Court File and Parties

Date: 2017-03-13

Court File No.: DFO 12 10753 00A3

Ontario Court of Justice

Re: D.B. (Applicant)

And: R.S. (Respondent)

Before: Justice Sheilagh O'Connell

Counsel:

• William Hutcheson for the Applicant
• Mr. R.S., Acting in Person

Heard On: November 30, 2016

Endorsement

Introduction

[1] The respondent father, R.S., ("the father") has brought a motion for contempt against the applicant mother, D.B. ("the mother").

[2] This is a second motion for contempt brought by the father against the mother in a short period of time. The first motion for contempt was heard on August 19, 2016. Following a contested hearing, for oral reasons delivered, I dismissed that motion for contempt and reserved the issue of costs.

[3] The second motion for contempt was heard on November 30, 2016. The mother requests that this motion for contempt be dismissed with costs. She is also seeking an order requiring the father to pay all outstanding cost orders made against him before filing any further motions in this court.

[4] The father seeks an adjournment of the second motion for contempt pending the completion of phallometric testing that he has now agreed to complete. He does not agree that the second motion for contempt should be dismissed, but rather adjourned pending the completion of his phallometric testing and assessment.

[5] Following the hearing on November 30, 2016, I reserved my ruling on these issues. What follows is my decision.

Background Facts

[6] The parties were in a relationship of relatively short duration. A child, KBS, was born of that relationship on […], 2012. She is the first and only child born to either parent. The parties separated shortly after her birth. The mother commenced court proceedings. On August 7, 2013, on consent of the parties, the mother was granted final custody of the child. Final orders for child support and annual financial disclosure were also made.

[7] The issue of access proceeded to trial before the Honourable Justice Penny Jones in 2015. At the time of the trial the father was exercising supervised access to the child. Following the trial, Justice Jones released her written reasons for judgment which included the following relevant provisions:

1. The father shall have supervised access to the child for three out of four weekends either Saturday or Sunday at an approved supervised access centre for a period of two hours for each visit;

2. The father shall not bring a motion to change without first obtaining leave of the court. Any such motion for leave shall be brought on 30 days' notice to the mother and may be served upon her using the Family Wizard communication system or such other communication program as agreed to by the parties.

[8] Justice Jones made a number of factual findings as set out in her reasons for judgment. Justice Jones was concerned about the risk of sexualized touching or behavior towards the child, as well as concerns about the father's use of alcohol and possession of illegal drugs. She was also concerned about the father's emotionally abusive behavior to the mother and the mother's ability to manage the father's behavior in a way that would not jeopardize her ability to provide quality parenting for the child.

[9] In her Judgment dated October 20, 2015, at paragraph 73, Justice Jones urged the father to complete the phallometric testing recommended by Justice Katarynych and by the clinical investigator with the Office of the Children's Lawyer, ("OCL") to address and hopefully put to rest the issue of sexualized touching. Justice Jones stated the following at paragraph 75 and 80 of her Judgment:

"Until the court is in a position to assess the risk to the mother and to the child posed by the areas of concern raised herein, access must remain supervised at a government operated supervised access centre. I find that at this point supervised access is in the child's best interests …

I have made this order with the expectation that the father will begin to address the identified issues at his earliest opportunity. Until he does so I expect him to respect the supervised access structure and limit his contact with the mother to the form of contact I have set out hereinafter. If the father does not do so, he must understand that supervised access is the only alternative to no access when unsupervised access is not in a child's best interests."

[10] Following the Final Order of Justice Jones, the father continued to exercise access regularly and consistently at the Salvation Army Supervised Access Centre in Kingston, Ontario where the mother had relocated with the child sometime during the course of these proceedings to attend Teachers' College. The father lives in Toronto and does all of the driving to and from Kingston to exercise the supervised access.

[11] It is not disputed that this supervised access has gone well and without incident, but for some cancellations due to the child's illness. The father has been diligently exercising supervised access for approximately four years, despite the distance between his home and the mother's home.

