Court File and Parties
Date: September 3, 2019
Court File: 832/11
Location: Brampton, Ontario
Court: Ontario Court of Justice
Applicant: Joanne Boivin
Counsel: Thora H. Espinet
Respondent: Robert James Butts
Counsel: Sherri D. Moss
Before: Justice L.S. Parent
Endorsement
Introduction
[1] Mr. Butts and Ms. Boivin are the parents of two children, namely Jayda Michelle Boivin, born […], 2002 and Kai Matthew Boivin, born […], 2008.
[2] The current proceedings before the court are a Motion to Change filed by Ms. Boivin on December 1, 2017; an Amended Motion to Change filed on February 28th, 2018 and an Amended Amended Motion to Change filed August 15, 2018.
[3] Mr. Butts has filed a Response to the Motion to Change on January 12, 2018, an Amended Response on March 16, 2018 and an Amended Amended Response on September 14, 2018.
[4] Both parties, in their respective pleadings are seeking to vary the final order of Nelson, J. granted, pursuant to Minutes of Settlement, on April 2, 2013.
Proceedings Before the Court
[5] On April 5th, 2018, I granted leave to Mr. Butts to bring a motion seeking that Ms. Boivin was in contempt of the order of Nelson, J. regarding the terms of access. My order, on consent of the parties, set timelines for the filing of materials by the parties and scheduled the motion to proceed on May 4th, 2018.
[6] On May 4th, 2018, the parties, with the assistance of counsel, reached an agreement which resulted in the contempt motion being adjourned on terms. The matter was adjourned to a case conference on July 26th, 2018.
[7] The case conference proceeded as scheduled on July 26th, 2018. The matter was thereafter adjourned for a further case conference on October 4th, 2018.
[8] The case conference proceeded as scheduled on October 4th, 2018. The matter was thereafter adjourned to October 10th, 2018 so as to provide additional time for the parties to determine their requests for next steps.
[9] At the case conference on October 10th, 2018, counsel on behalf of each party requested the scheduling of several motions. Included in the requests on behalf of Mr. Butts was a second contempt motion for an alleged breach of the access provisions which occurred after the filing of the first contempt motion on April 13th, 2018 and of my temporary order granted May 4th, 2018.
[10] The motions requested on behalf of both parties were scheduled to proceed on December 14th, 2018, with an estimate of time of 3 to 4 hours.
[11] Counsel and the parties attended on December 14th, 2018.
[12] For the reasons set out in my endorsement, which included the numerous affidavit materials contained in several volumes of the Continuing Record as filed by both parties, the contradictory nature of the evidence provided and the possible sanctions should contempt be found, I ordered a hearing to occur on the motions so as to provide that both parties and any other persons providing affidavits be cross-examined.
[13] The contempt motions were scheduled to proceed on April 10th and 11th, 2019.
[14] On March 29th, 2019, Ms. Boivin filed, on notice to Mr. Butts, a 14B motion seeking an adjournment of the hearing dates of April 10th and 11th, 2019. Following my review of the materials filed, which included an affidavit filed in support of Mr. Butts' opposing the request for an adjournment, I released, on the same day, an endorsement requiring counsel and the parties to attend before me on April 3rd, 2019.
[15] Following submissions and for the reasons noted in my endorsement on April 3rd, 2019, I granted Ms. Boivin's request for an adjournment. The hearing was thereafter adjourned on a pre-emptory basis to June 13th and 14th, 2019.
[16] On June 13th, 2019, the hearing, for reasons noted in my endorsement which contained terms and on consent, was adjourned to August 12th and 13th, 2019.
[17] The contempt motions proceeded as scheduled on August 12th and 13th, 2019 and my decision was reserved.
Relevant Orders
Final Order of Nelson, J. Dated April 2nd, 2013
[18] Paragraphs 1 and 2 of the order of Nelson, J. provides as follows:
THE COURT ORDERS THAT ON A FINAL BASIS:
PURSUANT TO THE MINUTES OF SETTLEMENT DATED APRIL 2, 2013
Paragraph 1
The Applicant, Joanne Nicole Boivin, will have custody of the children, Jayda Michelle Butts, born […], 2002, and Kai Matthew Butts, born […], 2008.
