SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-08-1159-2
DATE: 20120326

RE: Robert Leslie Zgraggen v. Kelley Ann Ley

BEFORE: J. Mackinnon J

COUNSEL:
Robert Leslie Zgraggen, in person, Applicant
Kelley Ann Ley, in person, Defendant

DATE HEARD: March 20, 2012

E N D O R S E M E N T

[ 1 ] The procedural history of this case is lengthy. The parties separated in 2007. Litigation was commenced. A final order was made on December 7, 2009. It dealt with custody of their three children, child support and related issues. The divorce, property issues and the Applicant’s claim for spousal support were severed and deferred. A divorce order simpliciter was issued on March 23, 2010. The first contempt motion was brought in May 2010. Another followed shortly thereafter. Both were dismissed in September. In December 2010, a motion by Mr. Zgraggen was heard. Most of the relief requested was refused as it would have required a motion to change the final order which had not been brought. Many other appearances took place in 2010 and 2011 including a reference to a Master to deal with numerous outstanding financial and property issues.

[ 2 ] On April 21, 2011, the Applicant issued a motion to change. A number of temporary orders were made with respect to service, summer vacations, sharing costs of children’s cell phones, and so forth.

[ 3 ] From the issuance of that motion to change until its determination by order dated January 10, 2012, the parties were in court on six occasions.

[ 4 ] The January 10, 2012 final order noted that no party is permitted by law to return to court to seek any changes to the custody and access orders for six months and provided that no change may be sought for a further six months, in both instances without first obtaining leave of the court.

[ 5 ] On February 16, 2012, the Applicant issued a contempt motion. It was not properly served, leading to an adjournment. A cross motion was filed by the Respondent seeking appointment of the Children’s Lawyer. Both of these motions came on for hearing before me on March 20, 2012. At that time, both parties were consenting to the order to appoint the OCL which I made.

[ 6 ] The Applicant’s motion for contempt alleged that the Respondent had breached various provisions of the January 10, 2012 order. It also alleged many historical breaches of previous orders dating back into years prior to the January 10 order. I declined to hear the motion as it related to any alleged breaches except with respect to the current order. I found that raising historical breaches at this time and in light of the extensive litigation history of this case, was an abuse of process.

[ 7 ] The specific allegations of contempt made against the Respondent are these:

• Access to both children was withheld beginning on February 1;

• On Monday, February 6, access to Kaleb was withheld;

• On February 7, the Respondent sent threatening/harassing/intimidating emails to the Applicant;

• On January 11 and 20, the children or one of them made statements to the Applicant from which he concluded that the Respondent was engaging in parental alienation against him;

• On February 3, Katie informed the Applicant that her mother and mother’s husband had told her that when she was twelve, she could decide for herself if she wanted to see her father and she was not going to. (Katie would turn twelve 28 days after this conversation); and

• On February 3, the Respondent’s spouse advised the Applicant that the children’s cell phones were cancelled effective February 24.

[ 8 ] These allegations are said by the Applicant to be contrary to the following provisions of Annex A to the January 10 order:

1. The Applicant shall be allowed at the children’s school for pick-up, drop-off, parent teacher meetings, and school functions while the children are in his care;

2. Kelley Ley shall in no way interfere with the Applicant’s access to his children and or the enjoyment of his children;

3. Kelley Ley shall not interfere with Robert’s access to the children, i.e. Kelley shall not show up at the school when Robert is picking-up the kids or dropping-off the kids or attending a parent-teacher meeting or enjoying a school function while the children are in his care;

4. The Applicant shall be allowed to inform the Respondent by email or letter when he will be at the school for his parent-teacher interview or a school function on his scheduled time and the Respondent will not attend on those occasions unless both parents agree in writing that the Respondent may attend the function instead of the Applicant;

5. The Respondent agrees not to bait the Applicant into breaching his probation;

6. Neither party shall engage in parental alienation;

7. The Applicant shall be allowed to telephone and or leave telephone messages for Katie and or Kaleb using a cell-phone number(s) assigned to the kids, currently the cell phone number is (613) 252-3408. The Respondent will notify the Applicant if the number changes;

24 …

(a) Both parties shall have equal (roughly 50%) access to the children in accordance with the attached calendar for 2012 which shall be adhered to in subsequent years with necessary changes made; and

25. No variations to the terms of the access are permitted.

[ 9 ] Other allegations of contempt were made by the Applicant based on statements or conduct by individuals other than the Respondent. Accordingly, it is not necessary for me to address them.

