ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 3850/05
DATE: 2013-01-16
BETWEEN:
Alison Lesley Shields
Applicant
– and –
Shawn O’Brien
Respondent
George A. Kirkham, for the Applicant
Self-Represented
HEARD: January 11, 2013
THE HONOURABLE JUSTICE J.R. HENDERSON
ENDORSEMENT
[1] This is a motion brought by the Respondent (“O’Brien”) for an order that the Applicant (“Shields”) be found in contempt because Shields denied O’Brien access to his children on the weekend of June 8 to June 10, 2012 (“the June 8th weekend”), contrary to a court order.
BACKGROUND
[2] By way of background, I find that the parties were married on September 4, 1999, and separated on October 9, 2005. They have two children, Claire and Emma, currently 10 and 8 years of age, respectively.
[3] The order of Justice Carpenter-Gunn dated September 23, 2008 (“the 2008 Order”), provided that Shields would have custody of the children and that O’Brien would have access on alternate weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m.
[4] The parties agree that the June 8th weekend was O’Brien’s weekend for access to the children. They also agree that there was a problem regarding access on that weekend.
[5] I find that Shields had arranged for Emma (who was then 7 years of age) to participate in dance lessons, and as part of the dance programme Emma was scheduled to attend a dance recital on the June 8th weekend. She was required to be at the dance recital for approximately 11 hours on Saturday, June 9th, and for another 4 hours on Sunday, June 10th. Further, it was planned that Claire (who was 9 years of age at the time) would also be attending at the dance recital to support her sister.
[6] Approximately two to four weeks prior to June 8th, I find that Shields informed O’Brien that Claire and Emma planned to attend the dance recital for most of the June 8th weekend. Shields also provided O’Brien with the details of the dance recital and sought O’Brien’s confirmation that he would take the children to the dance recital if he exercised his scheduled access on that weekend.
[7] In response, Shields received information through the children that O’Brien wanted to switch access weekends so that he would have access to the children on the June 1st weekend instead of the June 8th weekend. Shields was in general agreement with the switched weekend proposal. But, when Shields sought direct confirmation of the change in the access weekends, O’Brien would not confirm that he would agree to the switch.
[8] I find that in the week leading up to the June 8th weekend O’Brien insisted that he have access on the June 8th weekend as scheduled, but at the same time O’Brien refused to assure Shields that he would take the children to the dance recital. Shields responded by offering to take the children to the dance recital herself, and to substitute another access weekend to make up for the June 8th weekend, either before or following the June 8th weekend.
[9] The parties never agreed on a switch of access weekends, and O’Brien never assured Shields that he would take the children to the dance recital if he exercised his scheduled access. So, Shields kept the children with her for the June 8th weekend, and Shields took the children to the dance recital.
[10] O’Brien submits that the conduct of Shields constitutes contempt of court.
THE LAW
[11] The criteria that the court must apply in a contempt motion consists of a three part test that is set out in the case of Prescott-Russell Services for Children and Adults v. G.(N.), 2006 81792 (ON CA), 82 O.R. (3d) 686 (OCA), at para. 27. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt.
[12] I would add that in order to successfully prove contempt the moving party must prove that the accused person acted in a way that was prohibited by the terms of the order, or failed to act in a way that was required by the order. Therefore, in my view, there are four elements to a civil contempt, as follows:
The order that was breached must state clearly and unequivocally what should and should not be done.
The moving party must prove that the accused person acted in a way that was prohibited by the terms of the order, or failed to act in a way that was required by the order.
The party who disobeys the order must do so deliberately and wilfully.
The evidence must show contempt beyond a reasonable doubt.
[13] Furthermore, it is well established that contempt of court proceedings are quasi–criminal in nature and require proof of all of the elements of the alleged contempt beyond a reasonable doubt. See the Prescott-Russell case at para. 26 and the case of Fisher v. Fisher, 2003 2119 (ON SC), [2003] O.J. No. 976 at para. 12.
[14] As to the third element listed above, the intention element, the moving party does not need to prove that the accused person intended to flout or disrespect the court order. In several cases, including Re Sheppard and Sheppard (1976) 1976 710 (ON CA), 12 OR (2d) 4 (OCA) and Coletta v. Coletta 2003 2412 (ON SC), 34 RFL (5th) 9, the courts have held that the moving party must only prove that the accused person had the intention to commit the act that is prohibited by the order. That is, it is not necessary to prove that the accused person intended to put himself or herself in contempt.
[15] As to the fourth element listed above, the proof of contemptuous conduct, it is well-accepted that contempt proceedings should only be employed in circumstances in which a drastic measure is required. Courts are required to exercise restraint in applying any serious remedy such as a finding of contempt, and accordingly contempt proceedings should only be used in the most serious of cases. See the Prescott-Russell case at para. 53.