Paragraph 2
The Respondent, Robert James Butts, will have access to the said children as follows:
a. When he is not working in Nunavut, alternate weekends with the return time prior to 5:00 p.m. Sunday (extended to Thursday evening or Monday at 5:00 p.m., if either Friday or Monday is a Statutory Holiday).
b. When he is working in Nunavut, two consecutive weekends (out of five weekends), with the return time prior to 5:00 p.m. Sunday (or 5:00 p.m. Monday, if the Monday is a Statutory Holiday), with the Respondent providing two weeks advance notice, of the weekends he intends to exercise access on. In the event, he does not give the required notice he shall nevertheless have 6 days access during his two week hiatus from employment, which days are to be agreed upon by the Parties.
c. Father's Day provided that the Applicant, has the said children on Mother's Day.
d. Alternating Halloween evening commencing in 2013 (odd years), with the Respondent taking the said children out trick or treating in their neighbourhood.
e. One half of the said children's Christmas School Holiday each year, including, Christmas Day in alternating years commencing in 2014 (even years).
f. Shared March School Break, either by dividing the week or alternating it year to year, as they agree.
g. Such other access, as the Parties agree.
Temporary Order of Parent, J. Dated May 4th, 2018
[19] On May 4, 2018, the parties consented to an order for specified access visits to occur between May and July 2018 between the children and Mr. Butts. In addition, the parties consented to the following paragraph:
Paragraph 8
Pick up and drop off will be by the Respondent or one of the following people, Sarah Silverthorn and Wendy Phillips. In the event one of the listed designates need to contact the Applicant mother, they shall communicate by text or phone.
Contempt Motion #1
Positions of the Parties
[20] Mr. Butts' contempt motion dated April 13th, 2018 seeks a finding that Ms. Boivin is in contempt of the access terms as contained in the final order of Nelson, J. dated April 2nd, 2013 by:
(a) Failing to make Jayda available for access for the period between October 2016 to current, namely April 13, 2018;
(b) Failing to make Kai available for access for the period between October 2017 to current, namely April 13, 2018; and
(c) Enrolling the child in an extracurricular activity in April 2017 during his access period so as to deliberately interfere with his parenting time contrary to the order.
[21] Ms. Boivin denies that she has breached the order.
[22] Ms. Boivin claims that:
(a) She facilitated access visits by re-arranging the schedule when Mr. Butts was not available;
(b) The children, particularly Kai, was enrolled in extracurricular activities with the consent of Mr. Butts;
(c) That the children, by their own independent decision, did not wish to visit with their father particularly following an incident in October 2017; and
(d) If any contempt occurred during the period claimed, these breaches, which she denies, were purged given the terms consented to by the parties on May 4th, 2018 and incorporated into a consent temporary order.
Materials Before the Court
Mr. Butts
[23] In support of his position, Mr. Butts has filed the following documents:
(a) A Notice of Motion filed April 13, 2018 located at Tab 1, Volume 1 of the Continuing Record;
(b) His affidavit in support sworn April 12th, 2018 located at Tab 3, Volume 1 of the Continuing Record;
(c) The affidavit of Sarah Silverthorn sworn April 13th, 2018 located at Tab 2, Volume 1 of the Continuing Record;
(d) His affidavit sworn May 2nd, 2018 located at Tab 1, Volume 3 of the Continuing Record; and
(e) The affidavit of George William Gray sworn May 1st, 2018 located at Tab 2, Volume 3 of the Continuing Record.
Ms. Boivin
[24] In support of her position, Ms. Boivin has filed the following documents:
(a) An affidavit sworn April 26th, 2018 located at Tab 1, Volume 2 of the Continuing Record;
(b) The affidavit of Gianni Ballestrin sworn April 25th, 2018 located at Tab 2, Volume 2 of the Continuing Record; and
(c) The affidavit of Mary Forget sworn April 23rd, 2018 located at Tab 3, Volume 2 of the Continuing Record.
Contempt Motion #2
Positions of the Parties
[25] Mr. Butts' contempt motion dated November 5, 2018 seeks a finding that Ms. Boivin is in contempt of:
(a) The final order of Nelson, J. by failing to comply with access terms involving Kai on September 7 and 21, 2018 and October 5 and 19, 2018; and
(b) My temporary order granted May 4, 2018 by failing to allow a listed designate to pick up Kai for the access visit on September 7, 2018.
[26] Ms. Boivin denies that she has breached either order. She claims that the access visits did not occur as Kai did not wish, by his own choice, to attend the visits and in regards to the September 7, 2018 visit, Mr. Butts and his designate were not available.
