Ontario Court of Justice

Date: 2024 05 27 Court File No.: 58-22

Between:

Kevin Derick Clarke Applicant

— AND —

Alba Lucero Villalta Respondent

Before: Justice A.D. Baker

Heard on: May 2nd, 2024 Reasons for Judgment released on: May 27th, 2024

Counsel: Raymond Wrubel, for Applicant Anteneh Kassa, for Respondent

Baker A.D. J.:

Introduction

[1] This is a Contempt Motion brought by the Applicant father seeking a finding that the Respondent mother is in contempt of Justice Clay’s order dated November 9th, 2023. If mother is found guilty of contempt, the father seeks the imposition of a sentencing order.

[2] The father alleges that the mother is in contempt at paragraph 2 and 3 of Justice Clay’s order by refusing to allow him sole decision-making responsibility for their child’s education for the 2023/2024 academic year and by refusing to comply with his decision to enroll the child at Elizabeth B. Phin Public School and ensuring her attendance at that school. The text of Justice Clay’s order is as follows:

1. The R. is found to be in contempt of the order of P.J. Clay dated August 31/23 by her unilateral decision to remove the child Nyilah Saqqara Clarke born […], 2017 from Eagle Ridge P.S. in Ajax ON in favour of home schooling the child.
2. The contempt shall be purged by the said order being changed to provide that for the academic year 2023/24 the A. shall have sole decision-making responsibility for the said child's education.
3. The A. may exercise such responsibility by registering the child in Grade 1 at Eagle Ridge P.S. in Ajax ON for in-person attendance at the said school. It shall also include the ability to register the child for a school bus to take her from the nearest pick-up point from the R's home to the said school.
4. As of June 30/24, the parties shall share decision making responsibility for education as they currently do for all other decisions. Provided that if they cannot agree on the child attending school in-person or home schooling the child shall attend school in person.

[3] The mother denies that she is in contempt of Justice Clay’s order and seeks to have the contempt motion dismissed.

Background

[4] The father and mother are the parents of Nyilah Saqqara Clarke born […], 2017.

[5] An original application was commenced in February 2022. The parenting issues were deemed resolved pursuant to the endorsement of Justice Clay dated April 13th, 2023. This endorsement directed that the father’s offer to settle dated October 21, 2022, at paragraph 1 and 2 be made into a final order based on minutes of settlement to be filed with the court. An order was made that final minutes of settlement on the parenting order would be submitted by way of 14B motion. Both parents were present in court on this date with their counsel.

[6] After this court attendance, minutes of settlement were drafted by counsel for the father. The mother through her counsel declined to sign the minutes of settlement.

[7] The matter returned to court before Justice Clay on August 31st, 2023. Both parents were present with their counsel. On this date Mr. Raymond Wrubel as counsel for father sought an order enforcing terms of the parenting order agreed to in court on April 13th, 2023. In his endorsement of same date, Justice Clay stated the following:

I find that signing the Minutes of Settlement was simply a confirmation of an agreement made on the record in court. The parties must be held to their agreement particularly when they have counsel. The parenting issues were not reviewed on April 13 because of the agreement.

[8] On this date, Justice Clay signed the draft order for shared decision-making responsibility.

[9] In the body of Justice Clay’s endorsement dated August 31st, 2023 under bolded heading of “parenting discussion”, it was noted that the mother wanted to home school Nyilah while the father disagreed. Justice Clay’s directive in the endorsement was that both parents would have to agree for Nyilah to be homeschooled .(emphasis added)

[10] The matter returned to court on November 9th, 2023. Justice Clay found the mother in contempt of his August 31st, 2023 order by her unilateral decision to home school Nyilah.

[11] To purge contempt, it was ordered that for the 2023/2024 school year, the father shall have sole decision-making authority for the child’s education and that the father may exercise such responsibility by registering the child in Grade 1 at Eagle Ridge Public School in Ajax, Ontario for in-person attendance at the school.

[12] After the making of the November 9th, 2023 order, the father’s evidence is that he did not want to disrupt Nyilah and have her attend school in person close to the school break. He decided to wait for her to start in person school after winter break.

[13] The father’s evidence is that he emailed the mother on four separate occasions following this court attendance to engage with her on the schooling issue for Nyilah. On November 30th, 2023, the father sent the mother via email a copy of Justice Clay’s endorsement of November 9th, 2023, although he assumed she had already received a copy from her lawyer.

