Court File and Parties

ONTARIO COURT OF JUSTICE DATE: July 5, 2021 COURT FILE No.: D48617-09

BETWEEN:

V.S. Applicant

— AND —

I.M.B Respondent

Before: Justice Roselyn Zisman

Heard on: June 23, 2021 Reasons for Judgment released on: July 5, 2021

Counsel: Brigitte Barsalou, counsel for the applicant Angi Panzaru, agent for the applicant

Decision on Contempt Motion

Zisman J.:

Introduction

[1] This is my decision on the contempt motion of the Respondent (father).

[2] The father seeks a finding the Applicant (mother) is in contempt of the order of Justice Spence dated May 29, 2019 (order of Justice Spence) and the order of Justice Sherr dated April 21, 2015 (order of Justice Sherr).

[3] It is the position of the father that the mother has breached the parenting schedule set out in the orders of Justice Spence and Justice Sherr that provided the father have parenting time with their son, N.G.S. (N.) born […], 2008 on week-ends and equal time during the summer and holiday access.

[4] It is also the position of the father that the mother has breached the informational component of the orders that required her to keep the father advised of the child’s medical and school meetings and consult with him about major decisions.

[5] The father has not had any parenting time since May 24, 2020 and according as of the date of the motion he has missed 103 days of parenting time.

[6] Various professionals have concluded that the child is caught in the middle of significant parental conflict. The parties agreed to reintegration therapy but that did not take place.

[7] It is the father’s position that the mother has failed to facilitate the relationship between the child and the father and has effectively alienated the child from the father. In addition to monetary fines and penalties, the father seeks the child be placed in his care with contact by the mother being suspended until further court order.

[8] It is the position of the mother that she has attempted to encourage a relationship between the child and his father but whatever events occurred in May 2020 or earlier have caused the child not to wish to have any contact with his father at this time. She proposes a joint therapy session between the parents before any consideration should be given to contact between N. and the father. It is also her position that counsel should be appointed for N..

Background and litigation history

[9] N. was born on […], 2008. The parties have been before this court since 2009 that is, for almost his entire life.

[10] On April 21, 2015 after a trial before Justice Sherr, the following order [1] was made:

1. The mother shall have sole custody of the child.
2. The mother shall consult the father before making any major decision for the child.
3. The mother shall not change the school or any doctor for the child without the father’s consent or prior court order.
4. The mother shall give the father reasonable notice of all medical appointments for the child and the father shall be entitled to attend and fully participate in these appointments. She shall not schedule these appointments during the father’s parenting time unless there is an urgent medical issue. The mother shall also keep the father advised about any medical directions, treatment or prescriptions required for the child.
5. The father shall only take the child for medical care if there is an emergency or he obtains the prior consent of the mother. He is to immediately notify the mother if he takes the child for emergency treatment.
6. The mother shall give the father reasonable notice of any school meetings or events for the child and the father shall be entitled to attend at and fully participate in these meetings or events.
7. The mother shall sign any necessary consents or directions to permit the father to speak directly with any medical or other service provider for the child and to staff at the child’s school.
8. The father shall have access to the child on two out of every three weekends, from Fridays after school until Mondays, when he will return the child to school. If there is a Monday statutory holiday on the father’s weekend, the access shall extend until Tuesday morning when he will return the child to school. This access shall begin on April 24, 2015. The father will have two consecutive weekends with the child, followed by the weekend with the mother. The parents shall ensure that the child can speak with the other parent at least once on the weekend.
9. In the mid-week prior to the mother having the child for the weekend, the father shall have the child with him from Wednesday after school until Friday morning, when he will return the child to school.
10. The father may enrol the child in Romanian school for the weekends that the child is with him.
11. The child shall rotate spending two week blocks of time with each parent in the summer. The first two weeks shall be spent with the father from the Friday following the child’s last day of school (and if the last day of school is a Friday, access will start that day). The parent who the child is with shall ensure that the child speaks with the other parent at least twice each week.
12. Starting in 2016, if either party wishes to take the child to Romania, they may serve the other with notice of this intention by May 15th. That parent will be permitted an additional week to spend with the child in Romania. If a parent takes the child to Romania one year, the other parent will have priority to take the child to Romania the following year.
13. The parties shall alternate spending the March break with the child. The child shall spend even-numbered years with the father, starting in 2016, and odd-numbered years with the mother, starting in 2017.
14. The child shall spend equal time with the parents during the two-week winter school break. In odd-numbered years, starting in 2015, the child shall spend the first week of the break with the mother and the second week of the break with the father. In even-numbered years, starting in 2016, the child shall spend the first week of the school break with the father, and the second week of the break with the mother.
15. The child shall spend Mother’s Day with the mother from 10:00 a.m. to 7 p.m. and Father’s Day with the father from 10:00 a.m. to 7 p.m., if those days fall on days that the child is not in their care according to the regular schedule.
16. The holiday schedule takes priority to the regular schedule. The regular schedule resumes when the holiday access ends.
17. The child shall be exchanged at the mother’s apartment building lobby when the school is closed.
18. The parents shall execute any travel consent requested by the other parent within 7 days of the request. The child shall only travel during the summer or during school holidays, unless the other parent consents, in writing.
19. The traveling parent shall be provided with the child’s passport.
20. The traveling parent shall provide the other parent with 30 days notice of his or her intention to travel and a full itinerary, including where the child will be staying and contact numbers.
21. The traveling parent shall ensure that the child can speak with the other parent, at a minimum, every third day.
22. The parties shall ensure that the child has private telephone contact with the other parent. The child shall not be put on speaker-phone.