Materials Before the Court
Mr. Butts
[27] In support of his position, Mr. Butts has filed the following documents:
(a) A Notice of Motion filed November 5, 2018 located at Tab 1, Volume 5 of the Continuing Record;
(b) His affidavit in support sworn November 2nd, 2018 located at Tab 2, Volume 5 of the Continuing Record; and
(c) His affidavits in reply sworn November 16th, 2018 and December 7th, 2018 located at Tab 2, Volume 7 and Tab 1, Volume 8 of the Continuing Record respectively.
Ms. Boivin
[28] In support of her position, Ms. Boivin has filed the following documents:
(a) An affidavit sworn November 15th, 2018 located at Tab 1, Volume 7 of the Continuing Record; and
(b) Her affidavit sworn December 6th, 2018 located at Tab 2, Volume 7 of the Continuing Record.
[29] A review of the file confirms that both parties, in the process of filing notices of motions relating to other relief, combined their evidence relating to the contempt motions and other motions not yet before the court, in the same affidavits.
[30] In order to ensure that I had all of the evidence provided by both parties on the contempt motions, I reviewed all affidavits filed in the 8 volumes of the Continuing Record.
[31] As noted in my endorsement dated August 12, 2019, on consent of the parties through counsel, little weight was to be given to the affidavits filed by those who were not present to be cross-examined. Other than the parties, only Mr. Butts' spouse, Ms. Sarah Silverthorn was produced for cross-examination.
[32] At the hearing, Mr. Butts, Ms. Silverthorn and Ms. Boivin adopted their respective affidavits without any amendments as their evidence-in-chief.
The Law
[33] Counsel for each party have submitted caselaw outlining the consideration when a court is asked to exercise its discretion and determine if a finding of contempt is appropriate. I have reviewed these authorities and considered them in the context of each party's position as submitted by their respective counsel.
[34] Counsel for the father has referenced Rule 31 of the Family Law Rules and provided the decision of the Ontario Court of Appeal in Godard v. Godard, 2015 ONCA 568, as one authority for the determination of a finding of contempt.
[35] This decision references the Ontario Court of Appeal's decision in Prescott-Russell Services for Children and Adults v. G. (N.) et al. (2007), 82 O.R. (3d) 686 which sets out the three part test to be met before a finding of contempt can be made, namely:
The order that was breached must state clearly and unequivocally what should and should not be done;
The party who disobeys the order must do so deliberately and wilfully; and
The evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
[36] The form of contempt addressed by Rule 31 is civil rather than criminal, notwithstanding that imprisonment is one of the possible remedies. Whereas the purpose of the sanction for criminal contempt is primarily to penalize the offender, the remedies for civil contempt is primarily remedial to attempt to gain compliance with orders of the Court.
[37] It is not disputed that the threshold for a finding of contempt to be made is beyond a reasonable doubt. For this threshold to be met, the circumstances must be clear and unambiguous.
[38] Principles regarding the issue of contempt are also contained in the Godard decision. It is not disputed by counsel that the remedy of contempt is one of last resort. The caselaw establishes that great caution must be exercised when considering contempt motions in family law proceedings.
[39] The Godard decision at paragraph 28 lists the caselaw in support of the proposition that "a parent 'has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order'."
[40] The case law is clear that direct intention to disobey the court order is not required, wilful disregard is sufficient (see: Peers v. Poupore, [2012] O.J. No. 2259 (OCJ) at para. 34). However, the term "wilful" is intended to exclude casual, accidental or unintentional acts.
[41] It is within the above-noted framework that I have considered the evidence of each party.
Evidence and Submissions
Mr. Butts
[42] As indicated, Mr. Butts' position is that for the period between October 2016 for Jayda and October 2017 for Kai to the filing of his notice of motion on April 13, 2018, Ms. Boivin was in contempt of the final order of Nelson, J. dated April 2, 2013 as she failed to make the children available for access visits.
[43] In all his affidavits filed, Mr. Butts deposes that Ms. Boivin has failed to make any reasonable effort to support the children in having a relationship with him and in failing to do so, she has breached the April 2013 order of the court.
[44] The father indicates that he disbelieves the mother's statements that she supports the children in having a relationship with him. In fact, the father states that the mother is hindering the children from developing any relationship with him.
