Ontario Court of Justice

Date: 2022 08 11 Court File No.: Kenora FO-18-00000053-0000

Between:

N.S. Applicant

— AND —

D.H. Respondent

Before: Justice Evelyn J. Baxter

Heard on: August 27, 2021, October 8, 2021, November 10, 2021, December 12, 2021, January 25, 2022, March 14, 2022, July 8, 2022

Reasons for Judgment released on: August 11, 2022

Counsel: Ms. Kirsy Ralko......................................................................... counsel for the applicant(s) D.H.................................................................................................................. on her own behalf

Baxter J.:

[1] The father brings a motion to find the mother in contempt of court for wilfully disobeying the final order of Justice D. Gibson dated July 5, 2021 and for disobeying the interim order of this court dated December 9, 2021.

[2] On July 5, 2021 Justice D. Gibson issued his decision and order following a 3 day trial between the parties – the culmination of 3 years of litigation in this matter. The parties were unable to agree on parenting time, primary residence and decision-making authority regarding their son, O.S., born […], 2017, who is now age 4, shortly to turn 5. The order set out the parenting regime to be followed by the parties.

[3] The father was the successful party at trial and was granted principal decision-making authority with a week about parenting time arrangement that required the father to effect exchanges with the mother in Pinawa, Manitoba every Saturday at noon.

[4] The order also specified commencing August 20, 2022, O.S.’s primary residence will be in Kenora with the father to allow the child to commence school in Ontario. Parenting time to the mother was reduced to two weekends per month and 4 weeks in summers.

[5] On August 3, 2021, the mother attempted to file an appeal of Justice Gibson’s order in Superior Court; however, the Notice of Appeal was rejected by the court for being late and not properly served.

[6] On August 27, 2021 the father commenced this contempt motion. The mother failed to return O.S. to the father on August 21, 2021 pursuant to the order. An emergency motion was brought ex parte as the mother refused service of the Notice of Motion.

[7] The father continued to try to have the child returned to him over the next 2 days, but the mother refused to respond to his communications. In addition, the police attended at the mother’s home to retrieve the child, but the mother refused to answer the door for the police.

[8] The mother eventually responded to the father by email and informed him she would not be returning the child until August 28 or “maybe longer” as she was quarantining him pursuant to her interpretation/application of the Manitoba health guidelines, and despite the fact the father and child had negative COVID tests, as did the mother. Further the mother did not permit the father to have any communication with O.S..

[9] The second attempt at a Notice of Motion dated October 8, 2021 was e-filed on September 29, 2021 and served on the mother by substitutional service on September 24, 2021.

[10] On October 8, 2021 this court ordered the mother to return the child to the father along with a schedule of make up time, an extension of time for the mother to file her responding materials, and set a time in November to hear the contempt motion and to allow the original week-about parenting time to recommence.

[11] On November 10, 2021 the mother appeared for the contempt motion to commence. She was, at that time, represented by Michael Cupello of Thunder Bay. Both counsel made submissions on the contempt motion, with Ms. Ralko, counsel for the father, arguing her position on the contempt. The matter was then adjourned to allow the mother to prepare her side of the motion and to possibly provide evidence.

[12] On December 12, 2021 the motion was to continue. The mother and Mr. Cupello did not attend this court appearance. Again, the mother was using the Manitoba health guidelines to usurp the order of Justice Gibson and was “quarantining” the child. At that time, this court ordered the parenting time of the mother be suspended until further court order, and that the RCMP were ordered to retrieve the child from the mother.

[13] On January 20, 2022 Mr. Cupello was removed as the mother’s solicitor.

[14] On January 25, 2022 the mother requested, and was granted, an adjournment of the contempt motion to allow her to retain new counsel, despite the motion being set to this day for her viva voce evidence, if any. The mother did not appear in court, but called in from a hospital in Manitoba claiming she was there for tests and unable to take part in the proceedings. The court ordered the mother to attend court on the next day or provide medical proof of her inability to attend on or before March 7, 2022. The matter was adjourned again to March 14, 2022 to continue.

[15] On March 14, 2022 the mother failed to attend court in person or provide the medical proof as required. The January 25, 2022 endorsement was read to the mother and she indicated she understood. The mother indicated to Ms. Ralko she expected someone to give her the zoom contact information despite previously indicating she planned to attend in person. The court telephoned the mother twice, from the courtroom, on the record, and she did not answer the phone.