[14] On January 10th, 2024, the father confirmed by email to the mother his intention to register Nyilah at Elizabeth B. Phin Public School as opposed to Eagle Ridge Public School due to school boundary issues. The mother did not respond to the father’s emails following the November 9th, 2023 court attendance.

[15] The mother’s first substantive communication following the November 9th, 2023 order came through her new counsel Mr. Anteneh Kassa on January 15th, 2024.

[16] In this correspondence, Mr. Kassa alleged the father breached Justice Clay’s order in two respects, firstly that he failed to register the child at in person school in a timely manner and secondly that he did not register the child at Eagle Ridge Public School. According to the mother, Eagle Ridge was the only school the father was authorized to enroll the child in.

[17] In responding correspondence dated January 18th, 2024, counsel for the father, Mr. Wrubel rejected the content of Mr. Kassa’s January 15th, 2024, letter and communicated an expectation that Nyilah attend Elizabeth B. Phin Public School as of January 22, 2024.

[18] Notwithstanding correspondence from the father and his counsel, the mother declined to have Nyilah attend school in person and continued to home school her.

[19] The father states that not only has the mother not sent the child to in person school, she also has declined to send him any information about the home-schooling program for Nyilah.

[20] The father further states that the mother has now unilaterally moved with the child to Hamilton without consulting him. The father takes no position on the move as it is not further away from his current residence however, he is concerned that the mother’s frequent moves are designed to frustrate his efforts to have the child attend in person school.

[21] The mother’s evidence on this motion is contained within her Affidavit sworn April 19th, 2024, as attached to her Affidavit dated April 28th, 2024.

[22] Her defence to the contempt motion is framed at paragraph 42 (a) to (f) as follows:

(a) The applicant’s legal authority pursuant to Justice Clay’s November 9th, 2023, order was limited to enrolling the child at Eagle Ridge Public School only. (b) The order is a direct result of false information being knowingly provided to the court. (c) That a complete copy of the November 9th, 2023 endorsement/order was not obtained by the mother until February 9th, 2024 which together with the actions of father and counsel prevented her from making a motion to set aside prior to the alleged contempt occurring. (d) That the sudden and drastic change to the child’s learning environment late in the school year would expose the child to adverse emotional and psychosocial impacts contrary to her best interests. (e) That she received ineffective assistance of her previous counsel. (f) That the father refused to explore alternative measures for resolution.

Law

[23] The onus is on the person alleging contempt to prove it beyond a reasonable doubt See: Einstoss v. Starkman, 2003 ONCA 20593, 2003 O.J. No 3297 (SCJ).

[24] The case of Moncur v. Plante, 2021 ONCA 462 summarized the law of contempt as follows:

The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:

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: (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.

[25] In Jackson v. Jackson, 2016 ONSC 3466, [2016] O.J. No. 2870 (SCJ), Justice Chappel provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:

a) It ultimately remains a matter for the Court’s discretion b) because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint c) it cannot be reduced merely to a mechanism for enforcing judgments d) it should be used sparingly and as a measure of last resort where there are no other adequate remedies available e) it is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted f) 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.

[26] It is clear that a party subject to an order must comply with both the letter and the spirit of the order: Ceridian Canada Ltd. v. Azeezodeen, 2014 ONCA 656, at para. 8. That party cannot be permitted to "hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and the administration of justice": Boily v. Carleton Condominium Corp. No. 145, 2014 ONCA 574 at para. 59; Sweda Farms Ltd. v. Ontario Egg Producers, 2011 ONSC 3650 (S.C.J.), at para. 21; Chirico v. Szalas, [2016] O.J. No. 3907 (C.A.).

Analysis

[27] I decline to engage in any analysis of mother’s factual allegations which speak to paragraph 42(b) and (e) in her April 18th, 2024 Affidavit as part of her defence; specifically that the order itself was based on inaccurate information and that the mother received ineffective assistance of counsel.

[28] The order of Justice Clay dated November 9th, 2023 is valid. The order has not been overturned on appeal nor set aside. The mother’s defences framed in paragraph 42(b) and (e) are irrelevant for consideration on a contempt motion.