[45] Through cross-examination, Mr. Butts testified as follows:
Prior to the filing of the October 2017 incident, he and Ms. Boivin were able to modify the access schedule as contained in the order of Nelson, J. dated April 2, 2013 through communication, co-operation and agreement;
The changes to the access terms were needed as his employment brought him to Nunavut for three to three and one-half weeks per month on a work rotation;
When home in London, ON during the rotation schedule, he saw the children regularly;
The parties' ability to co-operate did not require him to provide Ms. Boivin with a schedule, despite the terms of the order, but rather to merely communicate to her when he was home;
That he was alright with Jayda not coming for visits if she had activities with her friends. He denied, however, that he told Jayda that she did not need to visit him or gave her the impression that she did not have to attend access visits if she did not want to;
That he and Ms. Boivin would re-arrange visits days and/or pick-up/return times should circumstances, such as his work obligations and/or if the children had activities, arose which prevented strict adherence to the access terms contained in the order of Nelson, J.;
He supported Kai in his extra-curricular activities, such as ball hockey, even if it resulted in his visits with Kai being shorter in duration;
Difficulties in access began during the access visit of May 27 to 29, 2017 in that Ms. Boivin dictated to him the Tuesday before his access weekend that Kai would not be available for pick up on Friday as he had a ball hockey game;
That he was not permitted to see the children during the summer and Christmas 2017 school break;
Following an incident at an arena on October 2017, access became nearly impossible as his efforts to communicate with Ms. Boivin were blocked and his efforts to see the children were not accepted by Ms. Boivin until my temporary order of May 4, 2018;
That Kai had great visits with him during the summer of 2018;
He disbelieves that Kai is the author of messages to him that he does not wish to see his father;
On September 7, 2018, he was not available for access and neither was his spouse, Ms. Silverthorn, as her car had broken down on the way to pick up Kai. He testified that he attempted to arrange with Ms. Boivin to pick up Kai on the Saturday morning however she refused; and
He believes that the children have been alienated from him due to Ms. Boivin's actions which include providing information to the police to support her view that there are safety concerns when the children are in his care.
[46] In cross-examination, Ms. Silverthorn confirmed that her car had broken down on September 7, 2018 and that she was unable to pick up Kai. She further testified that she supports Mr. Butts in his belief that Ms. Boivin is alienating the children from him.
[47] Given the evidence on behalf of the father, counsel submits that Ms. Boivin does not support any relationship between the children and their father.
[48] Counsel highlights that the safety concerns detailed in Ms. Boivin's materials have not been verified by any third parties such as child protection agencies, the police or the other deponents of affidavits filed on behalf of the father's position. Counsel submits that the court should not accept Ms. Boivin's subjective view of safety concerns so as to justify her numerous breaches of the existing court orders relating to access.
[49] Counsel submits that Justice Clay, on November 28, 2017 denied Ms. Boivin's emergency motion and that Ms. Boivin cannot rely on comments made within that endorsement to support her denial of access.
[50] Counsel submits that Ms. Boivin's obvious and flagrant hatred of Mr. Butts means that she is merely looking for any excuse to not have Kai and/or Jayda spend time with him.
[51] Counsel submits that the precise wording of my May 4, 2018 temporary order did not permit Ms. Boivin to "put the law in her own hands" and dictate when access was to occur during the months of May to July, 2018.
[52] Counsel submits that the evidence is clear that Ms. Boivin has failed in her obligation as a custodial parent, namely to tell Kai that access with his father must occur.
[53] Given this evidence, counsel submits that the finding of contempt, as sought by Mr. Butts, must be found and that make-up visits must be ordered along with a police enforcement clause in order to ensure compliance by Ms. Boivin.
Ms. Boivin
[54] Through cross-examination, Ms. Boivin testified as follows:
She admitted to using offensive and denigrating language in communications with Mr. Butts and Ms. Silverthorn, which were inappropriate, however, not threatening to them;
Her use of inappropriate language has ceased since the consent order of May 4, 2018 which requires the parties to use the communication application OurFamilyWizard;
She agreed that for several years following the order of Nelson, J. she facilitated access between the children and Mr. Butts despite his inability to follow the terms of that order;
She acknowledges a deep rooted hatred of Mr. Butts, however, despite her feelings, she has allowed access to proceed, even outside the terms of the order of Nelson, J., until the arena incident in October 2017;
She feels that it is appropriate to show Kai text messages from his father advising her that he is not coming for access visits;
That the children have a "violent reaction" to their father;
That in allowing the children not to see their father during Christmas 2017, she was relying on the order of Clay, J. dated November 28, 2017 as he noted that her concerns were very serious;
She has only not allowed access visits due to serious safety concerns existing as the safety of her children are her priority; and
That it is the children's own wishes not to see their father. Furthermore, these wishes have not been influenced by her in any manner.
