ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17/11 (Woodstock)
DATE: 20120723
B E T W E E N:
E.A.W.
Ian R. Blain, for the Applicant
Applicant
- and -
R.H.M.
Toenie Hersch, for the Respondent
Respondent
HEARD: July 13, 2012
GRACE J.
A. Background
[ 1 ] Since the matter is still at the interim stage, an abbreviated version of the history will suffice.
[ 2 ] The parties separated almost nine years ago. Soon afterward, Ms. E.A.W. commenced proceedings.
[ 3 ] For about a year following separation, Mr. R.H.M. had regular access to the parties’ young children: E. and H.. A year later, serious allegations were made against him. Criminal charges were laid. Mr. R.H.M. was arrested. As a term of release, Mr. R.H.M. was prohibited from having any contact with the children except in the presence of counsel or a Children’s Aid worker.
[ 4 ] On September 9, 2005, Webster J. dismissed the charges.
[ 5 ] Mr. R.H.M. says the allegations were baseless. Ms. E.A.W. believed – and still believes - the opposite.
[ 6 ] Minutes of Settlement were negotiated. On March 22, 2006, Campbell J. made a final order. It dealt with various issues including custody of and access to thirteen year old E. and eleven year old H..
[ 7 ] Custody was granted to Ms. E.A.W.. With respect to access, Campbell J. ordered that a Services Agreement executed by the parties and the Children’s Aid Society remain in place for the balance of its term. Thereafter, access was to be at times arranged between Ms. E.A.W. and Mr. R.H.M. and failing agreement, by the Court.
[ 8 ] Access was provided only if supervised.
[ 9 ] On February 7, 2011, Mr. R.H.M. filed a motion to change portions of Campbell J.’s order. He seeks an order permitting and scheduling unsupervised access. I understand a date for trial is to be arranged at a November, 2012 attendance.
[ 10 ] On April 5, 2012, Bryant J. was asked to make a temporary order in accordance with the parties’ written consent. He did so.
[ 11 ] The Bryant J. order provided that Mr. R.H.M. was to have supervised access to the parties’ children: thirteen year old E. and 11 year old H..
[ 12 ] The schedule was a modest one: two visits in each 30 day period at the office of social worker Morrison Reid. Each visit is to be 90 minutes long.
[ 13 ] H. was required to attend the first three visits. Thereafter, if she chose, H. was only required to attend one visit in each 30 day period. The first visit occurred on May 6, 2012. According to Mr. Reid’s June 20, 2012 letter “H. appeared to enjoy the entire session.”
[ 14 ] Problems started during the second May 31, 2012 visit. H. attended, exchanged greetings with Mr. R.H.M. and left. The third visit was scheduled for June 14, 2012. H. had no contact with Mr. R.H.M.. Happy Father’s Day wishes were communicated through Mr. Reid.
[ 15 ] This spate of motions followed.
[ 16 ] Mr. R.H.M.’s first motion asks for a finding of contempt against Ms. E.A.W.. Each party seeks to vary Bryant J.’s order. Mr. R.H.M. asks the court to require that H. attend each supervised access visit. Ms. E.A.W. seeks an order that gives Mr. R.H.M. access only if H. chooses to participate. She also seeks an order requesting that the Office of the Children’s Lawyer appoint counsel for H. and an order prohibiting Mr. R.H.M. from communicating with his children electronically.
B. The Contempt Motion and the Motions to Vary
[ 17 ] An order of the kind made by Bryant J. may be enforced by a contempt motion. [1] The purpose is to ensure that orders of this court are respected and obeyed: Surgeoner v. Surgeoner 1991 CarswellOnt 465 (Gen. Div.) at paras. 6-7 .
[ 18 ] A finding of contempt is only justified if the Court is satisfied beyond a reasonable doubt that: the order in question states clearly and unequivocally what is or is not to be done, the respondent to the motion is provided with sufficient particulars of the allegedly contemptuous behaviour to know the case that must be met and that the order was, in fact, disobeyed deliberately and wilfully. [2]
[ 19 ] I turn to those requirements now. I have already summarized the terms of the order in issue. They are clear and unambiguous.
