Court File and Parties

Date: November 26, 2020

Court File Number: 143/18

Brampton

Ontario Court of Justice

Applicant: C.K.

Counsel: Leah Simeone

Respondent: C.C.

Counsel: Megan Melito

Endorsement

Justice L.S. Parent

Introduction

[1] Mr. C.C. and Ms. C.K. are the parents of one child, namely V., born […], 2016. V. is currently four (4) years old.

Proceedings Before the Court

[2] The current proceedings before the court are an Amended Application filed by Ms. C.K. on November 5, 2018 and an Amended Amended Answer filed by Mr. C.C. on February 28, 2020. Both parties, in their respective pleadings, are seeking orders relating to the parenting issues of V.

[3] On February 4, 2020, Mr. C.C. filed, without leave of the Court, a notice of motion and a supporting affidavit seeking that Ms. C.K. be found in contempt of access terms contained in temporary orders granted on October 11, 2018 and April 8, 2019.

[4] Mr. C.C.'s notice of motion indicated a hearing date of February 11, 2020. My endorsement dated December 10, 2019 has designated the February 11, 2020 appearance as a combined Settlement/Trial Management conference.

[5] At the court appearance on February 11, 2020, discussions occurred with the result that, on consent of the parties, the following order was granted:

1. Mr. C.C. was given leave to serve and file a twice Amended Answer by February 25, 2020;

2. Ms. C.K. was given leave to serve and file an amended Reply by March 10, 2020;

3. Costs for the filing of the amended Reply would be determined on the return date if not resolved between the parties;

4. Authorizing disclosure of the records of the Children's Aid Society of the Region of Peel to the parties;

5. Requiring each party to serve and file updated Financial Statements and exchange disclosure by March 30, 2020;

6. The contempt motion materials filed by Mr. C.C. be permitted to remain in the Continuing Record;

7. Ms. C.K. was permitted to file her affidavit in reply to the contempt motion served on Mr. C.C.; and

8. Should Mr. C.C. seek to proceed with the scheduling of the contempt motion, leave of the court must first be obtained.

[6] The matter was adjourned to May 11, 2020.

[7] The May 11, 2020 appearance was administratively adjourned, given the current pandemic, pursuant to The Office of the Chief Justice of the Ontario Court Notice to the Profession on Scheduling of Matters in Family Court, to July 9, 2020.

[8] On July 9, 2020, the matter was further administratively adjourned to September 29, 2020 by Clay, J. given that neither party had served and filed the necessary documents in accordance with the Brampton Local Practice Direction dated May 7, 2020.

[9] On September 29, 2020, Clay, J. gave leave to Mr. C.C. to proceed with the hearing of his contempt motion filed on February 11, 2020. Justice Clay provided timelines for the filing of updating affidavits by each party and also the right for each party to be cross-examined.

[10] The contempt motion proceeded as finally scheduled on November 20, 2020 and my decision was reserved.

Relevant Orders

[11] The relevant orders are two temporary orders I granted, on consent of the parties, on October 11, 2018 and April 8, 2019.

[12] Neither of these orders have been issued and entered however, the relevant provisions of the Minutes of Settlement filed provide as follows:

October 11, 2018 Order:

1. An Order that access for the Respondent Father and the child, V., born […], 2016 occur every weekend starting October 12, 2018 from Fridays at 5:30 p.m. to Mondays at 7:00 a.m. Pick-up and drop off at the Applicant Mother's house.

2. An Order for additional access between the Respondent Father and the child:

   (a) To be every other Wednesday from 5:30 p.m. to Thursday at 7:00 a.m., starting October 24, 2018.

   (b) Christmas Eve – the Applicant Mother is to have the child on Christmas Eve (December 24) to Christmas Day (December 25) until 2:00 p.m.

   (c) Christmas Day and Boxing Day – the Respondent Father will pick up the child on December 25, 2018 at 2:00 p.m. and drop off the child on Boxing Day (December 26, 2018) at 2:00 p.m.

   (d) All pick up and drop off at the Applicant Mother's house.

   (e) Halloween – the Respondent Father will exercise access with the child on October 31, 2018 from 5:30 p.m. to 7:00 p.m.

   (f) December 4, 2018 – the Respondent Father will exercise access with the child from 5:30 p.m. to December 5, 2018 at 7:00 a.m. There will be no access on Wednesday December 5, 2018 at 5:30 p.m. to Thursday December 6, 2018 at 7:00 a.m. Pick up and Drop off at the Applicant Mother's house.

April 8, 2019 Order:

1. The Applicant mother shall pick up the child, V., born […], 2016 at 9:00 a.m. on April 14, 2019 from the Respondent father's residence located at […], Etobicoke, Ontario.

2. The Respondent father shall pick up the child from the Applicant mother's residence at […], Brampton, Ontario at 4:30 p.m. on April 15, 2019 and will drop off the child on April 16, 2019 at 7:00 a.m. at the Applicant mother's residence.