[11] In paragraph 163 of the decision of Justice Sherr he made the following comments that are unfortunately as true then as they are now 6 years later:

At the conclusion of closing submissions, I spoke to the parents. I emphasized to them that it is critical for their child’s long-term emotional welfare to treat each other with kindness and respect moving forward. They cannot continue this conflict. It is too stressful for them and too stressful for the child. The child does not care how the parenting arrangement is labeled. He wants permission to be able to have wonderful relationships with both of his parents and extended family, and not be placed in the middle of conflict. They both have a responsibility to meet this important need and to give him a normal and happy childhood.

[12] Despite this very detailed order, about a year later on July 6, 2016, the mother began a Motion to Change the order of Justice Sherr.

[13] There were numerous urgent motions regarding holiday access and travel. The Children's Aid Society of Toronto attempted mediation and also commenced protection proceedings [2] due to the emotional impact on the child of the parental conflict. Counsel was appointed for the child in the protection proceedings. As noted in the endorsement of December 10, 2018, counsel for the child stated that N. preferred alternate weekends with each parent and counsel took no position regarding weekday access.

[14] The Motion to Change was set down for trial. Both parties agreed that counsel for the child was not necessary as his views and preferences were already before the court.

[15] The mother brought a motion for disclosure of the child protection proceeding file, settlement conference transcripts and the child’s counselling records. The disclosure motion was dismissed, except for the society’s records. The mother was urged by the court not to call the child’s counsellor as a witness as the child’s views and preferences were already before the court.

[16] The mother’s Motion to Change was heard by Justice Spence on May 27 and 28, 2019 but the motion proceeded only regarding the child support issues. As set out in the reasons for judgement, the parents agreed to change the parenting schedule from 2 out of 3 weekends, as ordered by Justice Sherr, to every other weekend.

[17] The parents also agreed upon other changes and clarifications to the order of Justice Sherr. The order of Justice Spence [3] dated May 29, 2019 provides as follows:

On the issue of access/parenting time, the court varies the final order as follows, all on consent:

1. Commencing May 31, 2019 N. will spend alternate weekends with the father, pick-up to be at N.’s school at the end of school on Friday, and drop-off at school Monday morning (or Tuesday morning if Monday is a school holiday). (a) If Friday is a school holiday, the father will pick up N. from the mother’s apartment lobby at 6:00 p.m. on Friday. (b) In the event N. wishes to have a mid-week access visit with the father from time-to-time, including an overnight visit, he shall be permitted to do so, in his discretion. (c) Summer access will be shared equally, with each parent having a three-week block of travel time with N., with the balance of the summer weeks to be shared equally between the parents, on a week-on, week-off basis. (d) Commencing in 2020, N. shall spend the first week of summer vacation with the mother. 1.1 Summer travel time shall proceed in the following manner: i. In the event that either parent wishes to travel with N. for a three-week block of time, that parent shall provide notice in writing of his/her intention to do so, including the dates of travel, no later than May 15th of that year. ii. The parents shall alternate priority for choosing the first three-week travel period each year, with mother to have priority for determining travel dates commencing in 2020, as the parents have already made their summer travel plans for 2019. iii. At the conclusion of the first three-week travel period the child shall spend the week immediately following with the other parent. iv. Unless the parties otherwise agree in writing, there will be a two-week gap of time between the first travel period and the second travel period with the non-priority parent. 1.2 Travel consent letters shall be signed by the non-travelling parent. The travelling parent shall submit the consent letter to the non-travelling parent not sooner than 60 days prior to the intended travel dates, and not later than 30 days prior to the travel dates. The consent letter shall be signed by the non-travelling parent and returned to the travelling parent within seven days after receipt of same. 1.3 Where it is necessary to renew N.’s passport, the parents shall cooperate with one another in signing the necessary forms and processing the passport application in a timely manner. 1.4 The child’s cell phone shall remain with the child at all times regardless of which parent the child is with. Neither parent will interfere with the child’s use of the cell phone, apart from regulating its usage when the child is preparing for bedtime and during the night while he is sleeping. 1.5 N. will participate in counselling only on an as-needed basis, with consideration to be given to N.’s views and wishes. 1.6 Father will have direct third-party access to information from N.’s service providers, including schools and doctors and dentists, without the need for mother to consent to such information. 1.7 For non-emergency matters, the parents will communicate with each other regarding child-related issues through Our Family Wizard, which the father will continue to pay for on a 100% basis. 1.8 For emergency matters pertaining to child-related issues, the parents will ensure that each provides the other with his/her current cell phone number so that they can contact each other by text message.

[18] Despite the consent of the parties, that was based on the views of the child, and despite another very detailed order, a year after Justice Spence’s order the child is now refusing to have any parenting time with his father.

[19] Despite attempts to negotiate parenting time, the mother could not or would not arrange for any contact between the child and the father.

[20] The father commenced this contempt motion in October 2020. The motion was scheduled to be heard on November 2, 2020. The mother was served with an Amended Notice of Motion prior to the return date.

[21] The mother then requested an adjournment and the contempt motion was adjourned to November 30, 2020. The mother was urged by the court to arrange for the child to have contact with the father.

[22] On November 30th, prior to the commencement of oral argument on the contempt motion, the mother agreed that she would consent to an order for reintegration therapy with Joanna Seidel. A detailed order was entered into regarding the need for both parties to cooperate and engage in the process. The mother was also ordered to use her best efforts to attempt to arrange a visit/meeting between the child and the father pending the reintegration therapy commencing.

