Court File and Parties

COURT FILE NO.: FC-14-130

DATE: 2014/09/16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.S., Applicant

AND

R.M., Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Stephen M. Pender, for the Applicant

Timothy Sullivan, for the Respondent

HEARD: September 12, 2014

ENDORSEMENT

[1] After a period of cohabitation of just short of two years, the parties separated. They had one child at the time, now age two, and their second child was born a month later and is now eight months old. The parties obtained their interim order on May 30, 2014, arrived at on consent. This motion concerns the difficulties since that order.

Issues

[2] The issues are found in the motion and cross-motion. From the mother:

1. Whether the father’s access should be supervised.

2. Whether the father should be found in contempt of court for breaches of certain interim orders.

From the father:

3. Whether the mother should be compelled to comply with the interim order, including providing make-up access, and whether a more specific police enforcement clause is required.

[3] The parties agreed on the issue of jurisdiction. Order to go that the children’s principal residence is in Ontario.

Background Facts - Access

[4] The parties began living together in December of 2001. L.M. was born on […], 2012. The parties separated in November of 2013. C.M. was born the next month on […], 2011.

[5] After the consent order of May 30, 2014, the father’s access was two hours on Tuesday and Wednesday evenings, and four hours on Sundays. The mother would drop the child off at the father’s at the start of access, and the father would drop the child off at the mother’s after the access. The mother would prepare a diaper bag to go along with the children, including sundries and food for the baby C.M., then age 6 months.

[6] At the access exchanges, the father continuously refused to speak or make any eye contact with the mother.

[7] The only communication with respect to the children’s care was by way of a Communications Book. Its purpose per the court order was “to record any information a parent will need for the care and well-being of a child under his or her care.” The mother made entries about the feeding, sleeping, and health of the children. The father’s entries advised of how the visits went, and usually noted what the children ate and their naps. Early on the entries for the father were made by someone who signed as “HML”, identified here as Heather McLaren. She is a personal support worker for the father’s mother. There was a dispute about the nature of her relationship with the father; however, nothing turns on it for the purpose of these motions.

[8] The written exchanges were appropriate and uneventful for the first three weeks. On June 22, 2014, the mother made a pre-visit entry about the items in the diaper bag for that visit including food provided for C.M., and an update on what the children had eaten that day. On returning the children the father’s entry was:

• Kids ate at Scores – chicken, fruit, veg.
• C.M. had full bottle & made food provided
• Both slept, both changed Great visit – RM

[9] The mother suggested in argument that this meant that the father fed C.M. chicken, fruit, and vegetables. However, the entry does not establish that. For the next visit of June 24, the mother in her pre-visit communication alerted the father that the baby C.M. cannot have sweet potatoes and “milk” within two hours of each other as she spit ups. Sweet potatoes and “water for C.M.” were packed. The father’s post-visit report noted that “C.M. had one bottle of formula … + baby food provided.” Nothing is said about milk. I only make reference to the above two exchanges because the mother referred to them as if they indicated problems. To me they seem innocuous. Appropriate exchanges in the Communications Book then occurred for the next two visits, June 26 and June 29, 2014. In summary, there were no real problems for the first month of access. However, the father was still refusing to communicate with or acknowledge the mother at the access exchanges.

[10] For the June 29 visit, the mother packed the diaper bag and a small cooler for the food as always, and made her entry into the Communications Book as well. Upon the return the father handed over the children and diaper bag. The mother did not see the cooler. She went up to the father who was in his car and tried to ask him about the cooler through the window as he was getting ready to drive away. She was holding C.M.. The father refused to speak with her, and told her to get away from the car. He pulled away from the side of the road and drove away. There are minor differences in the accounts of the parties about this exchange or lack of exchange. The mother indicated concern about the risks to her and the child. She claimed the car nearly ran over her foot. She indicated that the father shouted at her to get away in an angry tone and sped away. The father’s version was that he was looking the other way preparing to merge into traffic when the mother approached. He says that if there was any risk, the mother created it by coming to his car. He indicated that the cooler in question was in the diaper bag.

[11] The mother contacted the police. As children were involved, the police contacted the Ottawa Children’s Aid Society (“CAS”). The CAS wrote a letter to the mother recommending that the parents minimize contact with each other and do their access exchanges at a police station or in a public place. I note that the CAS letter is undated and it is not clear when the mother received it.

