ONTARIO COURT OF JUSTICE DATE: 2024 05 15 COURT FILE No.: D55692/11
BETWEEN:
A.B. Applicant
— AND —
J.B. Respondent
Before: Justice Melanie Sager Heard on: April 22, 2024 Reasons for Decision released on: May 15, 2024
Counsel: Joan M. Irwin........................................................................................... counsel for the applicant Johnathan D. Pecchia.......................................................................... counsel for the respondent
Sager, J.:
[1] This is the court’s decision on the motion brought by the Respondent (father) to enforce the terms of an order, dated July 25, 2013 (the final order) granting him parenting time to the parties’ two children.
[2] The father says the motion was necessitated by the Applicant’s (mother) refusal to comply with the provisions of the final order granting him parenting time to the parties’ two children.
[3] The mother’s position on the motion is that the children, who are now 15 and 13 years of age and are refusing contact with their father, should not be forced to attend parenting time with their father as they are justified in resisting contact due to the father’s conduct.
Background of the litigation
[4] After a 6 day trial, Justice Geraldine Waldman, made the final order granting the father parenting time with the parties’ two children, C.E.B. born January 16, 2009 and C.J.B. born October 25, 2010. The mother was granted custody of the children which is now known as having decision making responsibility.
[5] The final order provides that the father shall have parenting time with the children on alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. In addition, the father was granted extended parenting time during holidays and school vacations.
[6] On December 10, 2015 [1], the father brought a Motion to Change the final order with respect to all issues including decision making responsibility, parenting time and child support.
[7] On September 22, 2017, the father’s Motion to Change the parenting terms of the final order was adjudicated by Summary Judgment Motion. On November 27, 2017, a decision was released on the Summary Judgment Motion dismissing the father’s Motion to Change the parenting orders in its entirety.
[8] On March 13, 2018, the father was ordered to pay the mother costs of the Summary Judgment Motion and costs in relation to steps taken in the Motion to Change, fixed at $30,447.50.
[9] The father appealed this court’s decision on the Summary Judgment Motion to the Superior Court of Justice and on September 5, 2018, the Honourable Justice Kiteley dismissed the father’s appeal. The father was ordered to pay the mother’s costs of the appeal fixed at $16,000.00.
[10] It is not disputed that the father has not paid the costs orders from the Motion to Change the parenting orders/Summary Judgment Motion or the unsuccessful appeal of the decision to dismiss the father’s Motion to Change.
[11] On January 6, 2023, the father filed a Notice of Motion aiming to be an enforcement motion and an affidavit in support sworn January 6, 2023. Upon review of the father’s Notice of Motion, the court released an endorsement ordering the father to amend his Notice of Motion as most of the relief requested amounted to variations of the final order that one must seek by way of a Motion to Change as opposed to an enforcement motion pursuant to subrule 1(8) of the Family Law Rules (the Rules).
[12] On February 17, 2023, the father filed an amended Notice of Motion seeking enforcement of various provisions of the final order and that the court exercise it’s discretion pursuant to subrule 1(8) to make the following orders:
(a) That the father be granted leave to bring a motion for reunification therapy. (b) That the children are not enrolled in extracurricular activities during his parenting time without his prior written consent. (c) Requiring the mother to provide the father with make up parenting time “for approximately Forty Eight Hundred (4800) hours and Two Hundred (200) missed overnight visits that occurred from December 25, 2020 to Current”. (d) Permitting the father to give the mother 7 days notice of a request to have the children for seven consecutive days either before or after his regularly scheduled weekend in the event of “illness, death, or other losses” and that these periods will be applied to the 4800 hours of make up parenting time he is entitled to. (e) Granting the father leave to bring a motion to enrol the children in American Sign Language classes. [2] (f) Granting the father leave to bring a contempt motion if the mother breaches the court order more than twice in a 30 day period.
[13] On January 29, 2023, the mother filed a responding affidavit asking the court to dismiss the father’s motion. The father served and filed a reply affidavit sworn February 1, 2023.
