Court Information

ONTARIO COURT OF JUSTICE DATE: January 18, 2021 COURT FILE No.: Toronto DFO 12 10861

BETWEEN:

STEVEN OLEMA Applicant

— AND —

MERLENE COUDOUGEN Respondent

Before Justice M.B. PAWAGI

Sentencing Ruling released on January 18, 2021

Steven Olema............................................................................................................... Applicant Paul Cooper.............................................................................. Counsel for the Respondent

PAWAGI, M.B. J.:

Overview

[1] This is my sentencing ruling following my July 28th 2020 finding that the Applicant father is in contempt for failing to facilitate any access between the parties’ 11-year-old son and the Respondent mother since March 20, 2020. The Final Order dated August 7, 2019, provides that the child shall have regular access with his mother every weekend (Friday to Sunday) and holiday access including one month every summer.

Facts

Summary of factual findings from contempt decision:

[2] The Respondent brought her contempt motion as a last resort. When the Applicant did not facilitate any access to the child after the March break, she first sought the assistance of the Children’s Aid Society of Toronto. Society worker Chantelle Adjin-Tettey, who has been involved with the family for several years, made repeated attempts to persuade the Applicant to reinstate the access visits. Society counsel and counsel for the Respondent both wrote to the Applicant about the importance of complying with court orders. This court made two temporary orders, first for a variation of the access exchange provision (since pick up could no longer take place at school due to the Covid-19 shutdown) and then for police enforcement. All to no avail.

[3] On June 19, 2020, the Respondent attended at the police station to pick up the child for the start of the child’s one month summer access with her as per the court order dated that day. The child called her on the telephone. He was crying. He first said he is not allowed to see her, then he said he does not want to see her. Police did attend the Applicant’s residence but did not enforce the June 19, 2020 order.

[4] The Applicant’s expressed concerns that the Respondent’s drinking would put the child at risk were refuted by the Society. While the society had historic concerns regarding the Respondent’s alcohol use, the society currently has no protection concerns about the Respondent’s alcohol use or about her care of the child, whether for access or temporary custody. The society’s primary concern at this time is the parental conflict. The Applicant’s position shifted over the course of the contempt proceedings to a claim that the child did not wish to see the Respondent.

[5] After finding the Applicant in contempt, I requested the involvement of the OCL and adjourned the matter for sentencing, in order to give the Applicant an opportunity to purge his contempt.

Summary of OCL report:

[6] The OCL’s s. 112 assessment was delayed due to restrictions resulting from the Covid-19 pandemic. As the Applicant refused to fully cooperate, the report, dated December 10, 2020, summarizes the OCL investigation but provides no recommendations. The Applicant told OCL Clinical Investigator Heather MacInnis that he is “sick of this whole thing,” and that he told the judge to “fuck off.” He said he has never withheld visits and that the Respondent can pick up the child every Friday. He said the child does not want to see the Respondent because she is violent, a drunk and a liar. Meanwhile, the Respondent believes the Applicant has told the child to say he does not want to visit her and has told the child to say she drinks and becomes aggressive.

[7] Ms. MacInnis interviewed both parents once and the child three times. She also interviewed the child’s school principal and the society worker Ms. Adjin-Tettey and obtained Toronto Police records of their involvement with the parties. I find the information she gathered to be credible and trustworthy as it is consistent across various independent sources. I find the views expressed to her by the child are consistent across her three interviews with him and consistent with what he has told other sources such as the society. As Ms. MacInnis refers to “father” and “mother” in her report I will do the same in the summary below.

[8] The child has not been living with his father since the beginning of the school year in September, but rather with Linda Johnson, who is identified as his father’s former or current partner. The child refers to her as his stepmother and to her 10-year-old daughter as his sister. Ms. Johnson lives near the child’s school. The child likes Ms. Johnson and likes staying at her house. He would like to go to his father’s home more but cannot because his father works. As of November 2020, the child had the occasional visit with his father, but no overnight visits.

[9] The child’s March break visit with his mother was good and he loves spending time with his siblings (ages 4 and 2). His mother’s partner (the father of these siblings) is “really nice.” He has only seen his mother once since then. He wants to see his mother. He knows his mother would be happy that he wants to visit but he does not know if his father wants him to have a relationship with his mother. His father has told him that if the child goes to his mother’s home, his father won’t pick him up.