[16] Along those lines, in the Fisher decision at para. 11, Justice Chadwick wrote:
Contempt of Court is the big stick of civil litigation. It should be used sparingly and only in the most clear cut of cases. There are other procedures available to enforce orders; other than a contempt motion. To use contempt motions to enforce minor but annoying breaches of a Code of Conduct, takes away and waters-down the effectiveness of the contempt procedure. Contempt should be reserved for those serious breaches, which justify serious consequences.
ANALYSIS
[17] On a cursory analysis, it could be said that the first three elements of contempt have been proved as the parties agree that the 2008 Order provided that O’Brien would have access on the June 8th weekend; that Shields did not permit O’Brien to have access on the June 8th weekend; and that Shields made an intentional decision to deny access to O’Brien on the June 8th weekend.
[18] However, upon closer examination, it is apparent that there may not be a clear and unequivocal breach of the 2008 Order.
[19] In that respect, I note that the parties have had difficulties in the past. In September 2010, Justice Maddalena heard motions by both parties to vary the 2008 Order as a result of incidents surrounding access visits. In dismissing O’Brien’s motion to vary, and in allowing Shield’s motion to vary, Justice Maddalena wrote about O’Brien’s conduct at page 18 of her Reasons, “Again, this leads this court to the conclusion that there is really no change in behaviour. It continues to be confrontational, and it continues to be abusive, harassing, and controlling.”
[20] Paragraph 4 of the order of Justice Maddalena, dated November 19, 2010 (“the 2010 Order”) reads, “For third party clarification of the Order of September 23, 2008, the Applicant, Alison Lesley O’Brien, shall have the sole and exclusive right to make decisions relating to the health, religion, education, welfare, school functions, and all and any activities of the two children, Claire O’Brien born June 11, 2002 and Emma O’Brien born December 21, 2004.”
[21] Although the 2010 Order was an attempt by the Court, and by Shields, to clarify the parenting arrangements, the net result was a situation in which the rights set out in the 2008 Order and the 2010 Order could be in conflict. That is, the 2010 Order gave Shields the exclusive authority to arrange all the children’s activities, and the 2008 Order gave O’Brien the right to have access at specific times. Therefore, it was foreseeable that Shields could make decisions regarding the children’s activities that would interfere with O’Brien’s access rights. In fact, that was what occurred on the June 8th weekend.
[22] In simple terms, by exercising her authority under the 2010 Order, Shields disobeyed the 2008 Order.
[23] There is no mechanism in the court orders that sets out the manner in which any conflict between the two orders should be resolved. Thus, there is a good argument that the court orders are not clear and unequivocal with respect to the manner in which Shields should have conducted herself in these circumstances. Thus, the contempt motion could fail on that ground alone.
[24] However, I need not decide this contempt motion on that ground. For the purposes of this decision I find that the orders are clear and unequivocal because there is an implied term in the orders as to how Shields should conduct herself where there is a conflict between the 2008 Order and the 2010 Order. In my view, because Shields was granted the exclusive authority to arrange the children’s activities, it must be implied that Shields must exercise that authority in a reasonable manner. Where there is a conflict between the children’s activities and O’Brien’s access rights, Shields must attempt to resolve the conflict in a reasonable manner.
[25] That being the case, in order to prove contempt, O’Brien must prove beyond a reasonable doubt that Shields acted unreasonably in these circumstances. On the evidence before me, I find that Shields did not act in an unreasonable manner. I find that Shields recognized that both the dance recital and the children’s access visits with their father were important activities, and that both events were in the best interests of the children. Given the conflict between these two activities, Shields offered two alternative solutions to O’Brien. In my view this was a reasonable approach by Shields.
[26] Moreover, I find that O’Brien acted unreasonably in these circumstances. A reasonable father in O’Brien’s situation would have either confirmed that he would take the children to the dance recital, or agreed to switch his access weekends. He did neither. Instead, O’Brien insisted on exercising his scheduled access on the June 8th weekend, and he left Shields and the children in turmoil as to whether he would take the children to the dance recital.
[27] For these reasons, I find that O’Brien has not proved beyond a reasonable doubt that Shields has deliberately and wilfully disobeyed the terms of the 2008 Order. Therefore O’Brien’s motion for contempt is dismissed.
Henderson, J.
Date: January 16, 2013
COURT FILE NO.: 3850/05
DATE: 2013-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Allison Lesley Shields
Applicant
– and –
Shawn O’Brien
Respondent
e n d o r s e m e n t
Henderson, J.
Released: January 16, 2013