[23] The motion was adjourned to February 18th, 2021 with the court being advised that the parties had an initial meeting with Ms Seidel and another meeting was planned. The motion was further adjourned to April 22, 2021 as the parties had just received Ms Seidel’s updating information.

[24] No report was prepared by Ms Seidel and she did not prepare an affidavit.

[25] The mother reported in her affidavit dated April 16th, 2021 that Ms Seidel stated that N. was very firm in his view that he did not want to see or speak to his father and that he would harm himself if pushed to do so. The mother reported that Ms Seidel stated that she does not make custody and access recommendations and can only recommend parenting time to support therapy, if therapy proceeds. The mother also stated that Ms Seidel questioned if reintegration therapy may be appropriate.

[26] The father deposes that Ms Seidel had only a very short zoom meeting with N. and confirmed essentially the information relayed by Ms Seidel that she would not schedule another meeting if N. continued to make threats of self-harm. Ms Seidel stated that it was difficult to proceed with reintegration therapy if the child is stating that even to meet with her is causing him distress and that he may self-harm.

[27] Both parties agree that Ms Seidel suggested a joint therapy session between the mother and the father to see if they were willing to cooperate with each other and in that way help N.. Both parties depose that they agreed to such a meeting. The father further stated that he agreed to pay a further retainer. The mother is silent on the retainer issue. For whatever reason no such session has been scheduled despite both parties stating back in April that they were agreeable.

[28] The contempt motion was then rescheduled and proceeded on June 23rd. Ms Panzaru [4], acting as agent for the mother, cross-examined the father. Ms Barsalou, counsel for the mother, chose not to cross-examine the mother. Both counsel made oral submissions.

[29] Counsel for the father relies on his affidavits dated October 1 and November 3, 2020, his affidavits dated February 10, April 13, June 10, June 15 and June 17, 2021 and the affidavit of I.S. dated October 27, 2020. Counsel also relies on the affidavits of Marie Jean dated April 13, 2020 [5] and November 12, 2020. A factum and books of authorities were also relied upon.

[30] Ms Panzaru, agent for the mother, relies on the mother’s affidavits dated October 7, October 30, November 23 and November 30, 2020 and her affidavits dated February 16, April 11, April16, June 14 and June 16, 2021. A list of authorities was also filed.

Applicable legal principles

[31] In family law proceedings, motions for contempt are governed by subrule 31 (1) of the Family Law Rules, O. Reg. 114/99 that states:

(1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.

[32] Subrule 31(5) provides the penalties that may be ordered if a person is found in contempt of court. They include, among other things, a term of imprisonment, payment of a fine or penalty or an order that a person obey an order.

[33] In addition, s.38 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, enables the Ontario Court of Justice in addition to its powers on contempt to punish by fine or imprisonment or both, “any willful contempt of or resistance to its process or orders in respect of custody or access to a child.”

[34] The purpose of the civil contempt power is to uphold the dignity and respect for the court process. The contempt remedy is “a mechanism designed to emphasize that court orders must not be ignored or disobeyed.” [6]

[35] On a motion for civil contempt, the moving party must prove contempt beyond a reasonable doubt. [7]

[36] In the case of Carey v. Laiken, 2015 SCC 17 [8] the Supreme Court of Canada held that to meet the test for civil contempt, the following three elements must be established:

(i) the order states clearly and unequivocally what should or should not have been done; (ii) the party alleged to be in contempt has actual knowledge of the order; and (iii) the party alleged to be in contempt must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

[37] It is not necessary to demonstrate that the contemnor intended to disobey the order, as this would put the test “too high.” [9] All that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in breach of an order.

[38] In the cases of Hefkey and Hefkey, 2013 ONCA 44 [10] and Ruffolo v. David, 2019 ONCA 385 [11] the Court of Appeal set out the following principles regarding contempt motions in family law proceedings:

• Courts have consistently discouraged the routine use of the contempt power to obtain compliance with court orders;
• Great caution and restraint should be exercised when considering contempt motions in family cases;
• The contempt power is an enforcement power of last rather than first resort;
• A contempt order should not be granted where other adequate remedies are available to the aggrieved party, i.e. in relation to an alleged access denial, a variation or enforcement of the access order;
• When the issue raised in the contempt motion concerns access to children, the best interests of the children is the “paramount consideration”;
• Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.

[39] Even when the test is met, the motion judge retains discretion to decline to make a finding of contempt where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order. [12]

[40] A failure to consider the discretionary factors before making a finding of contempt is an error of law. [13]

[41] In the recent case of Moncur v. Plante, 2021 ONCA 452 [14] the Ontario Court of Appeal succinctly reaffirmed these principles as follows:

The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:

1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

[42] However, the case law has also been clear that a parent must do more than merely encourage a child to see a parent as set out by the Ontario Court of Appeal in Godard v. Godard, 2015 ONCA 568 [15]:

Although a child’s wishes, particularly the wishes of a child of S.’s age, [12 years at trial] should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 ONSC 43948; and Hatcher v. Hatcher, 2009 ONSC 14789, [2009] O.J. No. 1343 (Ont. Sup.Ct.).

No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can.

Discussion

[43] I will review the evidence and make findings of fact in relation to the criteria regarding findings of contempt.

1. Are the orders of Justice Sherr and Justice Spence clear and unequivocal?

[44] The mother did not dispute that the orders were clear and unequivocal.

