Court File and Parties

Ontario Court of Justice

Date: January 31, 2018

Court File No.: Toronto DFO 11 11002 B1

Between:

Michelle Roth Applicant

— And —

Luke Halstead Respondent

Before: Justice E.B. Murray

Heard on: January 24, 2018

Reasons for decision released on: January 31, 2018

Representation:

• Michelle Roth on her own behalf
• Luke Halstead on his own behalf

Decision

MURRAY, E.B. J.:

Background and Prior Proceedings

[1] Michelle Roth and Luke Halstead are the parents of one child, Thomas, born November 19, 2004. They have been litigating parenting arrangements for the child since 2010. On July 31, 2017 Justice Sheilagh O'Connell delivered judgment after a 5-day trial. In her decision, she accurately characterized the case as one of "high conflict".

[2] On September 5, 2017 Michelle commenced a contempt proceeding against Luke, alleging 5 separate counts of contempt of the order of July 31, 2017 and of my order of August 2, 2017 which implemented J. O'Connell directions as to summer access for 2017.

[3] Michelle's motion was heard by me on October 4, 2017. I found Luke guilty of one instance of contempt. He deliberately overheld Thomas for one week after the conclusion of the time the order provided for access in August. Luke was frank that he did so because he was unable to reach agreement with Michelle about access that summer prior to the delivery of the judgment, and he felt cheated because although he was allowed 2 weeks in August by the judgment, Thomas had no vacation time with him in July (as was provided for in the judgment in future years).

[4] I did not find Luke in contempt with respect to Michelle's other allegations. These allegations involved behaviour on Luke's part which Michelle found objectionable, but which did not breach a court order[1].

[5] I ordered Luke to pay costs of $250, and put over the question of penalty for contempt to January 24, 2018, in order to give Luke the opportunity to demonstrate compliance with the order.

Legal Framework for Contempt Remedies

[6] Rule 31 of the Family Law Rules deals with remedies available to the court after a finding of contempt. Those remedies are broad. A court's primary objective when imposing a remedy for civil contempt is to promote future compliance with the court order[2]. The relevant part of Rule 31 is set out below.

Rule 31(5) - Remedies for Contempt

The court may order that the person:

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

Writ of Temporary Seizure

(6) The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person's property.

[7] In some cases, it is appropriate that no penalty be ordered against the party who was guilty of contempt[3].

January 24, 2018 Hearing

[8] At the hearing of January 24th I received evidence from both parties.

[9] Michelle alleged that Luke continues to act in contempt of the July 31st judgment. She asks that I impose a penalty of $5,000, the maximum available.

[10] Luke submits that he has complied with the order. He says that Michelle continues to characterize their differences of opinion or miscommunications in the worst possible light. He says that no penalty should be imposed.

Background Context

[11] To understand Michelle's allegations, it is necessary to know some background.

• Thomas lives primarily with Michelle and her partner, Christopher Coey, in Toronto. Michelle is looking for work as a child and youth worker; Christopher is a video games designer. Michelle has custody of Thomas, with an obligation to consult Luke about major decisions.

• Luke works as an emergency paramedic in Toronto; he is married to Sarah Halstead, who is a captain with the Canadian Forces. Luke lives in two locations—with his wife in Pembroke, and with his mother in Toronto when he is working.

• The judgment provides that Luke shall exercise "regular" access on alternate weekends and one evening per week "in Toronto". Holiday and vacation access may be exercised elsewhere—for example, in Pembroke. The judgment provides no reason for this distinction, but it is likely an acknowledgement of the impracticality of exercising weekend access in Pembroke, which is 3-1/2 – 4-hour drive from Toronto.

• Luke is a veteran of the armed forces and is an avid outdoorsman, hunter, and firearms enthusiast. Michelle's interests lie elsewhere. One issue explored in the trial was the parties' differences as to what constituted healthy exercise and activity for Thomas and what was harmful. Both Michelle and Christopher testified that in their view Luke was emotionally abusive to Thomas in a multitude of ways, including an insistence that the child participate in excessively strenuous exercise. Luke disputed these charges, saying that he simply wanted Thomas to grow up to be healthy and that regular exercise was good for the child. Luke said that at Michelle's Thomas spent most of his time playing video games.

