OSHAWA

COURT FILE NO.: 536/05

DATE: 20131029

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Stephanie Ann Neuss, Applicant

and

Christian William Vernon Young, Respondent

BEFORE: The Honourable Madam Justice C.A. Gilmore

COUNSEL: Marie G. Michaels, for the Applicant

Manfred Schlender, for the Respondent

HEARD: October 25, 2013

ENDORSEMENT

Overview

[1] This is the respondent father’s motion for contempt with respect to the applicant’s failure to allow access to proceed between the respondent and the parties’ child, E., born […], 2005, contrary to the order of Timms J., dated May 27, 2008.

[2] The respondent seeks a finding of contempt, a series of make-up visits, an order for police enforcement of access and costs. The applicant mother has brought her own motion for contempt, originally scheduled for November 4, 2013. The parties have agreed that that motion should be adjourned to a date in December 2013, as the results of this motion may have an effect on how the parties proceed with the applicant’s motion.

[3] The respondent has missed four weekends of access with his daughter. The respondent submits that the make-up access should not be consecutive but should take place, if ordered, as additional weekend access on a monthly basis until the make-up visits have been completed.

Background

[4] The parties are the parents of E., born […], 2005. E. is now eight years of age. On May 27, 2008, the parties entered into a consent order which specified that access would be alternate weekends from Friday at 7:30 p.m. to Sunday at 6:30 p.m., which would be extended to the Monday at 6:30 p.m. in the event of a long weekend. The respondent was also to have Father’s Day, two weeks of summer access, Christmas, March Break and telephone access. There were various other access related provisions in the 2008 order; however, the one that is in issue with respect to the contempt motion is paragraph 23 of that order, which sets out as follows:

Access may include the respondent’s mother and father, but not their partner, Heidi, together, and no access is to take place at the respondent’s parents’ home, cottage or elsewhere if Heidi is present with either of the respondent’s parents. The relationship between Heidi and the respondent’s parents shall not be discussed with the child by anyone.

[5] There parties differ in their description of the relationship between “Heidi” and the respondent’s parents. The respondent father maintains that his parents, who have been married for forty years, share a home and expenses with Heidi, who happens to be homosexual. Heidi and his parents are financial partners and friends in life who work as a unit to afford a home. They have been friends for thirty-three years and Heidi is part of the family.

[6] The applicant has quite a different view. While she concedes that the respondent’s parents are happily married, she describes Heidi as someone with to whom the respondent’s parents are deeply and personally and committed in a polygamous relationship. While it is not disputed Heidi is a lesbian, the applicant infers that Heidi has a sexual relationship with the respondent’s mother.

[7] The applicant is concerned about the effect of this relationship on E., given that she has been diagnosed with various disabilities. She also has moral and religious apprehensions with respect to Heidi’s position in the respondent father’s family.

[8] While Heidi had not come in contact with E. since the 2008 consent order, there were two incidents on August 18, 2013 which resulted in them having contact. The first instance was at a barbecue at the respondent’s uncle’s home. Without advance notice to the respondent, Heidi and the respondent’s parents came to the barbecue, along with his brother and family. The respondent and E. did not leave the barbecue when Heidi arrived. As Heidi was aware of the situation, she avoided E. all evening and they did not have contact.

[9] The next instance occurred at the hospital on the same day. The respondent’s grandmother, who has since passed away, was in hospital and not expected to live. The respondent took E. to visit her great grandmother before she died. When they arrived at the hospital the room was empty. After a period of time, Heidi, the respondent’s aunt, uncle and their daughter came to the room with his grandmother. At some point, visitors were asked to leave the room so that the respondent’s grandmother could be treated. When they returned to the room, they found Heidi there. After a very short further visit, the respondent and E. left the hospital.

[10] The respondent describes the hospital visit as “uneventful”. He deposed that E. did not have any adverse reactions to being at the hospital or visiting with his grandmother. He advised that she did not suffer emotionally from either of these chance encounters with Heidi, who took precautions to ensure that she did not have contact with E. After E. returned to the applicant’s care, she disclosed going to visit her great grandmother and the applicant learned that Heidi was there and that she had been at the barbecue. The respondent has not seen his daughter since then. The applicant has taken unilateral steps to suspend access until the matter could be addressed through the court process, although interestingly, the applicant did not commence a court proceeding to suspend access.

