Court File and Parties

Date: December 23, 2021 Court File Number: D48617-09 FO-09-00048617-005 Ontario Court of Justice

Endorsement

Justice: R. Zisman

Applicant: V.S. Counsel for Applicant: Brigitte Barsalou

Respondent: I.M.B. Counsel for Respondent: Michael H. Tweyman

Heard: October 21, December 16 and 22, 2021

Order to go in accordance with minutes of settlement or consent filed.

Endorsement with respect to contempt motion regarding penalty, Christmas parenting time and urgent motion pursuant to Motion to Change: heard October 21, December 16 and 22, 2021.

1. On July 5, 2021 this court released a decision finding the Respondent (mother) in contempt of paragraphs 2, 3, and 4 of the order of Justice Sherr dated April 21, 2015 and in contempt of paragraph 1 and 1.4 of the order of Justice Spence dated May 29, 2019.
2. As of the hearing of the contempt motion on June 23, 2021 the Applicant (father) had been deprived of his court ordered access since May 24, 2020 that is, 103 days. The details of the ongoing breaches of the court orders and the various attempts made during the adjournment of the contempt motion to reintegrate the child with the father were outlined in the court’s decision.
3. A temporary order was made that the child be transferred to the care of the father and that the mother’s contact be suspended for 60 days with ancillary terms that would permit the father and son to engage in reunification therapy with Joanne Seidel. The order further provided that after the 60 black out period, the child’s parenting time with the mother would be in the father’s discretion and in consideration of the child’s wishes.
4. The adjournment with respect to further submissions as to penalties and to update the court was adjourned to October 21, 2021.
5. Pending the return of the motion, on September 23, 2021 the parties agreed to a Voice of the Child Report (VOC) and if appropriate further involvement of the Children's Lawyer.
6. On October 21st, although both counsel made submissions, the VOC report had not yet been completed. The court endorsed that upon receipt of the VOC, counsel should advise the court if they wished to make further submissions. The father’s counsel requested an opportunity to make further submissions.
7. The court also raised the issue that it may be preferable for the relief sought by the father to be pursuant to a Motion to Change as the father is requesting a change in the status quo parenting arrangements as set out in the final orders of Justices Sherr and Spence on a permanent basis.
8. After hearing submissions, counsel also agreed that the court could review an update letter received from Joanne Seidel dated October 21st, 2021. The letter confirmed that Ms Seidel has met with the parties and the child. She stated that although positive changes had occurred between the child and the father over the summer that the child became less engaged with his father and demonstrated signs of resistance.
9. Ms Seidel recommended that the mother engage in meaningful individual work with her therapist to reflect on how her parenting and how she may have contributed to the child’s disconnection from his father.
10. Ms Seidel recommended that the father participate in individual therapy with a focus on his parenting. Her goal would be to assist the child and father to resolve any relevant parent-child conflict, develop good communication skills and establish a healthy relationship.
11. In summary Ms Seidel stated that it was evident that the family required a lot of therapeutic support. The parents’ need to be willing and committed to participate and take responsibility for their own behaviour in order for change to happen. If there is no progress then a more intensive intervention may be necessary.
12. The VOC report was filed with the court on November 8, 2021. Counsel for the father sought and was granted leave to make further submissions. The matter was then adjourned to December 16, 2021.
13. An urgent videoconference was heard on December 7th as it was alleged that the mother was breaching the temporary order of July 5th and the parenting arrangements that were made. During this attendance the court was advised that the child was no longer complying with the parenting time arrangements that were in place and was telling the principal of his school and calling the Catholic Children's Aid Society on his own and stating that he did not wish to stay with his father. The child was also making allegations against the father.
14. Further affidavits were filed and submissions were heard on December 16, 2021. However, as submissions were not completed the matter was further adjourned to December 22nd, which was also the return date for the Motion to Change commenced by father and for submissions regarding Christmas access.

