Ontario Court of Justice

Date: 2021·01·07 Court File No.: Woodstock D78/16

BETWEEN:

R.E. Applicant

— AND —

D.C. Respondent

Before: Justice S. E. J. Paull

Motions Heard on: January 4, 2021 Reasons for Judgment released on: January 7, 2021

PAULL J.:

[1] The parties are the parents of two children, C.C born […], 2013 (male) and M.C. (male) born […], 2014.

[2] Before the court are two motions brought by D.C. (the children’s father). The first is a contempt motion and the second is a motion for an order that the children engage in remote learning rather than attend school in-person.

[3] I reviewed and considered the affidavits found at tabs 2, 4-7, in addition to the submissions of the parties who were both self-represented at the hearing.

[4] The parties have an unfortunate and long litigation history before this court. The current order is dated October 23, 2019 which was entered into on consent on the first day of trial on a motion to change the previous final order.

[5] The final order of October 23, 2019 is lengthy (7 pages) and detailed. Among other things it included joint custody with primary residence with R.E. (the children’s mother) with a structured and liberal access schedule for D.C.. It also includes the following wording in paragraph one:

The parties… “shall consult with respect to decisions regarding the children, C.C. …, and M.C. …, and in the event of disagreement, the applicant, [R.E.], shall have the final decision-making authority, except that the respondent, [D.C.], may return the matter before the court for a review upon notice to the applicant…”

[6] The contempt motion, although not properly plead, raises two grounds to support a finding. Firstly, D.C. alleges that R.E. refuses to communicate and discuss matters involving the general health and well-being of the children, in contravention of the order, including his preference that the children engage in remote learning for the beginning of the 20/21 school year due to the pandemic. The issue of schooling is a subject of a second motion before the court wherein he seeks an order that the children not attend school in-person because of Covid 19.

[7] He cited examples he felt established R.E.’s failure to communicate including on March 19, 2020 when she refused to discuss Covid 19, and on July 3, 2020 when he alleges that the children were tested for Covid 19 and he was not informed. He alleges the children were released to his care without prior knowledge of the testing and access to the test results. He felt that this was a breach of the order requiring the parties to communicate on major issues with respect to the children and further that it represented a significant safety concern.

[8] D.C. states that he attempted to discuss the school issue with R.E.. The parties had a written exchange where they disagreed on the issue, with D.C. supporting remote learning and R.E. supporting in-school learning.

[9] Secondly, D.C. alleges contempt based on R.E.’s refusal to permit his three-hour access visit on June 30, 2020, and for starting his week of summer access on July 3 rather than July 2, 2020.

[10] R.E. responds that she has made every effort to discuss issues with D.C. but that the communication with him is difficult and can quickly deteriorate. She disputes that she has refused to communicate and states that the children are generally healthy and developing well and as such there is little to communicate about, but that she does when required. She supported the children attending school in-person on the basis that it was more effective than remote learning and that the children would benefit from the socialization and contact with others.

[11] R.E. denied that the children were tested for Covid 19 and points out that the respondent has the right and ability to access any results for the children if they were tested using the children’s health cards, which she had provided to him. She deposes that D.C. is well aware of the children’s doctor and dentist and is listed as the emergency contact at the children’s school. As a joint custodial parent, he is free to discuss any issues with any third party regarding the children’s health and education.

[12] R.E. acknowledged in her affidavit she made a mistake about the access on Tuesday, June 30, 2020 and that it resulted in a missed three hour visit. R.E. alleges that on June 30, 2020 D.C. attended her home and banged on all the doors. The police were called on this date and on July 2, 2020 regarding summer access which D.C. felt was scheduled to start. Summer access appears to have begun on Friday July 3, 2020 and there is no suggestion that it did not occur for the full duration prescribed by the order. D.C. suggests that R.E.’s claims regarding this incident are “greatly exaggerated”. He also acknowledges that he records all access exchanges.

