COURT FILE AND PARTIES
COURT FILE NO.: FC-11-0927
DATE: 2013/11/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stephen Silver, Moving Party
AND
Simi Silver, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Timothy N. Sullivan, for the Moving Party
Respondent without Counsel
HEARD: November 14, 2013
ENDORSEMENT
[1] This is a motion for contempt of court brought by the applicant Stephen Silver regarding three specific incidents of missed access.
[2] The respondent Dr. Simi Silver did not have counsel. At the outset I explained to her the potential seriousness of a contempt motion and queried whether she wished an opportunity to retain a lawyer. She declined. Neither she nor the moving party sought to call oral evidence. I assisted Dr. Silver generally by explaining the process and directing her to the law.
Background Facts
[3] The parties have had longstanding conflict between them regarding access to four of five children. After a recent trial, McLean J. gave oral reasons on June 3, 2013 along with a brief written endorsement. He ordered that custody/access would be as recommended by Dr. Arthur Leonoff in paragraphs a) to 23 of his March 28, 2013 assessment. At the time this motion was heard the parties had yet to settle the form of that judgment. An appointment before McLean J. was pending.
Law
[4] The moving party relies on Rule 31 of the Family Court Rules, O.Reg. 114/99 as amended.
[5] As a general statement, the Ontario Court of Appeal has recently noted at para. 3 in Hefkey v. Hefkey (2013), 2013 ONCA 44, 30 R.F.L. (7th) 65:
The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed.”
[6] Mr. Silver points out that as there is no application before the court, the options of a conference or an enforcement motion within a proceeding are not available to him. He takes the position that the only way he will secure his access is by this motion. The relief he is requesting is as minimal as an order that Dr. Silver “comply in spirit with the letter of the order for custody and access,” although he leaves the door open for more severe dispositions.
[7] The criteria relevant to a finding of contempt are summarized in paragraph 27 of Prescott-Russell Services for Children and Adults v. G.(N.) (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.) as follows:
A three-pronged test is required. 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. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
[8] As noted the judgment here has yet to be settled. The procedure to settle an order is found in rule 25 of the Family Court Rules, O.Reg. 114/99, as amended, and it provides for short timelines and speedy resolutions. For whatever reason the parties here did not move quickly. More than five months have passed since the judgment was delivered. Pursuant to rule 25(18), an order is effective from the date on which it is made. Therefore, the fact that the order here has yet to be settled does not, without more, provide Dr. Silver with a defense to the contempt motion. However, I note that for a finding of contempt to be made the order’s existence must be within the knowledge of the respondent at the time of the alleged breach: A.G.L. v. K.B.D. (2009), 2009 14788 (ON SC), 65 R.F.L. (6th) 182 (Ont. S.C.J.); Sickinger v. Sickinger (2009), 2009 28203 (ON SC), 69 R.F.L. (6th) 299 (Ont. S.C.J.), affirmed 2009 ONCA 856, 75 R.F.L. (6th) 1 (Ont. C.A.).
First Incident - Facts
[9] Mr. Silver had three of the children for access on Canada Day, Monday July 1, 2013. He owns a 26-foot boat, and they spent the night on the boat moored at a marina.
[10] In an email exchange that evening starting at 4:39 p.m. the parties had a disagreement about who had the children the following week. They each maintained that the other did.
[11] Mr. Silver told Dr. Silver that she had the children, relying on an interim order and taking the position that McLean J.’s trial endorsement “has not translated into a court order.”
[12] Dr. Silver agreed with Mr. Silver’s view that McLean J.’s endorsement was not in effect, but disagreed with what that meant. She asserted that Mr. Silver had the children the following week “per our agreement … [i]t has nothing to do with the court order.”
[13] After another exchange, Mr. Silver wrote “[t]he children will be dropped off at your house tomorrow morning” relying on the interim order. He added that if Dr. Silver couldn’t be there she had to ensure she had a proper babysitter. He stated that Jasmine, who was 13, should not look after the two younger children, Temima age 11 and Ahron age 7, for eight hours, as it would be inappropriate and a safety hazard. Dr. Silver responded “…as per our agreement which is recorded in an email, you have the kids this week. If you are unable to care for them I will make arrangements at your expense.”
[14] The next morning Mr. Silver got up at 6:30 a.m. He woke up Jasmine and told her he was going to work, a ten minute drive away. He said that he would be back at lunch to take her and her siblings to their mother’s. The younger children stayed sleeping, and Jasmine went back to sleep.
