ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW
COURT FILE NO.: FS-11-371063
DATE: 20120705
BETWEEN:
J.V.A. Applicant – and – J.L.M Respondent
Jane Thomson, Counsel for the Applicant
Allan Strader, Counsel for the Respondent
HEARD: JUNE 12, 2012
ENDORSEMENT: GREER J. :
[1] The Applicant, J.V.A., (“the Husband”) brought on two Motions before me, against the Respondent, J.L.M (“the Wife”). In this Endorsement, each Motion will be dealt with separately.
MOTION #1 – CONTEMPT MOTION
[2] The Husband brought on a Motion for Contempt against the Wife, alleging that she was in breach of the Order of Madam Justice Herman made March 21, 2012 on Consent of the parties. That Order adjourned the Trial to September 24, 2012 for 2 days, set up a Case Conference, and requested the O.C.L. to become again involved with the family. Their daughter, M.T., was to continue with counselling and arrangements were made regarding payment for the counseling. M.T. was to have access with her father every other Saturday from 9:00 a.m. to Sunday at 7:00 p.m. and every Wednesday evening from 5:30 p.m. to 8:30 p.m., beginning that weekend in March. On June 2, 2012, that access was to increase to Saturday from 9:00 a.m. until Monday morning when she would be dropped off at school. It was to be reviewed on the July 4, 2012 Case Conference with a view to increasing her access with her father to equal the time her brother E.J.T. spends with father. E.J.T.’s access was every other Friday from after school until Monday morning returning to school and every Wednesday overnight from 5:30 p.m. to return to school Thursday morning. It was to increase June 28, 2012, to include Thursday nights on the week that the father does not have weekend access.
[3] The evidence is clear that the Wife withheld access from the Husband by not ensuring that M.T. kept up her counselling and she did not ensure that M.T. went with the Husband for access visits on his weekend or on his mid-week access evening.
[4] The two children of the marriage are M.T., B. […], 2001, now age 11 and E.J.T., B. […], 2006, now age 5.
[5] The Husband says he hoped this Order would ensure that he had regular access with the children, however, he says that did not happen. He says the Wife blocked his access with his son for 2 weeks, and the daughter has missed 2 counselling sessions. The Husband believes that the Wife is deliberately alienating the daughter in trying to keep him from exercising access under the Court Order.
[6] The parties have had a tumultuous marriage, fraught with anger, bitterness, alienation, and total disrespect on the part of the Wife for Orders she consents to, and total disrespect for the Husband’s parental rights. The Wife denies this is the case but her very evidence as set out in Exhibits to the Husband’s Affidavit sworn May 17, 2012, proves the statement I have made.
[7] The Husband’s access has been thwarted by the Wife’s failure to answer the door when arrangements have been made by the Husband to pick up the daughter. Access was thwarted by the Wife on April 18, April 21, April 25, May 2, May 4, May 9. The daughter missed her May 3 therapy session. Copies of the Wife’s angry text-messages, full of expletives, and anger are set out as Exhibits to the Husband’s May 17 Affidavit. The Wife’s word of choice in nearly every text message is “fuck” this and “fucking” that. They are all outlined in the Affidavit for the public eye or the reader’s eye to see.
[8] I find that the Wife made no attempts to facilitate access.
[9] The parties’ 10-year marriage has been fraught with angry outbursts and juvenile behavior. The C.A.S. has been involved. The O.C.L. has been in and out and back in, in the lives of these parties and the children to no avail. The parties’ final separation came in March 2011, and by Order of Madam Justice Herman, the parties’ residence was sold.
[10] The Wife works on contract for a government agency. Her parents look after E.J.T. for half a day while he is in kindergarten. M.T. walks home alone at age 11, after school and lets herself into the Wife’s condominium. The Wife does not see this as a problem for the daughter, given her age. The O.C.L. is now going to do a S.112 Report.