[11] The applicant was scheduled to take vacation with E. the last two weeks in August 2013 so his second weekend visit in August did not take place.

[12] The respondent arrived at the applicant’s home on September 14, 2013 for his regular access visit in the hopes that there would be no difficulties. There was an argument between the applicant and respondent because the applicant refused to release E. for access. There are different accounts as to what happened at this point. The respondent does not deny that he was frustrated and kicked over a chair on the applicant’s front porch. The respondent then left the applicant’s home and later received a call from the police, as the applicant had called them about the heated exchange between the applicant and respondent at her home. The police took no action other than to suggest that access exchanges take place at the curb as opposed to the front door of the applicant’s home.

[13] The respondent then attended for his next scheduled access weekend later in September. He called ahead and left a message as is his usual habit. The applicant returned his call and advised that E. would not be available for access. The respondent attended anyway and waited in the driveway for approximately fifteen minutes. All subsequent attempts by the respondent to reach E. and the applicant had gone unanswered, despite his leaving messages.

[14] An affidavit was filed by Corrie Young, who is the respondent’s mother. Her evidence was that the contact with Heidi on August 18, 2013 is the only time that her granddaughter has seen Heidi. She was at the barbecue that Heidi attended and observed E. to be fine. She described E.’s demeanor as normal and that E. did not appear to be stressed or distressed. She noted that E. and Heidi did not come into contact with each other in any way. She noticed, in fact, that if E. approached Heidi, Heidi purposefully walked in the other direction. The respondent’s mother was also at the hospital visit and saw Heidi leave the room when E. and the respondent entered the room. Again, she noted that E. was not in any distress and that her demeanor appeared normal.

[15] It should be noted that this motion was brought in the context of the respondent’s motion to change, wherein he seeks to delete the access restriction involving Heidi. The applicant is not agreeable to this. The applicant’s position is that she does not believe in polygamous relationships and nor does her church. She believes it is in E.’s best interests that she not be exposed to the relationship between Heidi and the respondent’s parents.

[16] The applicant was concerned that the respondent did not attempt to rectify the accidental encounter with Heidi at his uncle’s barbecue, and that he admitted that he and E. stayed at the barbecue where Heidi was present, for approximately two hours. The applicant admits that she showed E. a photo of Heidi and asked her to let her know if she had met her. E. knows where the applicant keeps the photo and is free to reexamine it without the applicant’s knowledge.

[17] The applicant also described the contact between the parties on September 13, 2013. In her affidavit, she deposed that the respondent was kicking chairs around the front veranda, causing them to crash and make a great deal of noise. He was yelling and screaming at the applicant; he balled his right hand into a fist and swung at her. She ducked and the respondent’s fist connected with the glass in the front door. After the respondent left the property, the applicant found E. on the front stairs, shaking and holding the phone. According to the applicant, E. said she was afraid that her “daddy” was going to hurt the applicant, so she wanted to know if she could call ‘911’ and did not know if she would get into trouble by doing so.

[18] The applicant also deposed that in the following week, she was approached by the daycare provider who advised the applicant that E. had been moody and crying at daycare and at school. Her teacher overheard E. telling her classmates that she was afraid of her father and that her father was going to punch her mommy in the face. As a result of this, the applicant sought out counseling, with Family Services Durham. Further, the respondent has left phone messages for E. to call him but she refuses to return his calls.

[19] The applicant complains that the respondent does not seem to understand the seriousness of E.’s social anxieties and disorders, nor is he willing to be part of the solution. The applicant advises that E. has managed to create a core group of friends who attend her church, school and Sparks group. The applicant is concerned that the parents of those children may not allow them to socialize with E. if they find out about the relationship between Heidi and the respondent’s parents.

Analysis

[20] The quasi-criminal threshold required for contempt is a high one. There must be a clear breach of an order and there must be intent on the part of the contemnor.

[21] In this case, there is no doubt that the applicant is in contempt of the 2008 access order. I do not find that her reasons for doing so are sufficient to purge her contempt and I therefore find her in contempt. In doing so, I rely on the following reasons:

(a) The applicant does not deny that she has withheld access visits and agrees that there have been four missed visits.