[14] On April 11, 2023, the parties attended on the father’s motion and the court heard submissions on whether the father should be permitted to proceed with his motion when he is not in compliance with previous orders of the court requiring him to pay costs and child support.
[15] On April 13, 2023, the court released an endorsement making an order allowing the father’s enforcement motion to proceed but sought the consent of the parties to request a Voice of the Child Report (VOCR) from the Office of the Children’s Lawyer (OCL). The endorsement provides that if the parties do not consent to an order, a date should be scheduled for submissions on this discrete issue. The father’s motion was to be scheduled on a date after the issue of the VOCR was resolved.
[16] As the father did not consent to an order for a VOCR from the OCL, the court heard submissions on the issue on May 31, 2023. The mother consented to an order requesting a VOCR from the OCL. The father asked the court to consider ordering a counsellor at the Caribbean African Canadian Social Services (CAFCAN), who has already met with the parties and the children, to provide a report setting out the children’s views and preferences, and if appropriate, provide mediation services. He also argued that a full investigation by the OCL may be more appropriate than a VOCR.
[17] The father did not provide any evidence about the therapist at CAFCAN including her name, her qualifications or if she was even willing to do what the father proposed and how long it would take her to do it.
[18] On May 31, 2023, the court released an endorsement requesting a VOCR from the OCL to assist the parties and the court in understanding the children’s views and preferences in relation to parenting time with their father and why they were resisting contact with him. Given that the VOCRs are generally completed within 30 days, the father’s enforcement motion was rescheduled for August 23, 2023.
[19] As the mother and children travelled for vacation over the summer months, the VOCR was not filed with the court until August 30, 2023, resulting in the enforcement motion having to be adjourned. The parties requested and were granted the adjournment date of December 14, 2023 despite the court being able to hear this motion much earlier.
[20] On December 11, 2023, the court released an endorsement in response to the father’s contested 14B Motion seeking to adjourn his enforcement motion. The court’s endorsement admonished the parties for the several requests to adjourn the enforcement motion and how that had resulted in several hours of wasted court time. As the father’s request to adjourn was not on consent, his 14B Motion was dismissed.
[21] The parties attended on the father’s motion on December 14, 2023. The father requested an adjournment as he advised that both sets of his hearing aids were broken and he requires hearing aids to supplement the real time speech to text writer present in court by ZOOM. The Applicant opposed the Respondent’s request to adjourn claiming it was suspicious that both sets of hearing aids were broken after his request to adjourn the motion was dismissed by the court on December 11, 2023, only three days earlier.
[22] The father’s adjournment request was granted and the motion was adjourned to March 26, 2024 and the court ordered that if not argued on that date, the motion would be dismissed as abandoned.
[23] The motion was later adjourned on consent to April 22, 2024, at the mother’s request as her counsel was dealing with health issues.
[24] The motion was argued on April 22, 2024.
The father’s evidence
[25] The following is a summary of the father’s evidence on the motion:
(a) The children share a close relationship with him and his family. (b) The mother is alienating the children from him and his family. (c) The mother exposes the children to adult conflict by sharing the details and information about the court order and proceedings with the children. (d) The mother’s conduct is causing the children “anxiety, fear and stress”. (e) The mother has failed to comply with the court order by failing to facilitate the parenting time ordered by Justice Waldman. (f) The mother has manipulated the children’s views and preferences in relation to contact with him. (g) When he attempted to exercise his parenting time he was told by the mother that the children do not want to attend. (h) The mother is acting contrary to the children’s best interests. (i) The mother has not complied with many other provisions of the final order including disclosing the names and contact information of all service providers working with the children, not scheduling extracurricular activities for the children on his parenting time without his consent, arranging for orthodontic treatment for the children without his consent, and the mother has not complied with the requirement to provide him with notice of travel with the children and a detailed itinerary. (j) As a result of the mother’s conduct he has not seen the C.E.B. since December 25, 2020 and C.J.B. since April 17, 2022, except for a brief visit on July 26, 2022.