Contempt Motion

Positions of the Parties

Mr. C.C.:

[13] Mr. C.C.'s contempt motion filed February 4, 2020 seeks:

a) A finding that Ms. C.K. is in contempt of the terms of access granted in the temporary orders dated October 11, 2018 and April 8, 2019 by denying him in-person and/or telephone access to V.;

b) That sanctions be imposed as follows:

1. An order that the child, V. born […], 2016, be placed in the Respondent's primary care, with supervised access to the Applicant to occur at a supervised access centre or such other place as this Honourable Court deems appropriate;

2. In the alternative, an order compelling the Applicant to comply with the access provisions as ordered;

3. An order that the Respondent have sole custody of V.;

4. A fine in the amount of $7,500, payable by the Applicant forthwith;

5. A fine in the amount of $500 payable by the Applicant forthwith for any and each failure to comply with the provisions of this order; and

6. A fine in the amount of $1,000 payable by the Applicant forthwith for any further reports made by her, or anyone on her behalf or as directed by her, to (and not limited to) the police, the Children's Aid Society, the Special Victims Unit, in which her allegations are not verified / confirmed.

Ms. C.K.:

[14] Ms. C.K. does not deny that she has breached these orders as she has not permitted access. Ms. C.K.'s position is, however, that access has not been occurring for the following reasons:

a) At the direction of the Peel Regional Police Special Victims' Unit and the Children's Aid Society of the Region of Peel given the investigations of the disclosures by V. alleging sexual abuse while in the care of her father;

b) That Mr. C.C. consented to the suspension of his access when an investigation was being conducted;

c) Following an incident on April 15, 2020 which resulted in criminal charges being laid against Mr. C.C., his bail conditions prevented him from having direct or indirect contact with her resulting in compliance with the existing temporary orders being impossible given the term of access exchange location being at her home; and

d) V. continues to make disclosures of sexual abuse occurring while in the care of her father.

Materials Before the Court

Mr. C.C.:

[15] In support of his position, Mr. C.C. has filed the following documents:

(a) A Notice of Motion filed February 4, 2020, located at Tab 7, Volume 3 of the Continuing Record;

(b) His affidavit in support sworn February 3, 2020, located at Tab 8, Volume 3 of the Continuing Record;

(c) His updating affidavit sworn October 26, 2020 which was served on Ms. C.K.; however, not filed in the Continuing Record, but accepted for filing, on consent, prior to the hearing of the contempt motion; and

(d) His affidavit in reply sworn November 16, 2020, located at Tab 4, Volume 5 of the Continuing Record.

Ms. C.K.:

[16] In support of her position, Ms. C.K. has filed the following documents:

(a) Her affidavit sworn February 10, 2020, located at Tab 10, Volume 3 of the Continuing Record;

(b) Her affidavit sworn November 9, 2020, located at Tab 1, Volume 5 of the Continuing Record; and

(c) A Summary of Argument and List of Authorities filed by her counsel prior to the hearing of the motion.

[17] As permitted by Justice Clay, both Mr. C.C. and Ms. C.K. were cross-examined at the hearing of the contempt motion.

The Law

[18] Counsel for each party have submitted that there is no dispute as to the test that the court must consider when asked to make a finding of contempt against a party. Counsel agree that the caselaw establishes that great caution must be exercised when considering contempt motions in family law proceedings and that the remedy of contempt is one of last resort.

[19] Rule 31 of the Family Law Rules authorizes the court to conduct contempt proceedings.

[20] 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.

[21] 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 sets out the three part test to be met before a finding of contempt can be made, namely:

1. The order that was breached must state clearly and unequivocally what should and should not be done;

2. The party who disobeys the order must do so deliberately and wilfully; and

3. 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.

[22] Counsel on behalf of Ms. C.K. submitted caselaw outlining the considerations when a court is asked to exercise its discretion and determine if a finding of contempt is appropriate.

[23] Counsel cites the Ontario Court of Appeal decision in Chong v. Donnelly, 2019 ONCA 799 in support of her submission that the court must consider the best interest of the child when exercising its discretion to make a finding of contempt.

[24] The Court of Appeal decision in Chong further supports the position that when the three elements as set out in G.(N.) are made out, the court should consider whether it should exercise its discretion to decline to make a finding of contempt.

[25] It is not disputed that the threshold for a finding of contempt is beyond a reasonable doubt. For this threshold to be met, the circumstances must be clear and unambiguous.

[26] These principles regarding the issue of contempt are also contained in the Ontario Court of Appeal decisions in Godard v. Godard, 2015 ONCA 568, 387 D.L.R. (4th) 667 and Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65.

[27] At paragraph 3 of its decision in Hefkey, the Court states:

"Moreover, in our view, the civil contempt remedy should not have been sought in the circumstances revealed by the record. The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort "where conferences to try to resolve access problems or motions for enforcement have failed.""

[28] This cautious approach was once again approved by the Court at paragraph 17 of its decision in Godard.

[29] 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."