The Contempt Proceedings

[12] In August of 2016, the mother and child relocated to Kitchener, Ontario as the mother obtained employment in the Kitchener area. Kitchener is closer to Toronto than Kingston. The mother advised the father prior to her move and arranged for the supervision of access to be transferred to an APCO facility in Kitchener, namely the Lutherwood Child and Parent Place ("the Lutherwood Centre"). This facility was recommended by the Salvation Army Supervised Access Centre in Kingston.

[13] The father brought his first motion for contempt in August of 2016 alleging that the mother had unilaterally cancelled access visits, refused to communicate on Family Wizard, and that she had unilaterally relocated again to Kitchener, Ontario without arranging for the supervised access to continue. According to the father, the mother was deliberately obstructing access.

[14] On August 19, 2016, as indicated, for oral reasons delivered, I dismissed the father's motion for contempt and reserved the issue of costs. I was satisfied that the mother had not willfully and deliberately breached the Order of Justice Jones, that she was moving to Kitchener for employment purposes, (a city closer to Toronto, so therefore easier for the father to travel back and forth), and that she had arranged for the supervised access to continue at a supervised access centre in Kitchener.

[15] On October 11, 2016, the father brought a second motion for contempt, returnable on October 20, 2016. The father alleged that the mother had willfully prolonged the commencement of supervised access at the Kitchener supervised access centre thereby again deliberately breaching the order of Justice Jones. Although the mother and child had been living in Kitchener in August, the father had not seen his daughter since August 6, 2016, a period of more than two months after the mother's move.

[16] In his affidavit and argument, the father submitted that the mother had intentionally prevented the commencement of his access at the Lutherwood Centre in Kitchener by making false allegations against the father including new allegations of a sexual nature. According to the father, the staff at the Kitchener supervised access facility was therefore investigating these new allegations before permitting the supervised access to commence.

[17] The father deposed that he had been exercising supervised access in the Kingston area for a period of approximately four years without incident. The observation notes from the Kingston supervised access facility had been previously attached to his materials which corroborated same.

[18] The mother denied providing any new information to the Lutherwood Centre that would cause it to delay the commencement of supervised access. The mother deposed that she simply provided Lutherwood with the Reasons for Judgment of Justice Jones and the OCL Report at their request. The mother deposed that she provided the Centre with the information that they requested as quickly as possible and arranged for the intake process to begin prior to her move to Kitchener.

[19] The mother submitted that it was not her fault that the Centre was moving slowly in arranging the supervised access. She also offered the father supervised access through Brayden Supervised Access Services, a private supervised access agency, while they were waiting for the Lutherwood Centre to implement access.

[20] The court was very concerned that supervised access had not commenced following the mother's moved to Kitchener and did not understand the reasons for the delay. On October 20, 2016, the court adjourned the father's contempt hearing to November 30, 2016 to obtain further information from the Lutherwood Centre. In its endorsement dated October 20, 2016, the court stated the following:

"This is the father's motion for contempt. The court is very concerned about the delay and arranging the father's supervised access by the Lutherwood Centre in accordance with the Order of Justice Jones. The court requires a report or letter from Lutherwood advising:

1. Whether or not the Centre will accept this family for supervised access;

2. If not, why? What exactly are the nature of the sexual allegations or other information that the Centre is concerned about and why can they not supervise the father's access, given that he exercised supervised access in Kingston without incident for four years?

3. If the Centre cannot provide supervision, then what Centre or supervised access is the Centre recommending?"

[21] On November 30, 2016, further evidence was filed which included reports and correspondence from the Lutherwood Centre.

[22] It was clear from that correspondence that the mother was not to blame for the delay in setting up the supervised access in Kitchener. Unlike the Salvation Army Centre in Kingston, the Lutherwood supervised access centre did not have the resources to provide one-on-one supervision of the father's access to the child. According to the written materials provided by Lutherwood, the "best practice standards" of its funder, the Ministry of the Attorney General, provide that supervised access centres cannot take cases involving sexual abuse or sexual offenders unless they have staff that are specifically trained in the issues of providing services to these families and they are able to provide one-on-one supervision of these families on site at all times.

[23] According to the correspondence from Lutherwood, the information obtained from Office of the Children's Lawyer's report and Justice Jones Judgment confirmed that allegations and concerns of a sexual nature relating to the father's interaction with the child had been raised. In accordance with Ministry standards, the Centre determined that it was unable to provide services to the family at this time.