[12] The day after that visit the mother’s lawyer wrote to the father’s lawyer to advise of “a serious incident” at the Sunday drop off, reciting the mother’s account as set out above. He proposed that all future pick-ups and drop-offs for access take place at the police station in Orleans, Ontario. There was no agreement by the father with these arrangements. In an exchange of letters the father’s lawyer insisted that the access exchanges continue per the court order and warned that failure to do so may result in a contempt proceeding. The mother attended at the police station for the next three visits, the father did not, and therefore those visits were missed. The day of the fourth visit, July 8, the father’s lawyer wrote to the mother’s lawyer reiterating his client’s position that the mother did not have the authority to unilaterally change the existing order without appealing it. He reiterated the father’s intention to continue to ignore the mother in every way he can except to pick up and drop off the children. He said the father was prepared to attend at the police station to pick up the children that day for access on the understanding that it was being done both without prejudice and without his agreeing to a change in the interim court order.

[13] For that visit and the next one, the mother wrote in the Communications Book, but the father made no entries. It is my understanding that while the father picked the children up at the police station, he returned them to the mother’s home. For the next visit on July 13, this is clarified. In his entry, after noting the children’s feedings and naps, the father added “Picked up at Orleans Police Station contrary to court orders. Dropped off at 697 Princess Louise Drive as per court order.” He would add that same comment in all subsequent entries following his access visits.

[14] For the July 15 visit, a Tuesday, the mother wrote in the Communications Book that C.M. had sweet potato puree at 4:20 p.m. The father noted in the Book on return that he fed her formula and “peas, carrots, and rice mix – fruit sauce”. For the mother’s pre-visit note for July 17 she indicated “C.M. had gas at 11:30 p.m. on July 15. She cried and had to be soothed back to sleep, she can’t have too many different foods at once.” In the father’s post-visit report from the July 17 visit he indicated that he fed C.M. “formula, a little fruit sauce, and a bit of oatmeal cookie.”

[15] The mother’s lawyer then wrote a letter to the father’s lawyer. He indicated that an issue had arisen in that the father ignores the information by the mother regarding the feeding of the 7-month infant C.M.. In particular he noted the oatmeal cookie, although referring to it as “a large hard oatmeal cookie”.

[16] In her pre-visit note for the next access on July 20 the mother explained that “C.M. can’t have too many new foods at once. She was very sick the evenings of July 15 and 17 (more on the 17) with gases, stomach pain and cried and screamed a lot.” There was nothing preachy or aggressive about this communication.

[17] Over the next five visits the father did some slight variations of the feeding from what the mother suggested, but she did not take direct issue with them. However, for the two-hour Tuesday evening visit on July 31, 2014, the mother indicated in advance that she had fed C.M. her solids for the day. The father in his report in the Communications Book following the visit indicated that he fed C.M. “some noodles and vegetables”. The mother in her pre-access note for the next August 3 visit politely explained that “C.M. can only eat purees and food has to be introduced one at a time every 3–5 days. So far she has had …” the mother lists five different food purees and continues “… C.M. can’t be fed just about anything L.M. is eating, she just turned 7 months. Puree supplied …”

[18] The father’s next entry in the Communications Book following that August 3, 2014 visit reads “C.M. – 470 ml of baby formula – portion of sub sandwich.”

[19] The mother’s response was to take the children to the Emergency at the Children’s Hospital of Eastern Ontario (“CHEO”) the next day to get confirmation that her feeding decisions were right and that feeding a seven month old child part of a sub was wrong. The doctor’s clinical record indicates “Mom unsure what else to do.” The children were observed to be fine, but in the narrative the mother explained to the doctor that pick up and drop offs for access were at the police station because of an “Incident where father almost ran over mom’s foot with car while holding child”. The doctor called the CAS and wrote “Discussed with CAS worker on call - they will follow up.”

[20] As a result of that event, on August 5, 2014, the mother’s lawyer wrote to the father’s lawyer as follows:

Ms. Samson advises that an issue arose during the last access visit which raises serious concerns regarding the children’s safety while in the care of Mr. Murphy.

Ms. Samson brought the children to CHEO and the doctor made a referral to the Children’s Aid Society. I understand CHEO has also referred the case to their child protection program.