[30] In November 2020, the Ontario Court of Appeal released its decision in Gagnon v. Martyniu, 2020 ONCA 708 and J.D.M. v. T.L.L.M., 2020 ONCA 734. In dismissing these appeals, the Court re-affirmed the approach adopted in Hefkey and Godard.

[31] In the context of family proceedings, the applicable legal principles have been enumerated in the Ontario Superior Court of Justice decision in Janowski v. Zebrowski, 2019 ONSC 4046.

[32] In paragraph 24 of his decision, Trimble J. states as follows:

There is a large body of caselaw on civil contempt in family proceedings. From that body of caselaw, I distill the following legal principles:

a. The purpose of a contempt order in Family Law is to force compliance by the defaulting parent with an order, not punishment for non-compliance. The contempt order acts as a deterrent to the specific offender and others of a similar disposition from defying court orders and from undermining the administration of justice (Starzycka v. Wronski, 2005 ONCJ 329, at para. 16).

b. Court orders are not suggestions, guidelines, or invitations open to acceptance or rejection by the parties. Disobedience must have consequences (Purcaru v. Purcaru, 2010 ONSC 4031, at para. 37, aff'd 2010 ONCA 92). The court makes decisions when the parties cannot do so, or where supervision of the decision is required to protect the children. Whether an order is on consent or results from a contested hearing is of no moment. The orders are of equal force and must be obeyed.

c. Contempt is a remedy open to either party under FLR 31. It is also a remedy that the court can impose on its own initiative where the court is required to uphold the integrity of the legal system. (Zalman v. Zalman, [2002] O.J. No. 1818 (S.C.)).

d. Civil contempt is the "big stick" of civil litigation, a remedy of last resort imposed sparingly and with great caution in family proceedings, and only where other means to resolve the matter have failed (Hefkey v. Hefkey, 2013 ONCA 44, at para. 3, Fisher v. Fisher, at para. 11, Woronowicz v. Conti, 2015 ONSC 5247, at para. 17, Godard v. Godard, 2015 ONCA 568, at para. 17, Carey v. Laiken, 2015 SCC 17, at para. 36, and most recently in Ruffolo v. David, 2019 ONCA 385, at para. 18).

e. The paramount consideration in access cases is the best interests of children, and the courts ought to encourage the parents to involve professionals to speak and work with the children to address their relationship with their parents (Ruffolo, supra, at para. 19).

f. Contempt proceedings arise frequently in family cases because of lack of compliance with orders (Gordon v. Starr, at para. 23).

g. In order for the court to find contempt, the court must find a) that there was an order, b) the order was brought to the notice of the alleged contemnor, c) the order is clear as to what should or should not be done, d) the alleged contemnor did not obey the order, and e) that the failure to obey the order was willful and intentional. The burden of proof is on the moving party to prove these elements beyond a reasonable doubt (Van de Mierden v. Van de Mierden, [2009] W.D.F.L. 4947 (Ont. S.C.) at para. 29, Prescott-Russell Services for Children and Adults v. G.N. (2006), 82 O.R. (3d) 686 (C.A.), at para. 27, Hobbs v. Hobbs, 2008 ONCA 598 at para. 26, Sickinger v. Sickinger, aff'd 2009 ONCA 856, Woronowicz, supra, at paras. 33-25, and Godard, supra, at para. 11).

h. The "willfulness" that is required is that the failure to obey the order must be deliberate and not accidental or unintentional. The willfulness requirement may be met by intentional, willful or reckless disregard, or indifference to the authority of the order or the court (S.R. v. M.R., [2002] O.J. No. 1519 (S.C.) at paras. 219-221).

i. The absence of contumacious intent or a justification for the breach of the order is a mitigating, not exculpatory factor, relevant to punishment, not liability. This is especially so in family proceedings where feelings run high, a party often believes that only s/he is right and the other is wrong, there are feelings of bitterness and betrayal and self-righteousness, and that these feelings persist even after the court has made its determination such that a party feels justified in defying an order (S.R., supra, S.V. v. C.T.I., [2009] O.J. No. 816 (S.C.) at para. 6, Coletta v. Coletta, Starzycka, supra, at para. 16 and Zadegan v. Zadegan, at para. 23).

j. A parent is not entitled to ignore an order, even one made on consent. Where a parent is concerned about harm during the other parent's access time, the solution is to obtain an order varying access. She or he cannot unilaterally ignore an order unless there is serious, imminent harm (R.R.K. v. K.T.M.K., [2007] O.J. No. 600 (S.C.) at para. 29, L.M.K. v. E.P.R., [2005] O.J. No. 5782 (S.C.), at paras. 19-20).