[29] I will now embark on analysis based on the 3-part test as set out in Moncur v. Plante, 2021 ONCA 462.

The order alleged to have been breached must state clearly and unequivocally what must and must not be done.

[30] A central defence of mother rests on the order of Justice Clay not being clear and unequivocal as to what must and must not be done. The issue of contention is contained within the third paragraph, where Justice Clay notes the father may enroll Nyilah in Eagle Ridge Public School.

[31] The use of the word “may” was the subject of competing submissions by counsel. Mr. Wrubel drew the court’s attention to the Black’s Law Dictionary as to the definition of the word “may” being largely discretionary in nature. It is noted as follows:

…as a general rule, the word “may” will not be treated as a word of command unless there is something in context or subject matter of act to indicate that it was used in such sense.

[32] Mr. Kassa submits that the word “may” should be interpreted as mandatory language, that the father was ordered to enroll the child in Eagle Ridge Public School exclusively.

[33] Following the signing of the draft order dated August 31st, 2023 for the parents to share decision making authority, Justice Clay’s endorsement of same date states the following under the heading “parenting discussion”:

The parties share DMR. This means they need to discuss all significant parenting issues well in advance based upon the best information available. After the move to Ajax and then Pickering Nyilah would have had to take a bus to SK. The mother asked the father in an email if she could home school her. He agreed but stated today that his agreement was only for the balance of the SK year not for her Grade 1 year.

The mother stated today that she has not registered the child for Grade 1 as she intends to home school her as her sister does with her 6 kids. The father does not agree. The mother’s concerns were with what is being taught in the schools re: LBGTQ issues. The parties should make a joint appointment with the school to inform themselves of the Grade 1 curriculum and to make an informed choice as to whether Nyilah should be home schooled and to learn what would be involved in that process. The parties would need to agree upon the child being homeschooled.

[34] Following the return of the matter to court, on November 9th, 2023, Justice Clay’s endorsement of same date states the following under the heading of “schooling.”:

On August 31/23 a final order was made for shared decision-making responsibility. I was told that the mother wished to have Nyilah home schooled rather than send her to Grade 1 at Eagle Ridge P.S. in Ajax. My endorsement set out the mother’s concerns regarding LGBTQ issues. I ordered that the mother shall not register the child for home schooling without the father’s consent. I stated that the parties should make a joint appointment with the school to inform themselves and make a joint decision about whether to home school.

I am advised the mother unilaterally told the school that she wanted to home school the child and that was approved. The father contacted the school and the principal told him there was nothing he could do. That was incorrect advice. The parties had a court order for shared decision making and a specific direction that the child was not to be home schooled without the father’s consent.

Mr. Wrubel then emailed the principal and vice-principal and was also told that the decision had been made by the mother. The issued court order was then sent to the school.

The father wants the child to be in school. The mother is in contempt of court. She was in court on August 31 and deliberately disobeyed the court order for shared decision making.

The mother has made it clear by her unilateral actions and her refusal to communicate with her own lawyer or the father that she cannot be trusted to co-operate with the father in educational decisions.

I find that the remedy for the mother’s refusal to consult and to unilaterally remove her child from school is to put responsibility for educational decisions with the father for the academic year 2023/24.

[35] Following the contempt finding, at paragraph 2 of Justice Clay’s order of November 9th, 2023, it was noted that the contempt would be purged by the father having sole decision-making authority for the 2023/2024 school year.

[36] I find the word “may” at paragraph 3 in Justice Clay’s November 9th, 2023 order is discretionary. To reason otherwise would render paragraph 2 granting father sole decision-making authority for education meaningless as he would not be able to make any significant schooling decision at all.

[37] It is clear from Justice Clay’s endorsements that a central issue was whether the child would be home schooled or attend in person school. Simply put, the directive was that the child could not be homeschooled unless the parties agreed. The father did not agree. Justice Clay found the mother acted unilaterally by homeschooling in breach of his prior order that such decisions should be made jointly, and that is why decision-making authority was placed with father for the 2023/2024 school year.

[38] Additionally at paragraph 2 of the November 9th, 2023 order, Justice Clay states that the father shall have sole decision making responsibility for the said child’s education. Black’s Law dictionary states in part that “shall” means:

A word of command and one which has always or which must be given a compulsory meaning; as denoting obligations.

