair? I do not conclude that using the incorrect form, or including such claim in an application rather than a motion has resulted in unfairness to the mother. She knows what is being sought. She has notice of what the father has put before the court. She has had time to respond. She has, in fact, responded by sworn affidavit.

[11] As for the finding of contempt, the mother was ordered to drop off the child to the father and to pick up the child at the end of the periods of access. She has not done so. She does not deny that she has not done so. Her defence seems to reduce down to a justification on the basis that the child has disclosed to the mother that the father sexually molested her, that the child is afraid of the father (and even of the prospect of being in his presence), and that a mother must protect her child from the emotional harm that would ensue if the father were to exercise access to the child. Unfortunately, these reasons, or rather excuses, were part and parcel of the mother's response at the trial of the previous claims for paternal access and for findings of contempt. These were dealt with by Glenn J. and found to have no evidentiary merit. I come to the same conclusion with respect to the mother's default in producing the child for access from March 2013 to date, a period of over one year. The obligation was pursuant to a valid order. Whether the order was interim or final does not really matter. The mother knew the order existed. She knew she was obliged to comply with its terms. She certainly knew by the time she was served with the present Motion to Change and I believe she has known all along what her obligations have been. What she was required to do was clearly set out. There can be no misunderstanding or ambiguity. Her defense at trial failed. It also fails on this present claim for a finding of contempt. If she felt the previous findings were wrong, her recourse was to appeal. She did not do so.

Variation of Access

[12] The father's claim for variation of the access provisions in the existing order(s) is contingent on demonstrating a material change in circumstances since that/those order(s) was/were made. His contention is that the mother's refusal to produce the child for access represents a change in circumstances. The order contemplated ongoing delivery of the child each Saturday afternoon. This stopped. I can envision nothing more material than a complete cessation of access. I agree that the material change in circumstances threshold required by the statute has been met. Access orders can be made only in the best interests of the child. The reality is that the court had made not only one, but a succession of paternal access orders. These orders were statutorily in the child's best interest. The change in circumstances represented by non-delivery of the child for access necessarily affected the best interests of the child.

[13] Satisfying the threshold requirement for variation does not mean that the variation sought will automatically be granted. The onus on the father as Motion to Change applicant is to satisfy the court that the new order he seeks for paternal access is now in the child's best interest. What is his evidence and argument on this point? He actually has no factual evidence to support alternate weekend access. His argument is that alternate weekend access is the (minimal) normalized access that he would now be receiving had the judicial plan for progressively expanding access not been frustrated by the mother's deliberate refusals to deliver the child to him over the past year.

[14] While I am sympathetic to his plight, I am not receptive to this argument. The statute requires decisions on access to be made in the best interests of the child. Moreover, the best interests test requires the court to consider a number of factors to the extent they are relevant in a particular case. The evidence in this case has been very light on statutory factors that the court is required to consider. What the father might be getting by now is speculative, and does not rank very high in the best interest test. I might also add that Glen J, an experienced trial judge, after four days of viva voce evidence, clearly envisioned a progressive expansion of paternal access as being in the child's best interests, not an abrupt manifold increase in duration including two overnights. In a child centered analysis, this is a drastic jump, even more so when one considers that there has been absolutely no father-child contact for well over a year now.

[15] My view is that two hours on a Saturday cannot remain the status quo for paternal access. The father-daughter relationship cannot be fostered unless it is permitted to grow and expand. Part of that is increasing the frequency and duration of parent-child contact. Part is changing location and the environment of the access visits. This requires changes in access terms over time. With all respect to the approach taken by previous jurists, I believe it is apparent that judicially babysitting the parents by monitoring progress and making access term adjustments in a series of interim orders is no longer an effective way to deal with this case. My preference is to set out a progressively expanding schedule of paternal access with fixed and specific terms contained in a court order. The object of such order will be to reach by a certain time, a level of paternal access that can be considered as typical or normal in the circumstances of this family.