k. There must be clear and compelling reasons to legally justify violation of an order. In order to do this, the parent must show, by admissible evidence, that he or she has a reasonably held belief that there is a good reason to defy the order, such as imminent harm to the children. Putting it another way, the defaulting parent's belief must be sincerely held. A sincere belief of imminent harm or danger, alone, is not sufficient. There must be a validly objective justification for the breach based on the child's needs and interests, based in evidence (Kassay v. Kassay, at para. 25; Docherty v. Catherwood, 2015 ONSC 5240, at para. 19; and Houben v. Maxwell, 2016 ONSC 2846, at p. 12 and 23, Jackson v. Jackson, 2016 ONSC 3466, at para. 59 to 61).

l. Whether there is a need to protect the children is a question for the Court to determine, not the parent. The parent must abide by the order and move promptly to modify the order being disobeyed (Salloum v. Salloum, at para. 20; Houben, supra, at para. 23; Chatur v. De Los Reyes, [2012] O.J. No. 2690 (C.J.), at para. 31, Prescott, supra, at paras. 47-50, Ralston v. Schultz, 2005 ONCJ 44, Docherty v. Catherwood, 2015 ONSC 5240 paras. 18-21).

m. The children's wishes are to be considered, depending on the children's ages (S.V., supra, at para. 20).

n. The burden of proving any defence or mitigating factor is on the responding party. I was referred to no authority as to the nature of the burden. As with defences and justifications in criminal law, the burden on the responding party should be on the civil standard.

o. A parent must take all reasonable steps to ensure compliance with the order. A parent cannot justify his or her failure to follow an access order because the child did not want to go. This makes the child responsible for the parent's breach of the order. Often, the parent abdicates to the child the decision the parent ought to make because the parent knows that the decision the child will make will be the decision that the parent would have made and which is one which violates the order. The parent abdicates his or his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences. A parent's obligation is to do what is reasonable and necessary, and actively require the child to comply with the order by explanation, exhortation, and the threat and execution of discipline (S.V., supra, at para. 46, Haywood v. Haywood, 2010 ONSC 5615, at paras. 29, 41-43, Stuyt v. Stuyt, [2009] O.J. No. 2475 (S.C.), at para. 54, Geremia, supra, at para. 63, and Godard, supra, at para 29).

p. What steps a parent must take to have the child attend access with the other parent depends on the circumstances and age of the child. Usually, passive "reasoning with the child" is insufficient and is in breach of the access order. There is a positive obligation to ensure that a child complies with the order. The parent is not entitled to leave access decisions to the child (Geremia, supra, at para. 63, Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.), at para. 8, B.K. v. A.P., [2005] O.J. No. 3334 (S.C.) at paras. 22-25, Godard, supra, at para. 29).

[33] I have reviewed these authorities and considered them in the context of each party's position as submitted by their respective counsel. It is within the above-noted framework that I have considered the evidence of each party.

Evidence and Submissions

Mr. C.C.

[34] As indicated, Mr. C.C.'s position is that since January 12, 2020 he has not had access with his daughter as granted under the temporary orders dated October 11, 2018 and April 8, 2019 as Ms. C.K. has failed to make V. available for in person and telephone access visits.

[35] In all his affidavits, Mr. C.C. deposes that:

• Ms. C.K. has failed to make any reasonable effort to support V. in having a relationship with him as her "end game" is to obtain sole custody without any terms of access;

• Ms. C.K. has made false allegations against him, on more than one occasion, to authorities claiming that he has sexually abused V., that V. is not safe in his care and that Ms. C.K. is fearful of him;

• These allegations made by Ms. C.K. have resulted in V. and/or the parties being interviewed on several occasions by police, medical professionals and social workers employed by the local child protection agency;

• These allegations made by Ms. C.K. have resulted in V. undergoing several medical examinations;

• Despite the conclusions reached by the police, the medical professionals and the child protection agency social workers that the allegations raised by Ms. C.K. against him have not been verified, Ms. C.K. continues to believe that V. has been sexually abused by him and therefore only supervised access should occur;

• Despite the child protection agency indicating to both parties that access between Mr. C.C. and V. should resume in accordance with existing court orders, Ms. C.K. has failed to allow it;

• The disclosure provided by the involved child protection agency confirms that Ms. C.K. is on a mission to end his parenting time with V., that she displays to them an unwavering belief that he has sexually abused V.; that Ms. C.K. became upset with the agency for not supporting her belief that sexual abuse occurred, and that Ms. C.K. has stated to them that she believes his contact with V. should be supervised;

• That the reports from the police and the child protection agency indicate that it is Ms. C.K. who is struggling with the access arrangements; and

• He disbelieves Ms. C.K.'s statements that she supports a relationship between him and his daughter.

[36] Through cross-examination, Mr. C.C. testified as follows:

• That he did attend at Ms. C.K.'s home on April 15, 2020 when he was not scheduled to have access with V.;

• That his bail conditions, which arose as a result of criminal charges being laid due to his attendance at Ms. C.K.'s home on April 15, 2020, do prohibit him from having direct or indirect communication with Ms. C.K.;

• That his family did contact Ms. C.K.'s family to arrange to see V. following the April 15, 2020 incident however this was not done at his request;

• That he did not make attempts to have access to V. for the period between April 15 and September 29, 2020 due to his bail conditions; and

• That he agrees that during the investigations undertaken by the police's Special Victims' Unit and the involved child protection agency his access was suspended.

