Karwal v. Karwal, 2015 ONSC 2025

CITATION: Karwal v. Karwal, 2015 ONSC 2025

COURT FILE NO.: FS-10-3131-00

DATE: 2015 03 27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KULBIR SINGH KARWAL V. SARITA RANI KARWAL

BEFORE: FAIRBURN J

COUNSEL: Self-Represented, for the Applicant

Preet Kaler, for the Respondent

Margot Hallman, for the Office of the Children’s Lawyer

HEARD: January 14, 2015

ENDORSEMENT

Overview

1Kulbir Singh Karwal and Sarita Rani Karwal were married in 1996. They had a daughter and son: now 17 and 12 years of age, respectively. They do not agree on their date of separation. Mr. Karwal puts the date in 2006, while Ms. Karwal places the date in 2009.

2On August 31, 2010, the parents came before this court for the first time with a dispute over custody and access issues. Over four-and-a-half years later, and many court orders later, discord continues. This is most unfortunate for the children of their prior union.

3This judgment arises from an application brought by Mr. Karwal, seeking numerous forms of relief, including sole custody of the son, a non-communication order between the son and daughter, therapy for the entire family, and a finding of contempt in respect to the mother.

4I order that the son receive therapy and that the parents split the cost of this therapy.

5In order to understand this matter, and how it has got to this stage, it is important to have an insight into the history of this court’s orders as they pertain to access and custody. There have been no less than six court orders dealing with custody and access issues, the first being August 31, 2010, and the last dated June 26, 2013.

6To suggest that there has been little cooperation between the parents since the outset of the custody and access issues would substantially undershoot the true state of affairs. The nature of the parental relationship was identified early on by this court, which led to the appointment of an agent from the Office of the Children’s Lawyer (“OCL”), Ms. Margot Hallman, on August 31, 2010.

7While the son had lived with the father since August 2009, in July 2010 the mother changed the status quo and retained the child at the end of a visit. On September 17, 2010, she was ordered to return the son to the care and control of the father. On August 31, 2011, an order was made setting up a schedule for when the children would reside with the mother and father. As it turns out, the daughter stayed with the mother and, by May 24, 2012, she had not seen her father in a year. (This fact forms part of a court order dated May 24, 2012, relating to the mother’s travel with the children.) On August 31, 2012, there was another court order that set in place a custody and access schedule.

8The last significant order relating to custody and access was that of Justice Lemon, dated June 26, 2013. He ordered that the son reside with the mother from Sunday at 6:00 p.m. until Friday at 3:00 p.m. and then go with the father on weekends, provided the father was not working. There was also a visitation schedule put in place during the school week and a holiday schedule to be followed. Additionally, the parents were ordered to engage a Punjabi therapist recommended by Ms. Hallman to work with the children so that “[the son] is able to continue a good relationship with the Applicant father” and so that the daughter “can work on developing a good relationship with the Applicant father”.

Events Following the June 26, 2013 Order

9Notwithstanding Justice Lemon’s order dated June 26, 2013, the applicant has not had overnight access to his son since December 2013. It appears that there was a breakdown in the relationship between the son and father over the 2013 holiday season, commencing on December 19, 2013, and, since that time, the son has never stayed with the father again.

10As the parties have different versions of how this breakdown came about, I find it necessary to delve into the matter. The father, who was still represented by counsel at the time, said that all counsel came to an agreement about the access schedule over the December 2013 holidays and that it was confirmed in letters. He was to have the son from December 19, 2013, after school, until 2:00 p.m. on December 24th, at which time the son would go to his mother’s home for 24 hours. He would then return to the father until December 28th at 10:00 a.m., at which time he would return to his mother’s home for the balance of the school holiday.

11In her affidavit on this application, the mother took the position that the father did not agree to the access schedule proposed by the OCL, and did not even agree with the mother having access between December 24-25, 2013. She swore that she did not misinform her son about the issues with the schedule and, in fact, it was the applicant’s failure to agree on a schedule that caused the problem. She infers that it is the father’s fault that the son felt resentment over this and has largely refused to see him since that time.

12In Ms. Hallman’s view, there was an agreement about holiday access in place and it was clear. While it may be that the mother was not provided with a copy of the finalized schedule, her counsel was a party to the agreement. In the OCL’s view, the son’s incorrect belief that his father would not accept his wishes in respect to a holiday schedule had a profoundly adverse impact on the relationship between father and son that resonated long after the holiday season and continues to impact their relationship to this day.