[26] The father says he attempted to resolve these issues through counsel but his lawyer’s correspondence to the mother and her lawyer went unanswered.
The mother’s evidence
[27] The mother’s evidence can be summarized as follows:
(a) Facilitating the father’s parenting time has never been easy as the children have resisted going for quite some time. (b) She always made the children attend the father’s parenting time despite their claiming to be ill, crying or saying they would not go. (c) As the children got older it became more and more difficult to “get them to go on access”. She could not “force them out the door”. (d) She managed to facilitate parenting time with C.J.B. for a year and a half after C.E.B. refused to attend as he was younger and it was easier for her to get him to go. (e) She denies doing anything to manipulate or “alienate” the children from the father. To the contrary she says the children’s views on this issue are informed solely by their experiences with the father who she describes as creating significant challenges, difficulties and obstacles to the parenting time occurring.
[28] The mother’s evidence includes what she says are only some [3] of the incidents that have occurred between the father and the children which has contributed to their unwillingness to see and spend time with their father. They are as follows:
C.E.B.
(a) C.E.B. came home from parenting time with her father often moody and crying. She did not get along with her father. They fought frequently and as she got older it became very difficult for the mother to force her to attend parenting time with her father. She would advise the father that C.E.B. did not want to go and asked him to speak to her directly hoping he could convince her to go. Unfortunately he made the situation worse by telling C.E.B. he would call the police if she did not attend his parenting time. (b) The police attended at the mother’s home on numerous occasions when the children refused to attend the father’s parenting time. In 2019, when C.E.B. was ill and could not attend parenting time with the father, he called the police on three consecutive days and on each day the police attended at the mother’s home to ensure C.E.B. was in fact ill. (c) On some of the occasions when the police attended at the mother’s home, they spoke to C.E.B. privately and she still refused to see her father. (d) The frequent police visits to the home caused C.E.B. distress and embarrassment. On Father’s Day 2021, the father attended at the mother’s home to pick up the children for his parenting time. C.J.B. went but C.E.B. refused to go. Once again the father called the police who attended at the mother’s home. C.E.B. agreed to speak to her father on the porch with one of the police officers present. C.E.B. tried to explain to her father why she did not want to go with him but the father continued to threaten her with calling the police and told her she was breaking the law. C.E.B. asked her father what kind of father threatens his child with the police. The police officer had to intervene more than once and when C.E.B. started crying the officer brought her inside the home. (e) Two days later when C.E.B. refused to go on mid week parenting time with her father, he called the police again. According to the mother, the father called the police on many more occasions after that date. (f) In 2018, the father called the summer camp C.E.B. was scheduled to attend and told the director that he did not consent to C.E.B. attending the camp as it impacted his parenting time and threatened to involve lawyers. This led to multiple correspondence between the parents and the camp and the mother sending the camp a copy of the final order. The father then proceeded to ask for the camp’s lawyer’s contact information. The camp then notified the parents that C.E.B. would not be able to attend the camp as they did not “feel comfortable with C.E.B.’s safety in order to host her for these two weeks…” C.E.B. was so upset that the mother agreed to the father’s demands to obtain his consent for C.E.B. to miss parenting time with him to go to summer camp. One of the demands was that during the two weeks C.E.B. was at camp, she attends at the camp office at specific times to participate in an online American Sign Language program. (g) In 2020 C.E.B. was scheduled to have braces put on her teeth but that was cancelled by the orthodontist after the father attended at his office and demanded information about the treatment and the cost. The mother did not seek contribution from the father as he was not paying child support and she was already paying for C.J.B.’s braces without seeking contribution from the father. The mother was told that the orthodontist would not treat C.E.B. as the staff did not feel safe with the father and therefore could not treat her. C.E.B., who had received all the preliminary work required before the application of the braces, was very upset that she did not undergo the orthodontic treatment. (h) The father is in constant conflict with the officials at C.E.B.’s school, Branksome Hall. In December 2022 the mother received a call from the school’s principal sharing concerns about the father’s behaviour and his threats to go to the media making allegations of racism. When the mother swore her affidavit on January 29, 2023, she said that it was her understanding that C.E.B.’s enrollment in Branksome Hall for September 2023 “may be in jeopardy” and that C.E.B. would be devastated if she could not attend this school.