[37] Given the evidence on behalf of the father, counsel submits that Ms. C.K. does not support any relationship between V. and her client.

[38] Counsel highlights that the safety concerns detailed in Ms. C.K.'s materials have not been verified by any third parties such as child protection agencies, the police or involved medical professionals. Counsel submits that the court should not accept Ms. C.K.'s subjective view of safety concerns so as to justify her numerous breaches of the existing court orders relating to access.

[39] Counsel submits that Ms. C.K. did not seek a motion to vary the existing temporary orders regarding access until she served a 14B motion on November 10, 2020 which sought to schedule this motion to be heard simultaneously with the contempt motion. Counsel submits that the 14B motion was denied.

[40] Counsel submits that the evidence is clear that Ms. C.K. has failed in her obligation as a custodial parent, namely to encourage V. in her relationship with her father.

[41] Given this evidence, counsel submits that the finding of contempt, as sought by Mr. C.C., must be found and that sanctions as noted in his Notice of Motion must be imposed.

Ms. C.K.

[42] In all of her affidavits, Ms. C.K. deposes that:

• Throughout their relationship and following their separation, Mr. C.C.'s behaviour towards her has been verbally, physically and emotionally abusive;

• She understands that there are existing orders regarding access between V. and her father, and she has abided by these orders since they were granted;

• She denies making false allegations to the child protection agency and/or police;

• That she has witnessed V. become more verbal about her not wanting to attend access visits and has heard the disclosures made by V. regarding her father being mean to her, using physical discipline on her and touching her inappropriately;

• As a mother, she is fearful for her daughter's safety;

• That she has contacted the police and child protection agency as resources to assist her in addressing V.'s reaction to access visits;

• She denies coaching and preparing V. to make disclosures as claimed by Mr. C.C.;

• That she was aware of the positions of the police and child protection agency that their investigations would be closed due to a lack of evidence and disclosures by V.;

• That she is not prepared to accept that the actions described by V. are false simply because her child has not made disclosures to the police, medical professionals and/or child protection workers who she states are strangers to her daughter;

• That Mr. C.C. did not attend for access visits on January 24 and 31, 2020;

• That Mr. C.C. consistently breaches the terms of telephone access by calling at times other than the ordered 10:30 a.m.;

• Following Mr. C.C. undergoing and passing a polygraph test on February 7, 2020, access resumed as ordered;

• Mr. C.C. did not attend for his access visits between February 28 and March 9, 2020;

• Mr. C.C.'s last access weekend which he attended was March 6, 2020;

• The reports to the child protection agency in March 2020 were made by her family doctor and a nurse practitioner following disclosures made by V.;

• Mr. C.C. attended at her home on April 15, 2020 unannounced and not on a designated access day and that she called the police given his interaction with her that she describes as raising his voice and threatening;

• Mr. C.C. was charged with assault arising from the April 15, 2020 incident and that his bail conditions prohibit him from having direct or indirect contact with her;

• Between the period of March 20 to October 6, 2020, communication between counsel for the parties did not occur;

• Mr. C.C.'s most recent relationship also involved police involvement, and allegations of aggressive behaviour towards his partner and V.;

• Her concern with V. being in the care of her father is "the risk of sexual violence";

• She denies not wanting for V. to have a relationship with her father;

• V. continues to make disclosures; and

• That she is open to generous supervised access between Mr. C.C. and V.; however, the visits cannot be supervised by either of his parents given that V.'s disclosures describe incidents occurring in the paternal grandparents' home where Mr. C.C. resides and the paternal grandmother allows Mr. C.C. to act "with impunity and without consequence".

[43] Through cross-examination, Ms. C.K. testified as follows:

• She admitted that the existing orders regarding access are clear and that she is aware of them;

• She admitted following the access terms contained in the court orders until early 2020;

• She admitted that she is aware that there is no existing order which changes the access terms in the October 11, 2018 and April 8, 2019 temporary orders;

• She admitted that she agrees that she has denied access between Mr. C.C. and V., but this has been due to the circumstances that have occurred following V.'s disclosures;

• She admitted that she has breached the current access order based on V.'s disclosures;

• She denied that her "end game" is to obtain full custody of V.;

• She admitted to have been told by the police that in their view, it is her, and not V., who is the person having difficulty with the access visits;

• She admitted calling Mr. C.C. "sick and twisted";

• She initially denied calling Mr. C.C. a "monster" however, after her review of a screen shot filed as an exhibit, she acknowledged doing so;

• She denied not undertaking steps to facilitate access between V. and her father;

• She admitted not advising Mr. C.C. where V. lives or what school she attends;

• She admitted to being aware that the Children's Aid Society of Peel did not verify the allegations of sexual abuse;

• She agrees that V. continues to make disclosures even though she has not seen her father since March 6, 2020; and

• She admitted to believing her daughter, that the words are those of V. and that she is advocating on her daughter's behalf.