(b) The consent order from 2008 cannot, in my view, be interpreted to mean that chance visits with Heidi would be a breach of that order. The order specifies that access to the respondent’s parents may take place, but that such access visits may not include Heidi. The provision in the 2008 order does not say that Heidi is to never have contact with E. under any circumstances, keep a certain distance away from her or that the respondent is to immediately remove E. in the event of a chance meeting (such as may be the case with a restraining order). Therefore, it is not clear to me that chance meetings between Heidi and E. are breaches of the 2008 order by the respondent such that the applicant would be justified in suspending access.

(c) There is no evidence that the chance meetings with Heidi had any negative effect on E. There may have been a negative effect as a result of the confrontation between the parties on September 13, 2013. While the accounts of that confrontation vary, it appears that that is what distressed E., and not the chance meetings with Heidi.

[22] While the children’s lawyer has been asked to update their report of December 14, 2011, one cannot help be struck by the conclusions in the 2011 report as follows, “It is important that Ms. Neuss allow [E.] to have a normal relationship with her father’s family, regardless of his less usual family constellation. There is no evidence that there is anything that the child is likely to experience in Mr. Young’s original family stemming from its particular make-up that could be upsetting to her…Depriving [E.] of the many significant and lifelong meaningful and enriching relationships available to her in her father’s family, would not protect [E.] from having to learn those lessons.” And further, “The investigation found no evidence to support the continuation of access restrictions that are currently in place. There is no evidence that Mr. Young and his family could not be counted on to act in [E.’s] best interests in these areas without such restrictions in place.” While this report is somewhat dated, the evidence did not disclose that there were any encounters between Heidi and E. between the date of that report and the chance encounters in August 2013.

[23] On the day of the motion, Ms. Neuss’s counsel was permitted to file two additional documents, being a letter from Dr. Handley-Derry, dated October 24, 2013, and a handwritten extract by E. provided from her counselor, Terri vanExan. I place very little weight on these documents.

[24] Dealing first with the letter from Dr. Handley-Derry, it is unclear from that letter that Dr. Handley-Derry met with E. before composing the letter. The letter states that he first saw her in May 2012 and has another appointment to see her and her mother on November 7, 2013. Specifically, Dr. Handley-Derry says, “I would certainly counsel strongly against any attempt to force [E.] to visit her father when she is expressing reluctance to do this…I would advise that visits into her father’s home only be reinstituted when [E.] feels comfortable and confident enough to handle this without undue stress or anxiety.” It is unclear to me how such a strong statement can be made by Dr. Handley-Derry without interviewing the child. It appears that the information about E.’s emotional state has come directly from her mother. Keeping in mind that the social work report, dated December 14, 2011, specifically mentions that, “a key ingredient to [E.’s] being able to manage her emotions lies in Ms. Neuss controlling her own anxiety”, I have some concern that E.’s anxiety is not simply a reflection of Ms. Neuss’s own anxiety over various matters which may or may not be in keeping with E.’s best interests.

[25] Turning next to the handwritten excerpt from E.’s counselor, I am also concerned about the background of these comments. The counselor indicates that they emanated from a discussion she had about what would make E. feel safer and more comfortable when she next saw her dad. The response that she wanted her father to give her the phone if she wanted to call her mother, to have him apologize and to take “bayby” steps to see her dad, seem to be remarkably mature comments from a child that her mother complains has serious emotional difficulties. Again, I am uncertain as to the reliability of these comments in the context in which they were made and accordingly give no weight to them.

Order

[26] In all of the circumstances, I make the following orders:

(a) The applicant is found in contempt with respect to a deliberate refusal to provide access by the respondent to the child, E., born […], 2005, in accordance with the order of Timms J., dated May 27, 2008.

(b) The respondent shall have four weekend make-up weekend access visits to take place as follows:

(i) One in November 2013;

(ii) One in December 2013;

(iii) One in January 2014; and,

(iv) One in February 2014.

(c) No penalty (such as a fine) is imposed in relation to the contempt, given that the applicant indicated she would comply with any make-up visits ordered.

(d) However, costs are certainly in order, and the parties are to provide their written submissions on a seven day turnaround, commencing with the moving party, followed by responding submissions, then reply submissions, if any, commencing fourteen days from the date of release of this endorsement. Cost submissions shall be no more than two pages in length, exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my assistant at jennifer.beattie@ontario.ca.

Justice C.A. Gilmore

Released: October 29, 2013