ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-014195-03
DATE: 2012-04-12

B E T W E E N:

TERRY EDWARD KORCZYNSKI,

The Applicant representing himself

Applicant

• and -

ELFRIDA ROSE KORCZYNSKI (GAROFALO),

The Respondent representing herself

Respondent

HEARD: February 6, 7 & 8 , 2012, at Thunder Bay, Ontario

Mr. Justice F. Bruce Fitzpatrick

Reasons For Judgment

[ 1 ] Terry Korczynski and Elfie Garofalo had a long marriage where they had two children, Sierra Nicole Korczynski, date of birth July 7, 1998 (Sierra) and Luke Alexander Korczynski, date of birth, March 6, 2001 (Luke). The marriage broke down in September 2003. Litigation ensued and court orders were made. Both parties accuse the other of breaking the court orders. Luke and Sierra live primarily with Elfie while Terry has ongoing weekly supervised access. The present case is essentially about how much and what kind of access Terry should have to Sierra and Luke.

[ 2 ] It is important to note that both of these parties were self-represented. At the commencement of the trial both parties were asked if they felt capable of representing themselves and proceeding with the matter. Both parties answered “Yes”. Both parties were advised by the Court that the matters were complex and asked if they wished to proceed. Both parties said “Yes”. During the course of the presentation of their evidence it became apparent, both to the parties and to the Court, that they were quite ill prepared to present their cases in a completely effective manner. Neither party asked for an adjournment, but instead pressed the Court for a decision. After three days of trial, the Court has been able to get the essence of the dispute between the parties. In order to understand this decision it is important to identify that the Court was dealing with three separate motions in this matter.

[ 3 ] The motions are as follows:

(1) A motion by Terry dated February 17, 2010, for an order finding Elfie in contempt of the order of the Honourable Madam Justice H. M. Pierce, dated March 19, 2007;

(2) A motion by Elfie dated May 16, 2010, seeking to find Terry in contempt of court;

(3) A motion by Elfie to change the various orders of Madam Justice Pierce dated March 19, 20 and 21, 2007, which was issued on May 17, 2010.

[ 4 ] In Terry’s motion for contempt the following relief was sought.

“The mother, is failing to comply with telephone access which states: “The father shall have schedule telephone access twice per week that does not conflict with the children’s activities.”

[ 5 ] Elfie’s motion for contempt dated May 16, 2010, attempts to detail Terry’s alleged contempt by stating as follows:

“The father, Terry Korczynski failed to make himself readily available for specified telephone access, failure in following the supervised access and has not seen the children in two years. Failure to restrain from harassing the mother Elfrida Garofolo. Failure to provide annual income tax information. Please see attached details of contempt pertaining to superior court orders. Copy of orders marked (Tab A). Details according to affidavit dated February 23, 2010 and May 11, 2010.”

[ 6 ] It is important to note that in respect of Elfie’s motion to change, despite the fact that Elfie’s prayer for relief indicates that there were three orders of Justice Pierce, there was in fact only one order and it was dated March 21, 2007. As far as the relief sought, Elfie’s notice of motion states as follows:

“To change the present court orders to reflect the current situation, as circumstances have changed. Details have been submitted.”

[ 7 ] The Court includes these details to demonstrate that in the Court’s view, these parties did not properly set out the relief they were requesting. This failure to properly frame the issues in their pleadings was continued during the presentation of evidence. In presenting their evidence, the Court found that the parties did not focus well on the relevant issues. Much of the trial time was taken up by unhelpful recitations of past events, unsubstantiated accusations about the bad behavior of the other, and particularly in Elfie’s case, an unwillingness to directly answer questions and a tendency to ramble, in what the Court viewed as an attempt to obfuscate.

[ 8 ] What really was at issue was the nature and quality of the ongoing access Terry is to have to Sierra and Luke. Fortunately for the children, the Office of the Children’s Lawyer was appointed to do a report concerning recommendations for ongoing access. The investigation process of the OCL took approximately one year. A report was prepared on June 30, 2011 by clinical investigator Darlene Niemi MSW RSW and was filed as an exhibit at trial. Also, Ms. Niemi testified at trial. In my view, the parties wasted a great deal of trial time when the solution to their problems was found in the report of Ms. Niemi. In fact, during the submissions of both parties at the end of the trial, they indicated that they wished to have these recommendations accepted. Despite this last minute admission, the parties took three days to testify about what appears to be a very difficult, highly toxic and stressful set of circumstances which I believe has unduly involved the children in adult issues. For the reasons that follow, I am dismissing both contempt motions by the parties, and will make an order to change the order of Justice Pierce so as to make it consistent with the present recommendations of the Office of the Children’s Lawyer.