2. Was the mother aware of the orders?

[45] This is also not disputed. It is worth repeating that the order of Justice Sherr was made after a 4-day trial and the parents consented to the parenting order of Justice Spence. Further, the parenting arrangements were in accordance with the child’s wishes namely, alternate weekends with both parents and a continuation of the sharing of holidays.

[46] Accordingly, the mother was clearly aware of her responsibilities pursuant to the terms of both orders to ensure that she and the child complied with the order.

3. Did the mother do or fail to do anything in contravention of the court orders of Justice Sherr and Justice Spence?

(a) Breach of paragraph 1 of the order of Justice Spence (parenting order)

[47] The mother admits that the child has not seen the father since May 24, 2020.

[48] Prior to that time, the father deposes that the child exercised parenting time without any issues. N. had a close and loving relationship with his father and his half-siblings. The affidavit of I.S., his half-sibling confirms the close relationship they had. Photos are attached to show N. and his father and siblings enjoying time together.

[49] The father was in shock when he received the text message from N. that he no longer wished to see or speak to the father or be involved with his family. There were no signs of concerning behaviour or signs of anxiety or stress. The only explanation he can think of is the mother has told N. for years that when he is 12 years old he can determine his own parenting schedule.

[50] This evidence was not shaken in cross-examination. He was not examined with respect to any specific allegations of any verbal, emotional, physical abuse or instances of neglect of the child. Nor was there any evidence from the mother as to what could have triggered this extreme action by N..

[51] In June 2020, N. sent a letter reiterating that he no longer wanted any contact with the father. The letter contained allegations that the mother had previously made regarding child support issues, allegations that the father has a substance abuse issue and was an angry and violent person. The words and phrases used do not sound like a child such as, “emotional abuse”, “ these words are too hard for me to hear” and “I don’t want to destroy myself.” There was no evidence to support any of the allegations made by the child in this letter.

[52] The father contacted the Catholic Children's Aid Society of Toronto as they had been involved with the family previously and was told that the issue was for the courts as the mother was breaching a court order.

[53] The father reached out to N. by text messages and WhatsApp to let him know that he loved him and wanted to see him. N. did not respond.

[54] In June 2020, the father advised the mother that he would be picking up N. on Friday in accordance with the schedule, the mother replied that N. did not want to see the father and all she could do is talk to him.

[55] When the father arrived at the school to pick up N., which he did to show N. that he wanted to see him, the mother would also attend and take N. away with her.

[56] During the summer, the father drove to the mother’s house so N. would know that he was there to see him. N. would not come out to see or speak to the father.

[57] In September 2020, counsel for the father wrote to the mother outlining different activities that he could do with N. or with N. and his siblings. The mother replied that N. was not interested in any of these activities. The father found this not to be believable as historically N. and the father had spent enjoyable time together doing these things. The mother made no suggestions of any alternate activities.

[58] Further attempts were made through the court process for the father to connect with N. with at least some virtual access. Despite many attempts the child would not engage.

[59] The mother does not outline any steps she took to require N. to comply with the parenting schedule in the order of Justice Spence that the child had requested through his counsel.

[60] In the first contact the mother had with the father’s counsel on August 14, 2021 she confirmed that she is only willing to re-establish a relationship between the father and N. if he “so wishes” and that she “cannot force N. to attend visitation.” She further wrote that she does not believe that N. “is required to follow the court order.”

[61] The mother arranged for N. to see Vernon Beck a self proclaimed “child’s advocate”. Mr. Beck interviewed and videotaped N. on November 17, 2020 and his report is attached to the mother’s November 23, 2020 affidavit.

[62] Despite this matter already being before the court, the mother did not request that this court appoint counsel for the child or order a Voice of the Child Report prior to engaging the services of Mr. Beck. Nor did the mother advise or consult with the father about this major decision. I put no weight on this report as Mr. Beck is not a neutral third party having previously advocated for the mother. He is not on the OCL panel and his qualifications are not indicated in his report.

[63] The mother did not provide any evidence that she deprived the child of an activity, prohibited the use of social media, deprived him of his allowance or any other method that parents regularly use to require their children to do anything that they do not want to do. The mother could have simply not shown up at school when the father attended to pick up the child on alternate Fridays or insisted the child go to the lobby to speak to his father when he attended at her home in accordance with the parenting schedule.

[64] As set out in the father’s affidavit he has been deprived of 103 days of parenting time that includes, his regular alternate weekends, summer parenting time in 2020, Christmas break, March break and Father’s Day.

[65] The mother has taken the position that she is unable to do anything and N. has now threatened to harm himself the father forced to see is father.

[66] Although threats of self-harm are not taken lightly, N. made similar threats in 2016 to a worker at the Catholic Children's Aid Society of Toronto. Regardless of such threats, the mother agreed to the father having ongoing parenting time with the child in both the orders of Justice Sherr and Justice Spence. None of the professionals treating N., including a psychiatrist, have expressed any concerns that N. will follow through with such threats.

[67] I find that the mother has done nothing other than allegedly speak to the child to require N. to comply with the outstanding parenting orders.

[68] As stated in the numerous cases that have dealt with such issues, a parent is required to do more than merely encourage a child to follow court orders. I find that the mother has left it up to the child to decide if he wishes to abide by the court order.

[69] There is strong evidence to suggest that the child is simply repeating the historic concerns and allegations of the mother and that his views are not independent. There is also evidence to suggest that the mother has alienated the child from the father. However, I do not have professional evidence on these issues and find that I do not need to make these findings.