[ 20 ] With respect to the second element, the grounds for the allegation of contempt are not stated in the notice of contempt motion. The affidavit of Mr. R.H.M. which accompanied that notice contains a conclusory statement that Ms. E.A.W. “is in contempt” but offers no particulars.
[ 21 ] A later affidavit attached Mr. Reid’s June 20, 2012 letter. In it, Mr. Reid noted that Ms. E.A.W. did not “encourage H. to attend access” with Mr. R.H.M. on May 31 or June 14, 2012. Counsel for Mr. R.H.M. relies on this passage from a judgment of Acton J. of the Alberta Court of Queen’s Bench:
There has been much criticism by courts of parents who purport to allow children to make final decisions on whether access occurs. A custodial parent has a positive obligation to encourage access and may even be found to be in contempt of court for failing to do… [3]
[ 22 ] I will not dwell on whether the letter incorporated by reference in Mr. R.H.M.’s second affidavit fulfills the second requirement for a finding of contempt. I say that because the third element was not satisfied.
[ 23 ] In her July 10, 2012 affidavit, Ms. E.A.W. deposed to the following:
When I got home after the first visit, H. told me she wasn’t sure if she wanted to go to another visit. I again explained to her about the Court Order and that she was required to go.
I had no further discussions with H. until…May 31, 2012 at 6:30 p.m. When I arrived home from work I told the girls that they were to visit their father and to get ready. H. said that she didn’t want to go, that she wanted to stay home and play with her friend Bailey. I told H. she had to go. H. kept telling me she did not want to go. I suggested we would go to the door and talk with Morrison Reid and see what he said. It was my hope that Morrison Reid would be able to persuade her to stay.
[ 24 ] The affidavit makes similar statements with respect to visits scheduled for June 14 and 28, 2012. On the material filed, it is impossible for me to conclude that Ms. E.A.W. has wilfully disobeyed Bryant J.’s order. The contempt motion is dismissed.
[ 25 ] However, Ms. E.A.W. should take very little solace from that determination. Her affidavit demonstrates her attitude toward Mr. R.H.M.. For example, Ms. E.A.W. deposed that H. had told her “that she didn’t like upsetting anyone even the Respondent ”. [Italics added] Why were the words I’ve italicized necessary?
[ 26 ] Later, Ms. E.A.W. added that:
Based on her [H.’s] response to the visits, I see little point in trying to force her to continue with the visits if she does not want to go.
[ 27 ] The entire affidavit of Ms. E.A.W. leads to an unmistakable conclusion. She regrets having consented to Bryant J.’s order. She requires that H. go to Mr. Reid’s door but leaves to him the task of “persuading” H. to comply with the Court’s requirement. Between May 6 and 31 she had no discussion with H. about visiting her father. When H. tells Mr. Reid that she does not want to visit with Mr. R.H.M., Ms. E.A.W. says nothing.
[ 28 ] All of this follows a first visit which Mr. Reid describes in these terms:
H. …ran to greet her father with wide arms and gave him a hug. Throughout access, H. smiled and laughed and maintained close physical contact with Mr. R.H.M., often touching him. Her level of engagement with her father was equal to E.’s and, at times, more active. H. repeatedly referred to Mr. R.H.M. as dad or daddy. H. provided Mr. R.H.M. with a hug good-bye.
[ 29 ] To say that subsequent events make no sense in light of those observations absent some extraneous influence is an understatement.
[ 30 ] My concern in that regard was heightened when Mr. Blain commenced his submissions on Ms. E.A.W.’s behalf by trying to turn the clock back to the involvement of the Children’s Aid Society in 2004.
[ 31 ] As I expressed to Mr. Blain, the focus should have been on the order made in accordance with the written consent of the parties on April 5, 2012. That Mr. R.H.M. has had meaningful contact with H. only once between that day and July 13, 2012 is tragic.