C.J.B.
(a) During his parenting time with C.J.B. on February 15, 2022, C.J.B. called the mother from a Pizza Nova to ask her to come and pick him up as he had a disagreement with his father who left and told him to find his own way home. The mother says C.J.B. was crying and hyperventilating on the phone. After this visit C.J.B. became reluctant to attend parenting time with his father and expressed concerns about what his father would do if they argued again. (b) On March 7, 2022 the father sent an email to C.J.B.’s football coach expressing his opposition to C.J.B. missing “access with my family to attend football” and asked him not to allow C.J.B. to participate in practices or play in games during the father’s parenting time without his consent. In other words, the father asked C.J.B.’s football coach to prohibit C.J.B.’s participation if C.J.B. chooses to attend football rather than parenting time with the father. (c) On April 14, 2022, the father attended C.J.B.’s football practice, walked on the field in the middle of practice and yelled at the coach. He said he did not want C.J.B. to be allowed to participate as punishment for not attending parenting time with him. The father disrupted the practice for approximately 20 minutes. C.J.B. was crying during the incident and was extremely upset and embarrassed. C.J.B. was also reluctant to go to his football games/practices out of fear that his father would show up and cause another disruption. (d) As the father coached C.J.B.’s hockey team, C.J.B. did not want to play in his championship game on April 23, 2022, for fear of seeing his father. The mother and C.J.B.’s assistant coach persuaded him to play. C.J.B. chose not to attend a team gathering after the championship game for fear of his father being there. (e) The father attended C.J.B.’s championship football game in 2022. He walked on the field at the end of the game to speak to C.J.B. who walked away from his father and over to where the mother and other family members were sitting. The father began yelling at the mother and her family members. C.J.B. began to cry. Because the mother did not feel safe, she asked a male parent to walk them to her car which he did. The father followed them to the mother’s car and continued to yell. He was asked to stop yelling as he was going to give the paternal grandfather a heart attack. The father responded by saying he hoped the paternal grandfather did have a heart attack which really upset C.J.B. who cried the whole way home and said he never wanted to see his father again. After this incident, C.J.B. regularly refused to attend parenting time with his father. [4] (f) C.J.B. refused to play hockey if his father was the coach and displayed reluctance to play football as he is anxious about his father showing up at a practice or game and causing a disturbance. (g) On July 26, 2022, the mother had arranged a visit between C.J.B. and his paternal aunt and grandmother. C.J.B. agreed to have this visit on the understanding that he would not see his father. C.J.B. was left with his father by his aunt and grandmother. The father emailed the mother and told him C.J.B. would be late coming home. C.J.B. attended a soccer practice for a team the father coaches and was made to clean up the garbage after the practice by his father. C.J.B. was surprised to have been left with his father by his aunt and grandmother and he was embarrassed by how his father treated him in front of the team on which there were several children he knows. After this incident C.J.B. has refused to see his father.
[29] In addition to the specific incidents involving the children, the mother says that the father has called the Children’s Aid Society (CAS) on numerous occasions between 2017 and 2022. The father does not deny calling the CAS and the police but says the mother has called them as well.
The Voice of the Child Report
[30] On August 29, 2023, the Office of the Children’s Lawyer released the Voice of the Child Report requested by the court on May 31, 2023. [5]
[31] At the date of the report C.E.B. was 14 years old and C.J.B. was 12 years old.
[32] The children were both interviewed by the clinician twice, once by ZOOM and the second occasion in person. The clinician reports that both children were willing to speak with her and were engaged in the discussions. They both understood the purpose of the interview process and appeared honest and forthcoming with their answers.