Given the above, the access visits between the children and Mr. Murphy will be suspended until further information is available regarding the status of these investigations.

[21] It does not appear as if any investigations were actually initiated or sustained. More letters were exchanged between counsel and then these motions brought. The father has not had any access since August 3, 2014.

[22] The father’s explanation regarding his last entry in the Communications Book is confusing. In his affidavit of September 7, 2014, he says “I deny the Applicant’s allegations that I fed C.M. a “subway” sandwich. There was no choking hazard.” However, in his affidavit of September 11, 2014 he says:

I am of Inuit descent and my cultural heritage is Inuit. It is customary within my culture to share food with all people sitting to eat. This applies to children, too. In the case of sharing with children, it is usual to take small pieces of one’s food and to allow a small child to taste it. It is to habituate the child to the taste of solid food but I am not aware of any Inuit child chocking [sic] as a result of this tradition.

[23] The father somewhat inconsistently both denies feeding C.M. a portion of the sub sandwich and implies, but does not actually say, that he allowed the child to taste his food. In argument, his position was that he only let the child lick his food, but that was not supported by evidence.

Law – Variation of Interim Access

[24] The parties never married. The legal tests for custody and access are therefore found in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended. Section 29 requires a material change in circumstances that effects or is likely to affect the best interests of the child before the court can vary a previous custody or access order. In assessing the child’s best interests, subsection 24(2) directs the court to consider all the child’s needs and circumstances, including the eight items that are specifically mentioned.

[25] As noted in Grgurich v. Del Ben (1997), 1997 12390 (ON SC), 35 R.F.L. (4th) 33 at para. 8, “Interim orders are temporary orders which are intended to remain in effect until final disposition of the issues at trial. Interim orders should not be tinkered with or varied save in appropriate circumstances.” As noted in Greve v. Brighton, 2011 ONSC 4996, [2012] W.D.F.L. 506 at para 24, the court should only vary the interim order “… where the moving party has a demonstrated change in circumstances and, as a result of those changed circumstances, there are compelling reasons that the order should be varied to meet the Children’s best interests.”

Analysis - Access

[26] Children are affected by the conflict between their parents. When the children here are being exchanged and their parents are not talking to each other, it is inescapable that they will be aware that there is conflict. They might see themselves as the reason for it; indeed the only activity at the time is their moving from one parent to the other. There is a risk of harm here. I am baffled as to why the father wants the access exchanges to continue like this. He insists on it, taking the position that I am precluded from varying the interim access order in any respect as there is no material change in circumstances. He refuses to show, for the few minutes of the access exchanges, a minimal attitude of civility to the mother for his children’s benefit.

[27] The father denies that he fed the baby a portion of his submarine sandwich. However, he fails to explain why he told the mother that he did. It is clear to me that what he said about the sub sandwich was a spiteful reaction to her demand that he follow her lead in feeding. He did not like being told what to do by the mother. So he goaded her, the primary parent, to see if she would react, and react she did. One of his complaints now is that she overreacted, in attending the hospital which triggered the call to the CAS and then in denying him access ever since. Perhaps, but I do not agree that this was a deliberate and willful decision solely designed to stop his access. He was the one who put these events into motion. He had to have some sense that a protective parent, the mother, was not going to ignore his statement that he acted contrary to C.M.’s well-being.

[28] In my view these are appropriate circumstances to tinker with the existing access order. I cannot accept that the court in making the consent order in May had any sense that the parties’ access exchanges would be so bizarre, or that the risk of harm I have noted above would arise. I find this to be a change in circumstances, and I find that there are compelling reasons to change the interim order. However, I would not go as far as suggested by the mother by requiring the father’s access be supervised until the parenting capacity assessment is complete. Dr. Weinberger noted in a letter that the assessment is anticipated to take at least four months.

[29] I asked counsel about the Supervised Exchange Centers in Ottawa. I was advised that they do exist, and operate on the weekends. Counsel was not sure of their locations. I order that the existing order shall be varied such that the pick-up and drop offs for access shall take place at the Supervised Exchange Centre nearest to the father’s residence. The father shall pay any associated cost for that service. The mother shall fully cooperate with the arrangements to engage the Centre, and as soon as they are in place the access shall resume per the schedule in the existing order. I also order that the father shall follow the mother’s direction regarding feeding of the child C.M.. This should have been obvious to him already. She is currently the parent primarily responsible for the child’s growth and development. I view these variations as minor, and not a substantial departure from the status quo created by the interim order.

