ONTARIO COURT OF JUSTICE
CITATION: Gillis v. Gomez, 2022 ONCJ 417
DATE: 2022 09 15
COURT FILE No.: Toronto FO-14-71940
BETWEEN:
Rebecca Gillis
Applicant
— AND —
Patrick Gomez
Respondent
Before Justice D. Szandtner
Motion Heard on August 23, 2022
Reasons for Judgment on Contempt Motion released September 15, 2022
Stephen Cooper..................................................................................... counsel for the Applicant
Thomas O’Malley.............................................................................. counsel for the Respondent
SZANDTNER J.:
[1] This is the court’s decision regarding a motion for contempt that was heard on August 23, 2022.
Overview
[2] The parties are the parents of Savanah Jewel Gillis-Gomez. Savanah is 8 years old.
[3] The Respondent (the father) has moved to find the Applicant (the mother) in contempt of the parenting time provisions set out in two court orders of Justice Roselyn Zisman.
[4] The father first brought his contempt motion on December 4, 2020, seeking to find the mother in contempt of the final order of Justice Zisman dated December 15, 2015.
[5] On August 9, 2022, the father amended his contempt motion to also find the mother in contempt of the temporary order of Justice Zisman dated March 17, 2022.
[6] Justice Zisman’s orders specify the father’s access/parenting time schedule with Savanah. The father’s position is that the mother’s actions or inaction constitute a willful breach of the court orders and resulted in multiple missed visits with Savanah in two separate time periods in 2020 and 2022 respectively.
[7] The mother asks that the father’s motion be dismissed on the grounds that any breach connected to the father’s visits with Savanah was either not intentional or can be explained with a legitimate excuse.
[8] I have reviewed and considered the affidavits filed in the continuing record and the submissions of counsel for each party at the hearing. Counsel declined the opportunity offered for cross-examination and agreed to rely on the written record.
The Law
[9] Rule 31 of the Family Law Rules governs contempt of court in family law matters. It provides that:
31(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.
[10] Rule 1(8) of the Family Law Rules also provides the court with the authority for making a contempt order, when sought in a motion, as a remedy for a failure to obey an order:
Failure to obey order
(8) If a person fails to obey an order in a case of a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to a motion to change, financial statement, affidavit or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postposing the trial or any other step in the case; and
(g) on motion, a contempt order.
[11] In the recent case of Moncur v. Plante, 2021 ONCA 452, the Ontario Court of Appeal succinctly reaffirmed the principles relating to contempt motions as follows:
(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: (a) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (b) the party alleged to have breached the order must have actual knowledge of it; (c) 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. (3ed) 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 to 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.
[12] Unless the motion for contempt satisfies all three parts of the test beyond a reasonable doubt, the motion for contempt must be dismissed.
[13] 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.
[14] In McKinnon v. McKinnon, 2018 ONCA 596 the Ontario Court of Appeal stated (at para. 36) that a judge retains an overriding discretion to decline to make a contempt finding where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order.
Analysis
Part 1 – Final Order of Zisman J. dated December 15, 2015
[15] The relevant paragraphs of the order of Justice Zisman dated December 14, 2015 read as follows:
The Respondent Father shall have access to Savanah on alternate weekends from Saturday at 10:00 am until 6:00 pm. Commencing July 2016, the access shall increase to alternate weekends from Saturday at 10:00 am until Sunday at 6:00 pm. If the Mother provides her written consent to the daycare, access can commence on alternate Fridays, instead of Saturdays, with pick up at daycare between 3:30 pm and 5:45 pm.
Commencing in December 2016 and continuing in alternate years (i.e. December 2018, December 2020 etc), Savanah shall be in the Father’s care from December 24 to December 27 at 6:00 pm. The Father shall notify the Mother in writing at lease 48 hours in advance if he is taking this access and he shall provide her with his selected pick up time of either 9:00 am or 10:00 am. If the Father has not given the Mother a minimum of 48 hours advance notice that he is having access, the Mother may make other arrangements for Savanah. In the event that the Father has not been having overnight access for the previous 4 consecutive visits, his access shall be daytime access only during those days (i.e. return at 6:00 pm on each of December 25, 26 and 27.)