[13] With respect to the missed June 30, 2020 access visit R.E. acknowledges it was missed and that it was her mistake. She offered to make up the access time, including offering significantly more makeup time than three hours on September 17, 2020. D.C. did not accept that, or any other makeup time offered.

[14] The motions were put to a settlement conference in front of Justice Neill on October 28, 2020. The settlement conference was conducted, and the court made the following temporary order:

1. On a weekly basis (preferably Sundays), R.E. will provide updates to D.C. through Talking Parents with respect to significant medical or educational issues regarding the children.
2. Both parents will communicate in a civil manner with each other and not speak negatively to each other.
3. The parties will avoid interactions with each other during access exchanges.
4. D.C. will consider R.E.’s offer of three hours of makeup access for the missed visit on June 30, 2020.
5. Matter adjourned to November 23, 2020 12:30 PM to scheduled dates for D.C.’s motions if not resolved.

[15] The matter was not resolved, and D.C. seeks a finding of contempt and relief which he outlined as follows:

“Under a motion of bad faith, I hereby ask the courts to amend our court order with police enforceability. I also ask that a 50-50 shared custody agreement is made with “ultimate” decision-making authority resting with the respondent, in good faith, that all decisions will be openly discussed and considered properly with the applicant, and done in the best interests of the children.”

[16] R.E. seeks that the motions be dismissed with costs.

The Law

[17] The court in Ahmed v. Houdi, 2016 ONSC 2849, succinctly summarized law of contempt in family court proceedings as follows:

[12] Contempt is a serious remedy and is not to be granted lightly: see Fisher v. Fisher, [2003] O.J. No. 976 (S.C.J.). It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. Furthermore, the party alleging contempt has the burden of proof. Often, although not always, a trial is necessary to establish the alleged contempt beyond a reasonable doubt: see Coletta v. Coletta, [2003] O.J. No. 81 (S.C.J.). The cases state that the civil contempt remedy is one of last resort and that great caution must be exercised when considering contempt motions in family law proceedings. Contempt remedies should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order. (See: Prescott Russell Services for Children and Adults v. G. (N.), 82 OR (3d) 686 (ON CA), Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65; and, Children’s Aid Society of Ottawa v. S.(D.), [2001] O.J. No. 4585.

[13] Finally, and as set out Bowman v. Bowman, [2009] O.J. No. 2993 (S.C.J.) at para. 17, to make a finding of contempt, the court must be satisfied as to three elements of the alleged contempt:

(a) the order must be clear and not subject to different interpretations; (b) the acts stated to constitute the contempt must be wilful rather than accidental; and, (c) the events of contempt must be proven beyond a reasonable doubt.

(See also: Prescott Russell Services for Children and Adults v. G. (N.), supra; Davydov v. Kondrasheva, 2012 ONCA 488, and Hobbs v. Hobbs, 2008 ONCA 598, [2008] O.J. No. 3312 (Ont. C.A.))

[14] Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed.

[15] Even in cases where a party is in breach of a court order, the court must be satisfied that the breach is wilful, and must consider the explanation for the alleged breach. In Szyngiel v. Rintoul, 2014 ONSC 3298, 2014 ONSC 3298 (SCJ), the court stated (at para. 24):

There are situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order.

A reasonably held belief is one that is both sincere and has some objective basis in fact.

[18] Overall, the contempt power is to be used with restraint and in exceptional circumstances, essentially to respond to circumstances where it appears to be the only reasonable means to send a message to the litigant that court orders are not to be flaunted. This approach is consistent with the design of the family law rules as a whole to enable the court to deal with a case justly, with particular attention to sub rule 2(3) and (4) of the rules.

[19] Notwithstanding the court’s reluctance to exercise its contempt powers, it is important that such powers be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and the compliance with the court order is neither an option nor bargaining chip.

Analysis

[20] Contempt is a serious remedy that is not to be granted lightly. It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt, the party alleging contempt has the burden of proof. Often, although not always, a trial is necessary to establish the alleged contempt beyond a reasonable doubt.