[15] At 7:15 a.m. that day, July 2, 2013, Mr. Silver continued the email exchange by responding to Dr. Silver’s last one of the previous night. He said that they had no agreement regarding summer access, and that the interim order “is the only schedule that stands until the recent endorsement becomes an order.”
[16] Jasmine called Mr. Silver at 9:30 a.m. indicating that the other two children were just waking up. Mr. Silver emailed Dr. Silver at 9:52 a.m. advising that the children had slept in and that he would drop them off at her house at noon “per the … schedule” from the interim order.
[17] Mr. Silver says that he then called Jasmine back at 10:30 a.m. Jasmine told him she had arranged for the three siblings to eat breakfast and they watched a movie. He said that he called again at 11 a.m. and there was no answer. When he called at 11:15 a.m., Temima told him that the police had come and taken them to their mother.
[18] Jasmine had called Dr. Silver who, upon learning in the course of that conversation that the children were alone on the boat, called the police. She said she did it because she was concerned for their safety. Notwithstanding his own email to Dr. Silver the previous day stating his concern about her leaving the children alone in her home, Mr. Silver asserted that Dr. Silver had no reason to be concerned with his decision to leave the children alone on the boat in a marina for the morning.
[19] As to the contempt, Mr. Silver’s affidavit regarding this incident states:
On July 3, 2013, I received an e-mail from the Respondent stating: “I have the kids. You will need to take me to court to see them again.” Therefore, once again the Respondent withheld access to my children. Attached as Exhibit “J” is a copy of the Respondent’s e-mail.
The Respondent’s interference with my custodial and access rights are in direct contradiction to paragraphs 4.a,b,i of Dr. Leonoff’s Second Report as endorsed by Justice McLean’s Exhibit “C” order.
[20] Dr. Silver did not deny sending the email identified as Exhibit “J” above. She said she did it because she was angry, but that it did not amount to anything as she did not follow through and the schedule continued on as agreed.
[21] I note that the references in Mr. Silver’s affidavit to the paragraphs “4.a,b,i” of Dr. Leonoff’s report do not line up directly with the report itself. Dr. Leonoff’s paragraph 4 is irrelevant to this issue, and there is no paragraph i. Paragraphs a and b deal with how to handle scheduling changes. Paragraphs 1) and 2), which are the ones Mr. Silver is relying on in his Notice of Motion, provide for a rotating two week access schedule.
Analysis – First Incident
[22] It is clear that both parties understood that the judgment was not in effect. After trial Mr. Silver believed that they were still governed by an interim order regarding access, and Dr. Silver believed that they were still governed by a past agreement.
[23] Mr. Silver now purports to rely on the judgment as the basis for contempt. I cannot find beyond a reasonable doubt that Dr. Silver deliberately and willfully disobeyed the judgment, as its existence, in the sense of it being operational, was not within her knowledge at the relevant time. Her mistaken view, reasonably held given that it was shared by Mr. Silver, was that whatever arrangements were in place prior to trial would continue until the judgment was settled. While technically wrong, it is a defense to the motion on the facts in this case.
[24] Mr. Silver argued that if I do not find Dr. Silver in contempt of the judgment, then I should find her in contempt of the interim order which he says is the same or similar. A contempt motion requires the moving party to identify the specific order that was allegedly breached. It is not open to Mr. Silver to ask in the Notice of Motion that I find Dr. Silver in contempt of the June 3, 2013 judgment, but then in argument seek a finding that she is in contempt of a previous interim order.
[25] I would add that had Dr. Silver known that the judgment operated, I am still not convinced beyond a reasonable doubt that a breach occurred on these facts. Although the Notice of Motion itself refers to access being withheld until July 25, there was no evidence in the affidavits about withholding to that date. As to the July 2 incident, certainly Mr. Silver’s position at the time was that the children were to go to their mother’s in the morning, which he unilaterally changed to noon. While Dr. Silver’s calling the police was a high-handed response to the situation, there is no dispute that the children were delivered to her between those two times.
[26] Given the above, I am not satisfied that Mr. Silver has made out his motion for contempt regarding the first incident.
Second Incident – Facts and Analysis
[27] Mr. Silver indicates generally that Dr. Silver interfered with his access rights for three weeks after the trial decision. However, specifically for the contempt motion, he relied on an email from Dr. Silver’s then lawyer dated July 5, 2013. It established that they had an agreement that “the children will return to Mr. Silver on July 25.” However, on July 24, 2013, Mr. Silver received a call from Jasmine who told him she was on her way to Toronto and that Dr. Silver had arranged and paid for the trip. Mr. Silver says that he had no knowledge of this and was not consulted.