[16] It is not disputed by the parties that the father’s access to Savanah did not occur on the following weekends: February 22/23, 2020, March 21/22, 2020, May 16/17, 2020, October 17/18, 2020, October 31, November 1, 2020, November 14/15, 2020 and November 28/29, 2020.
[17] The father alleges that the mother deliberately and wilfully failed to comply with the December 15, 2015 final order for his parenting time on those dates and should be found in contempt of court.
[18] The court must consider the three-part test for contempt with respect to the 2015 order.
[19] The first part requires that the order state clearly and unequivocally what should and should not be done. The mother is not taking the position that this part of the test is not met. The court finds that it has been met on the evidence.
[20] Secondly, the party alleged to have breached the order must have actual knowledge of it. The court finds that this was the case.
[21] The third element to consider is whether the party allegedly in breach has intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
[22] As part of the third element of the contempt analysis the court must be satisfied beyond a reasonable doubt that the alleged breach is wilful and must consider the explanation for the alleged breach.
[23] To find a legitimate excuse, the court must find on the evidence 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: Szyngiel at para. 24.
[24] The mother filed affidavit evidence to explain why the access did not occur on those seven weekends. Her explanations for the missed visits under the 2015 order fall into three categories:
(a) Visits missed because the mother believed that the father was required to give prior notice.
(b) Visits missed due to COVID issues.
(c) One visit missed due to Savanah’s chronic skin condition.
Visits Missed Due to Lack of Prior Notice
[25] The mother offers the explanation for three of the cancellations that father failed to provide notice of his intention to exercise access. (February 22/23, 2020, May 16/17, 2020 and November 28/29, 2020). Her evidence is that she misunderstood the order and believed that the notice requirement outlined in paragraph 4 also applied to paragraph 3. She was under the mistaken impression that she was enforcing the notice requirement within the order by denying access.
[26] The father’s evidence is that the lack of notice refusal led to cancelled access on 4 visits (February 22/23, 2020, March 21/22, 2020, May 16/17, 2020, October 31/November 1, 2020). He attaches the mother’s text messages with respect to the requirement for notice for the March, October 31 and November 18 refusals.
[27] The wording of Justice Zisman’s 2015 final order does not create a notice requirement for the alternate weekend regular access. However, the mother acknowledges her mistake in this regard and her evidence is that based on legal advice following a change in counsel she no longer sought notice.
[28] Given that the mother’s request for notice from the father did not persist beyond November 2020, it is credible that the mother misunderstood the terms of the order. Her evidence is that it was her sincere belief that her insistence on the notice requirement was enforcing not defying the terms of the final order.
[29] This court finds that the refusals based on a lack of notice do not satisfy the third element of the test of contempt, that the non-compliance was intentional.
[30] The father has not established that the breaches were intentional beyond a reasonable doubt.
[31] Accordingly, no contempt finding is made for the 2020 access refusals based on a lack of prior notice.
Visits Missed due to COVID Issues
[32] The mother’s sworn evidence is that the March 21, 2020 and May 15, 2020 cancelled visits were connected to the advent of general COVID restrictions in the spring of 2020.
[33] The mother’s evidence is that the access visit on October 31/November 1, 2020 was cancelled due to a specific COVID directive from Savanah’s school imposing isolation requirements in the fall of 2020. The mother attached an email communication from Savanah’s school confirming this isolation directive.
[34] The mother’s evidence is that the access visit on November 14/15, 2020 was cancelled due to a COVID directive with respect to the mother’s niece who was residing in the home with the mother and child. Her understanding of the COVID directives in place at that time required all members of the household to isolate.
[35] The father’s evidence is that on March 21, 2020, he was told that he could not have his access due to mother’s fear of the “Corona virus.” His evidence does not connect any of the other refusals to this issue.
[36] The first two elements of the test for a contempt finding have been met. The order stated what was to be done, the mother had knowledge of the order.