Background

[ 9 ] Terry and Elfie were married on July 26, 1986. Sierra and Luke were born subsequently. The marriage broke down in September 2003. The parties entered into a separation agreement on September 14, 2004 and were divorced on February 20, 2005.

[ 10 ] Although the details in evidence were given in a convoluted way, it appears that the parties were involved in bitter and protracted litigation leading to the order of Justice Pierce on March 19, 2007. Following a trial, Justice Pierce made an order which set out the following:

1. The Father’s access visits to the children, namely; Sierra Nicole Korczynski born July 7, 1998 and Luke Alexander Korczynski born March 6, 2001 shall be supervised.

2. There shall be no overnight access by the father to the children.

3. The Mother shall provide a suitable supervisor for each access visit, this being either one of Peter Korczynski, Rita Korczynski (when in the City of Thunder Bay), Alana Korczynski or Ryan Korczynski. The supervisors shall not include Kara Ketola, Charmaine Strachan nor Renata Szunko. Supervised access by either of the approved third parties acceptable to the Mother, shall occur as follows.

a. every Tuesday evening from 6:00 p.m. until 8:00 p.m.

b. every other Sunday afternoon from

4. The pick up and drop off location shall continue to be the Tim Horton’s parking lot on Oliver Road.

5. The father shall not consume alcohol, nor any other substance that would impair his abilities and judgment during the access visit.

6. Given the children’s schedules and activities involving dancing, swimming, soccer or other sporting events, homework, school, etc., the Father shall have scheduled telephone access to the children twice per week, on a day during the week that does not conflict with the children’s activities aforesaid, provided the Father regularly utilizes same.

7. The Father shall have the right to direct reasonable information pertaining to the children’s activities, education, medical and general welfare, at his expense, from such providers.

8. The father shall continue to be restrained from harassing the Mother, including any of her family members or friends, including their respective workplace(s) and the parties shall have no direct contact with the other.

[ 11 ] Following the making of the order, the supervised access did not go very well, at least according to Elfie. It seems Terry was only prepared to use his sister Rita Korczynski as a supervisor. Unfortunately, Ms. Korczynski lives in Winnipeg and did not often come to Thunder Bay. There was a dispute in the evidence as to whether or not Terry tried to use other family members as a supervisor but it is clear that Rita Korczynski supervised the balance of the access from March 2007 until September of 2008.

[ 12 ] Elfie was very dissatisfied at the supervised access process and the effect she perceived it was having on the children. In addition to these difficulties, Elfie alleges that Terry breached the order of Justice Pierce by attending at her workplace on April 10, 2007. Terry says he had to attend there as it was an emergency. There was no other place in Thunder Bay he could obtain a particular printer cartridge. He claims he was in her place of employment for all of 45 seconds and did not have any direct contact with Elfie.

[ 13 ] In any event, as a result of the perceived difficulties with Rita Korczynski, Elfie unilaterally “terminated” her as the supervisor in July 2008. A verbal altercation had occurred between Elfie and Ms. Korczynski at an exchange and Elfie decided Rita was no longer a suitable supervisor.

[ 14 ] A letter was sent by Elfie to Rita on July 14, 2008 directly stating she was no longer a suitable supervisor. Among other things, the letter stated as follows

“I hereby am giving you written notification that you are no longer a suitable supervisor. After careful and serious review of the numerous confrontations and phone conversations that you harbor far too much animosity and even hatred towards myself. Your constant efforts to undermine my wishes and requests pertaining to Sierra and Luke have placed me in an extremely uncomfortable and untrusting position. Your reference to belittle and disregard all the arrangements and orders that have been carefully set forth proves that you do not take them seriously. All the conditions that have been set were for a very good reason and are required to be abided. You have constantly made all attempts to disregard them placing us, Luke and myself in harm’s way.”

[ 15 ] The letter then goes on to particularize the alleged difficulties with the supervised access. These included failing to park right next to Elfie at the exchange location, bringing Terry with her to the access exchanges, disregarding Elfie’s requests to have the children swim in a particular lake near Thunder Bay, speaking in a disrespectful and condescending manner, and permitting Terry to go to visit the children at their school.

[ 16 ] In my view, Elfie’s “termination” of Rita Korczynski was unwarranted, contrary to the order of Justice Pierce and not in the best interests of the children. In the course of the “termination letter” Elfie indicated that she was going to seek the assistance of the supervised access program. She did not, however, give particulars of the supervised access program or how she proposed Terry would find out about it or participate in it.

