Court File and Parties
Court File No.: FO-15-12603-A3 Date: 2016-02-19
Ontario Court of Justice
Re: Mr. Jason Henry, Applicant, Acting in Person
And: Ms Alicia Nichole Holder, Respondent, Not Appearing
Before: Justice Sheilagh O'Connell
Endorsement on Contempt and Access Motions
Motions heard on: February 19, 2016
Endorsement released on: February 19, 2016
Background
[1] On January 8, 2016 I heard the applicant father's motions for contempt and access in this matter. The mother was personally served with the motion for contempt. She chose not to attend the motion. The mother was not present, although duly notified of today's court date and the contempt proceeding. In fact, the mother has chosen not to attend nine court proceedings in this matter. The mother did not file any responding materials.
[2] At the contempt hearing on January 8, 2016, the evidence was overwhelming that the mother was willfully breaching the access order made by the Honourable Justice Katarynych on July 16, 2015 and September 2, 2015. Significantly both of these court orders were made on consent of the parties.
[3] Since that time, the mother has willfully and deliberately refused to participate in the APCO[1] access process and she has refused to facilitate access pursuant to the terms of the Court orders.
[4] It is not disputed that the applicant father has not seen the child since December 10, 2015, despite repeated requests by the father. The court reviewed a number of text messages between the father and the mother at both the contempt hearing and today. It is clear that the mother has no interest in abiding by court orders or participating in this court process.
Initial Contempt Finding
[5] On January 8, 2016, for oral reasons delivered, I made the following order:
The respondent mother is found in contempt of the Order dated July 16, 2015.
The respondent mother's sentencing hearing is scheduled for February 19, 2016 at 11 AM. The court will consider the appropriate fine at that time. The mother will be given an opportunity to purge her contempt should she attend.
Court staff to issue this order forth with and to serve the mother.
[6] The Order dated January 8, 2016 was issued by court staff and served on the mother at her last known address on February 9, 2016. The mother's address has been confirmed as correct today.
[7] The mother has failed to attend court today. The matter was held down until 11:30 AM and several "all building pages" for the mother were made.
[8] Regrettably, the mother has chosen to ignore these court proceedings and to ignore court orders made in these proceedings. As I stated in my reasons for finding the mother in contempt on January 8, 2016, the mother appears to have contempt for the court process and is willfully and deliberately obstructing a relationship between the child and her father.
The Sentence and Access Order
[9] I must now consider the appropriate disposition or sentence in this contempt proceeding. I must further consider an appropriate change to the access order to ensure that the father and the child can resume their relationship and to build their relationship.
[10] Sentencing in contempt proceedings, particularly in family law proceedings, should be comprised of two components. It should be restorative to the victim of the contempt and punitive to the contemnor. To accomplish the former requires the sentence to correlate to the conduct that produced the contempt and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances. See Germia v. Herb.
[11] In determining an appropriate sentence in the present case, considerations have included the following:
(a) the available sentences;
(b) the proportionality of the sentence to the wrongdoing;
(c) the similarity of sentences in like circumstances;
(d) the presence of mitigating factors;
(e) the presence of aggravating factors;
(f) deterrence;
(g) the reasonableness of a fine;
(h) the reasonableness of incarceration.
[12] In Surgeoner v. Surgeoner, (1991), 6 C.P.C. (3rd) 318 (Ont. Gen. Div.), Justice R.A. Blair stated:
"5. No society that believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court's orders at their whim because in their own particular view, it is right to do so. A society that countenances such conduct is a society tottering on the precipice of disorder and injustice.
The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal that often threatens to drown the process and the parties themselves in a sea of anger and "self-rightness". In this environment it is all too easy for a spouse to believe that he or she "knows what is right", even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination.
Those who choose to take this tack must know that it will not be tolerated."
[13] The father to his credit does not want to impose a fine on the mother nor does he want to see the mother go to jail. She is the mother of his child and the mother of other children. He just wants to have a relationship with his daughter.
[14] I have no evidence regarding any mitigating circumstances as the mother has refused to participate in these proceedings. I do have evidence that the father has faithfully paid child support in accordance with the court order throughout these proceedings and had kept documentation with respect to the support payments made. I do not wish to suggest that a failure to pay child support is an excuse for the mother's conduct, however I explored that with the father today to determine the presence of any mitigating factors.
[15] Having reviewed all of the evidence and the history of these proceedings including the fact that the mother has now failed to attend ten court hearings and completely ignored willfully the court order for access; and in considering and applying all of the principles of sentencing, in my view, a just and appropriate disposition of this contempt hearing is a fine against the mother in the amount of $500. However, once again, I will give the mother an opportunity to purge her contempt by complying with the access order that I will be making in conjunction with this sentence.
[16] In view of the fact that the father has not seen his daughter since December 10, 2015, and it is unlikely that the mother will cooperate at all in facilitating access pursuant to the July 16, 2015 Temporary Order, the access will be changed to allow the father to pick the child up directly from the mother's home and to return the child to the mother's home on a weekly basis. This order is in the child's best interests, having considered all of the factors under section 24 of the Children's Law Reform Act. A temporary order will be made to monitor the access and the relationship between the child and the father.
Order
[17] For the above reasons, I make the following order:
The respondent mother, Alicia Nichole Holder, shall be fined the sum of $500.00 for her contempt of the Order of Justice Katarynych dated July 16, 2015.
The July 16, 2015 and September 2, 2015 Court Orders for access will be changed as follows:
Commencing Saturday, February 27, 2016, on a temporary basis, the applicant father shall have access to the child Illiannah Cyriarra Rushae Holder, born July 11, 2014 on every Saturday from 12 noon to 3 PM. The applicant father shall pick up the child at the mother's residence and return the child to the mother's residence at the conclusion of the access visit.
Police officers, including Toronto Police Services, the RCMP, the OPP, and any peace officer having jurisdiction where the child resides, are hereby authorized to enforce the terms of this order.
Court staff shall issue this order forthwith and a copy of the Order as well as these reasons shall be served forthwith on the respondent mother by the Sheriff's office.
The respondent mother shall be given an opportunity to purge her contempt by complying with the above order. The payment of the fine at paragraph one above shall be reconsidered at the next court date.
The matter is adjourned to April 4, 2016 at 10:00 AM to monitor the temporary access order and to give the mother an opportunity to purge her contempt.
Date: February 19, 2016
Justice Sheilagh O'Connell
[1] Access for Parents and Children in Ontario