Concerns with respect to the VOC report

15. In the VOC report the child who is 13 years old has made it clear that he wishes to reside with his mother and not spend time with his father. If he must see his father it would be on alternate weekends (that is, the outstanding final order of Justice Spence) and only if his father “changes his current behaviour.”
16. Instead of being helpful, the VOC report seems only to have empowered the child to believe that he can control what time he spends with both of his parents. There is no discussion in the VOC report about the independence of the child’s wishes or if he has been inappropriately influenced. There is no discussion about the basis of the child’s allegations about his father’s alleged inappropriate behaviour.
17. Given the history of this matter that is essential information that is required by the court. Further, there is no exploration as to why things changed from the enjoyable time the child was reported to have had with the father and his extended family during his summer vacation in Romania. The change in the child’s views appear to have changed in September and October. This is when he began to have telephone, virtual and in person contact with his mother.
18. The child’s attitude has dramatically changed. [^1] He is making allegations against his father that mimic prior allegations made by the mother. He is making allegations that are simply not true. He is telling his principal that he does not wish to go to his father’s home, he is calling the Catholic Children's Aid Society sometimes several times a day. The mother is also calling.
19. There have been multiple investigations and contact by the Catholic Children's Aid Society with the father. It is deposed by the father that the society has no concerns about his care of the child. Counsel have requested the records of the society but these have not yet been received so the court does not yet have all the details of their investigations. But despite the many allegations by the child and the mother, the society has not taken any legal steps to remove the child from the father’s care.
20. In cases where there is a concern about the independence of a child’s views, the court may place little weight on those views.
21. Both counsel agree that a section 112 investigation by the Office of the Children's Lawyer would provide the parties and court with necessary information and recommendations as to what steps should be taken to remedy the current crisis.
22. As indicated counsel for the father has commenced a Motion to Change the outstanding parenting orders. The relief requested in the Motion to Change provides a parenting plan that provides for a transition and increase in the time that the child spends with his mother with a goal of equal or near equal time. The mother was only served on November 26th and has not yet responded to that Motion to Change.
23. In addition to the contempt motion and the father’s Motion to Change was also before the court on December 22, 2021.

Applicable legal principles with respect to sentencing on contempt hearing

24. I wish to briefly review the possible penalties and orders that the court can make in the context of a contempt proceeding.
25. Family Law Rules 35 (1) sets out the penalties that can be imposed after a finding of contempt. The relevant sections for these purposes are as follows:

CONTEMPT ORDERS

(5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just; (b) pay a fine in any amount that is appropriate; (c) pay an amount to a party as a penalty; (d) do anything else that the court decides is appropriate; (e) not do what the court forbids; (f) pay costs in an amount decided by the court; and (g) obey any other order. O. Reg. 114/99, r. 31 (5).

26. The penalties available regarding the contempt powers of the Ontario Court of Justice are also contained in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, s. 38, as follows:

Contempt of orders of Ontario Court of Justice

38. (1) In addition to its powers in respect of contempt, the Ontario Court of Justice may punish by fine or imprisonment, or both, any wilful contempt of or resistance to its process or orders in respect of custody of or access to a child, but the fine shall not in any case exceed $5,000 nor shall the imprisonment exceed ninety days. R.S.O. 1990, c. C.12, s. 38 (1); 2001, c. 9, Sched. B, s. 4 (8).

39. There is a wide discretion available to the court when it comes to sentencing for contempt, as can be seen from subrule 31(5).

40. The use of "may" in subrule 31(5) indicates that the seven enumerated possible "sentences" do not represent a closed list. As well, the seven sentences are not mutually exclusive and may be levied in any number and combination found to be just and appropriate. [^2] The court has the widest discretion possible on designing an appropriate penalty.

41. Civil contempt proceedings are also intended to bring about compliance with past or future orders of the court. [^3]

42. The sanction imposed upon a finding of contempt must be significant and of such consequence as to ensure the administration of justice is not brought into disrepute.

43. As noted in Itrade Finance Inc. v. Webworx Inc. [^4] “others who may be tempted to flout an Order of this Court and frustrate its process must appreciate that they cannot benefit from such conduct.”

44. Sentencing in contempt proceedings, particularly in family law proceedings, should be comprised of two components. It should be restorative to the victim of the contempt and punitive to the contemnor. To accomplish the former requires the sentence to correlate to the conduct that produced the contempt and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances. [^5]

45. In determining an appropriate sentence in the present case, considerations have included the following: (a) the available sentences; (b) the proportionality of the sentence to the wrongdoing; (c) the similarity of sentences in like circumstances; (d) the presence of mitigating factors; (e) the presence of aggravating factors; (f) deterrence; (g) the reasonableness of a fine; (h) the reasonableness of incarceration.