[70] What is abundantly clear on the evidence and I find that the mother has done nothing to require the child to see his father and comply with the court order.

[71] Being a good parent requires teaching children that they must abide by rules and it is not up to them to decide what rules they will abide by and which rules they will not abide by. A court order is such a rule. If there are no safety risks to a child, the primary parent’s responsibility is to ensure compliance with outstanding court orders.

[72] There is no evidence of any risk to the child when he spent parenting time with his father. There is no evidence of anything that would justify him cutting off all contact with his father.

[73] I find that the mother has breached paragraph 1 of the order of Justice Spence. I find that this has been proven beyond a reasonable doubt.

(b) Breach of paragraphs 2, 3, and 4 of the order of Justice Sherr and paragraph 1.4 of the order of Justice Spence

[74] In September 2019, the father reached out to the mother to arrange for counselling for N. to help him to deal with the ongoing issues of parental conflict. He proposed that N. see Tania DaSilva who had previously been his counsellor. The mother refused, stating that, “the sessions will not benefit N..”

[75] Despite this refusal, the mother had brought N. to see a psychiatrist, Dr. Leigh Solomon, in September 2019. The father found this out for the first time in September 2020. The mother asked for the referral to a psychiatrist from N.’s paediatrician. The mother did not consult with the father about seeking this referral or even advise him that she was doing this.

[76] The father also found out for the first time in September 2020, that as of March 2020, N. had been seeing a new counsellor, Caleb Van Wyk. The mother asked for the referral from Dr. Solomon. Again the mother did not advise or consult with the father about this.

[77] The father found out for the first time in the mother’s November 23, 2020 affidavit that N. had threatened to harm himself and was brought to the hospital on November 13, 2020.

[78] The father also found out through his sessions with Ms Seidel that N. was continuing to see Mr. Van Wyk.

[79] The order of Justice Sherr required the mother to consult with the father before making any major decisions for N.. The mother was also required to provide the father with reasonable notice of all of N.’ medical appointments and he was entitled to fully participate in those appointments.

[80] I find that arranging for a child to see a psychiatrist or attend with a new counsellor is a major decision that required the mother to consult with the father before making those decisions. She failed to do so willfully and intentionally.

[81] The only excuse offered by the mother is that N. did not want to father involved. Even if this was true, this would not excuse the mother from compliance with the clear terms of the order to consult with the father about the decision and keep him informed of the medical appointments. It would then be up to the medical professional or counsellor to determine if it would be appropriate for the father to obtain information or participate in the counselling.

[82] It was not argued that the mother did not have to consult with or advise the father of the counselling appointments as they are not strictly speaking “medical”. I would not have acceded to this argument in any event as a referral by a doctor for counselling is in my view encompassed in a “medical” decision and it is well accepted that emotional or mental heath issues are an integral part of a person’s medical health.

[83] After obtaining a copy of Dr. Flanders file on June 2, 2021, he father found out that N. had seen Dr. Flanders, who is his paediatrician, 10 times in the last 2 years, seen other specialists and had gone to the hospital emergency department twice. The mother did not advise the father of any of these appointments.

[84] The mother submits that as N. did not want his father to know about his appointments so she did not tell him. Later after being admonished by the court that she was in breach of the court order by not advising the father of the child’s appointments, the mother took the position that N. had directly told his doctor and counsellor not to speak to the father.

[85] However, the father spoke to both Dr. Solomon and Mr. Van Wyk and neither advised him that N. had instructed them not to speak to his father.

[86] Dr. Solomon was advised by the mother that the father knew N. was seeing a psychiatrist. The father denies any knowledge of Dr. Solomon until finding this out much later.

[87] The father deposes that Dr. Solomon assessed N. as experiencing anxiety as a result of being caught in the middle of his parents’ conflict. She confirmed that the father had never been physically or verbally abusive towards N. but that N. was fearful in any event. At the mother’s request she arranged for N. to see a counsellor, Mr. Van Wyk. Dr. Solomon recommended that N. see a counsellor on his own and with each of his parents. The mother never advised the father of this important recommendation. The father was not cross-examined on this significant information. The mother did not deny the father’s discussion with Dr. Solomon.

[88] The father also spoke to Mr. Van Wyk who agreed that the child was caught in the middle of the parents’ conflict. He also was assured by the mother that the father was aware of the counselling. As of April 27, 2021, he had seen N. 22 times and was continuing to see him every other week.

[89] I find that the mother willfully and intentionally breached the order of Justice Sherr by failing to consult with the father on major medical and schooling issues, failing to advise him of all medical appointments including appointments with his paediatrician, psychiatrist and new counsellor and failing to give notice about school meetings.

[90] Paragraph 1.6 of the order of Justice Spence provides that the father will have direct third-party access to information from the child’s service providers including the school, doctors and dentists, without the need for the mother to consent to such information.

[91] The mother submits that father was entitled to obtain the information about N.’ doctors himself. But obviously if the mother does not advise the father of the names and contact information of the new doctors such as Dr. Solomon or the counsellor, he is unable to contact them.

[92] I find the mother is also in breach of this order and that she has willfully and intentionally deprived the father of the ability to access information about his son. I find that this had been proven beyond a reasonable doubt.

