Court File and Parties

ONTARIO COURT OF JUSTICE DATE: June 1, 2023 COURT FILE No.: D80823/15

BETWEEN:

CHUKWUNOMSO ORIAKU Applicant

— AND —

LISA RANSOME Respondent

Before: Justice Melanie Sager

Heard on: April 28, 2023 Reasons for Decision released on: June 1, 2023

Counsel: Rochelle F. Cantor, counsel for the applicant Roger Rowe, counsel for the respondent

Sager, J.:

Introduction

[1] The Applicant (father) and Respondent (mother) have been involved in litigation on and off for almost 8 of the 10 years that have passed since their daughter’s birth in 2013. The litigation that began in 2015 initiated by the mother ended after a trial before Justice Robert Spence in 2017. The litigation that began in December 2018 initiated by the father ended in a trial before me in December 2021.

[2] The parties are now before the court because of a Notice of Contempt Motion dated March 14, 2022, served on the mother on March 15, 2022. The father claims the mother is in contempt of paragraphs 1, 4(iv) and 11 of the order dated December 16, 2021 (final order), as she has failed to facilitate his parenting time on several occasions, failed to provide him with copies of the child’s government issued documents, and, failed to provide him with the list of the child’s doctors and dentist.

[3] The mother says she is not in contempt of the court order as she has complied with the order to best of her ability and on some occasions, she simply could not make the child attend visits with her father as she refused to attend. She even enlisted family and friends to assist her in facilitating the exchanges for the father’s parenting time which were not successful.

[4] With respect to the government issued documents and the information regarding the child’s service providers, the mother says she has complied with the final order and provided the information to the father.

[5] The contempt motion was not argued until April 28, 2023 for several reasons. First and foremost, on April 5, 2022, as a term of an adjournment of the contempt motion, the mother agreed to terms of a temporary order implementing the father’s parenting time as set out in the final order, as the parenting time had not taken place pursuant to the final order between December 2021 and March 2022.

[6] The contempt motion was adjourned to May 11, 2022 and then at the request of counsel to June 23, 2022. On June 23, 2022, the parties asked the court to conduct a Case Conference and agreed that doing so would not preclude me from hearing the contempt motion. On that date, the parties agreed to a further order making temporary adjustments to the final order to ensure the father’s parenting time takes place. The contempt motion was adjourned to August 23, 2022.

[7] On August 23, 2022, the mother invoked her right to cross examine the father on his affidavit filed in support of the contempt motion. The parties agreed that the motion would take an entire day and agreed to adjourn to December 15, 2022.

[8] On December 15, 2022, counsel for the father could not proceed for personal reasons. The matter was adjourned to January 20, 2023 for a brief check in with the court to discuss whether the contempt motion would still proceed and if it could be streamlined.

[9] On January 20, 2023, the mother withdrew her request to cross examine the father and the parties agreed to argue the contempt motion on April 28, 2023. Prior to the return of the motion, counsel for the father was ordered to provide counsel for the mother with a written list of the exact dates the father claims the mother did not facilitate his parenting time for which he is seeking a finding of contempt.

[10] Prior to the motion being argued on April 28, 2023, counsel for the mother was provided with a list of 10 dates the father says the mother denied him his physical parenting time between December 24, 2021 and March 4, 2022, and one day he says he was denied video parenting time. The court will decide if the father was denied parenting time on these occasions and if so, whether the mother’s conduct amounts to contempt of the final order.

[11] The court relied on the following documents at the hearing of the contempt motion:

(a) Notice of Contempt Motion dated March 14, 2022. (b) The father’s affidavit in support of motion sworn March 15, 2022. (c) The mother’s responding affidavit sworn May 5, 2022. (d) The affidavit of Michelle McKain sworn May 5, 2022, on behalf of the mother. (e) The affidavit of Mackenzie Price sworn May 5, 2022, on behalf of the mother. (f) The affidavit of the father sworn June 15, 2022. (g) The affidavit of the mother sworn June 21, 2022. (h) The affidavit of the father sworn August 17, 2022

The Law

[12] The father’s motion is brought within subrule 31(1) of the Family Law Rules which provides that, “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.”

[13] In Moncur v. Plante, 2021 ONCA 462, at paragraph 10, the Ontario Court of Appeal set out the general principles that govern the use of the court’s power to find a party in civil contempt of court for breaching a court order as follows:

1. For a party to be in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) 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. (3d) 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 too 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.