46. In Surgeoner v. Surgeoner, [^6] Justice R.A. Blair J. stated:

5 No society that believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court’s orders at their whim because in their own particular view, it is right to do so. A society that countenances such conduct is a society tottering on the precipice of disorder and injustice.

6. The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal that often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness”. In this environment it is all too easy for a spouse to believe that he or she “knows what is right”, even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination.

7. Those who choose to take this tack must know that it will not be tolerated.

Discussion regarding contempt penalty

35. It is the position of the father on this penalty phase of the contempt motion, that the mother should pay a further penalty of $5,000 to the father for the many breaches of the orders of Justices Sherr and Spence as it is clear that she has not purged her contempt. It is submitted that the parties are exactly in the position they were in when the father commenced this contempt motion in October 2020.

36. It is submitted that this a reasonable penalty as initially the father was seeking a penalty of $200 for each breach which with respect to the father’s loss of about 100 days of parenting time would be $20,000.

37. It is further submitted that there should also be a temporary order for the child to remain in the primary care of the father and with parenting time to the mother as set out in the draft order submitted and an section 112 investigation by the Office of the Children's Lawyer.

38. On behalf of the mother is it submitted that the mother has already been punished as the child was removed from her care and that the status quo as outlined in the parenting orders of Justices Sherr and Spence should be restored.

39. It was also submitted that the court could impose a probation order and/or a fine for any breaches by the mother of the father’s parenting time as set out in the orders of Justice Sherr and Spence and the other ancillary parenting orders in those orders.

40. It is submitted that based on the detailed affidavits of the mother she has done everything she can do to ensure that the child abides by the current order but the child has clearly expressed his views that he does not want to continue to live with the father and does not even want to spend any time with him.

41. It is concerning that despite the obvious close bond between the mother and the child that she cannot instill in him the need to abide by court orders regarding where he resides and when he spends time with his mother. This is exactly the situation that required the father to commence this contempt motion and resulted in the child being placed with the father without any contact with the mother.

42. I find that the mother has not purged her contempt as submitted by her counsel. Although it is correct that the mother has not gone behind the father’s back and arranged for counselling for the child or an advocate for him that is primarily due to the child being in the father’s care. What she has not done is be able to support the father’s relationship with the child. What she has not done is ensure that the child understands that it is not up to him to decide the parenting arrangements.

43. The evidence before me establishes that the mother is doing exactly what she purported to do previously that is, tell the child he must go to see his father and if he refuses it is her position again that she cannot force him.

44. The evidence of the mother does not provide any evidence that she is supportive of the father’s relationship with the child. There is no evidence of any encouragement or statements telling the child that the father loves him and wants the best for him. The child complains that the father limits his internet usage and his time on his PS5 but the mother does not tell the child that these are appropriate parenting decisions or implement the same rules in her home. The mother does not correct the child when he complains that the father is limiting his phone calls with the mother by pointing out that they talk constantly without any interference by the father.

45. In one encounter between and the father, the mother acted aggressively and accused the father of being aggressive with the child. This is disputed by his daughter and partner. Despite complains to the CCAS about this incident, there was no verification that the court is aware of regarding the child being inappropriately treated by the father. The mother could have used this opportunity to act cordially and instead yet again put the child in the middle of this conflict.

46. I would further note that in the last two years despite many professionals being involved with this family there is no complaint that the father is an alcoholic or drinks to excess or has acted improperly with the child. None of this is pointed out by the mother to the child. I base this finding on the text messages by the mother to the child and on her own affidavits.

47. In other words, the mother by her behaviour has not purged her contempt and not done what she should have done to ensure that the child has a positive relationship with the father. I find that she has not purged her contempt and a further penalty is required.

48. With respect to the issue of what orders a court can make pursuant to a contempt proceeding, mother’s counsel further submitted that this court does not have the jurisdiction to change the residence and decision-making responsibilities of a child in the context of a contempt motion.

49. Counsel for the mother relies on the Ontario Court of Appeal judgement of Chan v. Town. [^7] In that decision the court granted the appeal of the decision of the motion judge to reverse custody for several months based on the mother depriving the father of his access during March break. The court stated:

    .. the remedy imposed by the motion judge was not an available remedy under rule 31 (5) of the Family Law Rules. Custodial arrangements of children cannot be used as a punishment for contempt. That is not to say that there may not be a circumstance where a change in custodial arrangements would be in the best interests of the child, but this is not that case.