[21] In this case, I find that a trial is not required on the basis of the materials filed. The court does not require examination or cross-examination to allow for a full exploring of the evidence on the issues before the court. The motions can be properly disposed of on the basis of the agreed-upon or uncontested factual record in the affidavit evidence. For the reasons which follow D.C. has not satisfied the burden of establishing that R.E. was in contempt of the order beyond a reasonable doubt.

[22] The terms of the order were clearly known to the parties as it was made pursuant to minutes of settlement. The term of the order regarding consulting on major issues was unambiguous, as was what was permissible if the parties disagreed. The terms with respect to access were generally clear, although the terms were particularly detailed.

[23] With respect to the allegation that R.E. is in breach of the order for failing to communicate and discuss matters involving the general health and well-being of the children the evidence offered by the respondent to support this claim falls well short of establishing that she was in breach of that term beyond a reasonable doubt. The communication about the school attendance between the parties was appropriate. They shared their reasons for each of their positions and simply disagreed. It seems apparent that D.C. feels the communication was insufficient and contrary to the order largely, it would seem, because R.E. would not agree with his point of view.

[24] Further, when the communications between the parties which were attached to the affidavits are reviewed it is apparent they have some difficulty communicating and that both parties likely bear some responsibility for this. At times the communications are appropriate and at others it seems R.E. is not as responsive as D.C. wants, particularly when she perceives his comments as being about historic issues between them rather than about the children’s current needs. This results in D.C.’s communications becoming increasingly assertive, even aggressive, to the point where the parties’ ability to effectively communicate in a child focused way is lost. These difficulties in the communications between the parties, that they both appear to contribute to it times, are contrary to the spirit of the joint custody order, but on the evidence provided do not come close to meeting the threshold for a finding of contempt.

[25] I note that D.C.’s choice to record the access exchanges is also contrary to the spirit of a joint custody order and is behaviour which is not likely to improve the parties’ ability to communicate.

[26] Courts have been consistent that the recording of interactions between litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust without the parties worrying about whether the other is recording them. Separated parents need to rebuild trust so that they can learn to act together in the best interest of the children. Condoning the recording of the other would be destructive to this process and contrary to the best interests of children. These types of recordings also often show that the parent doing the recording is putting their own need to win in the litigation ahead of the child’s needs.

[27] With respect to D.C.’s allegation that R.E. was in contempt of the order for summer access by starting it on Friday July 3, rather than Thursday July 2, he has also not established a breach. The order specifies at s. 2 (k) (iii) that the weeks of summer access, “shall commence on the Friday of a usual access weekend for the respondent…”. Starting the summer access on the Friday appears consistent with terms of the order. Further, there is no suggestion that the full duration of summer access did not occur. The order is also clear that the Thursday night visit during the school year ceased at the end of June in favor of the summer schedule for the months of July and August.

[28] With respect to R.E.’s failure to facilitate access on June 30, 2020, she felt that since the extended summer access was about to begin that this access was not to occur. She readily acknowledged that she was incorrect in this and that it was a breach of the order. However, I accept that this was accidental rather than willful on R.E.’s part. There is no evidence that this was part of a larger pattern by her of not facilitating access pursuant to the order or that access did not otherwise regularly occur. More importantly, R.E. immediately acknowledged her mistake and offered makeup time, including significantly more time than was missed. D.C.’s refusal to accept this was not reasonable in the circumstances and suggests his motivation was not to recover the access he lost but to capitalize on a minor breach to fundamentally change the order to one of shared parenting where he has decision-making authority.

[29] As the Ontario Court of Appeal states in at paragraph 4 in Hefkey v. Hefkey, 2013 ONCA 44 (Ont.C.A.):

4. …Stratagems of this kind and contentious family law proceedings should not be condoned or facilitated. They advance neither the best interests of the affected children of the marriage, nor the interests of the administration of justice.

[30] The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where other adequate remedies are available to the alleged aggrieved party, or where, as in this case, the alleged behaviour is not at the most egregious end of the spectrum. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings.