[14] The Court of Appeal in Moncur v. Plante directed that before making a finding of contempt, a court must consider relevant discretionary factors such as the best interests of the child and that a contempt finding is a remedy of last resort. The Ontario Court of Appeal found that failing to consider other enforcement options in lieu of a finding of contempt is an error in law. At paragraph 19, the court wrote, “The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court.”

The Evidence

[15] The father’s evidence is that immediately upon receipt of the Reasons for Judgment and the final order from the court, the mother failed to facilitate his parenting time. He says that the first ordered visit on Sunday December 19, 2021, began two hours late as his daughter was visibly upset and crying and did not want to leave with him. Despite commencing so late, the father did exercise parenting time on December 19, 2021.

December 24, 2021

[16] The father’s next scheduled parenting time was on December 24, 2021 when he was to have parenting time from 10:00 a.m. to 8:00 p.m. After waiting two hours for his daughter who would not leave with him, the father left the mother’s home and did not exercise his parenting time.

[17] The mother does not deny that the father’s parenting time on December 24, 2021 did not take place. She says that she was unable to convince their daughter to go with her father. She provides no evidence of her efforts to convince the child to go with her father or how she used basic parental authority to make the child do something she did not wish to do.

December 30, 2021 and January 4, 2022

[18] The father says that prior to his parenting time scheduled for December 30, 2021, and January 4, 2022, the mother sent him a text message cancelling the visit because the child had a cough. The mother’s evidence is that she told the father prior to the December 30, 2021 visit that the child was sick and had been up all night as she was coughing excessively. The mother took the child to her doctor who prescribed an inhaler that the child had to use four times a day. Prior to the father’s January 4, 2022 parenting time, the mother says she advised the father that the child was still ill and unable to go with him and would call him later.

January 8, 2022

[19] On January 8, 2022, the father was to have parenting time from 10:00 a.m. to 8:00 p.m. Prior to this date, the father says the mother informed him that the child had piano lessons and tutoring on Saturdays and would be available for his parenting time commencing at 12:30 p.m. The father says when he arrived at the mother’s home to pick up his daughter he waited in the cold for 30-40 minutes but she never came out so he left. He said he knocked on the door several times and was told by the mother that the child would not go with him and she would not let him inside to try and get the child to leave with him.

[20] The mother’s evidence is that the father knows their daughter has piano lessons and tutoring on Saturdays as she has been attending these lessons since she was 3 years old. She readily admits that when the father advised her he would be picking the child up at 10:00 a.m. as ordered by the court, she told him he could pick her up at 12:30 p.m. after her lessons.

[21] The mother says she did not intend “to interrupt the Applicant father’s parenting time. I have been simply requesting that the Applicant father accommodate [the child’s] extracurricular activities as these were pre-existing programs which [the child] had been enrolled since before the Applicant father became interested in [the child’s] life.”

[22] The mother says that on January 8, 2022 the father came in the home and when the child said she did not want to go with the father he grabbed her by the arm and pulled her. She said she heard the child say, “you are hurting me”. The mother said that the father became angry and blamed her for the child’s refusal to leave with him. She says the father left her home and she called the police “and made a police report due to the Applicant father’s abusive behaviour towards [the child].” The police attended at the mother’s home and “examined [the child’s] arm”.

[23] The father says that the mother invited him inside her home on January 8, 2022 to “come and take her”. He says he took his daughter, who was wearing a thick winter coat, by the arm “and she squirmed away”. He denies hurting his daughter.

[24] The father says because of the mother’s call to the police, he decided not to enter her home again.

January 15, 18, 2022, February 1, 4, 8, 2022 and March 4, 2022

[25] The father says the mother is in contempt of the final order as she did not facilitate his parenting time on the above noted dates. The father’s evidence is simple and straightforward. On each of these days he attended at the mother’s home to pick up his daughter and waited at least 30 to 60 minutes each time before leaving without her. On January 15, 2022, he waited in his car and the child never appeared. On January 18, 2022, after waiting 30 minutes the child came outside, told the father she did not want to go with him and went back inside.

[26] The mother says that on January 15, 2022 the child refused to go with the father and was “crying and screaming”. She says she managed to get her daughter outside while she was having a tantrum but she “took off running back inside the house”. She says while she was inside the house trying to calm their daughter down, the father left.