[44] Counsel submits that the evidence provided by her client is more credible. She submits that less weight should be given to the notes of the Children's Aid Society of Peel given that the authors of these notes did not testify.

[45] Counsel for Ms. C.K. submits that the position of Mr. C.C. that his access with V. did not occur due to her client's intervention is incorrect. Rather, counsel submits that access was suspended due to the recommendations of the police and the child protection agency in order to permit them to fully investigate the disclosures made by V. and due to the bail conditions imposed on Mr. C.C.

[46] Counsel submits that the contempt motion should be dismissed on the basis that the criteria for contempt to be established beyond a reasonable doubt has not been established by Mr. C.C.

[47] Counsel submits that Ms. C.K. should not be found in contempt as she did all that she could do to encourage V. to attend visits with her father. Ms. C.K.'s actions, therefore, are not wilful and/or deliberate.

[48] Counsel submits that if Ms. C.K. is found to be in contempt, the court should exercise its discretion and not impose a sanction against her but rather make an order for supervised visits between Mr. C.C. and V.

Issues for Determination

[49] 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 dated October 11, 2018 and April 8, 2019 clear as to the terms of access to be followed by the parties?

(b) Has Ms. C.K. disobeyed either or both orders and if so, has she done so deliberately and wilfully as claimed by Mr. C.C.?; and

(c) Does the evidence presented support a conclusion that any action by Ms. C.K. is deliberate and wilful beyond a reasonable doubt?

Analysis

[50] It is clear that V. is involved in a high conflict case. This high conflict exists due to her parents' behaviours, which the evidence supports, includes allegations of sexual abuse, criminal charges being laid, the involvement of police, a child protection agency and numerous medical professionals.

[51] The behaviour of both Mr. C.C. and Ms. C.K. has resulted in the normalization of conflict in their child's life. Currently, this atmosphere has resulted in V. not seeing her father since March 6, 2020.

Part One – Clarity of Orders

[52] I have reviewed the terms of the Minutes of Settlement which resulted in my granting, on consent of the parties, temporary orders on October 11, 2018 and April 8, 2019.

[53] Ms. C.K. testified in cross-examination that she was aware of the terms of these orders and understood them. Neither counsel has raised the issue of clarity as a ground not being met.

[54] I find that both orders are clear as to the terms of access. I therefore find that Part One of the test has been met.

Parts Two and Three – Wilful and Deliberate Behaviour Beyond a Reasonable Doubt

[55] Mr. C.C.'s position is that Ms. C.K. has breached the terms of access as contained in the temporary orders. His evidence is that he has always presented himself for all access visits and initiated telephone calls as permitted pursuant to the temporary orders.

[56] The evidence is undisputed that:

a) Investigations of V.'s disclosures occurred in January/early February, 2020 and March to late September/early October, 2020;

b) Some access did occur following the completion of the first investigation however the parties' evidence as to the precise dates is unclear;

c) During these investigations, Mr. C.C.'s access was suspended at the request of the Children's Aid Society of Peel and/or the Peel Regional Police;

d) The last access visit between Mr. C.C. and V. was on March 6, 2020;

e) Bail conditions were imposed preventing him from having direct or indirect communication with Ms. C.K. following the laying of criminal charges against him resulting from an incident at Ms. C.K.'s home on April 15, 2020;

f) The Bail Variation application prohibiting Mr. C.C. from communicating directly or indirectly with Ms. C.K. "except pursuant to a family court order made after today's date, or the agreement of legal counsel for each of the two parties" was consented to by the Crown on October 5, 2020; and

g) An e-mail from the Brampton Criminal Intake Court dated October 7, 2020 shows confirmation of the "variation of police undertaking" being provided to the Crown Attorney and Defence counsel for Mr. C.C.

[57] Given this evidence, I cannot find that the position advanced by Mr. C.C., namely that Ms. C.K.'s actions in denying access for every scheduled visit from January to October 7, 2020 have been wilful and deliberate beyond a reasonable doubt.

[58] I find the evidence to support that Ms. C.K. and Mr. C.C. followed the recommendations of the police, medical professionals and child protection agency to suspend access in order to permit thorough and proper investigations of the disclosures made by V.

[59] Furthermore, I cannot find that the actions of Ms. C.K. in reporting these disclosures by V. was wilful and deliberate beyond a reasonable doubt. Simply because these investigations resulted in their closing without verification of the disclosures, an absence of criminal charges being laid, and no indication that visits between Mr. C.C. and V. required supervision, does not mean that the reporting, which resulted in the suspension of access, was not appropriate in the circumstances.

[60] Given this evidence, I find that Ms. C.K. did have, as noted by Trimble, J. in Janowski v. Zebrowski "… clear and compelling reasons to legally justify violation of an order'".