[31] Further, the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach to contempt in family law cases.

[32] Even had this court found that any of R.E.’s actions satisfied the elements of contempt beyond a reasonable doubt, I would have exercised the overriding discretion a court has and declined to make a finding of contempt. It would be unjust to do so in the present circumstances, particularly given that R.E. has made good faith efforts to makeup the missed 3 hour access visit, and it is clear the difficulty in communication rests with both parties. The circumstances alleged by D.C., even when considered in their most favourable light, fall well short of what would be required to support a finding of contempt, or even of establishing a material change in circumstances had this been a motion to change the order.

[33] However, both parties need to work on improving their ability to communicate so that important information can be exchanged, and so that decisions can be made in an uneventful and timely manner.

[34] Both parties should be communicating important information to the other on issues related to the health, education and welfare of the children in a timely manner and avoiding communications that restate historic issues they may have had. As joint custodial parents each have the right to make direct inquiries with any third parties regarding the children. However, this requires the parties to notify the other of any nonroutine appointments or other important information regarding the children in advance. This type of respectful and cooperative communication promotes the children’s best interests and is consistent with both the letter and the spirit of the joint custody order.

[35] Regardless of how detailed the custody order is there will always be gaps and unexpected situations, and when they arise parents are expected to address them in a respectful, timely, and child focused way. This type of communication is a two-way street and the court expects both parties to work harder at it going forward.

[36] With respect to the motion that the children attend school remotely rather than in person, I am also of the view that it should fail in the circumstances.

[37] The parties discussed their positions with respect to school, disagreed, and R.E. exercised her authority under the current final order to make the decision and enrolled them to attend school in-person. Likewise, D.C. exercised his right under the order to have that decision reviewed in court.

[38] There is no evidence to support that R.E.’s decision was contrary to the children’s best interests. D.C. has not offered any specific evidence that in-person attendance at school is not in the children’s best interests and states only that he supports a cautious approach in the circumstances of the pandemic. There is no evidence that in-person schooling for the children would create an unacceptable risk of harm for them or anyone in either of their households. There is no evidence that the children, either of the parents, or anyone else who may be in their households have any underlying medical conditions that would make them particularly susceptible to the adverse effects of Covid 19.

[39] As noted by Justice J. Himel in Chase v. Chase, 2020 ONSC 5083, the Ontario government determined that September 2020 was the appropriate time to move forward with re-opening, which included a return to in-person school. I agree with Justice Himel that the government was in a better position than the courts to assess and address school attendance risks. The decision to reopen the schools in September was within the purview of the government, was made with the benefit of medical expert advice, and in consultation with Ontario School Boards. While the government and the experts acknowledged that it was not 100% safe for children to return to school, the risks of children catching the virus had to be balanced against their mental health, psychological, academic and social interests, as well as many parents need for childcare. The Ontario government also stated that there would be no hesitation to shut down schools again if warranted. As part of broader public safety measures the Ontario government has recently mandated that children not return to in-person school attendance following the holiday break until at least January 11, 2021.

[40] Overall, the provincial government it is in a better position than a motions court to assess the risk of school attendance generally, and D.C. has offered insufficient evidence of specific issues related to these children and this family to support that their best interests necessitate remote learning.

[41] As such, at this time I see no basis to interfere with R.E.’s decision which she made in accordance with the final order.

Conclusion

[42] On the basis of all these considerations the motions are dismissed.

Both parties are self-represented and in the circumstances I will likely not be inclined to make an order for costs. However, in the event that the parties do not agree, R.E. is to serve and file written submissions of no more than two pages and attach any offers to settle (except an offer to settle attached to a settlement conference brief) by January 22, 2021. D.C. shall serve and file a written response not to exceed two pages and attach any offers to settle (except an offer to settle attached to a settlement conference brief) by February 5, 2021. If no written submissions are filed by the deadline, the parties will be deemed to have resolved the matter of costs.

Released: January 7, 2021 Signed: “Justice S. E. J. Paull”