[ 17 ] Also, for some reason, she decided to send her income tax return, which she had an obligation to send to Terry, to Ms. Korczynski instead. She did not provide me with a satisfactory answer on the witness stand as to why she did this (as opposed to sending it directly to Terry) other than to say that she had always dealt with Rita.

[ 18 ] I find that this is a good example of other circumstances which I believe indicate Elfie was completely uncooperative with anything to do with Terry.

[ 19 ] Other examples of this include comments that she made to various professionals who were investigating the ongoing suitability of the access between Terry, Sierra and Luke. In particular, the notes and testimony of Donna Strickland and Darlene Niemi were instructive. Donna Strickland is a social worker who was involved with supervised access of the children starting in July, 2011. She made extensive notes about the visits and confirmed these occurrences during her testimony in chief and on cross-examination. Among other things, Donna Strickland indicated Elfie believed that Terry “deserves to be punished” and “does not deserve to have contact with the children”.

[ 20 ] Elfie also indicated to Donna that she does not agree that the children will benefit by having a relationship with their father and that she will not encourage the children to engage with their father during access visits. Elfie has told the counselors who are involved in the supervised access that “Terry does not deserve to have a relationship with the children”. She has advised the supervisors that “Terry needs to be punished for what he has done to them (the children)”. She also indicated that she would be happy if Terry would just go away and leave them alone to be a family, stating “that they (the children) have a new father (Dominic) and they do not need Terry in their lives.”

[ 21 ] Darlene Niemi was seriously concerned that Luke and Sierra clearly stated to her that they do not wish to have a relationship with Terry. Among other things, Ms. Niemi opined that it was evident the children have received messages that place Terry in a negative light. Ms. Niemi had reviewed the various affidavits filed by Elfie in this matter and concluded “it is difficult to fully understand how her negative feelings about him could not have become known to the children.”

[ 22 ] These statements were put directly to Elfie on the witness stand. She admitted to making these various negative statements. However, Elfie suggested that the statements were taken out of context. She suggests that she was angry about other things and the comments were not really representative of her thoughts. She did not give much more elaboration or develop any context that would give the Court any reason to believe anything other than that Elfie’s comments meant exactly what the words stated.

[ 23 ] I find that the statements attributed to Elfie by Ms. Strickland and Ms. Niemi were made, and are completely representative of her thoughts in the matter. I believe she engaged in a long standing, willful attempt to influence the children in such a way that they would become disengaged from their father. I find as the result of Elfie’s testimony, both in chief and in cross- examination, and upon the testimony of Donna Strickland and Darlene Niemi that Elfie has a tendency to exaggerate matters when it comes to Terry’s ability to parent and interact with the children as well as the effect his access is having on the well being of the children. I believe she has exaggerated the degree of discomfort imposed by others on her and Luke and Sierra where it negatively or adversely impacts her particular view of any given issue.

[ 24 ] For the Court, further proof of the degree to which Elfie has actively sought to damage the relationship between the children and Terry is found in how the children are reported to have interacted with their father since he has had supervised access with them commencing in January 2011. He meets with them every week for 30 minutes. According to the reports, they do not to make eye contact with him, do not to speak to him and Sierra has on occasion made a “shhh-ing” noise when her brother tries to speak to his father.

[ 25 ] Ms. Strickland testified that she had never seen such a thing in all her years of experience with children. However, Terry continues to have these supervised access visits on a weekly basis. I believe that Elfie has contributed to this reluctant and unusual behavior of the children toward Terry by letting her negative feeling about Terry to be known to the children. She clearly admitted that she told the children that Terry was not paying child support. This is an improper involvement of the children in adult issues. While she protests that she did not otherwise indicate that the children should not have contact with their father, I believe that through either non-verbal cues or verbally and directly she has told the children they are not to speak to their father. This is very detrimental to the children’s well-being.

[ 26 ] In the course of Elfie’s evidence she claimed continually that she had been harassed by Terry, particularly with respect to the number of letters Terry sent her since the parties separated. When closely questioned about this topic she indicated that Terry sent her a total of thirteen letters over a period of one year. This is on average about one a month. Only three letters from Terry were placed in evidence. Elfie also claims that Terry recently harassed her by entering her place of employment. She candidly admitted however, that he did not know she worked there and that as soon as he saw her, he turned and walked out of the building. Other than these incidents the parties have had virtually no contact. One incident in a video store was reported by Elfie but the Court finds this was not a deliberate contact.