[27] The mother provided no specifics of the child’s refusal to leave with her father on January 18, 2022. With respect to both of the January 2022 dates, the mother does not provide any evidence of what efforts she made to utilize her parental authority to make her daughter do something she was opposed to doing.

[28] On February 1, 2022, the father waited for an hour but his daughter did not come outside. On February 4, 2022, the child was to spend her first overnight in her father’s care but the parenting time did not take place. Neither did the parenting time scheduled from 6 p.m. to 8 p.m. on February 8, 2022.

[29] The mother says that on February 1st and 4th, 2022, the child refused to “come out of our house”. The mother provided no other evidence regarding these dates other than to advise of the text messages she received from the father expressing his upset with the mother’s failure to ensure that his parenting time takes place.

[30] On March 4, 2022, the parties agreed to meet at a neutral location to exchange the child for the father’s parenting time, hoping a change of scenery might help facilitate the exchange. The father says they met at a public library and the mother arrived 20 minutes late. He waited in his car while the mother presumedly tried to convince their daughter to get out of her car and leave with the father. The father says he left after approximately an hour and fifteen minutes without his daughter who did not get out of the mother’s car.

[31] The mother’s evidence is that on March 4, 2022, after not seeing her father for over two weeks because of his vacation to Nigeria, the child refused to get out of the mother’s car. The mother says the father “made no efforts to assist with the exchange” and “remained in his vehicle and he did not engage with [the child] at all”. She says “After one hour, the Applicant father left without assisting with the exchange and without attempting to comfort [the child].”

The video call attempt on January 13, 2022

[32] The final order provides at paragraph 1(m) that, “The father shall have reasonable telephone/video parenting time when [the child] is not in his care and he is permitted to provide her with a device to facilitate this parenting time.”

[33] The father’s evidence is that on January 13, 2022, he sent the mother a message via WhatsAPP requesting a video call with the child but did not receive a response.

[34] The mother says that she and the child are not always available for last minute video calls with the father without prior notice. The mother works full time and the child attends school and extracurricular activities.

Analysis

Is the mother in contempt of the final court order dated December 16, 2021?

Parts 1 and 2 of the test for a finding of contempt – Does the final order state clearly and unequivocally what should and should not be done and did the mother have knowledge of the order?

[35] The final order, which the mother had knowledge of, sets out the father’s physical parenting schedule in paragraphs 1(a)-(l). These provisions of the final order are clear and unequivocal. The same conclusion applies to the provisions of the final order at paragraphs 4(iv) and 11 that require the mother to give the father copies of the child’s government issued documents and to provide him with a list of all treating medical and dental professionals. The mother does not argue otherwise.

[36] Paragraph 1(m) of the order which provides for reasonable telephone and video parenting time does not set out the days and times for these visits. It also does not set out a protocol for arranging these visits. This provision of the final order requires effective cooperation and communication between the parties for the child to have telephone or video parenting time with the father. Unfortunately for the child, this did not take place.

[37] While it can be said that it is clear and unequivocal that the order provides for the father to have telephone and video parenting time when his daughter is not in his care, it is not clear when this will take place or how it will be arranged. For that reason, the claim by the father that the mother’s failure to facilitate a video call between him and his daughter on January 13, 2022, amounts to contempt of the final order must fail.

Part 3 of the test – Did the mother intentionally do the act that the order prohibits or intentionally failed to do the act that the order compels?

[38] The mother says that the court should not find that she intentionally failed to comply with the order as the child refused to leave with her father for his parenting time on the dates in question. She screamed and cried, had tantrums, refused to leave her home and ran from the father’s car.

Does the child’s alleged resistance to parenting time with her father absolve the mother of her breach?

[39] At paragraphs 30-35 of McCarthy v. Murray, 2022 ONSC 855, Madam Justice Catrina Braid of the Ontario Superior Court of Justice sets out the relevant case law on this issue as follows:

30. A parent has a positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order. The parent is not entitled, in law, to leave access up to the child: see Hatcher v. Hatcher, 2009 ONSC 14789 (Ont. S.C.) at paras. 27-28.

31. A parent does not have to force a child to go for access with the other parent, but should require the child to go. A failure to require the child to do this is considered contempt: see Sickinger v. Sickinger, 2009 ONSC 28203 (Ont. S.C.) at para. 30, aff’d 2009 ONCA 856.