[16] Sometime between January 25 and March 14, the RCMP had to physically break down the mother’s entry and bathroom doors to retrieve the child and return him to the father. Further, on February 18, a Manitoba child protection agency found O.S. to be in need of protection and has prohibited the mother from having any contact with the child until that matter is finally determined.

[17] In addition, the mother filed a request to Superior court to extend her time to appeal Justice Gibson’s order, and the Superior court was awaiting the outcome of this contempt motion before deciding the issue of the appeal proceeding.

[18] Counsel for the father made further submissions on sentencing for contempt on March 14, 2022, but the court was reluctant to make a final ruling on the contempt motion without the mother present given the serious nature of the proceedings and the fact she was self-represented. The matter was adjourned one last time to April 1, 2022 to allow the mother to attend and explain herself.

[19] On April 1, 2022 the mother attended in person and again asked for an adjournment to retain counsel and bring a support person to assist her in presenting her evidence on the next date. Given the father now had the child in his care continuously since at least late January, he was content to allow a further adjournment. The mother was then granted leave to file any supplemental affidavit she needed for the next appearance. The matter was adjourned to May 18, 2022 to allow for new counsel and to set a date to complete the contempt motion. Two further brief adjournments were granted in order to set a date to finally hear the conclusion of the motion.

[20] The contempt motion was concluded on June 29, 2022 with the mother attending and presenting evidence via her parents. Both of the mother’s parents testified under oath. The court found the mother in contempt of Justice Gibson’s order and this court’s interim order of December 9, 2021. Disposition was reserved resulting in the mother not facing jail or any fines, in light of Ms. Ralko’s position on sentencing on a previous appearance.

[21] Initially the father’s sentencing position was for the mother to be jailed for 30 days. The position was reduced to a suspended sentence with minimal jail time or a fine.

Position/Evidence of the Father

[22] Since the final order of Justice Gibson was made, the father asserts the mother wilfully and deliberately disobeyed the order by refusing to comply with the week-about parenting time. The mother is accused of “over holding” the child, O.S., by using the then Manitoba health directives regarding COVID-19 as a reason to keep him longer than permitted by the order.

[23] The father contends the mother misinterpreted or used the Manitoba COVID-19 directives to suit her own ends to keep the child when there were no grounds to do so.

[24] The first incident of over holding the child occurred between August 21 to September 24, 2021, which amounted to the father not having parenting time for 35 days, and given the mother had the child in quarantine for approximately 41 days.

[25] The second overholding incident occurred between November 2, 2021 and January 19, 2022. On November 29, 2021 the police called the mother and instructed her to return the child. She refused to do so. It was on January 19, 2022 that the police had to forcibly remove the child from the mother’s home and return him to his father. The child was kept for 53 days from his father. This incident is in breach of the trial order and the order of this court of December 9, 2021.

[26] On January 17, 2022 the Manitoba Court of Queen’s Bench issued an order directing the orders of Justice Gibson and this court be followed as they are in full force and effect in Manitoba. The mother was ordered to surrender the child’s passport or travel documents; the RCMP were ordered to enforce the orders, and the mother was ordered to pay costs.

[27] The child, the father and the mother have never tested positive for COVID-19. The child and the father are vaccinated – the mother is not. Further, none of them have been identified as a close contact of someone with COVID-19.

[28] The Manitoba health directives indicate that parents in child access cases need to follow court orders and accommodate parenting time as much as possible.

Position/Evidence of the Mother

[29] The mother denies she is contemptuous of the court, and maintains she was properly following the COVID-19 directives of Manitoba Health.

[30] The mother provided an affidavit and had her parents testify at the motion. She maintained she was following the health protocols. Her parents testified, but their evidence did not assist the court in any way, and their evidence will not be repeated here.

Finding/Analysis

[31] I find the mother is in contempt of the two orders of the court – Justice Gibson’s final order and my order of December 9, 2021.

[32] The factors that are required for a contempt of court finding are set out in a test that requires the order breached must be clear and unequivocally set out what the parties are to do or not do. The party who is alleged to have breached the order must have done so wilfully and deliberately, and the court must be satisfied of the breach beyond a reasonable doubt – the criminal standard of proof.

[33] Here both orders in question exist and were/are clear and unequivocal. The week-about parenting time schedule was clearly set out by Justice Gibson, and my order of December 9, 2021 was also clear and unequivocal regarding the directive the child be returned to the father and that the mother’s parenting time was to be suspended in the circumstances.

[34] Ms. D.H. was aware of, and had proper notice of, the orders. She was present in court when Justice Gibson made his order, she received a copy of the order. She had counsel at the trial and tried to appeal that order. Further, the mother was aware of my order, which was read to her and sent to her.