13This issue, forming the catalyst of the breakdown in the father-son relationship, is acknowledged by the mother at paragraph 28 of her affidavit, where she says:

I did not misinform our son about the Christmas schedule, in fact the Applicant failed to agree because on December 18, 2013, the Applicant decided to change the schedule that we decided in Margot Hallman’s office. Thereafter, despite my efforts, our son did not want to go for access with the Applicant.

14I have assessed multiple letters related to this 2013 holiday schedule issue and find that the mother is quite simply wrong. The father did agree to a schedule and, in fact, it was in accordance with his son’s wishes, as articulated by Ms. Hallman in correspondence she wrote on December 12, 2013. This was confirmed in a letter from the then father’s lawyer, dated December 19, 2013, and provided to counsel for the mother and the OCL. That letter provides thanks to “both Counsel for helping to sort out the vacation time”. This letter accords with Ms. Hallman’s recollection as to a discussion that had taken place among counsel and an agreement having been reached.

15Much to the father’s surprise and dissatisfaction, when he went to pick up his son from school on December 19, 2013, in accordance with the agreement that had been arrived upon, the mother was there picking him up. In a show of good judgment, taking into account the child’s best interests and how they may be subverted by an argument as to why the mother was breaching the agreement, the father allowed her to take the son. He started to email and text the mother, and his lawyer started to write to the OCL and the mother’s lawyer. In an email the father sent to the mother on December 20th, when she still had not provided access to the child, he said:

The three lawyers discussed the agreement for [son] this holiday. It was agreed to follow the proposal that the OCL lawyer e-mailed to you on December 12, 2013.

16He then set out an accurate recounting of the schedule agreed to. Despite his repeated attempts to have the respondent return his emails and texts, she only did so on one occasion where she asked if her lawyer had received the scheduled agreement. She said that once her lawyer emailed her with an answer, she would let him know what was happening.

17By December 23, 2013, the son still had not seen his father in accordance with the agreement that had been reached. The father’s counsel then wrote a letter to the mother’s counsel and the OCL, where she said that on December 19th she had confirmed with an assistant in the mother’s lawyer’s office that the agreed upon schedule had been received there.

18I find as a fact that an agreement had been reached as to the 2013 holiday schedule and that all lawyers of the applicant, respondent and OCL were parties to that agreement. I also find as a fact that the agreement was in accord with the son’s wishes and the schedule articulated by Ms. Hallman. What I am uncertain about is whether the mother was informed of the schedule. Her affidavit evidence is belied by correspondence suggesting precisely the opposite of what she suggests. For instance, at paragraph 27 of her affidavit, says: “The Applicant even did not agree to give access to me from December 24, 2013 to December 25, 2013 to noon. Even our son expressed his frustration and resentment about the schedule.”

19This statement, and others, are wrong. They are contrary to the clear agreement that had been arrived upon. Even assuming that she did not receive confirmation of that agreement, letters were sent confirming the agreement, and a follow-up letter was sent to an assistant within counsel’s office. (I was informed at the hearing that counsel may have been of the country.) The applicant also informed her of the schedule in his December 20th email.

20What is most unfortunate about this situation, and as observed by the OCL in her very helpful submissions, is that the 2013 holiday season was the last time the applicant had a meaningful and regular relationship with his son. As the mother acknowledges, the son refused to see him after this time because of the frustration and resentment he developed over this scheduling issue that, as it turns out, the son was wrongly informed about.

Therapy

21The OCL has been continuously attempting to get the parents to pursue therapy with the children. In a letter dated March 18, 2014, Ms. Hallman said that she and Eileen Spraggett (a social worker with the OCL who has been involved with the family) had been attempting to get the family into therapy for three years, and Ms. Hallman suggested that they all needed “intense therapy” before Ms. Spraggett and she could be of further assistance. Recommendations were made for potential therapists.

22In an affidavit dated March 31, 2014, Ms. Spraggett suggested that she had been working with this family since July 15, 2011. She provided the affidavit in response to the applicant’s motion respecting custody and access to the son. She noted that the family had been engaged in a “complex web of conflict that has evolved over the time” in which she and the OCL had been involved. She further noted that it was “too simplistic” to conclude that the son suffers from alienation, and she notes that the father has behaved in a way that has contributed to the child’s reluctance to see him. Equally, though, she noted that it is “clear that there are many things Ms. Karwal could do differently, in order to foster the children’s relationship with their father.”