[ 27 ] She also points to an incident that occurred at her workplace in April, 2007. I accept Terry’s evidence that he was only in the building for 45 seconds and that his actions did not represent a willful breach of the outstanding court order not to have contact with Elfie.

[ 28 ] The Court was also concerned with the testimony of Ms. Stickland that the children have frequently asked supervisors how old they have to be to make their own decision about when to stop visiting their father. In her evidence, Elfie made it clear that she is of the view that the children currently have the right to make this decision about whether or not they should have access with Terry. The Court finds in this case, with these children, ages 13 and 10, the children do not have the right to make decisions concerning access. However by the time each child reaches the age of sixteen, the child may determine on their own if they wish to continue the supervised access. In the view of the Court, given the unusual exposure to adult issues and adult conflict to which these children have been subjected, by the time they reach that age, and if Terry’s relationship with the children has not improved, then it would be appropriate to allow them to cease access at that point. Sierra will have first opportunity to make this choice. If she determines to cease having access with her father, this shall not impact the ongoing supervised access for Luke.

[ 29 ] I believe Elfie’s negative feelings towards Terry (as evidenced by her testimony and the comments she has made to several professional advisors in this matter) has completely clouded her judgment when it comes to the children and their relationship with Terry. I believe she has unnecessarily interfered with the children’s relationship with their father and that it is not in their best interests to have that negative type influence continue.

[ 30 ] The Court is also not particularly impressed with Terry’s conduct in the matter. In particular, following the unilateral termination of the supervised access involving Rita, there was a significant period of time, some two and a half years, where no access occurred. It was suggested to Terry in cross-examination that he could have pursued the Thunder Bay Children’s Centre Supervised Access program (which ultimately he did in 2011). His answer to this failure was vague. The Court accepts the evidence of Ms. Niemi on this point. Ms Niemi stated that there are concerns about Terry’s failure to take some level of responsibility for his absence in the children’s lives for an extended period of time.

[ 31 ] Also the Court agrees with the evidence of Ms. Niemi that Terry has made decisions knowing it would elevate the level of conflict between himself and Elfie. It is hoped in adopting the evidence and recommendations of the Office of the Children’s Lawyer in this matter that this will eliminate the need for future litigation between these parties.

The Law and Analysis

[ 32 ] I will first deal with the two motions for contempt. The law respecting contempt in family matters was very usefully summarized by Justice Quinn in Kassay v. Kassay 2000 22444 (ON SC) , 11 R.F.L. (5 th ) 308, [2000] O.J. No. 3373 (Sup. Ct. J.). In this decision, Justice Quinn sets out the law as follows:

“There are two types of civil contempt: contempt in the face of the court ( in facie ) and contempt not in the face of the court ( ex facie ) . Here, I am dealing with the latter.

[16] Rules 60.05 and 60.11 of the Rules of Civil Procedure are the source of the jurisdiction of this court to entertain an ex facie contempt proceeding. Rule 60.05 states:

60.05 An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.

[17] The pertinent portions of rule 60.11 are these:

60.11(1) A contempt order to enforce an order requiring a person to do an act… may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.

(2) The notice of motion shall be served personally on the person against whom a contempt order is sought… unless the court orders otherwise.

(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent’s information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit.

[18] Although the wilful disobedience of a court order is a serious matter that strikes at the heart of our system of justice, one must always be mindful of the need to respect the rights of the alleged contemnor. As was said by Goodman J.A., writing for the Court in R. v. B.E.S.T. Plating Shoppe Ltd. , (1987), 1987 4056 (ON CA) , 59 O.R. (2d) 145 (Ont. C.A.) , at 150 :

… it is also settled law that in the conduct of those [contempt] proceedings it is incumbent on the court to ensure that the offender has a fair trial in accordance with the principles of fundamental justice. Those principles include, amongst other rights, the right to be presumed innocent until proven guilty beyond a reasonable doubt and to have a reasonable time to prepare a defence and to call witnesses.

[19] I state the obvious when I say that a finding of contempt must be made on evidence. Furthermore, even with civil contempt, the criminal burden of proof prevails. No doubt this is due, at least in part, to the fact that the sanctions for civil contempt include a fine or imprisonment. The alleged contemnor cannot be compelled to testify: see Vidéotron Ltée c. Industries Microlec produits électroniques Inc., 1992 29 (SCC) , [1992] 2 S.C.R. 1065 (S.C.C.) .