[55] Counsel for Ms. Boivin submits that this matter involves two angry persons. Ms. Boivin, however, shows her emotions and displays her anger through her words. Mr. Butts, counsel submits, is more skilled at containing his anger. Counsel for Ms. Boivin submits that Mr. Butts is not any less angry than her client and, in fact, contributes equally if not more to the conflict between the parties.
[56] Counsel submits that for a lengthy period of time following the order of April 2, 2013, the parties' evidence is that they regularly changed the terms of access to suit the children's and their respective schedules, activities and obligations.
[57] Counsel submits that Mr. Butts, by his actions and his words, gave Jayda permission not to attend visits. Given this permission, Jayda has chosen not to attend visits.
[58] Counsel submits that the facts are clear that Kai is not willing to attend access visits despite Ms. Boivin seeking assistance from the police, and encouraging him, both verbally and by her actions, to go on the visits with his father.
[59] Counsel for Ms. Boivin submits that her client has done all she can to encourage both children to attend visits since the parties' separation. Counsel submits, however, that Mr. Butts has done nothing to encourage the children, and particularly Kai, to participate in visits.
[60] Counsel submits that the 1st contempt motion should be dismissed on the basis that any contempt was purged by Kai's attendance at the access visits throughout the months of May to July 2018 pursuant to the May 4, 2018 order.
[61] Counsel submits that the 2nd contempt motion should also be dismissed as:
(a) Mr. Butts was not available to attend on the access visit of September 7, 2018 in accordance with the May 4, 2018 order; and
(b) Kai independently refused to go on the visits with his father on September 21, October 5 and 19, 2018.
[62] Counsel submits that Ms. Boivin should not be found in contempt as she did all that she could do to encourage Kai to attend the September/October visits with his father. Ms. Boivin's actions, therefore, are not wilful and/or deliberate.
[63] Counsel submits that if Ms. Boivin is found to be in contempt, a fine, at a level which will not impact her ability to meet the children's needs, is appropriate.
Issues for Determination
[64] As previously indicated, a three part test must be met before a finding of contempt can be made. Accordingly, the issues to be determined are:
(a) Are the orders of Nelson, J. and Parent, J. clear as to the terms of access to be followed by the parties?
(b) Has Ms. Boivin disobeyed either or both orders and if so, has she done so deliberately and wilfully as claimed by Mr. Butts?; and
(c) Does the evidence present support a conclusion that any action by Ms. Boivin is deliberate and wilful beyond a reasonable doubt?
Analysis
[65] It is clear that these children are involved in a high conflict case. This high conflict exists due to their parents' behaviour, which the evidence supports, transformed from being co-operative to combative as early as in the later Spring of 2017.
[66] The behaviour of these parents has resulted in the normalization of conflict in their children's lives. Currently, this atmosphere has resulted in Jayda not seeing her father since 2016, a hiatus in contact between Kai and his father from Fall 2017 to end of April 2018 and not since July 3, 2018.
Part One – Clarity of Orders
[67] I have reviewed both the final order of Nelson, J. dated April 2, 2013 and my temporary order dated May 4, 2018. Both orders are clear as to the terms of access. Neither counsel has raised the issue of clarity as a ground.
[68] I therefore find that Part One of the test has been met.
Parts Two and Three – Wilful and Deliberate Behaviour Beyond a Reasonable Doubt
Contempt Motion #1
[69] I further find that the majority of the alleged breaches of the order of Nelson J., as detailed in Mr. Butts' Notice of Motion as it relates to the 1st contempt motion, do not amount to wilful and deliberate behaviour by Ms. Boivin which resulted in access visits not occurring.
[70] The evidence by both parties, particularly as obtained in cross-examination, is such that they both, until the late Spring of 2017, consented to times of access, particularly for Kai, outside the parameters of the order of Nelson, J. For what appears to be for a period in excess of four years, such a method was acceptable to both parties.