[30] I am not prepared to order make-up time as requested by the father. I make this decision based only on what in my view are the best interests of the children. The current order sets out the access and the parties agreed to frequent visits of short duration. I find that it is appropriate for children of this age. I do not find that the denial of make-up time would be unfair to the father. The missed visits were triggered by his reckless claim to the mother about what he was feeding C.M.. Lastly, I am not prepared to vary the interim order’s police enforcement clause. I anticipate that the above order will eliminate further difficulty.

Contempt

[31] There are three grounds of contempt alleged by the mother. I set out the law below and then examine each allegation.

Law – Contempt

[32] The moving party relies on Rule 31 of the Family Court Rules, O.Reg. 114/99 as amended (“Rules”).

[33] 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.”

[34] The test is 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.

I adopt the following passage at para. 20 of Ricafort v. Ricafort, 2006 ONCJ 520, 35 R.F.L. (6th) 210 setting out the steps for a finding of contempt:

The evidence put forth to support a finding of contempt satisfies the court beyond a reasonable doubt of each of the following:

1. that there is a court order to be enforced;

2. that the terms of that order are clear and not open to a variety of interpretations;

3. that a party to that order has been put on proper notice of an application to find him or her in breach of that order, with the particulars of the alleged breach clearly laid out so that the alleged contemnor is made aware of the case to which he or she must respond;

4. that there has been a disobedience to that court order; and

5. that the party disobeying the order has done so in a deliberate and wilful fashion.

Any doubt about either of those elements is to be exercised in favour of the person alleged to be in breach of the order.

Facts and Analysis – Father’s Alleged Contempt

Irrevocable Beneficiary Designation

[35] On August 27, 2014, the mother served her Notice of Contempt Motion, charging that:

The Respondent Father has failed to name the Applicant Mother, in trust for the children, as the irrevocable beneficiary of his life insurance held through his employment with the federal public service and in turn is in contempt of Paragraph 13 of the Order of the Honourable Madame Justice Blishen dated May 30 2014 which ordered as follows:

13. The Respondent shall name the Applicant, in trust for the children, as the irrevocable beneficiaries of his life insurance policies. Proof of Insurance shall be provided within twenty days of the date of this order and annually if requested.

[36] Although there is considerable material filed about the failure of the father to provide an “irrevocable beneficiary” proof of insurance for his State Farm insurance policy, it appears that is being addressed. It is not included in the above contempt charge.

[37] The father’s simple response to the mother’s request is that he does not have a life insurance policy with his employer. The mother in response points to the Order which refers to “policies” in the plural, and she directed me to the father’s pay stub from the Government of Canada which indicates that he has an employee deduction for a “Death Benefit”. She argues, and it is not disputed, that he has a death benefit of two times his yearly salary that he can designate. She says this is what the order is referring to.

[38] The father’s argument is that the order refers to “life insurance policies”. A life insurance policy is an agreement between a life insurance company and the policy holder. The federal government is not an insurance company. There is no evidence of a signed policy or contract. I agree with the father that the terms of the court order are clear, and I find that the mother has not established in the evidence beyond a reasonable doubt that the father has a second “life insurance policy.” This motion for contempt is therefore dismissed.

[39] Having said that, I cannot fathom why the father would resist making the death benefit available for his infant children along the lines of the interim order. However, there is no motion before me to make that order.

Work Benefits

[40] The Notice of Contempt Motion charges that:

The Respondent Father has failed to sign a Direction relating to his work benefits and permitting the Applicant Mother to remit directly to the benefits insurer and be reimbursed and is in turn in contempt of Paragraph 14 of the Order of the Honourable Madame Justice Blishen dated May 30, 2014 which ordered as follows:

14. The Respondent shall name the Children on his work benefits so long as they are available to him. The party incurring the expense which is to be reimbursed shall be entitled to remit directly to the benefits insurer and the Respondent shall execute any direction required to permit the Applicant to remit and be reimbursed.

[41] While the mother confirms receiving a copy of the benefits designation regarding the children, in her supporting affidavit dated August 27, 2014, she states “I can also advise the Court that I have be [sic] unable to submit claims for the children directly to the Respondent’s benefits provider for reimbursement.”