[20] It is unnecessary to prove that the alleged contemnor intended to put himself or herself in contempt. However, it must be established that he or she deliberately or wilfully or knowingly did some act which was designed to result in the breach of a court order: see , for example, R. v. Perkins 1980 311 (BC CA) , (1980), 51 C.C.C. (2d) 369 (B.C.C.A.) ; R. v. Barker, 1980 ABCA 75 () , [1980] 4 W.W.R. 202 (Alta. C.A.) ; and Rivard v. Québec (Procureur général), 1984 2851 (QC CA) , [1984] R.D.J. 571 (Que. C.A.) .

[21] Where there are contested facts, an alleged contemnor is entitled to have the matter dealt with as the trial of an issue with the calling of witnesses to give viva voce evidence if he or she so requests: see R. v. B.E.S.T. Plating Shoppe Ltd., supra at p. 152 and also R. v. Jetco Manufacturing Ltd , (1987), 1987 4436 (ON CA) , 57 O.R. (2d) 776 (Ont. C.A.) .

[ 33 ] At the beginning of the trial I advised both parties that there was no obligation on them to testify with respect to the contempt matters. I also advised them of the need to prove contempt by the other on the standard of proof beyond a reasonable doubt. However, both seemed quite eager to tell me their stories, particularly with regard to the contempt and each party’s response to the other’s contempt motion.

[ 34 ] To begin, I believe that Terry’s actions were not sufficient to bring him within the tests for a finding of contempt as set out by the case law noted above. This Court finds that Elfie has not proved beyond a reasonable doubt that Terry was in contempt of any outstanding orders. While I question his judgment in not fully exercising his access rights for an extended period of time, I cannot accept Elfie’s argument that Terry should be found in contempt for not exercising his supervised access rights. Clearly he did exercise some access and his access was cut off by Elfie. With respect to the alleged breaches concerning non-harassment, I find that Terry did not willfully disobey the court order and that the breaches were of a minor nature. His actions did not offend the non-harassment provisions of paragraph 8 of Justice Pierce’s order.

[ 35 ] I find Elfie to be in contempt of Justice Pierce’s order of March 27, 2007 with regard to her unilateral termination of access in August of 2008. She freely admitted she terminated access. This was proved beyond a reasonable doubt. However, she purged her contempt by allowing the children to attend the supervised access commencing in July, 2011. While I believe her other actions were attempts to poison the relationship between the children and Terry, which actions are clearly not in the children’s best interest, they are not sufficient to attract a finding of contempt.

[ 36 ] With respect to the motion for change of the order of Justice Pierce, I am guided by the decision of Justice Bastarache in Van de Perre v. Edwards , 2001 SCC 60 () , [2001]2 S.C.R. 1014 (S.C.C.):

“Custody and access decisions are inherently exercises in discretion. Case-by- case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.”

[ 37 ] In this case, given the ultimate submissions by the parties to the effect that they wish the recommendations of the Office of the Children’s lawyer to be implemented, and based on my assessment of all the evidence, I believe it to be in the best interests of the children in this case to do so. Also, despite the fact that the Office of the Children’s Lawyer’s report was silent about the age at which the children could decide about access, based on the evidence presented and the age of the children, the order will provide for the children to choose to terminate access at, or after, age 16 if they so wish. Accordingly, the order of Justice Pierce dated March 19, 2007 will be varied by replacing paragraphs 3, 4 and 6 with the following provisions:

3. Commencing Tuesday May 1 st , 2012 Terry Korczynski shall have supervised bi-weekly access with the children of the marriage, Sierra Nicole Korczynski, date of birth July 7, 1998 and Luke Alexander Korczynski, date of birth, March 6, 2001 from 7:30 pm until 8:30 pm;

4. The access visits on every other Tuesday shall occur at the Thunder Bay Supervised Access Program at the Children’s Centre located at 283 Lisgar Street. The monthly access shall be suspended for the month of August each year to facilitate summer holidays for Elfie and the children. Access shall resume on the first Tuesday of the month in September of each year.

5. On or after the sixteenth birthday of Sierra or Luke, the respective child will have the option of terminating Terry’s supervised access for that child only.

[ 38 ] Paragraphs 1, 2 5 and 7 of the order of Justice Pierce dated March 19, 2007 shall remain in full force and effect. Given the conduct of both parties in this case, this Court orders that there shall be no order as to costs in this proceeding.

______________ ”original signed by”_ ___

The Hon. Mr. Justice F. Bruce Fitzpatrick

Released: April 12, 2012