[24] However, the Centre indicated that the eligibility for supervised access may be reassessed following the father's completion of the recommended testing and assessments as outlined in the Report of the Children's Lawyer dated December 16, 2014 and the Court Orders.

[25] Notwithstanding the delay caused by Lutherwood's position, at the return of the contempt hearing on November 30, 2016, supervised access had in fact started through Brayden Supervision Services, subject to the father being responsible for all costs. The parties arranged access with that agency on Saturday, November 12, November 19 and November 26, 2016.

[26] Following the evidence obtained from the Lutherwood Centre, the mother's counsel wrote to the father on November 8, 2016 proposing that he withdraw his contempt motion without costs. The father refused.

[27] It is the father's position that the contempt hearing should be adjourned until he provides the results and assessment of the phallometric testing which he finally agreed to do on October 20, 2016 at the first return date of the contempt hearing.

Analysis

[28] The court is not prepared to adjourn this contempt hearing pending the completion of the father's phallometric testing and assessment. The father's second motion for contempt against the mother is dismissed.

[29] It is well settled law that motions for contempt should be used sparingly in family law. The test on a motion for contempt is set out in A.G.L. v. K.B.D.. The court must make the following findings in relation to each alleged breach of an order, (with the relevant findings underlined for this case):

1. The relevant order must be clear and unambiguous and not subject to interpretation. Implied terms cannot be read into the order;

2. The respondent (on the motion) must know of the order's existence at the time of the alleged breach;

3. The respondent intentionally did, or failed to do, anything that was in contravention of the order. The act stated to constitute the contempt must be wilful, not accidental;

4. The contempt must be proven beyond a reasonable doubt;

5. The respondent was given proper notice of the terms of the order.

[30] The onus is on the person alleging contempt to prove it beyond a reasonable doubt. See Fisher v. Fisher; Einstoss v. Starkman; Prescott-Russell Services for Children and Adults v. G. (N.). Any doubt must be exercised in favour of the person alleged to be in breach of the Order. See Prescott Russell Services for Children and Adults, supra.

[31] In Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.), the Ontario Court of Appeal set out the following principles regarding the use of contempt in family law cases:

1. The civil contempt remedy is one of last resort;

2. A contempt order should not be granted where other adequate remedies are available to the aggrieved party;

3. Great caution should be exercised when considering contempt motions in family law cases;

4. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.

[32] It is clear that the mother has not willfully or intentionally breached the Final Order of Justice Jones. The delay in commencing the supervised access and the refusal to provide that service by the Lutherwood Access Centre is entirely the responsibility of that centre in accordance with their standard protocol involving cases where there are allegations and concerns of a sexual nature being raised.

[33] The father has not met the very high test on a motion for contempt, which has been previously explained to him in my oral reasons when I dismissed his first motion for contempt.

[34] It is apparent that the father is attempting to use the contempt process as a way of circumventing Justice Jones' Order, which made it clear that the father is prohibited from bringing a motion to change access without first obtaining leave of the court.

[35] The relief that the father is seeking as a remedy for the alleged contempt is expanded and unsupervised access. In his Affidavit in support of his first contempt motion, the father states the following:

"The respondent's daughter is now four years six months old. The respondent has been in a supervised setting for this entire period with no criminal charges. The time has come for access to finally improve for the best interests of the child. Six hours a month in a supervised setting for 4 1/2 years is not in the best interests of the child's welfare and mental well-being."

[36] In her reasons, Justice Jones made it clear that prior to expanding access, there was an expectation that the father begin to address the issues that she identified at his earliest opportunity. In particular she urged him to complete the phallometric testing recommended by Justice Katarynych and the OCL clinical investigator.

[37] At the time that the father brought his first contempt motion, he still had not arranged or completed the phallometric testing, more than three years after it was first recommended by Justice Katarynych in November of 2013 when she released her ruling regarding temporary access pending trial.

[38] On December 16, 2014, the Office of the Children's Lawyer released its report in this matter and also recommended that the father complete a psychological assessment or an assessment that would focus on his parenting ability and to address concerns around sexualized behaviors.

