ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-7392/03
DATE: 20120717

BETWEEN:

Angela Jackscha Applicant – and – Keith Funnell Respondent

Jerome C. Gardner, for the Applicant

Alan Arkilander, for the Respondent

HEARD: June 7, 2012

DECISION ON MOTION FOR CONTEMPT

r.d. gordon j.:

1The parties have been involved in long and tortuous family proceedings. The main dispute, which has been ongoing since their separation in 2003, involves the care of their son Josh who is now almost 11 years old. Ms. Jackscha has remarried and has the surname Danyluk. As her surname remains Jackscha in the style of cause and existing orders, I will refer to her as Ms. Jackscha in this decision.

2There currently exists a final order between the parties dated October 20, 2011. It is a consent order endorsed by Poupore J., which provides quite specifically for the time the child is to spend with each parent.

3Mr. Funnell has brought a motion asking that Ms. Jackscha be found in contempt of the order of Justice Poupore dated October 20, 2010. He alleges that Ms. Jackscha has, in contravention of the order, withheld the child from him.

Background Facts

4With the assistance of the Office of the Children’s Lawyer, the parties were able to agree to a final order which provided for joint and shared custody of their son Josh. He is to spend alternating weeks with the parties, from Friday after school each week to Friday after school the following week. Whoever is to have Josh in their care is to pick him up at school. In addition, the order provides for certain holidays, including Christmas. In 2011, Mr. Funnell was to have the care of Josh from December 23 to December 30 subject to Ms. Jackscha’s care of him from December 24 at 2:00 p.m. to December 25 at 2:00 p.m.

5Mr. Funnell had made plans to take Josh for dinner with his extended family on December 25. For reasons which are not entirely clear, Josh called his father on Christmas Day and indicated that he wished to stay at his mother’s place. It was a short conversation. It ended unhappily. Josh did not go with his father as scheduled and Mr. Funnell has not seen him since.

6Mr. Funnell is convinced that Ms. Jackscha persuaded Josh to stay with her at Christmas and since. According to Mr. Funnell, this is just a continuation of conduct on the part of Ms. Jackscha designed to undermine his relationship with his son. He alleges that she denied him access when they initially separated in 2003, again in 2004 and again in 2008. Each time he has had to take matters to court to have access resume.

7On March 1, 2012 Mr. Funnell brought a motion to change custody of Josh and the motion for contempt which is the subject of this decision. No other efforts to gain the care of Josh were made by him. He made no further requests to have Josh return to his care. When school resumed in January of 2012 and it was Mr. Funnell’s week to have Josh, he did not attend school to pick him up. He did not call or e-mail Ms. Jackscha to try to resolve the issue. He felt his only option was to bring the matter back before the court.

Applicable Law

8What is alleged in this case is civil contempt of court. The burden of proof is the same as in criminal matters, that is, proof beyond a reasonable doubt. That burden rests with Mr. Funnell.

9To find Ms. Jackscha guilty of contempt, Mr. Funnell must satisfy me beyond a reasonable doubt that the order breached states clearly and unequivocally what should and should not be done and that Ms. Jackscha disobeyed the order deliberately and wilfully.

The Evidence of Ms. Jackscha

10Ms. Jackscha testified that when it came time to deliver Josh to his father on Christmas Day, Josh was upset and did not want to go. She says that she encouraged him to go but that he refused. She then told him he would have to call his father to advise that he would not go. From her evidence it is clear that she made no effort to contact Mr. Funnell, no effort to determine why Josh would not go, and no effort to resolve whatever issue Josh was having with his father. Her evidence was that she did not try to physically force him to go given his size. She felt that the matter would ultimately be resolved between Josh and his father and that shared custody would resume in the new year.

Analysis

11The Order in question is clear on its face. Indeed, Ms. Jackscha did not argue that it was unclear or equivocal. In addition, it is clear that there was non-compliance with the terms of the order, at least on December 25, 2011. The issue is whether non-compliance was deliberate and wilful on the part of Ms. Jackscha.