• Justice O'Connell firmly rejected the characterization of Luke as abusive. She found that Luke sometimes failed to listen to Thomas's views about activity that he found stressful. She ordered that Luke not require the child to engage in "excessive exercises that have the potential to cause physical harm".

• Justice O'Connell found that many of the concerns expressed by Michelle and Christopher about Luke were "exaggerated" and calculated to negatively affect the perception of Luke which others (such as the school principal or the clinical investigator from the Office of the Children's Lawyer) had. She worried that Michelle and Christopher were working to undermine Luke's role as a parent.

Analysis of Alleged Further Contempt

[12] Two of Michelle's charges with respect to what she calls Luke's further contempt are set out below.

Allegation 1: Day Trip to Halton

Thomas was with Luke on the weekend of October 6, 2017, a time of "regular" access according to the judgment. On that weekend, Luke took Thomas on a day trip to a conservation area in Halton for a fall festival. Michelle says that Luke is in contempt because Halton is not within the boundaries of the City of Toronto.

Michelle's interpretation of this provision is unreasonable. Although no reason is provided in the order for the restriction of weekend access to Toronto, there is no reason evident in the judgment to restrict Thomas's activities with his father while visits are based in Toronto to exclude day trips around the Greater Toronto Area.

Allegation 2: Christmas Holiday Period and Pembroke Visit

The judgment provides that Christmas holidays are to be shared as follows:

"In even-numbered years, Thomas shall be in the care of the mother from the start of the Christmas break until the evening of December 24th at 5 p.m., and the father shall have Thomas from December 24th at 5 p.m. until January 2nd at 5 p.m. In odd-numbered years, Thomas shall be in the care of this father from the start of Christmas school break until December 24th at 5 p.m. and the mother shall have Thomas from December 24th at 5 p.m. until January 2nd. The regular alternating weekend access schedule shall re-commence on the first full weekend in January."

This past Christmas, then Thomas was with Luke on the first half of the holidays, a short time, as for most children school only ended on December 22nd. School did not restart until January 8th. Michelle, to her credit, offered that Luke could have Thomas for 3 extra days, from January 2-4th, as well as for weekend time from January 5-7. Luke accepted, and took Thomas to Pembroke.

Michelle alleges that Luke is in contempt of the order because he took Thomas to Pembroke (and did not stay in Toronto) during this period. She says that the judgment says that Christmas holiday ends January 2nd, and thus Luke was compelled to keep Thomas in Toronto. Luke says that the Christmas school holiday this past year ended on January 8th, and that he was free to have Thomas enjoy this 6-day period with himself and his wife in their home in Pembroke.

In my view, the order is unclear on this issue. Either party's interpretation is possible, although Luke's appears to reflect better the intent of the provision which bases shorter visits in Toronto. I cannot find that Luke acted in violation of the order by taking Thomas to Pembroke.

[13] Michelle's other charges of recent contempt by Luke have a similar flavor to those described above.[4]

[14] I do not find that Luke is guilty of any further instances of contempt of the July 31st order, as alleged by Michelle. Some of the problems evident in the "charges" of further contempt brought by Michelle are symptomatic of poor communication between herself and Luke.

Penalty for August 2017 Contempt

[15] What is the appropriate penalty, if any, for Luke's contempt last August? Luke deliberately violated the order concerning Thomas's 2017 summer vacation. Some penalty is required. In my view, the appropriate penalty is that he make a charitable donation of $500 to the Children's Aid Foundation of Toronto, and I so order. He shall make this contribution by February 28, 2018 and forward to the court and to Michelle evidence that he has done so.

Costs

[16] I have some concern that Michelle and Christopher now view the contempt process as a vehicle to use to marginalize Luke's role in Thomas's life. For that reason, I make no order as to costs of the January 24th hearing.

Released: January 31, 2018

Signed: Justice E.B. Murray

Footnotes

[1] Other than an order to pay money, for which contempt is not available.

[2] Chiang (Trustee of) v. Chiang, 2009 ONCA 3, 93 O.R. (3d) 483 (Ont. C.A.)

[3] Benson v. Butler, 2009 O.J. 2740 (S.C.J.)

[4] One involves late payment by Luke of child support—i.e., not on the first of the month. I explained to Michelle and Christopher previously that Rule 31 does not permit contempt proceedings for failure to obey an order to pay money, but Michelle renewed her argument on this point.