32. Although a child’s wishes should be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. A parent has a positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can: see Godard v. Godard, 2015 ONCA 568, 387 D.L.R. (4th) 667 at paras. 28 and 29.

33. At para. 30 of Godard, the Court of Appeal asked, what does the mother do when the child does not want to go to school or to the dentist? What are the mother’s mechanisms to get the child to go? Does the child have an allowance? Does she have a hockey tournament that maybe she is not allowed to attend if she does not go to see dad before? Are there things that the mother could do to force the child to go, short of the police attending at her house and physically removing the child?

34. Actively promoting and facilitating compliance with a custody and access order requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following: (i) Did they engage in a discussion with the child to determine why the child is refusing to go? (ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? (iii) Did they offer the child an incentive to comply with the order? (iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?: see Smart v. Belland, 2021 ONSC 1124 at para. 10.

35. Parents are not required to do the impossible in order to avoid a contempt finding. They are however required to do all that they reasonably can: see Godard, at para. 29.

[40] Therefore, in order to absolve the mother of her breaches of the court order, I must find that she did everything she reasonably could have done to comply with the order.

Did the mother do all that she reasonably could have done to comply with the father’s parenting time as set out in the final order?

The father’s parenting time on December 30, 2021

[41] The mother’s evidence regarding the scheduled visit for December 30, 2021, provides a reasonable explanation for cancelling the father’s parenting time. The child was sick, had been to the doctor and prescribed medication and had been up all night coughing. It was not unreasonable for the mother to cancel the father’s parenting time on December 30, 2021. I am not prepared to find that she is in breach or contempt of the final order with respect to this date.

The father’s parenting time scheduled on December 24, 2021, January 4, 8, 15, 18, February 1, 4, 8 and March 4, 2022

[42] The mother gives no evidence of her efforts to comply with the order granting the father parenting time on these dates. She simply states repeatedly that the child refused to go with her father and he refused to attempt to persuade her to go with him. She provides no details of what she did and said to ensure compliance with the order. She shared no information about what she promised the child if she left with her father or what consequences the child would face if she did not.

[43] Not only did the mother not provide evidence of what she said and did to ensure compliance with the order, she transferred blame to the father for not helping her or saying or doing anything to entice the child to leave with him. The statements the mother makes about the father’s lack of assistance are astonishing given that the one time the father entered the mother’s home to get the child to leave with him, the mother called the police and accused the father of assaulting the child which resulted in the police examining the child’s arm. The court cannot blame the father for refusing to get out of his car to try to help the mother given her willingness to involve the police unnecessarily.

[44] The evidence demonstrates that the mother intentionally failed to do the act that the order compels. She did not make the child available for the father’s parenting time. She justifies her failure to do what was required of her pursuant to the final order on the basis that the child refused to go with her father.

[45] The mother provided no evidence as to how she utilized her basic parental authority to ensure compliance with the court order. From the mother’s evidence, the court can only conclude that she did not do all that she reasonably could do to comply with the order and rather, allowed the child to decide whether she would leave with her father or not.

[46] The evidence before the court is that the mother did very little to ensure the child sees her father. As Justice Braid says about the mother in paragraphs 41 to 42 of McCarthy v. Murray, the mother in this case has also “failed to take concrete measures to apply normal parental authority to have the child comply with access orders”. The mother’s failure to do all that she reasonably could do to comply with the final order, supports a finding of willful disobedience of the final order.

[47] The final order was made following lengthy litigation and a trial. The trial decision contains very strong adverse findings against the mother, that she did not support the child having a relationship with her father and that she prioritized just about everything else in the child’s life before her relationship with her father. In these circumstances, it does not bode well for the mother that she failed to comply with the trial order granting the father specified parenting time immediately following the release of the decision.

[48] The mother’s failure to facilitate the father’s parenting time on these dates amounts to a willful breach of the final order.

Should the court exercise its discretion to make a finding that the mother is in contempt of the final order?

[49] The court is obliged to consider whether a contempt finding is not appropriate in all the circumstances of this case. The court must ask whether there is a lesser enforcement order that would achieve the desired results.

The child’s best interests

[50] As stated above, the parties have been in and out of litigation for almost the entirety of their daughter’s life. There is no doubt that their conflict leaks into their daughter’s life and affects her sense of security. The child has lived with and been cared for primarily by her mother. She is aligned with her mother.