50. In the Chan v. Town case the court also found that there was no basis for finding the mother in contempt. In this case, the mother has been found in contempt of multiple breaches of the court orders.

51. In the recent case of Bouchard v. Sgovio [^8] the majority of the Court of Appeal found that there was no clean division between contempt hearings and enforcement hearings and held that rule 1 (8) of the Family law Rules also gave the court wide powers to make substantive orders that could support a change in residence of a child if that was in the best interests of the child.

52. The court does not require expert evidence to find that it is in the best interests of children to have a meaningful relationship with both parents or to make a finding that a child’s estrangement or alienation from one parent can have a serious impact on a child’s overall well-being [^9].

53. I find that this court has the jurisdiction to make a further temporary parenting order as a sanction on the contempt motion not as a punishment to the mother but in this child’s best interests. [^10]

54. Even if the court has jurisdiction to make a final order changing a child’s residence in the context of a contempt motion, I would not find that this would be appropriate in this situation.

55. There is significant evidence that is currently not before the court that is important in deciding what parenting arrangements are in the child’s short term and long term best interests. Such as whether the mother has continued in her individual counselling and made any progress in that counselling, the status of the reunification counselling between the child and the father and any reports from the Children's Aid Society. The father has proposed a schedule of parenting time that he deposed was recommended by Howard Horowitz a well-known assessor with expertise in the area of estrangement but there is no report or further information about his role in this case.

56. Although in the decision finding the mother in contempt, the court did not label the child’s estrangement from his father and the mother’s behavior as “alienation” it is clear from the factual findings made that the court found the mother has alienated this child from his father. The Court of Appeal in Bouchard v. Sgovio [^11], confirmed that expert evidence is not required for such a finding.

57. The court was hopeful that the mother having faced the consequences of having no contact with the child would be able to support the child living with the father as her parenting time with him commenced. Sadly, that is not the case. The child seems to be empowered to do what he wishes and based on the evidence before me I find he is making unfounded allegations against the father.

58. As the mother was previously warned, it is up to her to act as a parent and provide the rules and structure that the child needs to obey. In this case that requires him to comply with parenting arrangements that are determined to be in his best interests despite his wishes. If that was not the case, then we would simply allow 13 year old children to make decisions about where they live and what rules they need to abide by.

59. Based on the number of breaches and the duration of those breaches, the lack of remorse and the continuation of the same breaches, I find that is reasonable that the mother pay a penalty of $5,000 to the father as of January 1, 2022 to be paid installments of $500 per month. I was not advised on the mother’s financial circumstances except for the submissions that such a penalty would be difficult for her due to her limited financial means. However, a penalty needs to be meaningful and have an impact on behaviour. Any financial hardship can be alleviated by the payment over time.

60. Neither parent shall discuss the monetary penalty imposed on the mother with the child.

61. With respect to what parenting order should be made it is clear that if the court acceded to the mother’s position that this child would no longer see his father.

62. I find that it is in the best interests of the child that it is necessary to continue the temporary order made on July 5, 2021 but with specific provisions for parenting time with the mother as outlined in the draft order submitted by father’s counsel.

63. However, in my view it is preferable that any further orders regarding decision-making responsibilities and parenting time be in the context of the outstanding Motion to Change as that legislation that is, the CLRA is more child focused than a contempt proceeding.

Urgent temporary motion prior to a case conference in the context of a Motion to Change

