Endorsement
COURT FILE NO.: FC-11-2685
DATE: 2012/06/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Karen Anne Vezina, Applicant
AND
Bruno Franco Timpano, Respondent
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Antoine Merizzi, for the Applicant
Beverley Johnston, for the Respondent
HEARD: June 5, 2012
ENDORSEMENT
[ 1 ] The respondent father has brought a motion seeking a finding of contempt against the applicant mother for denying him access to their six year old child and for failing to provide telephone access on the exact times ordered by Abrams J.
[ 2 ] The applicant mother agrees that she did not allow alternate weekend access to the father as ordered because she was specifically directed in writing by the Family and Children’s Services of Lanark, Leeds and Grenville (the “Children’s Services” or “Services”) that “Joey was not to have face to face or telephone contact with his father until further notice was received from the Agency.” The Services were carrying an investigation concerning the possible sexual abuse of the child. The father had recently been convicted of sexually assaulting two teenage girls.
[ 3 ] The legal test to be applied to find civil contempt was set out by the Court of Appeal in Hobbs v. Hobbs, 2008 ONCA 598, 54 R.F.L. (6th) 1 and may be summarized as follows:
(a) the Order that was breached must state clearly and unequivocally what should and should not be done;
(b) the party who disobeys the order must do so deliberately and willfully; and
(c) the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
Contempt for Not Providing Telephone Access on Exact Times
[ 4 ] The mother states in her affidavit that she has tried to comply with the order for telephone access but Joseph plays baseball on some of the nights at the time that telephone access is to occur.
[ 5 ] The mother states that on baseball nights she has advised the father by e‑mail of the change in time for the telephone call to allow the child to participate in baseball and she has provided telephone access at a different time.
[ 6 ] The mother’s affidavit evidence and Schedule E thereof shows that she tried to follow the order for telephone access or to arrange alternate telephone access. I find that allowing a young boy to play baseball in the summer is an activity that is in his best interest. Based on the telephone calls as set out in Exhibit E attached to the mother’s affidavit, I am not persuaded that she was or is deliberately and willfully disobeying the order for telephone access.
[ 7 ] I invited the parties to discuss a solution to amend the order with regards to telephone access during the summer to allow the child to play baseball and to avoid a technical non compliance with the order. The mother proposed telephone access on Wednesday and Sunday and the father made no proposals.
Disposition
[ 8 ] The motion for a finding of contempt against the mother for not complying strictly with the telephone access as ordered is dismissed as I am not satisfied beyond a reasonable doubt that she was willfully and deliberately disobeying the order. In order to allow the child to play baseball, which I find to be in his best interest, I will exercise my parens patriae jurisdiction and amend paragraph 5 of the order of Abrams J. to read as follows:
The respondent to have telephone access with Joseph every Wednesday and Sunday between 7:00 p.m. and 7:30 p.m., and one other time each week to be chosen by the applicant, with the applicant to initiate the telephone call to the respondent.
Contempt for Denying Access Based on the Children’s Services Written Directive
[ 9 ] The respondent also seeks a finding of contempt against the mother because she denied him access to the child based on a written direction from the Children’s Services dated September 16, 2011. The Services directed her to terminate Joseph’s access with his father pending the outcome of their investigation into the allegations that the father had sexually abused the child. The mother agrees that she followed the Services directives and did not allow access as ordered by Abrams J. but states that she believed she had to follow the Children’s Services directives.
[ 10 ] The father submits that the mother should not have to follow the directions of the Children’s Services and instead should have brought an emergency motion to stay the access granted to the father by the order of Abrams J.
[ 11 ] The letter to the mother from the Children’s Services dated September 16, 2011 was not just a suggestion but rather a direction to her to deny access to the father and also confirmed that she would follow their direction. The Children’s Services had authority to apprehend the child if the mother did not comply with its direction and if the Children’s Services had brought an application to Court it would have stayed the access order automatically.
[ 12 ] While the mother did not allow the access as ordered and she followed the Children’s Services direction thereby breaching the order, I am not satisfied beyond a reasonable doubt that her disobeyance was willful and deliberate from September 16, 2011 until the Children’s Services’ investigation was completed on December 23, 2011 and when it recommended that access with the father recommence.
Disposition of Contempt for not Allowing Access
[ 13 ] The respondent’s motion for contempt against the mother for denying access as directed by the Children’s Services is dismissed.
Contempt for Gradually Increasing Access Between December 23, 2011 and January 20, 2012
[ 14 ] The respondent filed a series of written case, notes and letters from the Children’s Services file attached to his affidavit dated May 31, 2012. These documents obtained from the Children’s Services were not introduced as business records and none of the authors of the notes and comments were called as witnesses, or filed any affidavits. As a result, the evidence is hearsay and as agreed at the hearing, were not tendered for the truth of their contents. As such, I am unable to give weight to the hearsay evidence other than to consider it as evidence that forms part of the narrative.
[ 15 ] By letter dated December 23, 2011, counsel for the respondent sent a letter to the applicant enclosing a copy of the Children’s Services letter of December 22, 2011 which confirmed that their investigation had been completed and the order of Abrams J. was in full force.
[ 16 ] The mother did not immediately comply with the access as ordered by Abrams J. but rather gradually increased access over the next month until January 20, 2012 when she was in full compliance. The father has been exercising access as ordered by Abrams J. since January 20‑22, 2012, a period of approximately four and one half months before this motion was heard.
[ 17 ] I am satisfied beyond a reasonable doubt that the mother deliberately and willfully decided not to follow the order of Abrams J. following December 23, 2011 until January 20‑22, 2012 when she began to comply fully with the order. She chose to increase access gradually over a period of approximately one month. The correct approaches would have been to follow the terms of Abrams J.’s order or to have brought a motion to amend the order to allow for a gradual return to the regular access.
[ 18 ] The fact that the respondent is alleged to have failed to comply with an order to provide financial disclosure of his income for 2008, 2009 and 2010, to have failed to pay his proportional share of daycare expenses as ordered, and failed to pay the premiums on the life insurance policy as ordered does not justify the applicant’s refusal to follow the order with regards to access. The respondent’s non compliance with orders is not a defence to the mother’s non compliance with the order to provide access as specified.
Disposition
[ 19 ] I find that the applicant was technically in contempt of the order of Abrams J. from December 23, 2011 for approximately one month until January 20‑22, 2012 when full access resumed. However, I also find that she has purged her contempt by following the order and providing access as ordered for the past four and one half months.
Costs
[ 20 ] The parties may make brief submissions on costs if they wish within the next ten (10) days.
R. Smith J.
Date: June 14, 2012
COURT FILE NO.: FC-11-2685
DATE: 2012/06/14
ONTARIO SUPERIOR COURT OF JUSTICE RE: Karen Anne Vezina, Applicant AND Bruno Franco Timpano, Respondent BEFORE: Mr. Justice Robert J. Smith COUNSEL: Antoine Merizzi, for the Applicant Beverley Johnston, for the Respondent ENDORSEMENT R. Smith J.
Released: June 14, 2012