[42] The father’s response in his September 7, 2014 affidavit is that he complied with the requirement that he name both children as dependents on his plan. He said that he did not see on the insurer’s website an option to allow the mother to make claims and be reimbursed directly. However, he has since learned that this request needs to come to them by letter. He has now sent such a letter dated September 4, 2014.

[43] The mother acknowledges this response, but then raises the new issue that the father’s dental and medical benefits are provided by two separate insurers. She advises she has received no similar direction regarding the dental benefits.

[44] The motion request and the order both speak of one insurer. There was no prior communication of an alleged breach regarding a separate insurer. It was not clear to me whether the mother has attempted to submit a dental claim, versus a medical claim, and was denied.

[45] I expect the father to address the dental benefits the way he has the medical benefits. He otherwise runs the risk of being ordered to pay for these expenses out of his own pocket. However, I find that the interim order is open to interpretation as to which benefits provider it addressed, and it is not clear to me that the father had been put on proper notice regarding a deficiency regarding the second insurer and dental coverage for these two young children. Further, there is no evidence of a direct claim by the mother being made and denied regarding dental benefits to establish that such a direction is not already in place. I am therefore not satisfied beyond a reasonable doubt that all the required evidence for a contempt finding has been made out. This motion for contempt is dismissed.

Clinical Assessment

[46] The Notice of Contempt Motion charges that:

The Respondent Father has failed to provide the custody and access assessor, Dr. Alex Weinberger, his share of the retainer for the clinical assessment in this case and is in turn in contempt of Paragraph 11 of the Order of the Honourable Madame Justice Blishen dated May 30, 2014 which ordered as follows:

On consent, Dr. Alex Weinberger shall be appointed to conduct an assessment under s. 30 of the CLRA. The parties shall provide what cooperation, including access to documents which may be required or permission to speak to others who may provide care or comfort to the Children or the parties, as required by the assessor including the paternal grandparents and maternal grandmother. The Children shall be made available as appropriate for him to complete his report. The parties shall pay his account as agreed subject to the terms of his retainer.

[47] The Notice of Contempt Motion adds a related charge:

The Respondent Father is also in contempt of the Order of Master MacLeod dated March 26, 2014 for failing to pay his equal share of the custody and access assessment and is in turn in contempt of Paragraph 6 d) of the Order of Master MacLeod dated March 26, 2014 which provides as follows:

6 d) On consent there will be a custody and access assessment to be done by a person agreed upon by the parties or ordered by the court. The cost of the assessment will be shared equally.

[48] The mother, quite rightly, is worried about the delay in getting the assessment process going. However, the father argues that no timeline for his payment was set out in the order, and he therefore cannot be in breach of it. He has skirted around his payment advising the mother’s lawyer very vaguely that he will pay the retainer “when he is in funds”.

[49] Rule 31(1) establishes that only an order “other than a payment order” may be enforced by a contempt motion. “Payment order” is a defined term. Per Rule 2(1)(h) it means a temporary or final order requiring a person to pay money to another person, including an order “requiring a party to pay the fees and expenses of … an assessor … or other expert named by the court.” There is no difference between the father being required to pay the assessor’s retainer or his being required to pay the assessor’s fees and expenses. In my view, there is no legal basis for this contempt claim, and for that reason the motion is dismissed

[50] In his last affidavit the father indicated that he now has an agreement with Dr. Weinberger to pay his share of the retainer in mid-September. I take the father’s word that he will pay the retainer momentarily. In my view timely clinical involvement with this family is very important.

Decision

[51] Order to go varying the existing order as set out above and dismissing the contempt requests.

[52] The father has been fully successful on the contempt motions. However, the result on the main issue of access was divided. The father sought to keep the previous access order intact, and I varied it. The mother wanted supervised access, and I only granted supervised access exchanges.

[53] In assessing entitlement to costs, I am troubled by the father’s often indirect responses to the mother’s concerns about important issues such as benefits for the children and the assessment. Particularly troubling is his egging on the mother to action with his “sub sandwich” entry in the Communications Book. I am not inclined to order costs in favour of a party who in my view has behaved unreasonably. No order as to costs.

Mr. Justice Timothy Minnema

Date: September 16, 2014