64. Father’s counsel has brought an urgent motion to be heard before a case conference in the context of the Motion to Change.
65. The father’s counsel is requesting the same order that was sought on a temporary basis pursuant to the contempt motion. The same affidavits filed are being relied upon. Such an order granted on a temporary without prejudice basis, would then finalize the contempt motion and permit this matter to procced as a Motion to Change pursuant to the CLRA.
66. Counsel for the mother objected as he was just served with the urgent motion on December 20th and only served with the Motion to Change on November 26, 2021.
67. Counsel for the mother submitted that if a temporary order is made in the context of the Motion to Change his client would be prejudiced. When the court pointed out that the terms of the order are exactly the same as the temporary order the court would be prepared to make in the contempt proceeding, the father’s counsel could not clearly articulate the exact nature of the prejudice except that it would create a new status quo. However, if the order was made without prejudice and subject to any further evidence the mother may wish to provide then as indicated during oral submissions there would be no prejudice.
68. Dealing with these issues in the context of a Motion to Change is also consistent with recent caselaw that has stated that it is important for courts to consider options other than contempt in high conflict family disputes. [^12]
69. Further, proceeding in this manner would be consistent with rule 2 (2) Family Law Rules that expands the court’s discretion to do justice between parties in family law proceedings. The primary objective in rule 2 (2) is to deal with cases justly that is, by “ensuring that the procedure is fair to all parties, saving time and expense and dealing with the case in the way that is most appropriate to its importance and complexity.” In order to achieve fair and expeditious resolutions. Rule 2 “specifically grants judges some procedural freedom.” [^13]
70. In this case, there is a benefit to the mother to have some finality to the contempt proceeding. Further, it would be a waste of court resources to have two proceedings continuing that seek the same relief.
71. I find that there is a compelling reason for this urgent motion to proceed on short notice. I find that as outlined in the contempt judgement of July 5, 2021 and this endorsement that there needs to be an order that changes, on a temporary without prejudice basis, the parenting arrangements as set out in the orders of Justices Sherr and Spence.
72. On consent the parties agree to the appointment of the Office of the Children's Lawyer. The court will be requesting a section 112 investigation. I agree with mother’s counsel that the court cannot order the Office of the Children's Lawyer to conduct an investigation as it is up the that office to determine if there will be an investigation or counsel appointed for the child. However, the child’s views and preferences are already before the court and to appoint counsel will not be of assistance to this court but detrimental to this proceeding.

Christmas parenting time

73. The parties do not agree regarding Christmas. The mother proposes overnight parenting time from December 23rd at 4:00 p.m. to December 25th at 1:00 p.m. and on December 31st to January 1st, 2022 at 1:00 p.m.
74. The father proposes that the current schedule continue that is on December 23rd from 4:00 p.m. to 7:00 p.m. and on December 25th from 12:00 p.m. to 8:00 p.m.
75. I agree with the submissions of father’s counsel that given the recent events of non-compliance that it is too early for the child to have an overnight visit at the mother’s home.

Conclusion

76. With respect to the contempt proceeding there will a final order that the mother pay $5,000 as a penalty to the father as of January 1, 2021 in installment of $500.
77. With respect to the Motion to Change, there will be a temporary without prejudice order in the terms of the order attached.
78. As the child has resided with the father since July 5, 2021 I have included a temporary order as requested that there be no child support order payable by either party. But as the mother’s counsel did not make submissions on this issue. Submissions can be made on the return date.
79. Christmas access will be as proposed by the father.

Justice Roselyn Zisman

Footnotes

[^1]: As it is important to advise counsel of my decision I have not recited the many details set out in the affidavits of both parties and the affidavits of the father’s daughter and partner. However, I have reviewed those affidavits and base this decision on the facts in those affidavits. [^2]: Geremia v. Harb, [2007] O.J. No. 3019, 40 R.F.L. (6th) 362, 2007 CarswellOnt 4956, 79 W.C.B. (2d) 679, 172 A.C.W.S. (3d) 426 (Ont. Sup. Ct.), para. 11. [^3]: Rogers v. Rogers, [2008] M.J. No. 178, 2008 MBQB 131, 166 A.C.W.S. (3d) 243, 77 W.C.B. (2d) 773, 227 Man.R. (2d) 118, 52 R.F.L. (6th) 281, [2008] 10 W.W.R. 111, 2008 CarswellMan 247 (Man. Q.B.), para. 119. [^4]: Itrade Finance Inc. v. Webworx Inc., [2005] O.J. No. 3492 at para. 20 (SCJ). [^5]: Geremia v. Harb, supra. [^6]: Surgeoner v. Surgeoner, (1991), 6 C.P.C. (3rd) 318 (Ont. Gen. Div.). [^7]: Chan v. Town, 2013 ONCA 478. [^8]: Bouchard v. Sgovio, 2021 ONCA 709. [^9]: Leelaratna v. Leelaratna, 2018 ONSC 5983 at para. 65. [^10]: See case of J.S. v. J.W., 2006 ONCJ 329 and the many cases cited at para 27. [^11]: Supra, at para. 74. [^12]: Ahmed v. Shaikh, 2021 ONSC 6648 and cases cited in para. 23. [^13]: Kolodziej v. Kolodziej, 2020 ONSC 3944 at paras. 41-43 and cases cited therein.