[33] C.E.B. was described by the clinician overall as a “very bright and confident teenager” and C.J.B. was described as “a friendly and caring boy”.
[34] C.E.B. told the clinician she has a very close and loving relationship with her mother who she describes as a supportive, generous and understanding parent. She said they spend a lot of time together because her mother takes her to her extracurricular activities, specifically dance classes several times a week. C.E.B. also describes a close relationship with her brother C.J.B., with whom she says she has fun and who she tries to look out for.
[35] C.E.B. told the clinician that her mother “has encouraged her and her brother to talk to their dad and is always there to listen to them if they have problems”. C.E.B. said that she did not want to have a set schedule to see her father.
[36] C.E.B. describes her father as “intimidating”. The clinician says that C.E.B. “reported that she feels worried around her father, which leaves her feeling drained and at times tearful”. C.E.B. said her father preferred things to be “his way or no way” and that he was not understanding and when she tried to share her feelings with him he rarely listened. C.E.B. said when she tried to share her feelings with her father he either ignored her or spoke over her. She says he does not accept her having opinions telling her, “it’s not your decision to make” or ignores her concerns.
[37] C.E.B. also reported to the clinician that she does not trust her father because he frequently threatened not to return her and her brother to their mother after his parenting time. C.E.B. said she frequently had to argue with her father to return them to her mother and that he often did so late. She said this was very stressful and believed that her father’s behaviour was deliberate to upset her and her brother and worry her mother.
[38] C.E.B. told the clinician that the father has caused conflict in many aspects of her life. She said if he knew she was going to camp he would call the camp to create a problem. She knew her father had contacted her dentist to complain about her mother and that he told her teachers at parent-teacher interviews that she was not safe at home. She said that her father finds a way to create problems when he is registered as a contact on activities she is involved in. C.E.B. stated that her father’s conduct was embarrassing for her.
[39] C.E.B. also described to the clinician the numerous visits she has had from police and child protection agencies. She said the police have done wellness checks on her and her brother and recalled one visit by police when she had a friend over which was very embarrassing for her. C.E.B. said that her father called the police and CAS each time she refused to attend parenting time with him. She said her father told the police and CAS that her mother is “forcing” her not to see her father but that this was not true as her mother “encouraged her and her brother to see their father and to call him”.
[40] C.E.B. said that she believes her father made false allegations of her and C.J.B. being abused to punish them for not attending his parenting time and that this was not “normal” or “healthy” behaviour on his part. She specifically identified her father’s behaviour as the cause of their relationship worsening.
[41] C.E.B. told the clinician that she does not want her father involved in her extracurricular activities or with her school because he interferes and causes problems. She described an incident where her father called her school to advise that he did not agree to her being recorded doing a dance performance. She said her father did not talk to her about this before stating his objection.
[42] C.E.B. says that every school year her father creates problems by either talking to the school administration or directly to her teachers claiming that she is not safe in her mother’s care. This is very upsetting and embarrassing for her. Her father also once approved her course selection one year without talking to her or her mother. She does not want him to attend her parent- teacher interviews for these reasons.
[43] Since C.E.B. has stopped seeing her father in person, she has had some contact with him by phone and video calls. She says she must initiate the calls. She says her father often complains during the calls and at times has upset her to the point of tears causing her to hang up on him.
[44] C.E.B. describes a close relationship with her paternal aunt and grandmother and would like to continue to see them. She says while she is not ready to see her father at this time, she may feel comfortable seeing him in the future in a public place with family around.
C.J.B.
[45] C.J.B. describes his mother as “very loving” and that when they are upset she makes him feel better and talks to him. He said that his mother puts their needs first and she is “really nice and helpful” and encourages him to try new things. C.J.B. describes a close relationship with his mother with whom he can talk to about anything and he trusts her.
[46] While C.J.B. says his father is loving, he says he has “two personalities”. C.J.B. says his father is “nice” in public but “not as nice” when they are at home with him. He says when he tries to talk to his father about his problems, it does not “turn out well”.