[71] The evidence of the parties is that from late Spring to early Fall 2017, the existing level of co-operation between the parties began to erode. Ms. Boivin testified that this was as a result of growing tired of accommodating Mr. Butts. Mr. Butts testified that this was the period that Ms. Boivin decided to be the one dictating when access would occur.
[72] I do not find that the refusal of Ms. Boivin to continue this pattern of accommodation to amount to wilful and deliberate behaviour, beyond a reasonable doubt, such that she is to be found in contempt. In other words, refusing to accommodate changes in the access schedule sought by Mr. Butts, even after a pattern of accommodation existed, is not, in my view behaviour supporting her being found in contempt.
[73] In considering all of the evidence before me regarding the period following the order of Nelson, J. on April 2, 2013 to early Spring 2017, I am prepared to accept that Ms. Boivin, did her best to encourage her children to attend access visits with their father. In fact, the evidence is clear that the children attended most visits.
[74] Given the flexible approach to the adherence to the terms contained in Nelson, J.'s order date April 2, 2013 by the parties, which the evidence supports included re-arranging days and times of visits, pick-up and drop-off locations, participation in extracurricular and social activities, I cannot conclude, beyond a reasonable doubt, that Ms. Boivin engaged in wilful and deliberate behaviour resulting in access visits not occurring.
[75] The evidence is clear that an incident occurred in October 2017.
[76] It is following this incident that Ms. Boivin claims the children, particularly Kai, on their own account, began expressing that they no longer wished to attend access visits with their father.
[77] It is following this incident that Mr. Butts claims that Ms. Boivin amplified her campaign to alienate the children from him and began making unfounded allegations that the children were unsafe in his care.
[78] I am satisfied that the behaviour of Ms. Boivin in the Fall of 2017 to April 2018 was wilful and deliberate and that these actions meet the threshold requirement of beyond a reasonable doubt to support a finding in contempt.
[79] I make this determination on the basis that Ms. Boivin was clear in her evidence during cross-examination that her priority was to ensure her children's safety. In fact, she testified that in October 2017, she stopped access due to safety concerns regarding Jayda. She further testified that she felt Mr. Butts put Kai in danger in allowing him to play ball hockey while in his care following surgery.
[80] I find that the evidence is clear that Ms. Boivin allowed her belief that Mr. Butts was not an appropriate parent who deserved a relationship with his children to interfere with her obligation as a custodial parent to encourage Jayda and Kai's relationship with their father.
[81] Specifically, the evidence demonstrated that Ms. Boivin:
(a) Consciously decided to no longer continue the pattern of accommodation of access that had been in place following the order of Nelson, J. dated April 2, 2013;
(b) Permitted both children to be exposed to inappropriate messages she sent to Mr. Butts and his partner, Ms. Silverthorn, expressing her belief that they were risks to the children;
(c) Deliberately did not share with Mr. Butts information regarding Kai's surgery until after the surgery had been completed;
(d) Relied upon Mr. Butts contacting her to see Kai post-surgery rather than extending appropriate arrangements for contact to occur;
(e) Relied upon selective comments in the endorsement of Clay, J. dated November 28, 2017 in order not to have the children available for a visit with their father during Christmas 2017 rather than accepting that Clay, J. had denied her motion; and
(f) Monitored messages between Kai and Mr. Butts despite such behaviour being prohibited in my May 4, 2018 order.
[82] This behaviour, I find, resulted in Kai beginning to express a desire not to have visits with his father. I further find that Ms. Boivin, rather than accepting Kai's views as being questionable, accepted them as further re-enforcement that Mr. Butts should not have a relationship with his children.
[83] There is no dispute that when an order was granted on May 4, 2018 for specific access visits between Kai and Mr. Butts, Kai attended all access visits and by Mr. Butts' evidence, which was not disputed by Ms. Boivin, had fun with his father.
[84] The May 4, 2018 order provided as follows:
Paragraph 1
The Respondent father shall have access to Kai Matthew Boivin born […] 2008
Friday May 4th 2018 from after school to Saturday May 5th 2018 at 11 AM. The Respondent will attend Kai's Ballhockey game and return him to his mother on Saturday so the child can attend the two previously arranged birthday parties.
Paragraph 2
Friday May 18th 2018 from after school at home at 4pm return Tuesday May 22nd 2018 at school or home.
Paragraph 3
June 1st from after school at 4pm to Monday at school or home June 4th.