[11] The Wife seems to think that she had done no wrong. Her counsel says she is ashamed and embarrassed by her language. I do not accept that as a genuine belief at all. She persisted with it until it was time to face reality when she came to Court. She is now making efforts to facilitate the access schedule since the Contempt Motion was set down.
[12] The Wife tries to say that the daughter does not want to go with the Husband, but she has made no attempts to facilitate access. On April 25, 2012 in a text message to the Husband, the Wife wrote:
What is wrong with u? She doesn’t want to see u nor be with u. She’ll resent u more because she knows I’m forcing her. FYI she hates counselling with Marilyn. It’s not going to change just because she physically there.
Is this the attitude of a parent who is trying to comply with a Court Order she consented to?
[13] Rule 31(1) of the Family Law Rules , O.Reg.114/99 says that an Order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available. Rule 31(5) sets out what the Court may order on a contempt finding that the contemnor was in contempt.
[14] The 3-pronged test as set out in the case law is that,
a) the Order that was breached must state clearly and unequivocally what should be and should not be done. The Order of Madam Justice Herman was clear in that regard.
b) the party who disobeys the Order must do so deliberately and wilfully. The evidence of the Wife’s behavior in breaching her own Consent Order shows her deliberate and wilful steps to breach the Order.
c) the evidence must show contempt beyond a reasonable doubt. The text messages sent by the Wife and her attempts to alienate M.T. show that her contempt is beyond a reasonable doubt.
See: Hobbs v. Hobbs , 2008 ONCA 598
[15] The Wife was properly given notice of her contempt, was personally served with the Notice and letters passed between counsel are exhibits to the Husband’s Affidavit. On May 4, 2012, the Wife texted the Husband and said, “Fucking pay support and I will be there to facilitate it”. The Husband is not in arrears of support but was late with one payment. The Wife clearly admits she is not trying to facilitate access. As set out in S.V. v. T.I.C., 2009 9396 (ON SC) at para. 40, Mr. Justice Reilly says that an Order for access in the family law context requires the principal residential parent to not simply “accommodate” the access, but to “facilitate” the access. In the case at bar, the Wife has not done this.
[16] I find the Respondent Wife, J.L.M to be in contempt of the Order of Madam Justice Herman made March 21, 2012.
[17] The Husband asks that the Wife be fined $100 per incident where she has breached the Order, such fines to continue for future breaches. In my view, this would not cause the Wife to see where she has been wrong and what she can do to improve her behavior and lead her to be a good parent and a good person, instead of an abusive, foul-mouthed one.
[18] Counsel for the parties shall confer with one another, with a view to providing the Court with information on counselling for the Wife, in attending parenting sessions and anger-management sessions. They are to contact me in September for an appointment for me to set down the appropriate sanctions in this regard. Order to go accordingly. Costs of this Motion will be dealt with at the end of my Endorsement on the Second Motion.
MOTION #2 – CHILD ACCESS
[19] The Husband brought on a Second Motion to change the primary residence of the two children from that of the Wife, to him as the father, or in the alternative to change E.J.T.’s residence, leaving M.T.’s residence to be changed over time. The Husband again asks that the Court again fine the Wife $100 each time she allows the children to not attend one access visits with him. He asks that the police be authorized and directed to enforce any Order of the Court concerning this matter.
[20] In support of this Motion, the Husband has served and filed another Affidavit, as well as served and filed Affidavits of his Mother, his sister, his employer, and two former co-workers. In these third party Affidavits, the affiants set out what each sees are aspects of the Wife trying to alienate the children against the Husband and thwart his access visits.
[21] Section 16 of the Divorce Act , R.S.C. 1985, c.3 addresses custody and access Orders. It says the Court shall take into consideration only the best interests of the child, as determined by reference to the condition, means, needs and other circumstances of the child. S.16(10) of that Act says that the child should have as much contact with both parents as is possible.
[22] The Husband says he has helped parent the children since their births. He says these are compelling reasons why the status quo should be changed to not only ensure that the Husband has access but has more access than Justice Herman’s current Order dictates.