[37] As the court considers whether the third element of a contempt finding has been met beyond a reasonable doubt, that the non-compliance was intentional, it must also consider the mother’s explanation. Does her evidence provide a legitimate excuse that grounds a reasonably held belief that there was a good reason to not comply with the access order?
[38] The court is satisfied that for the 2020 weekends for which COVID restrictions and COVID school directives with respect to isolation after exposure were the reason for the access cancellation, that the mother had a reasonably held belief that there was good reason to not comply with the order for overnight access.
[39] This court finds that the general COVID directives at the outset of the pandemic and the specific COVID directives from the child’s school where there was an outbreak in her classroom provide a legitimate excuse for the mother’s failure to comply with the access order.
[40] The mother is found to be in breach of the court order by cancelling access due to COVID issues, however the breach does not rise to the level of a finding of contempt.
[41] Accordingly, no contempt finding is made for the 2020 access refusals based on COVID issues.
Single Visit Missed due to Savanah’s Chronic Skin Condition
[42] The mother offers the explanation that the October 17/18, 2020 visit was cancelled in reaction to father’s alleged failure to follow dietary and bathing practices to address and prevent Savanah’s chronic skin condition. She filed evidence of Savanah’s condition and her efforts to communicate the details with respect to prevention with the father. The mother denied the father’s access weekend in an attempt to ensure that best practices were followed to protect the child’s health.
[43] The father’s affidavit evidence on this point is that the access on the October 17/18, 2020 weekend was denied because he would not bathe Savanah and would not feed Savanah certain types of food. His evidence reflects no understanding of the connection between these practices and the exacerbation of his daughter’s chronic skin condition.
[44] The first two parts of the test for a contempt finding have been met. The order stated what was to be done and the mother had knowledge of the order.
[45] The court considers the mother’s explanation to determine if the third element of a contempt finding has been met.
[46] In the case of the access refusal due to the skin condition issue, the evidence before the court is that the mother made multiple efforts to educate the father about the skin condition, that the father’s evidence minimizes the issue and that the mother’s non-compliance only occurred on one occasion in spite of the chronic nature of this issue.
[47] Given the evidentiary context, the mother is found to be in breach of the court order by cancelling access due to Savanah’s chronic skin issue, however, the breach does not rise to the level of a finding of contempt. The mother’s concern for her daughter’s health in this regard is found to be sincere and reasonably based in the fact of her chronic condition.
[48] Accordingly, no contempt finding is made for the 2020 single access visit refusal based on Savanah’s skin condition.
[49] The first part of father’s motion, seeking a finding that the mother is in contempt of Justice Zisman’s 2015 order, is therefore dismissed.
Part 2 - Temporary Order of Zisman J. dated March 17, 2022
[50] The relevant paragraph of the endorsement of Justice Zisman dated March 17, 2022 reads as follows:
- On consent on a temporary basis the father will exercise parenting time on alternate weekends from Saturday at 10:00 am to Sunday at 6:00 pm commencing Saturday April 2, 2022.
[51] It is not disputed by the parties that the father’s weekend parenting time with Savanah did not occur on the following weekends: April 2/3, 2022, April 16/17, 2022, April 30/May 1, 2022, May 14/15, 2022, May 28/29, 2022 and June 11/12, 2022.
[52] On June 22, 2022, Justice Zisman varied the temporary parenting time order as follows:
On a temporary without prejudice basis, father to exercise his parenting time on every Sunday from 10 am – 6 m starting June 26, 2022.
[53] It is not disputed that the father exercised his parenting time on each of the Sundays following this current temporary order without incident. (June 26, July 3, 10, 17, 24, 31, August 7, 14, 21, 2022).
[54] The father alleges that the mother deliberately and wilfully failed to comply with the March 17, 2022 order on the April, May and June dates above and should be found in contempt of court.
[55] The mother filed affidavit evidence to explain why the access did not occur on the six weekends in April, May and June, 2022. Her evidence is as follows:
(a) Savanah is highly resistant to overnight access with her father. This resistance takes the form of hiding and panic attacks.