Paragraph 4
June 15th at home at 4pm to June 18th drop off at school or home.
Paragraph 5
June 28th at home at 4pm to July 2nd 2018 drop off at home or home.
Jayda shall also be invited to attend any and all access visits at her discretion.
[85] Kai's pattern of expressing opposition to have visits with his father re-emerged after the specific access scheduled ended in July, 2018.
[86] I do not accept counsel for Ms. Boivin's submission that her client purged her contempt, if this determination was within the context of these motions, as she fully complied with the terms of the May 4, 2018 order.
[87] Paragraph 5 at page 5 of the May 4, 2018 order provides as follows:
"Provided that there is compliance with all of the above, the contempt motion will be resolved until the matter will continue to a continuing case conference."
[88] The May 4, 2018 order was not limited to terms regarding access.
[89] The order also required the parties to engage and retain the services of a counsellor for the children. The relevant paragraphs are:
Paragraph 12, page 4
"The parents shall engage and retain a counsellor to provide counselling services to the parties and the children to deal with the conflict and other emotional issues that have arisen out of the separation. The counsellor shall be permitted to also address any issues that would be of benefit to any of the parties or the children with a view of repairing the conflict.
Paragraph 13, page 5
"The mother shall facilitate counselling with the children to deal with the family conflict, repairing the relationship with the Respondent father and the emotional effects of the separation The Applicant shall be able to submit and claim directly to the Respondent's Blue Cross."
[90] I was not provided with any evidence that these terms were complied with.
[91] For these reasons, I find Ms. Boivin was in contempt of the order of Nelson, J. dated April 2, 2013 for the period between October 2017 and April 2018.
Contempt Motion #2
[92] This Notice of Motion is specific as to times Mr. Butts alleges that Ms. Boivin was in contempt of the existing orders in this matter.
[93] The evidence does not satisfy me that Ms. Boivin engaged in behaviour on September 7, 2018 which resulted in Kai not attending this access visit. The evidence is clear that Mr. Butts was not available and Ms. Silverthorn, as his designate, was also not available, due to her car breaking down, to pick up Kai on the Friday early evening.
[94] I do not accept that Ms. Boivin's refusal to accept Mr. Butts' proposal to pick up Kai on Saturday morning as being wilful and deliberate behaviour beyond a reasonable doubt.
[95] The evidence is that on September 21, October 5 and 19, 2018, Kai refused to attend on access visits with his father. I accept that the evidence establishes that Ms. Boivin sought the assistance of the police to assist her in encouraging Kai to attend the visits on these days.
[96] I find that the evidence supports that by late September 2018, Ms. Boivin had engaged in behaviours which supported the children in their expressed desire to not see their father.
[97] By this time period, Ms. Boivin, as the custodial parent, had permitted:
(a) The children to choose whether they wishes to visit with their father;
(b) Did not question why the children did not wish to see their father and merely accepted that they feared to be in his care;
(c) Allowed the children to express their opposition to visits with their father to persons in authority, such as the police;
(d) Allowed the children to learn that if they expressed their view not to attend visits to persons in authority, including their mother and/or the police, the likely result would be that they would not be required to attend; and
(e) Told the children that she supported their belief that they were not safe in the care of Mr. Butts.
[98] I am concerned that during her testimony in cross-examination, Ms. Boivin was immediately defensive. She was unable to acknowledge and demonstrate any insight into how her feelings towards Mr. Butts could impact Jayda and Kai. In fact, she stated clearly that she has a deep rooted hatred of Mr. Butts and that there is no conversation about Mr. Butts in her home.
[99] After describing this environment, Ms. Boivin testified that she has never engaged in any behaviours prevent her children from having access with their father. She further stated that the children have not been impacted by her negative opinion of Mr. Butts.
[100] Given the evidence, I cannot accept Ms. Boivin's position.
[101] I do not doubt that Jayda and Kai truly believe and express that they do not wish to have contact with their father. I find that Ms. Boivin has, by her actions and her words, permitted the children to conclude and maintain the belief that it is no longer acceptable for them to have a relationship with their father. Accordingly, I cannot accept that the children's views and preferences to not have contact with their father are independently held.
[102] By permitting such an atmosphere to be created and persist, I do find Ms. Boivin's behaviour to be deliberate and wilful.