[61] I further find that the evidence of the parties is unclear as to when access did or did not occur for the time period between the initial disclosure investigation in early January 2020 and the second investigation in March 2020. Accordingly this evidence does not meet the threshold of wilful and deliberate behaviour beyond a reasonable doubt.

[62] The evidence is clear that the Children's Aid Society of the Region of Peel closed their final investigation in late September/early October 2020. The evidence references a letter provided to counsel for the parties that indicated that their investigation did not substantiate the disclosures made by V. and that their position is that access should resume in accordance with existing orders.

[63] The evidence further demonstrates that although Mr. C.C. was prepared to have his visits with V. supervised by his mother and gradually re-introduced, despite the court orders permitting unsupervised access, Ms. C.K. was not agreeable to this proposal.

[64] The evidence is also clear that as of October 7, 2020, Mr. C.C.'s bail conditions were varied to allow contact between himself and Ms. C.K. for access as granted by orders within these family proceedings.

[65] The evidence is clear that despite being aware of the bail variation being granted, Ms. C.K. maintained her position that the only access she would permit would be supervised and not supervised by either of Mr. C.C.'s parents.

[66] This evidence does satisfy me that the behaviour of Ms. C.K., as of October 7, 2020 onward, in denying access to Mr. C.C. was wilful and deliberate and that these actions meet the threshold requirement of beyond a reasonable doubt to support a finding in contempt.

[67] I make this determination on the basis of the evidence before me and the declaration that Ms. C.K. sees her role as an advocate for her daughter even in the face of third party investigations not verifying V.'s disclosures against her father.

[68] I find that the evidence is clear that Ms. C.K. has allowed her entrenched view that Mr. C.C. has sexually abused V., and therefore, is not an appropriate parent who can be left alone with his daughter, even in the face of professionals who, following investigations, have found no evidence to substantiate the allegations, to interfere with her obligation as a custodial parent to encourage V.'s relationship with her father, which includes following court orders she consented to.

[69] Specifically, I find that the evidence demonstrates beyond a reasonable doubt that Ms. C.K.:

(a) Wilfully and deliberately decided to not permit any access in accordance with existing court orders following the closing of the sexual abuse investigations by the police and child protection agency on the basis of non-verification in late September/early October 2020;

(b) Wilfully and deliberately decided to not permit any access in accordance with existing court orders after being made aware of the variation of Mr. C.C.'s bail conditions on October 7, 2020 which permitted contact between them for the purposes of complying with orders granted within this family proceeding;

(c) Wilfully and deliberately maintained her position that she would only permit supervised access between Mr. C.C. and V. despite existing court orders not requiring supervision;

(d) Wilfully and deliberately maintained her position that access could only occur if supervised by an independent third party despite the willingness of Mr. C.C. to have his mother supervise his visits;

(e) Wilfully and deliberately did not share with Mr. C.C. information regarding V.'s well being through email communication as required by the existing court orders;

(f) Wilfully and deliberately chose not to proactively seek alternative arrangements given Mr. C.C.'s bail conditions which prohibited him from having any direct or indirect communication with her thereby further advancing her position that only supervised access should occur; and

(g) Wilfully and deliberately chose to reject the conclusions reached by professionals following their investigation and chose to accept the words of her four year old daughter as a re-enforcement of her position that Mr. C.C. should only have supervised access with his child.

[70] Ms. C.K.'s own evidence at paragraph 41 of her affidavit sworn November 9, 2020 states as follows:

"Despite my personal feelings about C.C., and his ability to parent V., it is quite obvious that up until V. made the disclosures in late 2019, January 2020, and again in March 2020, I was agreeable to C.C. having generous, regular and frequent time with V. V. loved being with her dad…."

[71] I find Ms. C.K.'s own statement to re-enforce my conclusion that her behaviour of insisting only on supervised access by a third party which resulted in no access occurring following the completion of the disclosure investigations and the bail variation being granted as being not in V.'s best interests.

[72] The evidence cannot be ignored. In exercising my discretion, I find that a finding of contempt is the only appropriate option in this case given Ms. C.K.'s behaviour of taking the law into her own hands.

[73] For these reasons, I find Ms. C.K. was in contempt of my orders dated October 11, 2018 and April 8, 2019 for the period commencing October 7, 2020 to present.

[74] A careful review of the evidentiary record does satisfy me, beyond a reasonable doubt, that Ms. C.K. has, by her actions and her words wilfully and deliberately, as of October 7, 2020, refused to comply with the terms of access contained in the orders dated October 11, 2018 and April 8, 2019 by:

(a) Not permitting access to occur between V. and Mr. C.C. in accordance with the court orders she consented to and did not seek a hearing to vary these orders until November 10, 2020;

(b) Not permitting access to occur between V. and Mr. C.C. following the closing of the investigations due to non-verification of the allegations by the police and child protection agency;

(c) Not permitting access to occur between V. and Mr. C.C. even when recommended to do so by the child protection agency;

(d) Not permitting access to occur between V. and Mr. C.C. even when Mr. C.C. agreed to have his visits supervised by his mother and be gradually resumed although such conditions were not required by the court orders; and

(e) Demonstrated by her words and behaviour to V. that she supports her belief that she is not safe in the care of her father unless supervised by someone other than her paternal grandparents.