[ 10 ] The children were returned to the Applicant, as required by the January 10 order, on January 30. That evening, the Applicant left them at home with a babysitter who they met for the first time just moments before their father left. They did not like this. The next day, Katie told her mother she wanted to come home. The day after that, both children told her that they were coming home because their father was mean to them. On arrival, the Respondent told them to contact their father and tell him what was bothering them. The Respondent says that over the next few days, she spoke to the children and encouraged them to go to their father’s.

[ 11 ] On February 1, the Respondent emailed the Applicant outlining a number of concerns the children had expressed to her about when they were with their father. These included the sleeping arrangements, being left with the strange babysitter, denial of TV, computer and internet for minor infractions, that he does not listen to them and is controlling. She advised that she was encouraging the children to spend time with him but, at this point, they were telling her they would not. On February 3, the children did speak to their father. Katie remained adamant that she would not go. Kaleb agreed to spend the next day, Saturday, with his father from 9 a.m. to 7 p.m. There was some misunderstanding about the arrangements and Kaleb was not delivered to the pickup spot until 11:15 a.m. These arrangements were made between the Applicant and the Respondent’s spouse. The Applicant did not return Kaleb that evening. He kept Kaleb with him until the morning of February 7.

[ 12 ] The children both asked the Respondent to pick them up after school on February 7. According to the parenting schedule, that was a day when they would be with the Applicant. Both children told their mother that they did not want to go to his home and they did not want him to come to the school and harass them about it.

[ 13 ] Kaleb was upset that his father had not returned him on Saturday evening as he and his mother both thought had been agreed. Kaleb told his mother that he had asked his father several times to take him back but was refused. In the result, Kaleb felt his father had lied to him. Now, both children were refusing to see the Applicant.

[ 14 ] The Respondent sent an email to the Applicant advising him that she would be picking the children up at school that day and that he should not attend. She advised that if he did so, it would be considered by her to be a breach of his probation order not to be in her presence and she would call the police.

[ 15 ] The Applicant relies upon these events in support of his allegation that the Respondent is in contempt of provisions 1, 3, 4 and 25 of Annex A to the January 10 court order. I disagree. On the record before me, I do not conclude that the Respondent was willfully or deliberately disobeying the court order. This is reinforced by the “transcripts” of phone conversations between the Applicant and the children that he has filed in his material. In these conversations, both children clearly tell their father what has upset them to the point of not wanting to go with him. Katie is absolutely adamant that she will not go. Before the February 4 visit, Kaleb showed some willingness to see his father although in response to his father’s questions.

[ 16 ] Nor do I agree with the Applicant that the emails sent on February 7 were harassing, intimidating or threatening. These were brief, straightforward emails sent to inform the Applicant that the Respondent would be picking up the children at school that day for reasons which I have outlined above and that accordingly, the Applicant should stay away.

[ 17 ] The Applicant relies upon an email from the Respondent’s spouse as proof of baiting him to breach his probation and as violation of the order with respect to the children’s cell phone. Three court orders have required the parents to contribute equally to the cost of the children‘s cell phone. On February 3, Mr. Ley emailed the Applicant and advised that no contribution had been received from him and that Mr. Ley was unwilling to continue to pay the cost. Therefore, he was taking the cell phone back and the number would not be the children’s number effective February 24.