[39] This stands in contrast to the language at paragraph 3 of the order where Justice Clay states that the father may exercise such responsibility by enrolling the child at Eagle Ridge Public School. If Justice Clay had intended this paragraph to be a mandatory directive, he would have used the same word “shall” in both paragraph 2 and 3.

[40] There was no dispute in counsel submissions as to the definition of “shall” in the context of this order.

[41] If I am wrong and are to accept the mother’s position that reference to the word “may” at paragraph 4 of Justice Clay’s November 9th, 2023 order connotes mandatory language, that would necessarily mean the child could not be homeschooled under any circumstance and had to be in attendance at school in person.

[42] Which ever interpretation one applies, it is unequivocal and clear that pursuant to Justice Clay’s order, the mother had no decision-making authority over education whatsoever.

The party alleged to have breached the order must have had actual knowledge of it

[43] Taking the mother’s evidence at its best, the latest possible date that she came to know of Justice Clay’s November 9th, 2023, order was November 28th, 2023 as she admits at paragraph 12 of her April 18th, 2023 affidavit.

[44] An issue was raised by the mother that the parties only received page 1 and 3 of Justice Clay’s order initially and that a full copy of the endorsement was not obtained till February 2024.

[45] I appreciate that page 2 of the endorsement does provide some background context for the order, however the fact remains that since at least November 28th, 2023, the mother had actual knowledge of the most vital information contained on page 3 of the endorsement which clearly stated that she was being found contempt, the reasons thereof and the consequences to follow.

[46] The correspondence of mother’s counsel, Mr. Kassa dated January 15th, 2024 is clear that his client had full awareness of the November 9th, 2023 order albeit with her own interpretation of paragraph 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

[47] At paragraph 2 of the mother’s affidavit sworn April 19th, 2024, she states that the father and her do not agree as to whether Nyilah should be homeschooled. I find the mother has had a clear preference for the child to be homeschooled.

[48] Notwithstanding the August 31st, 2023 order of Justice Clay for shared decision making, the mother was found in contempt by her unilateral decision to homeschool Nyilah when same was opposed by the father.

[49] Pursuant to the November 9th, 2023 order, the mother had no authority to make any parenting decision relating to education for Nyilah.

[50] The mother’s interpretation of the November 9th, 2023 order which she claims limited the father’s decision making authority to registering the child at Eagle Ridge Public School as a defence to the allegation of contempt must fail for the following reasons:

(a) As noted at paragraph 42 above, taking mother’s interpretation at face value still left her without any decision-making authority to home school the child. (b) Reviewing all the endorsements of Justice Clay and the final orders made on parenting, it is beyond the realm of any reasonable inference, that the November 9th, 2023 order could have been intended to revert sole decision making authority to mother allowing her to homeschool the child if father did not enroll the child at Eagle Ridge Public School.

[51] The mother’s actions in continuing to homeschool Nyilah in furtherance of her personal preference over the father’s objections, clearly violated the spirit and intent of the November 9th, 2023 order.

[52] I find the mother’s position that father was himself in contempt of Justice Clay’s order by registering the child in Elizabeth B. Phin to be without merit. The father was unable to enroll the child at Eagle Ridge through no fault of his own because the child did not primarily reside in the catchment area of that school.

[53] Mr. Kassa’s correspondence dated January 15th, 2024 on behalf of the mother alleges that by delaying the child’s entry into in person school attendance, the father was in breach of Justice Clay’s order. Nowhere in Justice Clay’s order does it reference timelines for registration in school. As the father had sole decision-making authority over education, he would be the one to make this decision.

[54] The mother alleges as part of her defence that the father acted contrary to the child’s best interests by delaying the child’s entry into in person school placing the chid at significant risk to Nyilah wellbeing.

[55] The mother had options. If she disagreed with what father had decided, she could have brought a motion to change and an urgent motion for temporary relief. She did no such thing; instead, she resorted to self-help.

[56] The evidence is also clear that father made multiple efforts to engage with the mother on the schooling issue via email. There is no evidence before the court on this motion that the mother made any meaningful effort to engage with the father regarding the specific merits of the homeschooling program and the curriculum she was implementing.

[57] The mother unilaterally decided the child was not going to attend school in person in direct contravention of Justice Clay’s order. The mother continued to homeschool the child through the balance of the 2023-2024 school year.