Sanction on Finding of Contempt

[16] A significant complication is the fact that the mother is sole custodian and primary caregiver to the child. Incarcerating the mother, while appropriate in the circumstances, will separate the child from probably the most important adult in her life. This is a disruption that ought not be caused needlessly. On the other hand, an inadequate sanction has not produced the desired change in the mother's attitude or conduct in the past, and will likely not do so in the future. The sanction has to have some teeth to be effective. To be effective, there has to be change in behaviour. In short, the primary goal of a sanction is to stop the objectionable conduct that is the basis for the contempt finding. There are other goals as well. Not the least of them is to ensure that the administration of justice does not fall into disrepute. Our legal system is premised on community respect for the law. When the law is perceived to be unjust or ineffective, respect falters. Orders of the court are required to be obeyed. Where individuals do not obey them, and particularly when they flaunt their disregard for the law, it is appropriate to impose penal sanctions.

[17] The father seeks a thirty day incarceration order. He proposes that the child be placed with himself while the mother serves her time. I am not enamoured with this plan. It places the child with someone who is currently a virtual stranger, and does so for quite a long time (in the eyes of a child). The mother indicates that the child has a maternal grandmother who resides locally and who has frequent contact with the child in a grandparental role. If the mother is to be incarcerated, I would prefer that the child reside temporarily with her maternal grandmother if that can be arranged.

Restraining Order

[18] Two previous interim restraining orders were made against the father by Kowalyshyn J. on June 19, 2012 and by Glenn J. on October 24, 2012. No final order was ever made at trial. Perhaps this was an oversight as the claim had been made by the mother in her application. In the present proceeding before me, there is some merit to the mother's fears or concerns, mainly about the father attending on or near her residence. There has been sufficient concern in the past that interim access orders were tweaked to require the mother to bring the child to the father to avoid his attendance at her home. In any event, these parents clearly do not get along. They should have some distance between them judicially imposed. The father should not be on or near the mother's residence or place of employment. I disagree that he should not attend the child's school. As a parent, this is one location to which he should clearly have access. However, not to pick up the child from her school. Both parties have e-mail. They should communicate using e-mail. That means should be reasonable. It enables exchanges of information with respect to the child which may be necessary to be conveyed from time to time. It also creates a record which can be placed before a court should there be future proceedings between the parties. Whether this is termed a restraining order or a term of paternal access, it is a good idea that it be in place on a final basis.

Police Assistance Order

[19] The father's claim for a police assistance order is also with merit having regard to the history of the parties and their litigation. It is not desirable for uniformed police to be involved in forcibly removing a child from one parent and delivering the child to another. However, there are situations where this is the only recourse to enforce an order of access. The common problem with such orders is that they are often too general in form and too unspecific as to when they are to be utilized. The result is sometimes a refusal by a police service to do anything. The order in this case has to contain specific provisions that are un-equivocal to the police service to whom the order is directed. One hopes that the officer(s) who may become involved will act with sensitivity and have regard to the age of the child.

Orders

[20] For the reasons outlined above, I believe the following orders to be appropriate:

Order to Go:

1. That all interim orders made in proceedings between the parties in Chatham court file numbers 17/11 and 121/11 are terminated, and this specifically includes the orders of January 25, 2013 and March 8, 2013.

2. That the paternal access provisions of the orders of January 25, 2013 and March 8, 2013 are varied to provide that the Applicant father, Mark Raymond Houle, shall have access to the child Karma Noella Houle, also known as Karma Noella White, born February 16, 2009 subject to the terms, conditions and provisions that follow in this order.

3. Paternal access shall take place:

(a) For July 2014, each Saturday for one hour at the supervised access facility in Chatham

• For August 2014, each Saturday for two hours
• All visits to start at 1 pm or at such other time as is set by the facility
• Both Applicant and Respondent shall forthwith complete all intake requirements of the facility
• Exchanges to take place at the facility with mother delivering child not less than ten minutes before start of access and picking up child at end of access.

(b) For September 2014 each Saturday for two hours

• For October 2014, each Saturday for three hours
• For November 2014, each Saturday for four hours
• All access to commence at 1 pm
• All access to take place at the home of the Applicant father
• All access to be supervised by the paternal grandmother or paternal grandfather
• Exchanges to take place at the supervised access facility with mother delivering child not less than ten minutes before start of access and picking up child at end of access.
• The father shall return the child to the supervised access facility not less than ten minutes before the end of access.

