Superior Court of Justice - Ontario
CITATION: Skalitzky v. Skalitzky, 2013 ONSC 7433
COURT FILE NO.: FC-09-00000047
DATE: 20131202
RE: BRIAN PETER SKALITZKY, Applicant
AND:
SHARON CLARICE SKALITZKY aka SHARON CLARICE CHOQUETTE, Respondent
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL: M. Kowalsky, for the Applicant
Respondent, Self-Represented
HEARD: November 29, 2013
ENDORSEMENT
[1] Before me are two motions for contempt brought by the applicant (Volume 3, Tabs 29 and 38) and motion by the respondent (Volume 3, Tab 33).
[2] The applicant seeks findings that the respondent has specifically breached paragraphs 2, 8 and 13 to 15 inclusive of the final order of Eberhard, J. dated June 14, 2012, setting out the specifics of the alleged breaches in each of his motions.
[3] The respondent seeks an order, inter alia, appointing Joanna Shaw to represent the parties’ daughter, Alyshia, in accordance with the order of Eberhard, J., and that the parties be required to take the steps necessary to retain her. She also seeks relief with respect to an equalization payment, but the court was advised that that aspect of her motion had been resolved.
[4] This is not the first time that a contempt order has been sought against the respondent. For reasons set out in her Endorsements dated December 22, 2010 and April 26, 2011, Olah, J. has previously found the respondent in contempt of two court orders. On April 26, 2011, Olah, J. imposed the following sentence:
The respondent mother shall receive a suspended sentence and shall be placed on probation for a period of 24 months or until the matter is resolved by Minutes of Settlement or until receipt of a judgment after the conclusion of the trial in this matter, whichever is earlier, on the following conditions:
She shall obey all order of this Court currently in existence, as well as any order of this Court made during the period of probation;
If she is found to breach an order, as determined by Justice Olah or Justice Wood, she will pay a fine of $6,000 forthwith.
[5] The respondent was also ordered to pay the applicant’s full indemnity costs in the sum of $25,735.11 because of what Olah, J. characterized as the respondent’s repeated contemptuous behaviour in the face of court orders.
[6] After reviewing all of the affidavit evidence filed, and considering the submissions of both parties, I find that once again the respondent has deliberately and willfully disobeyed a court order.
[7] The facts are that the respondent was to have returned Alyshia to the applicant on Sunday evening at the conclusion of her access weekend on December 9, 2012, as mandated by paragraph 2 of the order of Eberhard, J.. She initially claimed that she was unable to due to dangerous driving conditions, even though the applicant had driven to the designated exchange location at highways 400 and 89 without incident. She then explained that she did not return Alyshia because Alyshia did not want to go to California, a trip that the respondent claims had been sprung on her without consultation. Alyshia’s flight was scheduled for the next day, and the applicant needed to take her home in time to make final preparations. Although the applicant drove all the way to the respondent’s apartment in Oakville on the evening of December 9, the respondent refused to answer her door, having already told him by telephone that Alyshia was not going to go to California.
[8] The applicant attended the respondent’s apartment again the next day in an attempt to retrieve Alyshia before she missed her flight. The police accompanied him and spoke with Alyshia at that time. According to the respondent’s evidence, Alyshia informed them that she did not want to go to California, and the police stated that, due to her age, they could not force her to go. In answer to an inquiry made by the court, the respondent stated that she did not show the police a copy of the order of Eberhard, J., which contains the parties’ acknowledgement that Alyshia is developmentally delayed.
[9] Left with no choice, the applicant obtained an ex-parte order for the return of Alyshia from Wood, J. on December 11, 2012, allowing for police assistance. He changed Alyshia’s flight to later that week, and finally obtained compliance from the respondent, but not before travelling to Oakville for a third time in three days.