[58] The mother’s actions were deliberate with full knowledge that her conduct was contrary to a valid court order. Notwithstanding correspondence from the father/his counsel, being served with a contempt motion and two court attendances, the mother has persisted in taking the position that the decision to homeschool Nyilah was hers to make.

Discretion in exercise of Contempt Power

[59] Notwithstanding the 3-part test being met for a finding of contempt, the court does retain some residual discretion to decline use of the contempt power depending on the circumstances of the case.

[60] The mother was found in contempt approximately seven months ago demonstrated by her unilateral decision to home school Nyilah.

[61] The contempt was to be purged by an order granting the father sole decision-making authority for the 2023/2024 school year.

[62] The mother defied this order by engaging in the same behavior which she was found in contempt for. To excuse or condone the mother’s actions would make a mockery of the administration of justice and devalue the solemnity of court orders.

[63] Litigants are not permitted to only follow court orders depending on how closely aligned the orders are with their own preference.

[64] I am satisfied that a finding of contempt has been established beyond a reasonable doubt.

[65] In this case, the court will exercise its’ contempt power.

[66] I have reviewed the draft order of the father as it relates to sentencing. I find the sentencing relief sought is generally reasonable however I will not order the mother’s incarceration as I am of the view at this time that residual sentencing terms will suffice to compel the mother’s compliance. To the mother’s credit, the outstanding cost orders preceding this contempt motion have been paid.

[67] I am also not prepared to implement a complete bar on mother commencing another court proceeding as it pertains to parenting issues until costs/fine is paid. Where the best interests of a child are at stake, there should be some recourse for the court to consider a hearing.

[68] On the issue of costs, I have reviewed the bill of costs of Mr. Wrubel. Given his years of experience, the hourly rate is reasonable as is the hours billed. The father was almost completely successful on the motion. The mother’s behavior was unreasonable as has been set out in this decision. This contempt motion should not have had to have been brought.

[69] I make the following order:

1. The respondent mother Alba Lucero Villalta is found in contempt of paragraph 2 of Justice Clay’s November 9th, 2023 order at paragraph 2 by refusing to allow and follow the Applicant’s sole decision making for the child namely Nyilah Saqqara Clarke born […], 2017 regarding her education for the academic year 2023/2024.
2. The child namely Nyilah Saqqara Clarke born […], 2017 shall be immediately enrolled at Hamilton Public Elementary School (or such other school in the respondent mother’s catchment as designated by Applicant father) and attend in person classes. The Respondent Alba Lucero Villalta shall execute any document and provide any information to said school to ensure the child is forthwith enrolled in school.
3. The Respondent Alba Lucero Villalta shall ensure that the child namely Nyilah Saqqara Clarke born […], 2017 regularly attends in-person schooling at the school designated by the Applicant father in paragraph 2.
4. The Respondent mother Alba Lucero Villalta shall pay to the Applicant father a penalty for her contempt in the amount of $2500.00 payable within 90 days of the date of this order.
5. The Respondent mother shall pay costs of the Applicant father for this contempt motion in the amount of $8000.00 inclusive of HST. Costs owing shall be set off against any outstanding arrears of child support currently owed by the Applicant to Respondent. The residual cost amount following the set off shall be payable in monthly installments of $200.00 on the first of each month until paid in full commencing July 1st, 2024. If the mother misses any monthly payment the entire amount will come due as owing forthwith.
6. The amount owed by the Respondent mother to the Applicant father, pursuant to paragraph 4 and 5 of this order shall survive any subsequent bankruptcy of the Respondent.
7. The Respondent mother shall not be allowed to commence any application/motion as against the Applicant prior to the cost/fine being paid, without leave of the court. As part of such leave being sought, the Respondent shall satisfy the court that there is circumstance of urgency/hardship as per rule 14(4.2) of the Family Law Rules.
8. Paragraph #2 of the Order of Justice Clay dated November 9th, 2024 is varied to read as follows “The Respondent Alba Lucero Villalta contempt shall be purged by the order being changed to provide that for the academic years 2023/2024 and 2024/2025, the Applicant Kevin Derick Clarke shall have sole decision making responsibility for the said child’s education.

Released: May 27, 2024 Signed: Justice A.D. Baker