[47] C.J.B. says that his father is “not always a man of his word” and that he does not trust him as he often made promises he did not keep.
[48] C.J.B. says his father uses a “mad tone” with him and his sister and that he is “not very close” with his father. He said he does not enjoy talking to his father, who he says does not often ask about him or his interests.
[49] C.J.B. described in incident that upset him and his sister. During his father’s weekend parenting time, he said he was going to keep them for a week rather than just the weekend. C.E.B. called their mother to come pick them up but when she arrived at their father’s home he would not let them leave. C.J.B. remembers the police coming to their father’s home during this visit but did not remove them because it was his parenting time. He said a few days later, he and his sister secretly arranged to meet their mother in a nearby laneway. They were able to meet their mother because their father left the home and their grandmother let them go outside to play at which time they met their mother at the agreed upon location.
[50] C.J.B. says that he is worried his father will not return him to his mother’s care if he were to attend parenting time with his father. He says his father rarely abided by the schedule and was always talking about extending his parenting time by a few days. This is C.J.B.’s primary reason for not wanting to have parenting time with his father.
[51] C.J.B. says he speaks to his father on the phone for birthdays and holidays. He does not want to set a schedule for phone calls as his father often makes him feel bad during the calls. He says the calls start out nicely but by the end his father is pressuring him to see him in person. C.J.B. says that his father does not spend the time on the phone calls asking about him and his life but rather asking repeatedly when he is going to see him. He would like his father to stop questioning him about his during their phone calls.
The Legislative Framework
[52] The father brings this motion pursuant to subrule 1(8) of the Family Law Rules which reads as follows:
Failure to obey order
1(8) If a person fails to obey an order in a case or 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 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 postponing the trial or any other step in the case; and (g) on motion, a contempt order. O. Reg. 322/13, s. 1.
[53] Subrule 1(8) of the Family Law Rules provides the court with broad discretion to remedy a party’s failure to comply with a court order, including parenting orders.
[54] In Bouchard v. Sgovio, 2021 ONCA 709, at paragraphs 49-51, the Ontario Court of Appeal provided the following directions regarding subrule 1(8):
[49] “As long as the judge is satisfied that there has been a failure to obey an order ‘in a case or a related case’ subrule 1(8) is triggered” and the relief provided for therein can be ordered: Hughes v. Hughes, (2007), 85 O.R. (3d) 505, at para. 17 (Ont. S.C.J.). Although r. 1(8) provides an itemized list of forms of relief that are available, that list is inclusive, not exclusive: Mullin v. Sherlock, 2018 ONCA 1063, at para. 46; Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, at para. 126. The reach of the remedial orders that can be made is governed not by the itemized list in that rule, but by the general and broad language of the chapeau that precedes it, which provides that “the court may deal with the failure by making any order that it considers necessary for a just determination of the matter”.
[50] As a result, even though, with the notable exception of r. 1(8)(g), each of the itemized forms of relief in r. 1(8) can be described as purely procedural, r. 1(8) has not been interpreted as being confined to purely procedural remedies. In Freedman v. Freedman, 2020 ONSC 301, at para. 20, for example, the court relied on r. 1(8) to give the applicant access to account information as well as exclusive authority to deal with insurance polices and off-shore accounts in order to prevent the respondent from dissipating these assets in an attempt to avoid compliance with court orders to make payments and asset disclosure. In Shouldice v. Shouldice, 2016 ONSC 1481, at paras. 17-19, pursuant to r. 1(8) a receiver of property was appointed to manage rental property so that support obligations that were being evaded could be enforced. In Sadlier v. Carey, 2015 ONSC 3537, at paras. 64-67, an order was made pursuant to r. 1(8) requiring the respondent to surrender his passport to the court to prevent his flight from the jurisdiction, and he was ordered to post security after he had been evading support orders.