[23] The Husband says that during the parties’ first 8 years of marriage they lived with his mother who care for M.T. on her days off and in the evening. After E.J.T.’s birth, the Husband’s mother and Wife’s father shared care for E.J.T. after the Wife returned to work. The parties’ difficulties with one another escalated, and after an earlier separation and reconciliation, they separated in March 2011 for the last time when the Wife assaulted him by hitting him over the head with the lid from E.J.T.’s toy box. He sets out in para. 14 of his Affidavit sworn March 19, 2012, incidents of the Wife’s volatile nature and her uncompromising behavior. He says she has also drained their financial resources with her spending habits. He says he always had a close, loving relationship with M.T. but since separation it has deteriorated to the point “where we barely speak”. He sets out in paras. 25 and 26 how the Wife tried to force M.T. to say she hated him and that he was not her father. He tried to get M.T. into counselling but says the Wife refused to attend and did not make M.T. attend. In February 2012, the Husband was able to secure counselling for M.T. through his work. He believes she should be having weekly counselling sessions. He now believes that the Wife is trying to alienate E.J.T. from him, too.
[24] I have read all the supporting Affidavits filed by the Husband’s family members and his co-workers and employer. The Mother says the parties’ relationship has already been “troublesome” and “they argued frequently”. She has seen the Wife smash the Husband’s computer in anger, and throw his clothes off the balcony. She says in 2007 the Husband was so distraught that he tried to commit suicide. She has witnessed the Wife trying to force M.T. to say that the Husband was not her father. The Husband’s sister says he is a very excellent, hands-on parent. She believes the Wife is alienating the children against their father by making them rehearse and say nasty things to him. She sets out the details of many unhappy incidents brought on by the Wife’s angry manner.
[25] The Husband’s employer has known him for four years. He says the Husband is “a diligent and hardworking employee”. He has met the Wife but says she arrives unannounced at his work and upsets the Husband. She called the employer’s home at 11:00 p.m. in July 2011 and told him about the parties’ marital problems. She called a second time and he told her to stop calling.
[26] The Husband’s co-worker has also received calls from the Wife, which he found disturbing. He says he has observed the Husband with the children, and says he is fiercely protective of them.
[27] The Wife addressed the Husband’s Motion by bringing on a cross-Motion for sole interim custody of the children and for child support and S.7 expense contribution. In her Affidavit sworn May 24, 2012, the Wife acknowledges that the parties’ relationship was tumultuous and that they had separated several times. She says after they separated in March 2011, the Husband made little effort to participate in the children’s lives. She says there have been difficulties getting M.T. to comply with the Court Order regarding access. She blames the Husband for trying to make the children go with him and says M.T. will not answer the door for the Husband when she is not there.
[28] With respect to the counselling, the Wife says M.T. “never related well to the counsellor”. She says the Husband tries to manipulate her. She says the children have been with her since birth. They also, however, have been with the Husband as well, until the last separation.
[29] The Wife says the children, when with her, are near their schools and her parents help E.J.T. after school. She does not think the Husband’s area of Yonge & Bloor is friendly to children.
[30] She wants child support of $966 per month based on the Husband’s income of $65,000. She says her income is not more than $30,000.
[31] In the Husband’s Affidavit sworn May 23, 2012, he sets out another incident with the Wife where she says M.T. hates him. She also told him he should not attempt to be the “primary caregiver” of the children because M.T. told her she was suicidal. This, says the Husband, cause him great alarm but he later realized the Wife was lying. He sets out their conversation in para. 8 of his Affidavit.
[32] The Husband agrees he saw the children on that May 23, 2012 access weekend, only because he brought on the Contempt Motion. He points out in a further Affidavit of May 25, 2012, that the Wife lives in a condominium in the entertainment district near the Gladstone Hotel on Queen Street West, so how can she say his area of the city is bad.