[10] The child told Ms. MacInnis during the third interview that his father would be mad if he asked to go to his mother’s house because that is “the way it is.” He does not worry about anything at his mother’s house, but if he lived with her, he does not think he would be able to see his father because of what happened at March break (where his mother overheld the child).

[11] Ms. MacInnis reports that the child “reiterated that he would like to visit his mother twice a month. He stated that everything is fine with his father, however, with him, [the child] said he may not be able to see his mother. [The child] stated that he is sort of worried that at the conclusion of court, he may not be able to see his mother. According to [the child], his parents ‘just don’t talk.’ [The child] stated that he would like to live in his current neighbourhood, where he has his school, friends and his house. He said he does not have a lot of friends in his mother’s neighbourhood.” He said he has been at his school since grade one.

[12] Ms. MacInnis summarized dozens of police occurrence reports. There were 11 in 2020 alone, most of them calls by the mother that the father was breaching the access order. The most recent one, September 21, 2020, however stated the following: The mother and her partner had a verbal argument. The mother was intoxicated. Her apartment was a disaster and when she left the unit, she did not have anyone directly supervising her two young children. She was uncooperative with police. Police asked her partner to stay with the children for the night.

[13] It appears that neither the police (at the time) nor Ms. MacInnis (when she learned of it) reported this incident to the society. It also appears that the society worker (as set out below) is aware that the mother does continue to use alcohol but that this is not currently a protection concern. A copy of these reasons will be provided to the society to ensure the society is aware of this recent police report as the society is still involved voluntarily with this family.

[14] Ms. MacInnis spoke to Ms. Adjin-Tettey who told her she knows the child loves his mother and wants to see her. She believes his mother drinks at night when her partner is present. The child loves his siblings and they love him. The child has a good relationship with his mother’s partner who is a protective factor. Ms. Adjin-Tettey said the child has appeared to vacillate in the past about whom he wanted to live with but has stated that he would like to stay at his school. Ms. Adjin-Tettey said the child has told her he wants to see his mother when he wants to see her which she believes is an echo of the father’s voice.

[15] Ms. MacInnis spoke to the child’s principal who advised that the child is a “great kid” and there are no concerns with him. He said historically the child had issues with reading and math, but that he is not academically close to where he needs to be. The principal has no concerns about either parent, though he observed that they cannot communicate. He also noted that the child chooses to be called another name at school that his father calls him.

Analysis and the Law

[16] There are a wide range of penalties available to the court if the court finds a person in contempt.

[17] Section 31(5) of the Family Law Rules provides that the court may order the person

(a) be imprisoned for any period and on any conditions that are just; ((b) pay a fine in any amount that is appropriate; (c) pay an amount to a party as a penalty; (d) do anything else that the court decides is appropriate; (e) not do what the court forbids; (f) pay costs in an amount decided by the court; and (g) obey any other order.

[18] When considering what the appropriate penalty would be, the court must keep in mind the following principles:

[19] The primary purpose is the preservation of the integrity of the administration of justice: “Our legal system is wounded when court orders are ignored. A sentence must be one that will repair the wound, denounce the conduct and deter the contemnor and other from similar conduct:” Geremia v. Harb, [2007] OJ No. 3019 (Ont. S.C.J.) at para. 38.

[20] In family law, the objective is primarily remedial with the basic object being to coerce the offender into obeying the court order: Kopaniak v. MacLellan (2002), 27 R.F.L. (5th) 97, (Ont. C.A.).

[21] Sentencing in family law should be restorative to the victim which requires that the sentence correlate to the conduct; and punitive to the contemnor. For example, where contempt consists of denial of access by the custodial parent, the disposition should include enhanced access: Geremia v. Harb, [2007] OJ No. 3019 (Ont. S.C.J.).