[51] There is no evidence before the court that the mother continues to be in noncompliance with the court order. As it took over a year for the contempt motion to be argued, steps were taken by the parties (and ordered by the court) that have resulted in the child having regular parenting time with her father. This means the mother’s failure to comply with the parenting order has been rectified.

[52] Given the level of conflict between these parties and the child’s alignment with her mother, a finding of contempt would be contrary to the child’s best interests given that she may learn of the finding and blame her father and begin to resist contact with him again.

Is there a lesser or alternate enforcement order the court should consider before making a finding of contempt?

[53] As stated above, on April 5, 2022, as a term of the mother’s request for an adjournment, the parties entered into an agreement to implement the father’s parenting time in the face of the child’s resistance to going. Temporary orders were made on that date in accordance with the parties’ consent. Further temporary orders were made on June 23, 2022 to provide further assistance in facilitating the father’s parenting time as set out in the final order.

[54] The parents’ ability to negotiate the terms of two temporary court orders and their willingness to comply with the orders has resulted in the father exercising his regular parenting time pursuant to the final order for many months now. This is evidence that there was and is an alternative enforcement order to a finding that the mother’s conduct amounts to contempt of the final order.

[55] The mother is clearly in breach of the final order. The evidence on the contempt motion does not support a conclusion that her breach was anything but intentional. Had the father brought an enforcement motion pursuant to subrule 1(8) of the Family Law Rules, the parties would have likely achieved the same result, specifically, negotiated temporary consent orders that act to help implement the father’s parenting time pursuant to the final order.

[56] The father should have brought an enforcement motion before moving to a contempt motion.

[57] As an alternative enforcement order was made by the court on consent on the first date the contempt motion was before the court, there is clearly a lesser order available to the court other than a finding of contempt. In these circumstances, I find that it is not appropriate to find the mother in contempt of the final order as a means of enforcement when other lesser orders are available and in fact have been made to enforce the order. Furthermore, as stated above, I find that a contempt finding against the mother is not in the child’s best interest, as it may negatively impact her relationship with her father.

The father’s request for an order finding the mother in contempt of subparagraph 4(iv) of the final order that requires the mother to provide the father with a copy of the child’s birth certificate and passport within 30 days of the final order

[58] The order in this regard was clear and unambiguous. The mother does not claim that she did not understand the order. She explains that she complied with the order by delivering a copy of the child’s birth certificate and passport to counsel for the father on March 31, 2022 and April 6, 2022 respectively.

[59] While the mother did not comply with the final order which requires her to deliver copies of these documents to the father within 30 days, she has since complied. In all of the circumstances of this case and for the same reasons set out above regarding bringing an enforcement motion before a contempt motion, I decline to make a finding of contempt with respect to this ground of the motion.

The father’s request for an order finding the mother in contempt of paragraph 11 of the final order that requires the mother to provide the father with all current contact information for all treating medical and dental professionals

[60] This information should have been provided to the father by January 16, 2022. It was provided to the father through counsel on March 31, 2022.

[61] For the same reasons set out above, I decline to make a finding of contempt with respect to this ground of the motion. An enforcement motion would have been a more appropriate measure for the father to take before serving a contempt motion.

Conclusion

[62] The mother was in breach of paragraph 1 of the final order dated December 16, 2021, by not facilitating the father’s parenting time on December 24, 2021, January 4, 8, 15 and 18, 2022, February 1, 4 and 8, 2022, and, March 4, 2022.

[63] The mother was in breach of subparagraph 4(iv) of the final order dated December 16, 2021, but rectified the breach by April 6, 2022.

[64] The mother was in breach of paragraph 11 of the final order dated December 16, 2021, but rectified the breach on March 31, 2022.

[65] The mother is found not to be in breach of paragraph 1(m) of the final order dated December 16, 2021, with respect to virtual parenting time granted to the father and when she did not facilitate his request for a video call with the child on January 13, 2022.

[66] The mother is found not to be in breach of paragraph 1 of the final order dated December 16, 2021, with respect to the parenting time she cancelled on December 30, 2021 when the child was ill.

[67] A finding of contempt is not the appropriate remedy in this case and as such the contempt motion is dismissed.

[68] Given that the mother was found to have willfully and intentionally breached the final order on several occasions but no finding of contempt is made, there shall be no order for costs.

Released: June 1, 2023 Signed: Justice Melanie Sager