12Compliance with custody and access orders may become complicated by the conduct of a third party, the child. Indeed, it is not uncommon for a child to refuse to comply with the terms of such an order. However, in my view, it is implicit in such orders that parents are capable of ensuring the child’s compliance with the order and will take reasonable steps to ensure that compliance.

13Although Ms. Jackscha acknowledged that Josh was not in the care of his father as required by the order, she argued there was no contempt because it was Josh who refused to go. Essentially, her position is that because Josh refused to go, her non-compliance with the order was neither wilful nor deliberate.

14When a custody/access order is not complied with, and there is an air of reality to the defence that non-compliance rests with the child, it falls to the party alleging contempt to prove beyond a reasonable doubt that the other parent did not take reasonable steps to ensure the child would comply.

15I am also mindful that where, as here, the credibility of the parties is at issue, I must undertake the analysis prescribed in R. v. W. (D.) 1991 , [1991] 1 S.C.R. 742 namely: (i) If I believe Ms. Jackscha, I must find that she is not guilty of contempt; (ii) if, having considered the conflicting evidence, I have reasonable doubt as to where the truth of the matter lies, I must find her not guilty; and (iii) even if I do not believe Ms. Jackscha and am not left in doubt by her evidence, the evidence which I do accept as true must be sufficient to establish her guilt beyond a reasonable doubt.

16Essentially, Mr. Funnell must prove beyond a reasonable doubt that Ms. Jackscha did not take reasonable steps to ensure Josh went to his father as required by the order.

17By her own admission Ms. Jackscha’s efforts to have Josh go to his father on Christmas Day were insignificant. Although she testified that she encouraged him to go, I received no evidence of what that “encouragement” included. Fostering a child’s positive relationship with the other parent is one of the most significant parenting duties a separated spouse undertakes. Faced with a child who is unwilling to go with the other parent, the parent in care of the child must do more than simply acquiesce. At a minimum one might expect the following:

• A discussion with the child to determine why he does not want to go

• Communication with the other parent to advise of the difficulty and discuss how it might be resolved

• Offering the child an incentive to go, or some form of discipline should he continue to refuse

18Ms. Jackscha did none of these things. Her bare assertion that she encouraged Josh to go to his father’s raises no reasonable doubt in my mind. I am satisfied beyond a reasonable doubt that she did not take reasonable steps to have Josh comply with the order. The result is that she was in contempt of the order on December 25, 2011.

19Thereafter, the matter is not as clear because Mr. Funnell made no further efforts to obtain the care of his son. The order provided that when the school year resumed, his access would begin by picking Josh up at the end of school on Friday. He never attended the school for this purpose and had been given no indication that Josh would not then comply. Maybe Josh would have gone with him, and maybe not, but that determination cannot be made because Mr. Funnell did not make the effort required of him under the order. The result is that he has failed to prove Ms. Jackscha’s wilful and deliberate disobedience of the order after December 25, 2011.

Remedy

20Rule 31 provides for various orders that may be made when a person is found to be in contempt. When asked what Mr. Funnell wants to have happen, his response was simply that he wants compliance with the court order. He does not want an order for imprisonment, fine or monetary penalty because such orders would not, ultimately, be in the interests of Josh.

21My sense, having heard Ms. Jackscha’s testimony, is that she now has a better understanding of her obligation to ensure compliance with the court’s orders. However, the history of these proceedings and the ongoing tension that exists between the parties requires some sanction to encourage future compliance. In my view, this can be done by the imposition of a conditional fine in the amount of $3,000 payable in the event of any further finding of contempt. To be clear, in the event Ms. Jackscha is found in contempt of court on any subsequent occasion, a fine of $3,000, now assessed relative to this finding of contempt shall then become due and payable within seven days. This, of course, will be in addition to any order made relative to that subsequent finding of contempt.

22Should the parties be unable to agree on the issue of costs, they may make written submissions to me, not to exceed four pages in length each, within six weeks of the date of this decision.