[39] Similarly, as indicated, Justice Jones stated the following at paragraph 43 of her Judgment:

"I would think that the mother's concerns about the father in relation to possible pedophilia could be addressed by phallometric testing. If such testing were completed and a sexual interest in your young child was ruled out, the court might be able to accept that the father's explanation that the ill-considered comments he made about bathing and diapering the baby as well as his comments about the baby's body, were simply a manifestation of his inexperience and awkwardness arising from his status as a first-time father… The father indicated to the court that he was prepared to undergo testing if the court felt it was warranted and I would urge the father to complete the testing suggested by Justice Katarynych and the clinical investigator with the Office of the Children's Lawyer."

[40] On October 20, 2016, at the first appearance of the father's second contempt motion, I also questioned the father as to why he had not done phallometric testing after two previous judges and a clinical investigator recommended to him that he do so. Completing such an assessment could potentially rule out any of the concerns raised by Justice Jones in her judgment and may be grounds to grant leave to the father to bring a motion to change the supervised access order.

[41] To his credit the father has undertaken other parenting and counseling courses including an anger management intensive program and counseling in anger management. He has also consulted with a psychologist. For reasons unknown to the court, the father would not agree to undergo phallometric testing or an assessment of such kind until the appearance before me on October 20, 2016. At that time, he agreed to undergo testing with Dr. Monik Kalia, an experienced forensic psychologist who routinely conducts these tests and assessments.

[42] The court hopes that the father does complete this testing as he agreed to do on October 20, 2016. In the interim there is no need to adjourn the contempt hearing as the evidence does not establish that the mother willfully and intentionally breached the supervised access order.

[43] If the father completes the testing and assessment required and the testing satisfactorily addresses the concerns raised by Justice Jones, then the father may be granted leave to bring a motion to change the supervised access which has been in place now for approximately 4.5 years, subject to my comments below. At a minimum, the Lutherwood Centre will reconsider and reassess its decision not to provide supervised access services if the report satisfactorily alleviates their concerns.

[44] In conclusion, the mother is not in contempt of court. She simply provided Justice Jones trial decision and the OCL report to the Lutherwood Access Centre as required. She was not responsible for Lutherwood decision to decline to provide supervised access services. Lutherwood has said that they will reconsider their decision if the father follows the recommendations of this court and others and provides the phallometric testing and assessment.

[45] Supervised access did commence in early November 2016 through the arrangement of supervision by Brayden Supervised Access Services. The father is upset that he has to pay for privately supervised access. The court agrees with counsel for the mother that the fact the father now has to pay for privately supervised access is a problem entirely of his own making. He has been told repeatedly that he should obtain the phallometric testing and he has refused to do so.

Costs

[46] I reserved the issue of costs following the father's first contempt motion brought in August 2016, which I dismissed. I have reviewed the mother's Bill of Costs and submissions regarding this motion.

[47] The mother was entirely successful in the dismissal of the first motion for contempt. She is also entirely successful in having this second motion for contempt dismissed.

[48] Indeed, after receiving the correspondence from Lutherwood, the mother through her counsel asked the father to withdraw his second motion for contempt. He should have done so. The argument on November 30, 2016 was not necessary.

[49] Mr. Hutchinson's Bill of Costs itemizes approximately six hours of work including drafting the responding motion material, drafting the factum, and for attending and arguing on each motion. His hourly rate is $300 per hour. He was called in 2008. The time spent, the hourly rate, and the total costs incurred for each motion are reasonable. He is seeking $2,000.00 for each motion.

[50] Rule 24 of the Family Law Rules governs the determination of costs in family law proceedings. In accordance with Rule 24 of the Family Law Rules, as the mother was entirely successful on both motions, she is presumed to be entitled to costs. Although no formal offers to settle were served, the mother did propose in writing to the father, prior to attendance of the second motion that the father withdraw the motion without costs. The mother has not acted unreasonably.

[51] In reviewing all of the factors set out in Rule 24, and in exercising its discretion, the court will order $1250.00 in costs to the mother for the costs associated with the first contempt motion heard in August 2016 and $1250.00 for the costs associated with the second contempt motion in November 2016, for a total amount in costs of $2,500.00, inclusive of HST and disbursements.