[10] The course of action undertaken by the respondent on December 10, 2012 onward adds to her problems. She first contacted Ms. Shaw and attempted to engage her services, Ms. Shaw having represented Alyshia previously. Ms. Shaw declined to become involved as her retainer had previously ended. The final order of Eberhard, J. at paragraph 13 sets out the parties’ agreement with respect to the process whereby Ms. Shaw could be retained (jointly) to assist in representing Alyshia’s views and preferences. That process was not followed.
[11] The following day the respondent attended an appointment to seek advice for herself from a lawyer, David Ramsbottom, and took Alyshia with her into his office. It is clear from an email delivered from Mr. Ramsbottom and marked as Exhibit F to the affidavit of the respondent sworn February 20, 2013, that some discussions were carried on with Alyshia in his office. In her discussions with her father later that day after she had been released to his care, it became evident that she had been provided with some information about her mother’s meeting with Mr. Ramsbottom. The final order of Eberhard, J. at paragraph 15 prohibits the respondent from having Alyshia interviewed by any professional or other person for any purpose except in the case of a medical emergency, and except with the clear prior approval of the applicant.
[12] The respondent has couched all of the explanations for her behaviour in her concern for Alyshia, and her belief that Alyshia “needs a voice”. The respondent described Alyshia during her submissions in the following manner: “she’s not a child, she’s a 22 year old woman”.
[13] The evidence supports the fact that Alyshia, while being 22, has the mental and emotional capacity of a 10 year old child. Mr. Kowalsky explained in his submission that the final order of Eberhard, J. was carefully crafted to protect Alyshia from manipulation by the respondent, as she is vulnerable to such emotional coercion. The wording of the order reflects the intention that the parties’ are to approach Alyshia’s care in a methodical manner, with consultation at all steps along the way. The point of the order is to ensure that Alyshia’s life does not erupt into chaos as a result of the dynamic between mother and child, versus mother and father.
[14] The respondent’s conduct encouraged exactly that outcome to occur. The evidence of the applicant, which I believe, shows that Alyshia was excited about this second trip to see her aunt in California and was busy baking treats to take to her aunt in the days leading up to her journey. The intervening weekend visit with her mother resulted in a 180 degree change of heart, police intervention, and a costly and harrowing experience for the applicant and Alyshia both.
[15] The respondent’s submissions suggest that she sees herself as the victim in the scenario, and that has an immature perspective on the issues that give rise to Alyshia’s dependency. The respondent fails to see how she worsens those issues.
[16] The law of contempt is set out in the endorsement of Olah, J. dated December 23, 2010 and there is no need to repeat it here.
[17] I find as a fact that the respondent has wilfully and deliberately breached paragraphs 2, 13 and 15 of the order of June 14, 2012, and rationalizes her breach in a manner that makes the breach all the worse, as her excuses show an unwillingness, perhaps even a lack of emotional capacity, to honour the spirit and intent of the order.
[18] The respondent seeks an order engaging Ms. Shaw. However, until such time as Alyshia expresses a consistent and independent desire to follow a course of study or training, her services are not required. The applicant’s affidavit of April 15, 2013 sets out the extensive steps taken by him on Alyshia’s behalf to have her skills and abilities assessed. She continues to undergo some of the various assessments referred to in that affidavit. Until the results are known, Alyshia’s wishes and desires remain only one factor to be considered. The respondent’s desire that Alyshia should be allowed to try to become a hairdresser, given the results of her failed attempts to achieve some independence to date, simply illustrates her own immature approach to Alyshia’s needs. Any engagement of Ms. Shaw with a view to changing Alyshia’s residency arrangements would, at this point and based on the evidence considered on this motion, not be in her best interest. The respondent’s motion is dismissed.
[19] Accordingly, this court orders and adjudges:
The respondent is in contempt of paragraphs 2, 13 and 15 of the final order of Eberhard, J. dated June 14, 2012.
The applicant’s counsel is directed to contact the trial co-ordinators office in Barrie to set a time for submissions to be made on the issue of sentencing as well as costs, after consulting the respondent on her availability.
The respondent’s motion is dismissed.
HEALEY, J.
Date: December 2, 2013