[28] Dr. Silver’s general response is that Mr. Silver is wrong to ask her to enforce a schedule on Temima age 11 and Jasmine age 13. She claims, although without context, that the court at some point in the course of the trial commented that children of that age will ‘vote with their feet’ regarding access arrangements. She suggested that this means that the older children, in particular Jasmine here, have a right to decide if they want to be with their father. She says that access should therefore be modified to accommodate their wishes and needs.
[29] I do not accept this. Whatever comment might have been made in the course of the trial, there can be no mistake that the trial concluded with the court making an order with respect to access. Confusion about the order and when it starts will be resolved when it is settled. After that it will not be open to Dr. Silver to purport to be the communicator of the children’s wishes such that she decides the access unilaterally. Access will be as set out in the judgment.
[30] Following her general response, Dr. Silver’s specific response to this incident is at paragraph 39 of her November 9, 2013 affidavit:
Jasmine had spoken with her father that she was planning to go to her grandparents for the weekend since she would not have another opportunity to do so during the summer. Each of the children usually spend up to a week in the summer with their grandparents. In addition, she was already barred from his home unless she attended him per the access schedule permitted by Justice MacLean [sic].
[31] Although there was evidence that Mr. Silver did state to Jasmine that she was barred from his home, it was after this incident, and possibly as a result of it. There was no evidence that the child was barred from his home on July 25, 2013. The evidence from Dr. Silver about what Jasmine allegedly said to her father is hearsay from the child, and carries no weight in the face of Mr. Silver’s direct evidence to the contrary. There is no dispute that access with Jasmine did not occur.
[32] I find that Dr. Silver agreed to the access to Mr. Silver, and then breached her own agreement by assisting the child to be unavailable. However, for the reasons already stated, I am unable to find that Dr. Silver is in contempt of the judgment. While I have no doubt that she understood that she was subverting Mr. Silver’s time with the child, I cannot find beyond a reasonable doubt that in doing so she was deliberately disobeying an order that knew was in existence.
Third Incident – Facts and Analysis
[33] On August 15, 2013, Mr. Silver arrived at Dr. Silver’s to pick up the children for access. Ahron was not there but at a park. Mr. Silver drove to the park. Dr. Silver arrived at the park and would not let Mr. Silver take the child. An altercation between the parents occurred in front of Ahron. A stranger in the park concerned about the child became involved. Mr. Silver called the police. Dr. Silver went back to her home with Ahron. Eventually Dr. Silver allowed Ahron to go with Mr. Silver, well after the intended access start time. The girls, Jasmine, Temima, and now also Jasmine’s twin sister Shira age 13, did not go. Mr. Silver indicates in his August 19, 2013 affidavit that he has not seen Shira or Temima the entire summer except for visitor’s day camp on July 28, 2013.
[34] Dr. Silver said in her submissions that the incident with Ahron occurred because the child had his bike with him at the park but Mr. Silver was going to take the child in the car. She indicated that she thought the bike was going be left behind and she needed the child to ride it back. Mr. Silver said he was not going to leave the bike at the park and was planning on taking it in the trunk of his car. Regarding the girls not going for access, Dr. Silver simply said in her affidavit that Mr. Silver had accepted Jasmine’s choice of access schedule since December 2012. Her general view was that with the judgment not settled the access was continuing as it had before the trial, which in her view meant that the older children decided.
[35] While I find that Dr. Silver was most inappropriate in her behavior during this incident with Ahron, I again make no finding of contempt for the reasons stated above. Even though she purposely interfered with Mr. Silver’s access, it cannot be said that she was willfully disobeying the judgment when she was unaware that it was operating.
Decision
[36] This motion is dismissed.
Costs
[37] Despite the presumption that costs follow the result, I rely on sub-rules 24 (4), (5)(a), and (11)(b) of the Family Court Rules. I find as set out above that Dr. Silver behaved unreasonably in relation to the issue of Mr. Silver’s access and that the usual presumption is rebutted. I order Dr. Silver to pay Mr. Silver’s costs in the amount of $3,500, which I find to be a fair and reasonable amount in the circumstances.
Mr. Justice Timothy Minnema
Date: November 21, 2013
COURT FILE NO.: FC-11-0927
DATE: 2013/11/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Stephen Silver, Moving Party
AND
Simi Silver, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Timothy N. Sullivan, for the Moving Party
Respondent without Counsel
ENDORSEMENT
Mr. Justice Timothy Minnema
Released: November 21, 2013