[51] Such broad and purposeful applications of r. 1(8) are sensible. The relevant substantive right is created by the order that is being enforced, while r. 1(8) serves to provide the means of enforcement so that those substantive rights may be realized. The rule therefore provides broad discretion to courts to make orders it considers necessary to fully address a party’s failure to comply, a flexibility that is of particular importance when the orders address the well-being of children: Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., at para. 127. Stated simply, if the remedy ordered addresses or “[deals] with the failure” to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8).
[55] It is important to note that the authority granted to the court by subrule 1(8) to make orders against a party in breach of a court order is permissive and not mandatory. The court must decide if an order against a party in breach of an order is “necessary for a just determination of the matter”.
Analysis
[56] As the mother did not commence a Motion to Change requesting a variation to the father’s parenting time as set out in the final order, she is obliged to comply with the order. Complying with the order means using best efforts to utilize her parental control to ensure the children attend the parenting time with their father.
[57] Considering the evidence on this motion, the court finds that the mother exercised her parental control of the children to ensure they attended the father’s parenting time until she was no longer capable of doing so due to his treatment of and conduct towards the children.
[58] The mother’s evidence of how the father has treated the children and the impact of his conduct on their willingness to attend his parenting time is corroborated by the VOCR.
[59] The father’s behaviour towards the children directly and indirectly has been so egregious that the court finds on the evidence that the mother’s explanation that she could not force the children to attend parenting time with their father is entirely reasonable.
[60] This court has admonished parents on many occasions for not employing their parental control over their children to ensure they comply with court ordered parenting time [6]. The court found the parents’ reasons for not ensuring compliance with the court orders to be unpersuasive and contrary to the children’s best interest. In this case, the mother’s evidence provides extensive and persuasive reasons for her being unable to comply with the final order. Her evidence provides overwhelming justification for her inability to ensure the children attend parenting time with the father.
[61] The evidence before the court on this motion demonstrates that the father is an extremely combative, vindictive and angry person. He is also relentless. He has initiated and/or prolonged litigation with the mother in this court on and off since 2011. He is simply unable to accept a decision of the court and abide by it. All his attempts to insert himself into his children’s affairs as described above, is his reaction to being denied joint decision making responsibility for the children in 2013 or an expansion of his parenting time in 2014, 2015 or 2017. His attempts to keep the children in his care beyond his specified parenting time is his reaction to not being granted expanded parenting time in 2017.
[62] The father’s treatment of the children and their mother with whom they are very close, is so obviously upsetting to the children that they do not want to see him. It is not an exaggeration to describe the father’s behaviour towards his children as emotionally abusive. His behaviour with the children’s teachers, doctors, and coaches is obsessive, controlling and disturbing especially since he has no authority to make decisions for them. The father has behaved so badly towards the children that it would be unthinkable to expect the mother to force them, especially given their ages, to attend the father’s parenting time against their strong and justified opposition to doing so.
[63] The father’s relentless litigation against the mother is harassment. He has been able to take advantage of a court system designed to be available to all who need it and use it to harass and abuse the mother. He owes her tens of thousands of dollars in unpaid costs orders but continues to come before the court with his unsubstantiated grievances.
[64] For example, the father claims the mother is alienating the children from him. This is completely unsupported by the evidence and specifically the Voice of the Child Report. Given the father’s conduct, this is a completely absurd and totally unfounded allegation yet the mother had no choice but to retain a lawyer, prepare an affidavit and defend the father’s motion and the allegations contained therein.
[65] The mother says she did not bring a Motion to Change the final order for parenting time as she knew that this would open a pandora’s box and give the father yet another opportunity to use the court system to harass and abuse her and do so with impunity. Given the significant amount of outstanding costs orders that remain unpaid she says she chose not to bring the matter back to court.
[66] Generally, a party who cannot comply with a court order is expected to come before the court and seek to change the order. Court orders are not to be ignored.