[93] After being warned by this court that the mother would be in breach of the order of Justice Sherr’s order if she failed to advise the father of N.’ medical appointments, as of about the end of February the mother has begun to advise him of some of the appointments. However, the mother refused to advise why N. was continuing to see Dr. Solomon or provide her contact information. The father was eventually able to contact both Dr. Solomon and Mr. Van Wyk and once he obtained Dr. Flanders’ file he obtained Dr. Solomon’s notes as they were in the file.

[94] The mother is also required by the terms of the order of Justice Sherr to keep the father advised of school meetings. The father deposes that he was not advised of school meetings. He did attend a meeting in October 2019 that the school wished both parents to participate in regarding N.’ IEP. Seeing the father there, the mother left and refused to participate.

[95] The father obtained a copy of the child’s school file and became aware that the file contained a medical referral for a psychoeducational assessment. When the father contacted the doctor about why the referral was made, he was advised that the mother told him the school requested the information.

[96] The mother never advised the father of any such request and from what the father could ascertain an assessment was never done.

[97] The mother at some point also removed the father from the school distribution list so he did not obtain information from the school until the issue was resolved through counsel.

[98] The mother did not consult the father with respect to enrolling N. in online or in person schooling. Once the father was able to obtain N.’ log-in information for his Google classroom he discovered that only the mother was listed as N.’ guardian on his account.

[99] The mother offered no response to the lack of consulting with the father about these schooling issues.

[100] I find that the mother failed to permit the father to have direct access to information from N.’ service providers by not advising him of the names of service providers and in the case of the school by removing his name as a contact. As a result, the father was not able to directly access important information about his son.

[101] I find that the mother willfully and intentionally failed to provide the father with the necessary information about any of the service providers involved with N. and thereby deprived hm of the ability to obtain this information directly. I find that this is a breach of the spirit of the order.

[102] The mother has effectively attempted to erase the father’s role in this child’s life with the school and his treating medical professionals.

(c) Breach of paragraph 1.4 of the order of Justice Spence

[103] The order of Justice Spence required that N.’ cell phone remain with him at all times, regardless of which parent the child is with. Neither parent was permitted to interfere with his use of the cell phone, apart from regulating its usage when N. is preparing for bedtime and during the night when he is sleeping.

[104] This provision was on consent of the parties. The mother did not dispute that since August 2019, the mother has kept N.’ cell phone while he was in her care.

[105] In November 2019, N. sent the father a WhatsApp message saying that his mother would not allow him to use his cellphone to communicate with the father.

[106] The mother did not deny that she did this.

[107] I also find that the mother breached this provision in the order of Justice Spence and that she did so willfully and intentionally. This breach has also been proven beyond a reasonable doubt.

Disposition

[108] I have considered that findings of contempt are to be used sparingly and only as a last resort.

[109] In this case, for no apparent reason the child just stopped contact with his father. Instead of attempting to involve the father in finding the reason for this abrupt change in his relationship with his father, the mother went behind his back and arranged for the child to see a psychiatrist and a counsellor without the father’s knowledge or involvement and leading both the psychiatrist and counsellor to believe the father was aware of these sessions. Instead of following up on the psychiatrist’s recommendations to involve the father in counselling with the child, she hid this fact and instead impowered the child to simply cut off all contact with his father.

[110] Based on the history of this litigation and the mother’s actions since May 2020, I find that the mother has systematically eroded the father’s relationship with his son. The mother has not acted in good faith in attempting to ensure that the child complies with the court order and has not taken any reasonable steps to comply with any of the terms of the orders of Justice Sherr or Justice Spence.

[111] I have considered that the Ontario Court of Appeal in the recent case of Moncur v. Plante [16] has emphasized that the court needs to consider whether a declaration of contempt is a remedy of last resort or whether there are alternative enforcement options. The court suggested options such as, a declaration of that a parent breached a court order or encouraging professional assistance or giving parents time to reflect on their conduct and work cooperatively in finding solutions in the best interests of their children. However, as the court points out, when a court considers that a contempt order is truly a last resort and would not work an injustice, a court may still decide to make a formal order of contempt.

[112] In this case, the mother has defiantly disobeyed the court orders of Justice Sherr and Justice Spence. A message needs to be sent to the mother that she cannot flaunt court orders.

[113] The mother has been encouraged through the court process to cooperate and require N. to comply with the parenting order. An attempt was made for reintegration therapy but the mother could not or would not require the child to cooperate. The mother did not follow the advice of the child’s psychiatrist that joint counselling be arranged between the child and the father. The mother deliberately kept all information about the child seeing a psychiatrist and a counsellor from the father.

[114] The mother only offered the suggestion that the parties meet with Ms Seidel to see if they could cooperate to end their conflict. These parties have had almost 12 years to end their conflict and have failed to do so. The father was content to simply abide by the court orders but the mother persisted in continuing the litigation until this child simply cut off all contact with his father.

[115] The mother also suggested as a remedy that counsel be appointed for the child. I do not find that this is not an option to rectify the mother’s failure to abide by the parenting provisions of the court orders. I have no doubt N. would tell counsel that he does not wish contact with his father. If high conflict cases such as this one are to be resolved simply by a child’s views being the deciding factor then there would be no need for the court’s intervention. It is the court’s obligation to determine what parenting arrangements are in a child’s best interests that include considering the child’s views and wishes.

[116] The mother has continuously breached her court ordered obligations to consult with the father about major decisions and keep him advised of medical and school meetings and she failed to do this continually since at least September 2019.