[ 18 ] The Respondent admits that she was aware that this email was being sent. Even so, this email cannot be construed as baiting the Applicant to breach his probation by inducing him to contact the Respondent or her spouse, which is prohibited. To the contrary, it is clear notice to him not to use this number after February 24.

[ 19 ] The Applicant also complains that discontinuing the cell service for the children is a clear violation of the court order. He concedes that he did not pay his share of the cost of the phone up until Feb. 3 when the decision was taken to discontinue it. He had been ordered to do so on December 15, 2010, January 4 and January 10, 2012. The Applicant says that he sent a cheque to the Respondent on February 14 but there is no proof of this and it is not deposed in his affidavit. The Respondent denies receiving any such cheque.

[ 20 ] In my view, the Applicant is not able to maintain an allegation of contempt against the Respondent for failure to provide the children with a cell phone when he himself has not complied with the part of that order requiring him to pay for half of the cost.

[ 21 ] There are three statements made by the children upon which the Applicant relies in support of his claim that the Respondent is in contempt of the order where it prohibits a parent from engaging in parental alienation. He says that on January 11, 2012, Kaleb told him that his mother said that his father is trying to kill her. Katie heard Kaleb say this. The Respondent denies ever having said that to Kaleb and she has no idea where or why he came up with it. Given the conflicting evidence, I cannot find that the Applicant has proven that the Respondent made this statement.

[ 22 ] On January 20, 2012, the Applicant says that both children confronted him with the fact that their mother had told them that he had taken their money from their RESP account. The Applicant acknowledges that he did this. He justifies this by saying he needed it for his basic living expenses and he had been the one who had deposited it in the first place. In my view, although the Respondent might have exercised her judgment differently on this occasion, this is not parental alienation. The Applicant is the parent who acted improperly in the first place.

[ 23 ] On February 3, Katie told her father that her mother and Mr. Ley had told her she could decide about access when she was twelve and that the court had told them this. The Applicant submits that it was alienating behaviour to let Katie know that there was a case in court. Respectfully, given the frequency and duration of the litigation between these parents, it is unimaginable that the children would not know about it. The Applicant also submits that it was wrong of the Respondent to tell her daughter that when she is twelve she can decide for herself on her living arraignments. It is possible for such a statement to be part of alienating behaviour depending on all the surrounding circumstances and the context and intent of the statement. In this case, I am not persuaded that providing this information to Katie, without more, comes close to establishing parental alienation. The affidavit material provided by the Applicant himself includes pages of telephone transcripts in which Katie provides her father with many detailed reasons for her refusal to see him all of which relate to his own conduct and behaviour towards her. These reasons are independent from the information that her own views and preferences will take on greater weight as she gets older.

[ 24 ] For these reasons, I do not find the allegations of contempt of the prohibition against parental alienation proven.

[ 25 ] Contempt proceedings have been judicially referred to as the big stick of civil litigation. It is not a remedy to be sought lightly. In this case, it appears to me that the Applicant brought this contempt motion as a tactic to avoid the prohibition against a further motion to change. He attempted to dredge up pages of historical complaints and he sought as his first ground of relief an order that custody be changed to him. His motion is dismissed with costs against him fixed in the amount of $750.00.

[ 26 ] Until it is known whether the OCL will intervene in the case, and if it does, until the OCL is ready to provide its input to the court, the father’s access shall be subject to the willingness of each child to attend. The Respondent shall have the responsibility to let the children know when it would normally be their scheduled time to see their father and to notify him if one or both of the children wishes to go.

[ 27 ] I am to be notified when the OCL communicates its position with respect to this matter.

J. Mackinnon J

RELEASED: March ___, 2012

COURT FILE NO.: FC-08-1159-2

DATE: 20120326

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Robert Leslie Zgraggen v. Kelley Ann Ley BEFORE: J. Mackinnon J COUNSEL: Robert Leslie Zgraggen, in person, Applicant Kelley Ann Ley, in person, Defendant ENDORSEMENT J. Mackinnon J

RELEASED: March 26, 2012