(c) For December 2014, each Saturday from 10 am to 5 pm

• Exchanges to take place at the supervised access facility with mother delivering child not less than ten minutes before start of access and picking up child at end of access.
• The father shall return the child to the supervised access facility not less than ten minutes before the end of access.

(d) For January 2015, each Saturday from 10 am to 5 pm and on the first and third Sundays from 1 pm to 5 pm

• Saturday exchanges to take place at the supervised access facility with mother delivering child not less than ten minutes before start of access and picking up child at end of access.
• The father shall return the child to the supervised access facility not less than ten minutes before the end of access on Saturdays
• Sunday exchanges shall take place at the home of the maternal grandmother subject to her consent, failing which the mother shall deliver the child to and retrieve the child from the home of the paternal grandmother at the start and end of the Sunday access periods.

(e) For February, March and April 2015, each first and third Saturday from 10 am overnight to Sunday at 5 pm

• Saturday exchanges to take place at the supervised access facility with mother delivering child not less than ten minutes before start of access and picking up child at end of access.
• Sunday exchanges shall take place at the home of the maternal grandmother subject to her consent, failing which the mother shall retrieve the child from the home of the paternal grandmother at the end of the Sunday access periods.
• With the written consent of the Applicant and Respondent, and subject to the willingness of the maternal grandmother, exchanges at the start of and at the end of any access periods may be at the home of the maternal grandmother.

(f) For May and June 2015, each second and fourth Saturday from 10 am to 5 pm and each first and third weekend from Saturday at 10 am overnight to Sunday at 5 pm.

• Saturday exchanges to take place at the supervised access facility with mother delivering child not less than ten minutes before start of access and picking up child at end of access.
• Sunday exchanges shall take place at the home of the maternal grandmother subject to her consent, failing which the mother shall retrieve the child from the home of the paternal grandmother at the end of the Sunday access periods.
• With the written consent of the Applicant and Respondent, and subject to the willingness of the maternal grandmother, exchanges at the start of and at the end of any access periods may be at the home of the maternal grandmother.

(g) From July 1, 2015, on alternate weekends from Saturday at 10 am overnight to Sunday at 5 pm

• For five continuous days during the summer months of July and August on e-mail notice to the mother by the father by June 1st as to the days and start and end times of such summer access.
• December 24 at noon to December 25 at noon in odd numbered years, and December 25 at noon to December 26 at noon in even numbered years
• Exchanges at the start of and at the end of any access periods shall be at the home of the maternal grandmother, failing which they shall be at the home of the paternal grandmother.
• The mother shall deliver the child to and retrieve the child from the home of the maternal grandmother, or of the paternal grandmother as the case may be, at the start and end of access periods.

(h) Should competitive dance events of the child be set for Saturdays at times which conflict with paternal access times provided for in this order, the mother shall give the father notice of the conflict immediately upon becoming aware of it, and the father's Saturday access shall be cancelled for that day and deferred to take place on the next following Sunday at the same times, for the same durations and on the same conditions as applied to the cancelled Saturday access.

4. The Chatham–Kent Police service, the Ontario Provincial Police and any other police service having jurisdiction in the place where the child may be shall locate, apprehend and deliver the child to the Applicant father, Mark Raymond Houle for any and all periods of access specified in this order should the child not be made available to him for any such periods of paternal access.

5. The Applicant father, Mark Raymond Houle shall not communicate directly with the Respondent mother, Alicia Jessica White, except by e-mail. He shall not attend at her place of residence or employment or be within 100 metres of such locations.

6. The applicant and Respondent shall each provide to the other their current residence and e-mail addresses and shall advise the other forthwith of any changes to them. Neither shall relocate the residence of the child without at least sixty days e-mail notice to the other of intention to do so.

7. The Respondent Alicia Jessica White, shall be imprisoned for thirty days as a sanction for her contempt in non-compliance with the orders of January 25, 2013 and March 8, 2013. This order of imprisonment shall be suspended provided that the Applicant father, Mark Raymond Houle shall be entitled to bring a motion on four days' notice to the Respondent for the issue of a warrant of committal in the event of any default by the said Respondent in production of the child for paternal access pursuant to any term or provision in this order.

Released: June 20, 2014

Signed: Justice John Kukurin