(b) Her resistance began following the four day December Christmas visit in 2020.
(c) Savanah has not been forthcoming about the reason for her resistance despite the efforts of her mother to uncover the reason.
(d) Savanah has expressed concern about the presence of the father’s new partner Gigi to her mother.
(e) Savanah has frequent positive phone and text communications with her father.
(f) Savanah is not resistant to day visits with her father and enjoys same.
[56] The mother filed evidence from Harry Schryverschof, a security guard in the building in which she lives with Savanah. He describes himself as a friend to the family for many years. His evidence is that he directly observed several occasions in which the father arrived for his weekend access pick up and was invited up to the apartment by the mother. He directly observed the father in the apartment, the mother encouraging the child to go, Savanah’s resistance to going with him for the weekend and the father leaving without the child. He also directly observed Savanah leaving with her father for day visits with him without incident.
[57] The mother’s evidence is that she began her efforts to secure counselling for Savanah to address her resistance to overnight parenting time with her father in October of 2021. Due to high demand, it took almost a year to access a counselling program. Her lack of financial resources exacerbated this delay. The court has no evidence of the father taking any steps to assist in this effort to find a counselling resource for Savanah.
[58] The mother’s evidence is that Savanah commenced counselling with a therapist at Playful Hearts Therapy as of June 10, 2022. On June 17, 2022 and August 3, 2022, the therapist had phone interviews with the father. On June 24, 2022 the therapist had a phone interview with the mother. Savanah has had four sessions to date. Savanah is now meeting with the therapist on a weekly basis.
[59] The father did not file any reply evidence to refute and/or clarify the mother’s evidence with respect to the above details.
[60] Counsel for the mother has conceded the first two parts of the three-part test for a finding of contempt with respect to the 2022 order. He concedes that the order stated clearly and unequivocally what should and should not be done and that his client had knowledge of it.
[61] The mother’s failure to facilitate the father’s overnight parenting time weekends in April, May and June 2022 is in breach of the court order. The next step is to consider whether or not the mother’s explanation provides a legitimate excuse and that the mother had a reasonably held belief that there was a good reason to not comply with the overnight parenting time order.
[62] On the evidence before me I am satisfied that eight-year-old Savanah is currently resisting overnight access visits to the extent that neither parent has been able to compel her to attend at this time. Neither parent has made attempts to physically compel Savanah to attend nor has either parent sought police assistance to enforce the order.
[63] In response to Savanah’s resistance the mother has done the following:
(a) The mother has invited the father into her home to pick up Savanah and sought the assistance of the family friend in the building.
(b) In October of 2021 the mother sought out counselling support to address the issue and brought a Motion to change the access order at that time.
(c) Once the counselling support commenced this year, she immediately connected the father to the therapist for his intake, participation and information.
(d) The mother has continued to facilitate weekly Sunday day access between Savanah and her father and text/telephone communication between father and daughter.
[64] While there was a breach of the overnight parenting time order, the court will exercise its overriding discretion not to make a contempt finding given the above evidence that the mother had a reasonably held belief that there was a good reason to breach the order for overnight visits for the 2022 dates.
[65] The court is satisfied that in the months of April/May/June 2022, Savanah was resisting the visits to the extent that neither parent could persuade her to attend an overnight visit with her father, the father was not seeking police assistance and Savanah’s counselling had not yet commenced.
[66] Further the court finds that the mother acted in good faith to take reasonable steps to comply with the court order including inviting the father into the home, enlisting the assistance of a family friend, seeking therapeutic support and connecting the child and father to these supports once available. To expect the mother to have taken further steps to physically compel Savanah to attend or to call for police enforcement, steps the father was unwilling to take himself in the circumstances, is unreasonable.
[67] The second part of father’s motion, seeking a finding that the mother is in contempt of Justice Zisman’s 2022 temporary order, is therefore dismissed.
Costs
[68] If either party seeks costs of this motion they shall serve and file written submissions by September 30, 2022. The other party will then have until October 14, 2022 to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator’s office.
Released: September 15, 2022
Signed: Justice D. Szandtner