[117] As observed by Justice Aiken in the case of Stuyt v. Stuyt, 2009 ONSC 43948 [17]:

…..the concept of the rule of law is central to the maintenance of a civil and civilized society. No one is above the law. A parent does not have the option of disobeying court orders that he or she does not like. It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means. It is also the role of parents to instil in their children a respect of the law and of legal institutions. A parent who does not do so does a huge disservice to his or her child – a disservice that can have lasting, negative, ramifications throughout the child’s life.

[118] I find that there is no other option or alternative but to find that the mother is in contempt of paragraphs 1 and 1.4 of the order of Justice Spence and paragraphs 2, 3 and 4 of the order of Justice Sherr.

[119] I find that her contempt has been proven beyond a reasonable doubt. I further find that the mother has not met her burden to prove that her wilful disobedience was justified due to any serious risk of harm to the child or due to the child choosing not to abide by the parenting provisions in the court order.

[120] Having found that the mother is in contempt of the various provisions in the orders of Justice Sherr and Justice Spence, the court must determine what penalty should be imposed.

[121] I am mindful that regardless of the finding of contempt and regardless of the mother’s actions any order must be in the best interests of the child.

[122] The father has not abused or neglected this child. There is nothing to warrant the mother’s interference with the father’s court ordered parenting time. N. has been deprived of a relationship with not only his father and by his entire paternal family.

[123] The only way that the relationship between N. and his father can begin to be repaired is by him being removed from the mother’s influence and begin to rebuild his relationship with his father. The mother has been provided ample opportunities to rectify the current estrangement between N. and his father and has not taken any steps to do this.

[124] The father testified that he has arranged with his employer to take time off work and he can access counselling services through his employment benefit plan.

[125] Although it is a drastic step to cut off one parent’s contact with a child it is unfortunately a step that has been recognized in many of the cases cited by the father’s counsel as the only means to re-establish a relationship between a child and his estranged parent.

[126] The mother’s solution for the parents to engage in joint counselling to resolve their conflict for N.’s sake is unrealistic. If the mother wished to end this conflict she would have simply and forcefully acted like a responsible parent and required N. to abide by the court order. A parenting order that he wished and an order that both parties agreed to before Justice Spence.

[127] I repeat and adopt the statements by Justice Audet in the case of Leelaratna v. Leelaratna, 2018 ONSC 5983 [18]:

I take judicial notice of the significant short-term and long-term negative impacts that a child’s estrangement or alienation from one of his parents can have on that child’s social and emotional development and adjustment, physical, psychological and mental health, as well as on his overall well-being. These negative consequences have been documented in countless court decisions in the past, including in many of those cases cited above.

[128] In this case, if N. remains in his mother’s care, there is no realistic hope that she will now encourage a relationship or involve the father in N.’s counselling. N. requires some time away from his mother to begin to heal and explore the basis for his feelings about his father. Those fears and allegations are not based on any concrete evidence and appear to be simply a repetition of the allegations made in the past by the mother.

[129] I therefore make an order that N. reside with the father until the next court hearing without any contact with the mother. If after, 60 days the father believes that it is in N.’s best interests to resume virtual contact with the mother that can be arranged.

[130] It would benefit N. and the father to engage in counselling and accordingly on a temporary basis he will have sole decision-making authority.

[131] It would be in N.’s best interests for the mother to explain this order to N. and arrange a voluntary placement into the father’s care. If the mother is unwilling to do that then a police enforcement clause will be necessary or the father may wish to engage a third party such as a family member or a therapist to assist in placing N. in his care.

[132] I have considered the penalties requested by father’s counsel and have considered the mother’s financial circumstances. I would encourage the mother to use her financial resources to engage in counselling to assist her in learning how to coparent with the father. For this reason and to determine if the mother will voluntarily comply with this order, I will defer the imposition of any financial penalty until this matter returns to court.

[133] There will be an order as follows:

1. The Applicant shall have temporary sole decision-making authority for N.G.S., born […], 2008.
2. The child shall be removed from the Respondent’s care and transferred to the Applicant’s primary care and residence effective at 5:00 p.m. on July 6, 2021.
3. The Respondent’s parenting time with the child shall be and is hereby suspended pending further court order.
4. There shall be no contact from July 6, 2021 at 5:00 p.m. for 60 days between the child and the Respondent, the Respondent’s friends, associates, and/or family members.
5. If the Respondent does not voluntarily place the child in the care of the Applicant on July 6th, then the 60 days of suspended contact shall commence on whatever day the child is placed in the Applicant’s care.
6. During the period of suspended access referred to in paragraph 4 above, the Respondent is hereby prohibited from: a. Attending within 750 meters of the Applicant’s home at […] Road, Toronto; b. Attending within 750 meters of the child’s school at […]; c. Attending within 750 meters of any of the child’s extra-curricular activities, school events, medical appointments or lessons; d. Contacting or communicating with the child either directly or indirectly, whether by telephone, cell phone, text message, email, Snapchat, Facebook, Instagram, social media, or in any other manner; e. Communicating with the child in any capacity even if the child contacts her or initiates contact through any means; and f. Contacting or communicating with the child through third parties, or new social media accounts purporting to be from a third party.
7. After 60 days of suspended contact, the Applicant in his sole discretion and taking into consideration the child’s wishes, can arrange for virtual contact or in-person parenting time between the child and the Respondent to resume. The Applicant can also agree to joint counselling between the child and the Respondent, if this is recommended by the child’s counsellor.
8. The Applicant and the Respondent shall sign any consents to release information, as required by any therapist involved with the child or the child and the Applicant or any joint counselling between the parties within 24 hours of the request being made.
9. The Applicant shall have the sole authority to consent to the child’s travel. The Respondent’s consent shall be and is hereby dispensed with.
10. The Applicant shall have possession and control of the child’s passports, birth certificate, health card and SIN card. The Respondent shall have these documents set out for the Applicant to pick up with the child’s belongings at the Respondent’s residence on July 6, 2021.
11. The Respondent shall have all the child’s belongings packed and ready to be picked up by the Applicant on July 6, 2021 unless the parties agree to other arrangements. This paragraph is intended to cover clothes, toys, books and other small possessions. It is not intended to cover large property such as furniture.
12. The Applicant may, if he deems necessary and/or appropriate, to hire or designate other persons to facilitate and assist with the transfer of the child to his residence.
13. The Applicant may confiscate and prevent the child’s use of cell phones, iPads, computers/laptops or any other technological devices, even if the Respondent provided such equipment.
14. A review of the parenting arrangements will occur on the return date of this contempt motion on October 21, 2021 at 3:00 p.m. On the return date, the court will also consider what additional penalties, if any, should be imposed. Both parties are required to file an updated affidavit to advise the court as to what has transpired since this order.
15. Neither the Applicant nor the Respondent shall discuss this decision or any other part of this case with the child, except as directed by counsellors. The child’s questions shall be directed to his counsellors.
16. The Metropolitan Toronto Police, the Ontario Provincial Police, the Royal Canadian Mounted Police and any and all police services or police forces in any jurisdiction in Ontario, and any and all border patrol/control agencies, and the police in the area where the child may be located, are hereby authorized and directed to enforce this Order. Specifically, pursuant to section 36(2) of the Children’s Law Reform Act, for the purpose of enforcing any of the custody or access provisions of this Order, any police force in an area where the child, N.G.S., born […], 2008 is located is hereby ordered to locate, apprehend and deliver the child to the Applicant or any other party or person authorized by the Applicant. For the purposes of locating and apprehending the child, a police officer may enter and search any place where he or she has reasonable and probable grounds to believe that the child may be, with such assistance and such force as is reasonable in the circumstances.
17. The Respondent shall not remove the child from Ontario, pursuant to s. 37 of the Children’s Law Reform Act.
18. The Respondent shall deposit her and the child’s Canadian passports, as well as any other passport she may have, with the Applicant’s counsel or the court prior to her exercising any parenting time with the child that may have been agreed upon prior to this matter returning to court.
19. N.G.S.’s name shall remain on the Passport Canada Lookout List.
20. The Respondent is in contempt of paragraph 1, 1(b) and 1(c) of the Order of Justice Spence, dated May 29, 2019 for failing to produce the child, N.G.S., born […], 2008 (the “child”) for 103 days of parenting time.
21. The Respondent is in contempt of paragraph 1.4 of the Order of Justice Spence, dated May 29, 2019.
22. The Respondent is in contempt of paragraphs 2, 3, and 4 of the Order of Justice Sherr dated April 21, 2015, for failing to advise the Applicant.
23. The issue of what penalties are to be imposed, pursuant to Rule 31(5)(b) and (c) of the Family Law Rules, is adjourned to the return of this motion on October 21, 20201 at 3:00 p.m.
24. The issue of costs is adjourned to the return date.

[134] In order to avoid any delay in the implementation of this order the court has prepared this order. A copy of the issued and entered order is attached to this decision.

[135] I urge both parents to implement this order in an orderly and thoughtful manner and avoid police involvement. This will be a difficult transition for N. and it is important that both parents support the court order in his best interests. The conflict between these parties has negatively impacted N. and it is necessary that he repair his relationship with his father and then resume to have a relationship with both his parents.

Released: July 5, 2021 Justice Roselyn Zisman

Footnotes

[1] The provisions regarding child support are omitted as being irrelevant to the issues on this motion. Decision reported as V.S. v. I.M.B., 2015 ONCJ 217 [2] I have not reviewed the child protection file but base this background on the endorsements in the domestic file. [3] The decision is reported as V.S. v. I.M.B., 2019 ONCJ 368 [4] Although Ms Panzaru continued to only act as “agent” for the mother she prepared all of the mother’s affidavits, participated in all the court attendances and had ongoing negotiations and discussions with the father’s counsel of record. [5] Although the affidavit is admissible, I am not prepared to admit exhibit 1 which is an affidavit of a psychologist with specialized knowledge regarding alienation and appropriate therapeutic interventions that was tendered as evidence in another court proceeding [6] Jackson v. Jackson, 2016 ONSC 3466 at para. 46 [7] Einstoss v. Starkman, 2002 ONSC 2777 at para. 10 (SCJ) upheld 2003 ONCA 20593, 2003 O.J. No. 3297 (OCA) [8] 2015 SCC 17 [9] Supra at para. 38 [10] Hefkey and Hefkey, 2013 ONCA 44 [11] Ruffolo v. David, 2019 ONCA 385 [12] McKinnon v. McKinnon, 2018 ONCA 596 at para. 36 [13] Chong v. Donnelly, 2019 ONCA 799 at para. 12 [14] Moncur v. Plante, 2021 ONCA 452 [15] Godard v. Godard, 2015 ONCA 568 at para. 28-29. [16] Ibid at para. 19-20 [17] Stuyt v. Stuyt, 2009 ONSC 43948 (Ont. SCJ) at para. 62 [18] Leelaratna v. Leelaratna, 2018 ONSC 5983 at para. 65