[103] A review of the evidentiary record does satisfy me, beyond a reasonable doubt, that the father's theory regarding his children's unwillingness to have contact with him exists exclusively due to the mother not encouraging such a relationship be it by not exercising her parental authority or by poisoning the children against him. Stated another way, I accept that the evidence supports the possibility that these children's refusal and/or reluctance to visit with their father is as a result of their direct exposure to the conflict between their parents and more particularly, Ms. Boivin's belief that they are not safe in his care.
[104] Therefore, for the above noted reasons, I find that the motions of Mr. Butts to have Ms. Boivin found in contempt are partially granted. Specifically, I find that Ms. Boivin has been in contempt of the order of Nelson, J. dated April 2, 2013 for the period between October 2017 to April 18, 2018 and on September 21, October 5 and 19, 2018.
Sanctions
[105] Given this decision, I must consider the issue of remedies under Rule 31(5).
[106] As previously noted, counsel for Mr. Butts seeks an order for make-up visits with Kai. Counsel submitted that the order should be for uninterrupted extended access or in the alternative, every weekend.
[107] Counsel confirms that Mr. Butts is not seeking to require Jayda to attend any visits. I note that on July 26, 2018 the parties consented to a variation of the order of Nelson, J dated April 2, 2013 so as to provide that access between Jayda and Mr. Butts is to be at her discretion.
[108] Counsel for Ms. Boivin submits that a fine is the more appropriate sanction given Kai's refusal to have contact with his father. Counsel further submits that if a fine is imposed, it should not impact Ms. Boivin's ability to financially care for her children. Counsel further submitted that Ms. Boivin is currently earning no or very little income.
[109] Given the evidence, I am of the view that both sanction proposals are not appropriate in the circumstances.
[110] For the reasons stated above, I am of the view that it is appropriate to order a gradual schedule of access between Kai and his father to occur between the release of this decision and the matter returning before me on October 28, 2019.
[111] I am further satisfied that should Kai not attend on these visits, a financial penalty will be imposed on Ms. Boivin. I am of the view that a police enforcement clause is not required given these terms and the risk that Kai perceives the involvement of the police as an opportunity not to attend the visits as ordered.
Order
[112] For these reasons, the following order is granted:
The motion of Mr. Butts seeking to find Ms. Boivin in contempt of the final order of Nelson, J. dated April 2, 2013 is partially granted, namely Ms. Boivin is found to be in contempt of this order only for the period between October 2017 to April 18, 2018 and on September 21, October 5 and 19, 2018;
The motion of Mr. Butts seeking to find Ms. Boivin in contempt of paragraph 2 of my temporary order dated May 4, 2018 is denied;
Mr. Butts shall have access to Kai Matthew Boivin, born […], 2008 as follows:
(a) On Sunday, September 8, 2019 from 9:00 a.m. to 7:00 p.m.;
(b) On Saturday, September 14 and Sunday, September 15, 2019 from 9:00 a.m. to 7:00 p.m.;
(c) On Saturday, September 21 at 9:00 a.m. to Sunday, September 22, 2019 at 7:00 p.m.;
(d) On Friday, September 27 after school until Monday, September 30, 2019 return at school;
(e) On Friday, October 4 after school until Monday, October 7, 2019 return at school;
(f) For Thanksgiving, from Sunday, October 13 at 9:00 a.m. until Tuesday, October 15, 2019 return at school;
(g) On Friday, October 18 after school until Monday, October 21 return at school; and
(h) On Friday, October 25 after school until Monday, October 28 return at school.
For every visit missed as outlined in paragraph (3) above, a penalty of $750.00 shall be paid by Ms. Boivin to Mr. Butts. The terms of payment, should they arise, will be determined at the court appearance of October 28, 2019;
For paragraphs 3(a), (b) and (c), Kai will be picked up and returned at Ms. Boivin's residence;
Should Kai have already scheduled extra-curricular activities, such as ball hockey, during the visits ordered in paragraph 3 above, Mr. Butts will endeavour to permit him to attend these activities;
The parties, through counsel are encouraged to discuss the issue of costs. Should the issue of costs not be resolved on consent, a time table will be discussed and ordered for submissions on costs for this motion and prior court appearances as noted in my prior endorsements.
The matter is adjourned as scheduled to October 28, 2019 at 11:30 a.m. in Courtroom #209. Given my order, I require both parties to serve and file case conference briefs to advise me of compliance with this order and next steps in this matter.
Justice L.S. Parent