[75] I find that Ms. C.K., by continuing to encourage in V. a belief that she is not safe in the care of her father, is not acting in V.'s best interests. By permitting such an atmosphere to be created and persist which has resulted in V. not having any contact with her father after October 7, 2020, I find that I must exercise my discretion under Rule 31.

[76] Therefore, for the above noted reasons, I find that the motion of Mr. C.C. to have Ms. C.K. found in contempt is partially granted. Specifically, I find that Ms. C.K. has been in contempt of my orders dated October 11, 2018 and April 8, 2019 since October 7, 2020 to present.

Sanctions

[77] Given this decision, I must consider the issue of remedies under Rule 31(5).

[78] As previously noted, counsel for Mr. C.C. seeks an order granting him sole custody of V. with supervised access by Ms. C.K. as his primary request. In the alternative, he seeks an order compelling Ms. C.K. to comply with the access terms as ordered, failing which a monetary fine should be paid and other relief.

[79] Counsel for Ms. C.K. submissions sought the dismissal of the contempt motion. Counsel submitted that if contempt was found, the appropriate sanction was to impose terms of supervised visits.

[80] Given the evidence, I am of the view that the primary relief of an order changing custody of V. from her mother to her father is not in her best interests. V. has been, since separation, primarily in her mother's care. Furthermore, it is not disputed that she has not had any contact with her father since March 6, 2020. This almost nine month period is extremely long in the life of a four year old child.

[81] For the reasons stated above, I am of the view that it is appropriate to order a gradual schedule of access between V. and her father to occur between the release of this decision and the matter returning before me on December 17, 2020.

[82] I am further satisfied that should V. not attend on these visits, a financial penalty will be imposed on Ms. C.K.

[83] In making such an order that incorporates a gradual resumption and financial consequences, I am hopeful that this will also prevent future disputes to arise between the parties over parenting time and encourage compliance with orders of the Court.

[84] I am further of the view that the other sanctions sought by Mr. C.C. in his Notice of Motion, including the payment of a $7,500.00 fine and a fine of $1,000.00 for each report made by Ms. C.K. to authorities which are not verified not appropriate in these circumstances. These sanctions, in my view, would result in penalizing Ms. C.K. and would be likely to further advance the conflict between the parties.

Order

[85] For these reasons, the following order is granted:

1. The motion of Mr. C.C. seeking to find Ms. C.K. in contempt of my temporary orders dated October 11, 2018 and April 8, 2019 is partially granted, namely Ms. C.K. is found to be in contempt of these orders only for the period between October 7, 2020 to November 26, 2020;

2. Mr. C.C. shall have access to V., born […], 2016 as follows until this matter is returned before me on December 17, 2020 whereafter the existing temporary orders dated October 11, 2018 and April 8, 2019 shall resume effective December 18, 2020 unless a further order of the court is granted:

   By telephone:

   (a) On Friday, November 27, 2020 by telephone by Mr. C.C. calling V. at 3:30 p.m. on Ms. C.K.'s cellphone. This call is to be for an appropriate duration given the need to re-connect V. with her father, but no more than thirty (30) minute duration given V.'s age and the length of time she has not seen her father.

   In-person:

   (a) On Saturday, November 28, 2020 from 9:00 a.m. to 1:00 p.m.;

   (b) On Sunday, November 29, 2020 from 9:00 a.m. to 5:30 p.m.;

   (c) On Wednesday, December 2, 2020 at 5:30 p.m. to Thursday, December 3, 2020 at 7:00 a.m.;

   (d) On Saturday, December 5, 2020 at 9:00 a.m. to Sunday, December 6, 2020 at 5:30 p.m.;

   (e) On Wednesday, December 9 at 5:30 p.m. to Thursday, December 10, 2020 at 7:00 a.m.;

   (f) On Friday, December 11, 2020 at 5:30 p.m. to Sunday, December 13, 2020 at 5:30 p.m.; and

   (g) On Wednesday, December 16 at 5:30 p.m. to Thursday, December 17, 2020 at 7:00 a.m.

3. For every visit missed as outlined in paragraph 2 above, a penalty of $500.00 shall be paid by Ms. C.K. to Mr. C.C. The terms of payment should they arise, will be determined at the court appearance of December 17, 2020.

4. For paragraphs 2 above V. will be picked up and returned at Ms. C.K.'s residence.

5. The parties, through counsel, are encouraged to discuss the upcoming parenting time for the 2020 Christmas holiday period failing which the existing orders will continue.

6. 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 on the return date of December 17, 2020.

7. The matter is adjourned as scheduled to December 17, 2020 by teleconference call in accordance with the terms set out in my endorsement dated November 20, 2020.

Justice L.S. Parent