COURT FILE NO.: 30336/08

DATE: 2013/04/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Salvatore Scrivo, Applicant

AND:

Jacqueline Cynthia Scrivo, Respondent

BEFORE: M. J. Donohue, J

COUNSEL: Counsel for the Applicant; Salvatore Mannella

Counsel for the Respondent; Self-Represented with Duty Counsel at the Motion

Counsel for OCL; Virginia Da Costa by written submissions

HEARD: March 26, 2013

ENDORSEMENT

MOTION FOR CONTEMPT

ISSUE

[1] Mr. Scrivo, brings this motion against Ms. Scrivo for contempt of my court order of November 27, 2012.

BACKROUND

[2] Ms. Scrivo appeared at the motion on March 26, 2013 unrepresented. She had filed an extensive affidavit as well as the two affidavits of the twins. She did not request the opportunity to give viva voce testimony. I asked her to see if duty counsel would assist her in light of this being a contempt motion.

[3] Duty counsel did attend and spoke on her behalf emphasizing that Brendan is nearly 14 years of age and is too big for Ms. Scrivo to physically lift.

[4] In my trial decision of May 4, 2012, I had found that Ms. Scrivo had alienated her sons from their father such that there was almost no access occurring. She insisted that access always be subject to the wishes of her sons.

[5] I ordered that Mr. and Ms. Scrivo engage the services of Lourdes Geraldo for several purposes, including, “to restore adequate parent functioning, parenting, and roles; to restore and/or facilitate contact between the children and the father; and any other goals or purposes as recommended by Lourdes Geraldo.”

[6] The last access visit before the parties came to court in November 2012, was on August 17, 2012.

[7] As of November 22, 2012, Ms. Geraldo reported that, “it is important for Ms. Scrivo to assume a more direct and active role in facilitation contact between Brendan and his father.” She also stated that Ms. Scrivo “can take on the role of transporting Brendan” for access visits.

[8] In light of Ms. Geraldo’s recommendation the parties returned before me on November 27, 2012 to discuss an access visit for December 24, 2012. I ordered the access visit to occur as soon as Ms. Scrivo finished work and she was to drive Brendan to his aunt’s home at 870 White Clover Way in Mississauga. I added that Brendan’s older brothers were welcome to attend as well.

[9] The facts as deposed by the parties are not in dispute and are supported by contemporaneous email evidence.

[10] On December 20, 2012 Ms. Scrivo emailed Mr. Scrivo asking what time Brendan was to be at the party as “he won’t go without his brothers.”

[11] A responding email by Mr. Scrivo’s counsel on December 21, 2012 initially proposed 11: 00 a.m. and then suggested 1:00 p.m.

[12] Ms. Scrivo in an email at 6:04 p.m. on December 21, 2012 wrote that she would be home from work around 2:00 p.m., then depending on traffic she would drive Brendan to the aunt’s home. Ms. Scrivo said Brendan should be expected at 3:45 or 4:00 p.m..

[13] Ms. Scrivo loaned her vehicles to the two older boys who had to work on December 24, 2012.

[14] Mr. Scrivo offered to pay for a cab for her to take Brendan to the party. His counsel confirmed that by email on December 22, 2012.

[15] Ms. Scrivo emailed Mr. Scrivo’s counsel at 8:08 p.m. on December 24, 2012. She wrote that when one of the twins returned with the car at 6:00 p.m. she told Brendan it was “time to go and he refused.”

[16] Ms. Scrivo filed an affidavit by Brendan’s older brother, Joseph, stating that he and his twin planned to attend their aunt’s party with Brendan to help make him feel more comfortable. He states that they arranged for his twin Johnnie to drive Brendan to their Aunt’s at 3:00 p.m. once Johnnie finished work.

[17] Joseph Scrivo further deposed that he returned from work shortly after 6:00 p.m. and found that Johnnie had not returned from work. Joseph therefore said to Brendan, “Let’s go, I have to get you to Aunt Susie’s.” Joseph deposed that Brendan adamantly refused to go. Joseph deposed that Ms. Scrivo “encouraged Brendan and kept saying it would be fun and he kept refusing. My mom cannot pick him up and put him in the car.”

[18] John Scrivo deposed that he was to work to 3:00 p.m. and he “agreed to take Brendan to my aunt’s at that time.” John deposed that his shift ran longer than he expected and he did not get home until almost 7:00 p.m.

[19] The Office of the Children’s Lawyer did not appear at the motion on March 26, 2013. In accordance with my request, they were served with all of Ms. Scrivo’s responding materials and they filed written submissions.

[20] Their submissions, and the affidavit evidence of Mr. Reid, confirm that Brendan was told by his mother that he should go on the access visit and that he would have fun but he refused to go.

[21] The Office of the Children’s Lawyer submits that there has been no documented or anecdotal evidence that Brendan should not see his father. It is their position that Brendan should attend for access as set out in the present Order.

ANALYSIS

[22] By her own evidence, Ms. Scrivo did not honour the court order of November 27, 2012. She did not bring Brendan to his aunt’s house after work or at any time. She did not arrange to drive him but instead arranged for his brothers to take him. She did not take a cab and bring Brendan to his aunt’s even when it was confirmed in writing by Mr. Scrivo and by his counsel, that Mr. Scrivo would pay for it.

[23] Ms. Scrivo’s response is only that that although she asked him to go he said he did not want to go.

[24] It is not uncommon for children to express their wish that they do not want to go on access. It is the court order however that directs the custodial parent to ensure that the access occurs and to require the child to attend despite their expressed wishes.

[25] Justice Greer noted this point in Sickinger v. Sickinger 2009 28203, [2009] O.J.No. 2306 at para. 30 saying, “The parent does not have to force a child to go with the other parent but should “require” the child to do. A failure to require the child to do that is considered contempt.” See: V.(S.) v I. (T.), 2009 9396 (ON SC), 2009 Carswell Ont 1023 (S.C.J.).

[26] As counsel for Mr. Scrivo points out, Ms. Scrivo did not provide evidence that she required Brendan to attend. There is no evidence that she was giving any sanctions to Brendan for his failure to attend.

[27] The order of November 27, 2012 was simple and straightforward. Mr. Scrivo and his counsel gave some flexibility on the time as it was not specified. Nonetheless, Ms. Scrivo did not honour the order.

[28] I find that Ms. Scrivo did not drive the child, Brendan Scrivo to 870 White Clover Way, Mississauga, Ontario at any time on December 24, 2012 contrary to my order of November 27, 2012.

[29] I find Ms. Scrivo in contempt of court in accordance with Rule 31 of the Family Law Rules.

[30] The court has a wide range of penalties with a view to remedying the failure to honour the access order. The best interests of the child remains the court’s guide. Pursuant to Rule 31(5):

If the court finds a person in contempt of court, it may order that the person:

(a) be imprisoned for any period and on conditions that are just:

(b) pay a fine in an amount that is appropriate;

(c) pay an amount to a party as penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount to be decided by the court; and

(g) obey any other court order.

Having found an individual in contempt of court, the court should give the individual an opportunity to purge that contempt.

[31] The parties will return to the court on a date to be arranged for the parties to make submissions on how Ms. Scrivo may be given the opportunity to purge her contempt.

M. J. Donohue, J.

Date: April 24, 2013

COURT FILE NO.: 30336/08

DATE: 2013/04/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Salvatore Scrivo

Applicant

– and –

Jacqueline Cynthia Scrivo

Respondent

ENDORSEMENT

M.J. Donohue, J.

Released: April 24, 2013