[ 32 ] That brings me to the motions to vary Bryant J.’s order. The order has not been complied with. It should have been. It was made on consent and undoubtedly was the culmination of an arduous negotiation.
[ 33 ] Ms. E.A.W. says that “H. was not consulted”. To that I say two things. First, it is not true. She was consulted by psychologist Dr. Marlies Sudermann. Dr. Sudermann was appointed as a result of yet another order of this Court. In her February 8, 2012 report, Dr. Sudermann observed that “H. seemed to be very influenced by her mother’s views”. Second, H. is eleven years old and has had very little contact with Mr. R.H.M. for years. The order of Bryant J. recognizes that H.’s views are important. However, they cannot be formulated in a factual void.
[ 34 ] The answer to the current dilemma is a clear one.
[ 35 ] To Ms. E.A.W. – and far more gently to H. – I say this. The order of Justice Bryant was not a request or suggestion. It was – and is – a requirement. It must be complied with. It will be complied with.
[ 36 ] Bryant J.’s order is a small step in an attempt to give Mr. R.H.M. and his daughters a fair chance to resurrect a relationship from the ashes. Does it mean H. has to choose between Mr. R.H.M. and Ms. E.A.W.’s partner Mr. M…? No. Not at all.
[ 37 ] Does it mean that Ms. E.A.W. and Mr. M… have to share H.: give her an opportunity to develop – and perpetuate – a meaningful and positive relationship with Mr. R.H.M.? Yes. It does.
[ 38 ] Ms. E.A.W.’s motion to vary the order of Bryant J. to essentially allow H. to go – or more likely not go – to any access visit is entirely without merit. It is dismissed.
[ 39 ] Mr. R.H.M.’s motion seeks to eliminate the limited right of choice H. was given after three visits. The motion evidences his justifiable concern that H. wears unseen strings which have been attached and are controlled by Ms. E.A.W..
[ 40 ] At this stage, I will say no more than this. Bryant J.’s order contemplated three consecutive meaningful visits. The May 6 visit is now stale. The purpose of that visit has been completely negated by subsequent events.
[ 41 ] Supervised access was to have occurred during the week of July 16, 2012. If H. attended and spent the required 1.5 hours with Mr. R.H.M., that will be the first of the three visits described in paragraph 2 of Bryant J.’s order. Two more are to follow.
[ 42 ] If H. did not attend and spend the required 1.5 hours with Mr. R.H.M., the first of the three visits contemplated by that paragraph shall occur on the next date established in accordance with paragraph 1 of the Bryant J. order. An order shall issue in respect of Mr. R.H.M.’s second motion consistent with this paragraph and the one preceding it.
C. Representation by the Office of the Children’s Lawyer
[ 43 ] As indicated, Ms. E.A.W. asks the court to request that the Office of the Children’s Lawyer act as the legal representative of H. pursuant to s. 89 (3.1) of the Courts of Justice Act.
[ 44 ] That same request was made by Mr. R.H.M. in his Motion to Change the order of Campbell J. (although his request included E. as well) but is now opposed.
[ 45 ] Mr. Blain argued that H. should have her own objective and independent voice. Mr. Hersch expressed concern about delay and pointed to the report already delivered by Dr. Sudermann. [4]
[ 46 ] While I am concerned about the position H. finds herself in – through no fault of her own – I believe the request is premature. It may be renewed by either party after the three consecutive visits described in paragraph 2 of Bryant J.’s order and these reasons have occurred.
D. Electronic Communication
[ 47 ] Ms. E.A.W. deposed that she learned that E. and Mr. R.H.M. had exchanged text messages shortly before the supervised visit on May 31 st . She added:
Subsequent to the May 31 st visit, E. admitted that she and R.H.M. [M.] had been texting. I told her that she shouldn’t be texting with the Respondent. She responded by saying that she and her father had talked about it with Morrison Reid at a supervised visit and he said it was ok. I doubt that any such discussion took place.