[33] The Husband says he has paid the full table child support for his income of $63,495. He even signed to help the Wife with a bridge loan to help her buy a condominium.
[34] The Husband says there is no real status quo because the Wife does not comply with the Orders already in place. He sees the Wife as fostering parental alienation. While both parties are glad the O.C.L. has agreed to do a S.112 Report, neither knows when the process is going to start.
[35] Under these circumstances, and having read all the lengthy affidavits and many text messages from each, in my view the children’s best interests will be met at this time by giving the parties joint interim custody of the two children. The Wife’s volatile temper, her urging of the children to say nasty things about the Husband, and her failure to facilitate the Orders already made by the Court, give this litigation the aura of parental alienation by the Wife. See: S.(C) v. S.(M) , 2007 6240 (ON SC) at para. 92 .
[36] I am of the view that E.J.T.’s access with the Husband should be increased so that he is with the father half the time and with him for one-half the summer holidays. Order to go that the new access schedule for E.J.T. commence on MONDAY, JULY 16, 2012, as follows:
The Husband shall pick E.J.T. up on Monday, July 16, 2012, from the Wife’s residence at 7:00 p.m. E.J.T. shall remain in the Husband’s care until the following Monday, July 23, 2012, when the Husband shall drop E.J.T. off at the Wife’s residence at 7:00 p.m.
The Wife shall drop E.J.T. off at the Husband’s residence on Monday, July 30, 2012 at 7:00 p.m. for his next access week and the Husband shall return E.J.T. to the Wife’s residence at 7:00 p.m. Monday, August 6, 2012.
The week on, week off shall continue on an interim/temporary basis until further Court Order or until the parties otherwise agree in writing.
The Wife shall immediately on July 16, 2012 provide the Husband on July 16, 2012 with half of E.J.T.’s summer and other clothing, and half of his books and toys, all to remain at the Husband’s residence.
The access with M.T. shall continue as per the Order of Madam Justice Herman of March 21, 2012, except that para. 6 of that Order shall be varied to delete the Wednesday evening access in the interim period awaiting Trial and the O.C.L. Report unless the parties otherwise agree in writing.
Para. 7 of the Order of March 21, 2012 shall be deleted and the new Order above for E.J.T.’s access shall replace it.
The Husband must ensure that E.J.T., in September, gets to his school on time and arrange appropriate after-school care for him while he is with the Husband for his access week. The Husband may, if he wishes to, explain to E.J.T. that a new access arrangement is in place.
[37] I am not prepared to Order the involvement of the police at this point in the proceedings. The Wife has been in breach of the Access order for both children and it is not up to her to leave it up to the children to decide if they are going to see their father or not. See: Quaressna v. Bathurst , 2008 CarswellOnt 7063, (S.C.J.) at para. 8 . Access shall take place in accordance with this new schedule as ordered by me.
[38] I urge the O.C.L. to begin its investigation as quickly as possible. I have made a drastic change in the access of E.J.T. to prevent further alienation and to give the father and son quality time together without allowing the Wife to try to destroy that relationship the way she has done with M.T.. Order to go that M.T. shall receive counselling through the Husband’s place of work and the Wife shall ensure that M.T. attends the counselling.
[39] The Husband shall continue to pay child support on an interim basis to the Wife for two children at his current salary under the Amended Guidelines at $936 per month. He shall not be responsible for any S.7 expenses while this temporary interim Order is in place. The Wife provided no evidence of any S.7 expenses. Further the Husband and the Wife have equal time with E.J.T..
[40] The parties may speak to me in September, 2012, on a date to be agreed by me and counsel, on the issue of Costs of both Motions.
[41] All Orders to go accordingly.
Greer J.
Released: July 5, 2012
COURT FILE NO.: FS-11-371063
DATE: 20120705
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY LAW
BETWEEN:
J.V.A. Applicant – and – J.L.M Respondent
ENDORSEMENT
Greer J.
Released: July 5, 2012