[67] There are very few circumstances where a court would accept or find reasonable a party’s decision not to move to change a court order he or she is incapable of complying with. This case is one of the few exceptions. This mother has endured endless litigation brought by the father most of which has been frivolous and very expensive. Furthermore, she has been forced to respond to the father’s Motions to Change in the face of significant outstanding costs orders and tens of thousands of dollars owing to her in arrears of child support.
[68] The court will not punish the mother in this case for choosing not to subject herself to yet another round of protracted litigation had she brought a Motion to Change the father’s parenting time. There is absolutely no doubt that had she commenced a Motion to Change, she would have been faced with a Response to Motion to Change in which the father would have made numerous requests for relief that he had no realistic chance of obtaining, just like this motion in which he asked for 4800 hours of make up parenting time.
[69] The father is oblivious to how menacing his conduct is; both towards his children and directed at the mother through this litigation. He shows no insight at all into his conduct which if not abusive to both his children and the mother, it is at a minimum incredibly destructive and the singular reason he currently has no in person contact with his children. He believes without the slightest doubt that everything he has done and is doing he is completely justified. He is the victim. He is incapable of finding fault with anything he has done and believes that his actions are all warranted.
[70] While the father is well along a path of self destruction with respect to his relationship with his children, the mother is suffering significant collateral damage because of his behaviour. Her decision not to bring the issue of the father’s parenting time back before the court is completely understandable and justified given all the evidence before the court.
[71] In the circumstances of this case, it would not be appropriate for the court to utilize the power granted to it pursuant to subrule 1(8) of the Rules to make any orders against the mother.
[72] The father’s misuse of the court system to abuse and harass the mother and the children must stop. It is necessary for the court in this case to make every effort to curtail the father’s ability to come before the court again without a justifiable reason.
Order
[73] The father’s motion is dismissed.
[74] The mother shall have 20 days from the date of this decision to serve and file written costs submissions not to exceed 5 pages not including a Bill of Costs or Offer(s) to Settle.
[75] The father shall have 20 days from the date of receipt of the mother’s costs submissions to serve and file a response which shall not exceed 5 pages not including a Bill of Costs or Offer(s) to Settle.
[76] The parties’ costs submissions shall be filed with the court by delivering them directly to the Trial Coordinator’s office either in person or electronically.
[77] The father shall not be permitted to bring any further Motions to Change the final parenting order before this court without leave of the court. To obtain leave, the father shall file a 14B Motion with an affidavit setting out what material change he claims has occurred that would justify a Motion to Change. The affidavit shall not exceed 7 pages. The 14B Motion and affidavit in support shall not be served on the mother.
[78] If the court considers there to be a prima facie case for a change to the final order based on the father’s affidavit, the court shall then have the 14B Motion and Affidavit in Support of the Motion served on the mother and invite her to make submissions if she wishes, in response to the father’s request for leave to bring a Motion to Change the parenting orders.
[79] The father shall not be granted leave of the court to bring a Motion to Change the parenting orders unless he is in substantial compliance with all previous court orders.
[80] Upon release of this decision, but for the issue of costs of this motion, this case will be transferred to Justice Debra Paulseth who will be the case management Judge on a go forward basis.
Released: May 15, 2024 Signed: Justice Melanie Sager
[1] This was the second Motion to Change parenting time commenced by the father since the date of the final order. Justice Waldman dismissed the father’s first Motion to Change parenting time issued on May 9, 2014 on May 15, 2014.
[2] The father suffers from hearing loss and would like the children to learn ASL.
[3] The mother specifically says in her affidavit that she is only providing a sample of the what the children have experienced.
[4] While the father reports a different version of what occurred at the championship football game in his affidavit sworn February 1, 2023, he does not deny the allegation that he said he hoped the maternal grandfather had a heart attack.
[5] The delay in receiving the report was due to clinical investigator not being assigned until June 27, 2023 and the mother’s travel with the children in the summer.
[6] See Hamid v. Hamid 2023 ONCJ 215 and Oriaku v. Ransome, 2023 ONCJ 283.