[ 48 ] I pause here. It is unclear why Ms. E.A.W. does not know whether a discussion with Mr. Reid occurred. She saw Mr. Reid at least three times before the July 10, 2012 affidavit was sworn. Why didn’t she simply ask him?
[ 49 ] Ms. E.A.W. added:
I am very concerned…On a previous occasion prior to the start of court proceedings, on a visit which was supposed to be supervised by R.H.M.’s parents, R.H.M.was left unsupervised with E. and they engaged in inappropriate discussions surrounding the sexual abuse allegations.
[ 50 ] No details are given of the “discussions” or the basis on which Ms. E.A.W. alleges they were “inappropriate”.
[ 51 ] Mr. R.H.M. responded in a July 12, 2012 affidavit. He deposed that he had appended copies of “all the text messages between E. and I”.
[ 52 ] My attention was not drawn to any order that specifically addresses electronic communications. The order of Campbell J. does not even require supervised access. The temporary order of Bryant J. requires supervised access but that is in the context of in person contact.
[ 53 ] In her report, Dr. Sudermann recommended:
A pre-condition for visits would be that MR. (sic) R.H.M., E. and H. all commit strongly to not talking about the past abuse allegations or related matters. A second pre-condition would be that there be monitoring of the conversations by a trained visit supervisor in one of the above mentioned facilities or equivalent. It is often not possible to monitor every word of parent-child conversations but frequent check-ins to sample the conversations which do take place can be achieved.
[ 54 ] I note this issue was raised by Ms. E.A.W. for the first time in her July 10, 2012 notice of motion although known to her since late May, 2012. That fact concerns me. I am also troubled by the fact that Ms. E.A.W.’s immediate reaction to “admitted” texting was to tell E. it was not allowed. There is no evidence she made any inquiry about content and Ms. E.A.W. reached a negative conclusion that I do not share.
[ 55 ] I have reviewed the texts appended to Mr. R.H.M.’s affidavit. They range from innocuous to moving. A request that Mr. R.H.M. be required to give Mr. Reid copies of all texts exchanged pending further order of the Court would have been understandable. An attempt to simply bar E. – a child described by Dr. Sudermann as one with a “tendency to blame herself” and with “low self esteem” - from having any electronic communication with her father is, at best, misguided. Given the content of the exchanges, a stronger phrase may be more appropriate.
[ 56 ] Paragraph 3 of Ms. E.A.W.’s notice of motion is dismissed. In an effort to minimize the number of future motions, I make this order instead. Mr. R.H.M. is expressly authorized to communicate electronically with E. – and if she initiates it – H. provided that full and unedited copies are retained and provided to Mr. Reid at each supervised visit.
E. Costs
[ 57 ] If the parties cannot settle the issue of costs, they may each make short written submissions not exceeding four typed pages exclusive of dockets and authorities within thirty days of the release of these reasons. Those submissions may be provided to me through Judges’ Administration, Court House, 12 th Floor, Unit “K”, 80 Dundas Street , London, Ontario N6A 6B2.
“Justice D. Grace”
Justice D. Grace
Released: July 23, 2012
COURT FILE NO.: 17/11 (Woodstock)
DATE: 20120723
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: E.A.W. Applicant - and – R.H.M. Respondent REASONS FOR DECISION GRACE J.
Released: July 23, 2012
[1] Family Law Rules, rule 31.
[2] Prescott-Russell Services for Children and Adults v. G. (N.), 2006 ONCA 81792 , [2006] O.J. No. 2488; (2006), 82 O.R. (3d) 686 (C.A.); Sickinger v. Sickinger , 2009 ONCA 856 , [2009] O.J. No. 5178 (C.A.).
[3] 2007 ABQB 420 at para. 20 . Acton J. cited Ayotte v. Bishop , 1996 6591 (ON SC) , [1996] O.J. No. 4810 (Gen. Div.) and Cooper v. Cooper , 2004 47783 (ON SC) , [2004] O.J. No. 5096 (S.C.J.) in support of those propositions.
[4] That report was delivered as a result of an order made pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.