[35] The breaches of the orders have occurred. The chronology of the breaches has been set out. No steps have been taken to remedy the breaches.

[36] The mother was aware of the contempt motion. She was properly served, and the supporting materials set out the nature and timing of the breaches alleged. She had counsel for part of the proceedings and otherwise took part in the proceedings related to the contempt motion. There can be no question the mother was aware of the motion and the grounds to support it.

[37] The mother’s interpretation and application of the Manitoba health guidelines is incorrect. My review of the guidelines based on the facts set out, would not have resulted O.S. being “quarantined” for the length of times he was. Further, the guidelines/directives address the issue of vaccinated children under 12 and of facilitating child access/custody issues, that the mother appears to have disregarded. In addition, the child and his parents have never tested positive for COVID-19, nor were they close contacts. The child is vaccinated.

[38] I am satisfied, beyond a reasonable doubt, the mother used the Manitoba COVID-19 directives wilfully and deliberately to deprive the father of his parenting time for her own purposes in direct contravention of the orders of Justice Gibson and mine.

[39] This court is aware contempt is a last resort, and in this case, it was the appropriate step to take in this case given the egregious nature of the breaches committed by the mother.

[40] In addition, this court was more than patient with the mother, allowing numerous indulgences, in order to determine if the mother had a genuine defense to the allegations. Rather than address the issues and begin to properly comply with the orders, the mother chose to drag out the proceeding and frustrate the process, leaving no doubt she had no intention of obeying either order.

[41] In fact, the mother’s behaviour attracted additional sanctions from a Manitoba child protection agency and the Court of Queen’s Bench as well as RCMP intervention. She is the author of her own misfortune, leaving this court with no option but to find her in civil contempt of court. Moreover, the fact the mother intends to attempt to appeal Justice Gibson’s decision which indicates she did not wish to obey the order in the first place.

[42] Pursuant to Rule 31 of the Family Law Rules and given the mother has been prohibited to have parenting time with O.S. because of the child protection matter and my temporary order, I am satisfied that is punishment enough. I have held the mother is not to pay any fine or spend any time in jail given her medical conditions and her apparent mental health issues.

[43] It is hoped that this contempt motion has taught the mother a lesson that disobeying court orders will not be tolerated; and going forward she is best advised to follow orders or face further, more serious sanctions.

[44] The courts take a dim view of those who deliberately disobey orders and must make that clear to the public who might be tempted to disregard court orders and thumb their noses at the courts, that such behaviour will not be tolerated.

[45] Finally, I further order:

(1) The mother shall comply fully with this order, the order of Justice Gibson, and all other orders this court makes, subject to the requirements of the Manitoba child protection authorities, and as amended by this order.

(2) My temporary order of December 9, 2021 is terminated.

(3) Paragraph 3 of Justice Gibson’s order is amended to reflect in the event the mother is allowed to see the child after August 1, 2022, parenting time is to take place in Kenora with the mother bearing the responsibility of travel to Kenora to effect her parenting time every second weekend, commencing Fridays at 4 pm to 8 pm, Saturdays from 10 am to 7 pm, and Sundays from 10 to 5 pm, with no overnights until approved by child protection authority or further order of this court.

(4) Effective August 1, 2022, the child’s primary residence shall be with the Applicant father, N.S. in Kenora.

(5) The mother shall not remove the child, O.S., from the province of Ontario without an order of this court.

(6) The mother, subject to the child protection matter, shall have telephone or video time with the child 3 evenings per week.

(7) Paragraphs 2, 4, and 5 of Justice Gibson’s order are still in full force and effect.

(8) The mother is prohibited from bringing any motion to change or other litigation about this matter (except a contempt motion) without leave of the court.

(9) The Ontario Provincial Police and/or the RCMP are directed to locate, apprehend and deliver the child O.S., born […], 2017 to the Applicant father, N.S., in order to effect the child’s primary residency with N.S. in the province of Ontario, and pursuant to paragraph 3 of Justice Gibson’s order dated July 5, 2021, as amended by this order.

(10) A copy of this order shall be filed with the Manitoba Court of Queen’s Bench.

[46] Pursuant to Rule 24, and given the father is the successful party to the motion, he is presumed to be entitled to costs. Given Ms. D.H., the respondent, is of limited financial means, and has other costs awards to pay, I order the respondent, Ms. D.H., to pay costs to Mr. N.S. in the amount of $2,000.00 forthwith. This costs order bears interest at 2% per year.

Released: August 11, 2022 Signed: Justice E J Baxter