The Mother's Request that the Father be Required to Pay All Outstanding Costs Before Filing Further Motions

[52] In 2014, the father was ordered to pay $1,000.00 in costs by Justice Katarynych for a motion in which the mother was successful. In January of 2016, the father was also ordered to pay $30,000.00 in costs by Justice Jones, in a written endorsement delivered to the parties following the trial.

[53] The father has not paid any of the previous outstanding cost orders. The father stated that he was unaware of the cost order made by Justice Jones as it was never mailed to him, or it was mailed to the wrong address. Even if this were true, at a minimum, the father has been aware of Justice Jones' Cost Order since August 2016 when it was brought to his attention in court by mother's counsel. A copy was provided to him.

[54] The father has not made any payments towards that order, nor has he appealed it. The father advised the court on November 30th 2016 that he intended to appeal the order but has not yet done so.

[55] The mother has asked for an order requiring the father to pay all outstanding cost orders against him before he is permitted to file any further motions in this court. To date, the father has not provided his 2013, 2014 and 2015 notices of assessment to the mother or his most recent pay stub.

[56] In Pepper v. Frankum, 2007 ONCA 429, the Court of Appeal for Ontario allowed an appeal from a motion where a judge refused to grant a father leave to bring a motion for access, on the ground that the father had failed to pay a previous costs order. In allowing the father's appeal, the Court stated the following at paragraph 4 of that decision:

"Moreover, in our view, it is an error in law to bar a parent from seeking access to a child on the sole ground of unpaid costs without considering the amount of costs, the reasons they were unpaid, and the parent's ability to pay. The motion judge did not turn his mind to these considerations."

[57] In Bazinet v. Da Costa, [2001] O.J. No. 4881, Belch J. refused to stay a mother's motion for custody and access notwithstanding her failure to pay costs of $7,547.78 imposed by a previous order. The mother had offered to pay $50 monthly until the order was satisfied, or an immediate lump sum of $1,000. She cited her financial circumstances as the reason she was not able to pay more. The Court put in place a payment schedule and ordered that, if the payment schedule was adhered to, the mother's motions for custody and access could proceed. The Court stated the following at paragraph 20 of that decision:

"20 ... the issue of ... custody and access is not one that should be decided by the payment or non-payment of costs. ...it appears the solution would be to put in place a payment schedule, and provided that schedule was adhered to, the motions of the respondent mother on custody and access would not be stayed."

[58] In my view, the mother's request is premature. The father has not brought any further motions for access or other relief and the court would like to carefully review all of the relevant circumstances at that time.

[59] Further, the father has not yet completed his phallometric testing and report, which the court urges him to do. This will no doubt be a significant expense. He has made all child support payments to date, which are significantly high. He has complied with the child support order and his is not in arrears. He has incurred all of the transportation costs back and forth to Kingston and now to Kitchener to exercise access.

[60] The Court directs the father to commence making payments towards all the outstanding costs orders and to enter into a payment schedule with the mother's counsel. If the father brings a motion to change his access after he has completed the required testing and assessments, the mother may renew her request at that time. The father should also provide updated financial disclosure in accordance with the Final Order of Justice Jones.

Order

[61] For the reasons above, I make the following order:

1. The father's second motion for contempt against the mother is dismissed.

2. The father shall pay the costs in the total amount of $2,500.00, inclusive of HST and disbursements, to the mother for both failed contempt motions against her. This amount shall be payable within 30 days of the date of this Order, or commencing April 1, 2017, at rate of $250.00 per month.

3. The mother's request for an order that the father be required to pay all outstanding costs order before he is permitted to file any further motions with this court is adjourned at this time, and may be renewed at a later date for consideration.

Date: March 13, 2017

Justice Sheilagh O'Connell

Footnotes

[1] See also Prescott-Russell Services for Children and Adults v. G. (N.); Haywood v. Haywood, 2010 ONSC 5615

[2] See also Fratianni v. D'Ambrosio, 2014 ONSC 2680; Ricafort v. Ricafort, 2006 ONCJ 520

[3] The father states that he moved to a new location shortly after the trial.