[22] However, the Ontario Court of Appeal overturned a ruling where 122 days of make up time had been ordered as a contempt remedy for an access breach as there was no reference to evidence about the children’s wishes or the children’s current circumstances and the order drastically changed the balance of time the children spent with each parent. The court held that “whether make up time is appropriate in any given case, and in what amount, must be based on a determination of the best interests of the children that takes into account all of the relevant circumstances. The relevant circumstances will invariably include the magnitude of the make up time sought and can, in the appropriate case, include considerations such as the wishes of the children and concerns about alienation of one of the parents:” Balice v. Serkeyn, [2016] ONCA 372 at para 17.

[23] The Court of Appeal also overturned a ruling where a change of custody was ordered as a contempt remedy for an access breach, holding that a change of custody is not available as a sanction for contempt as a contempt proceeding is not a motion to change proceeding: Chan v. Town, [2013] ONCA 478.

[24] Here, the Respondent is requesting make up time for all the access that has been denied by the Applicant. She then intends to bring a Motion to Change to seek a change in custody.

[25] The child has missed 9 months of weekend access and one month of summer access amounting to about 100 days of missed access.

[26] Thanks to the thorough investigation of the OCL the court has reliable and up to date information regarding the circumstances and the wishes of the child.

[27] It is clear that the child loves and wishes to see his mother. It is equally clear that the Applicant does not wish the child to see his mother and will be angry if he does so. The Applicant’s breach of the access order has continued despite a police enforcement order and a contempt finding. Make up access of 100 days would not materially affect the balance of time as between the parties as the child has not been residing with the Applicant since September 2020.

[28] However, make up access of 100 days would disrupt the one constant in this child’s life; namely, his schooling. The child is 11 years old. Over the course of the society’s involvement with this family, the child has lived with his mother, then with his father, and now with Ms. Johnson. The conflict between his parents has not abated during this entire period.

[29] The one constant is his school, which he has been attending since grade one. His principal reports that he is a great kid, well behaved and academically almost where he should be. The Respondent lives two hours away (by public transit) from the school. Make up access of 100 days would require the child to change schools now and then possibly change back again if the Respondent’s intended plan to seek a variation in custody is unsuccessful. While it may ultimately be in the child’s best interests to vary custody from the Applicant to the Respondent, such can only be considered in the context of a motion to change proceeding not on a sentencing for contempt.

[30] Thus, while I would order make up access time, I find the number of days of make up access should be consistent with the child not being required to change schools. Given that in person classes are currently suspended until February 10, 2021, with the possibility of that being extended, I find it would be appropriate to order make up access until such time as the child’s classes resume in person.

[31] I find it would also be appropriate to order the Applicant to pay an amount to the Respondent as a penalty for contempt. While this court does not have evidence before it regarding the income of the Applicant, I have considered that the child told the OCL that he does not live with the Applicant because the Applicant works, including on weekends. And the society worker told the OCL that the Applicant was more financially stable than the Respondent (who is not employed) and that the Applicant could provide the child a better quality of life.

[32] Thus, I would order the Applicant to pay the Respondent $5,000.00 as a penalty.

[33] I find this combined sentence of make up access time and penalty of $5,000.00 meets the principles of sentencing for contempt as it both attempts to repair the wound to the victim, in this case both the child and the Respondent whose contact with each other has been severed by the Applicant, and serves to punish the Applicant.

Order

1. The child shall have make up access time with the Respondent effective immediately. This period of access shall continue until 6 p.m. the evening before the child’s school resumes in person classes.
2. The pick up and drop off for this make up access shall take place where the child is currently residing.
3. Police officers of Toronto Police Services, the RCMP, the OPP, and any other police officers having jurisdiction here the child may be located (if outside Toronto), are hereby directed and authorized to locate, apprehend and deliver the child to the Respondent, and may enter and search any place where he or she has reasonable and probable grounds for believing that the child may be with such assistance and such force as are reasonable in the circumstances pursuant to s. 36 of the Children’s Law Reform Act, R.S.O., c. C. 12, as amended.
4. Regular access shall resume pursuant to the Final Order dated August 7, 2019 on the first Friday following the resumption of in person classes at the child’s school, and same shall also be police enforceable.
5. The Applicant shall pay the Respondent $5,000.00 forthwith as a penalty for contempt.
6. The Applicant shall pay costs in the amount of $1,000.00 payable to Legal Aid Ontario.

Released: January 18, 2021 Justice M.B. Pawagi