23While Ms. Spraggett noted the continued recommendations for therapy over the years, at that point, neither parent had followed through with the suggestions made. While a counselor at the Punjabi Community Health Services suggested that the respondent had contacted her, the applicant did not. Equally, in a letter dated March 29, 2014, Stephen Cross, another counselor who had been recommended by the OCL, wrote suggesting that the applicant had contacted him with respect to potential therapy for the family.

24A therapist was finally retained and started to do some important work. I had the benefit of reviewing two letters from the therapist, Andrea Barclay. Both of the letters were provided in affidavit form from Ms. Spraggett and filed by counsel to the OCL.

25The first letter from Ms. Barclay is dated October 15, 2014. Her services were retained on June 24, 2014, with a focus on reintegration therapy. As of the date of that correspondence, Ms. Barclay noted progress in terms of reconnecting the relationship between the son and the applicant. While the son was initially reluctant to be involved in counseling, he started to see his father on a regular and in fact weekly basis. The daughter did not wish to, and did not, participate in counseling.

26The service was placed on hold on September 1, 2014, given that the retainer money ran out. In Ms. Barclay’s opinion, the sessions had been successful in beginning to rebuild the relationship between father and son. She is firmly of the view that the therapy should reconvene and that it would be beneficial to the son. She notes that the son and father should have holiday time together, as recommended by the therapist, and the daughter could get involved if she wished to do so.

27For the hearing of this matter, Ms. Barclay provided a further report at the request of the father. She reiterated her view that there should be ongoing therapeutic support as the prognosis for the family was guarded. She notes that there have been no visits between the father and son since October, which she says is “concerning given the gains observed during the intervention, that had [the son] and his father engaged in weekly positive access”.

28Noting a number of authoritative writings, Ms. Barclay observes that it is not at all uncommon for children to choose sides when confronted with parents who are pitted against one another, and that children often interpret conflict as being caused by the rejected parent, and abuse and victimizing being experienced by the aligned parent. Her recommendation remains that further support be given to the family and, if it is not provided, the views of the children will risk becoming more entrenched. Without commenting on whether there is alienation in this case, she notes that it could result from this kind of a situation if left unaddressed.

29Based on her time with the son, Ms. Barclay concludes that he is “caught in the crossfire of his parent’s conflict.” She has formed the view that, at a minimum, the children must receive counseling for unresolved issues, if for nothing else, to improve their “prognosis for their future relationships and wellbeing.”

30Ms. Hallman informed the court that while the father was slowly starting to rebuild a relationship with his son in the summer and early fall of 2014, working hard to repair the damage done by the misunderstanding over the December 2013 holiday schedule, the access to the son stopped when the respondent, for some unexplained reason, booked the son’s soccer practices in conflict with the times he was to see his father. As for the therapy, Ms. Hallman suggested that both parents have been known to take exotic holidays with the children and that, in the view of the OCL, nothing should be more important than getting the children therapy.

31The respondent’s counsel took the position that the mother does not have the money to pay for therapy. Although no specifics were given about her current financial situation, she is employed and earning an income. The point was made that the father has not contributed to child support and has been in significant arrears for some time.

32The father informed the court that he has been off of work on disability for some time because he is so overwhelmed by this situation. He also informed the court that he was surprised to find out that he was in arrears on child support, given that he thought that it was being automatically removed from his pay cheques when he was working and only found out some time later that this was not the case.

The Requested Forms of Relief

33The applicant asks for a number of forms of relief.

34First, he asks for the appointment of a reunification therapist with specialized knowledge in alienation to meet with both parents and both children for the purpose of normalizing the children’s relationship with both parents and avoiding the risk of escalating polarization. He requests that the order make clear the obligation of the parties to pay for the therapist.

35Second, he asks for sole custody of his son. While he is willing to accept that there be access between the mother and son, he suggests that it should be supervised until such time as a reunification therapist recommends that the supervision be lifted. He also asks that there be a non-communication order made, precluding the daughter from communicating in all manner with her brother, including by way of emails, texts, and telephone “with financial sanctions for any breach of this order”.

36The applicant is prepared to allow the primary residence of the daughter to remain with the mother subject to certain conditions, including that the mother and daughter attend at, and cooperate with, the reunification therapist, if one is appointed.

37As it relates to the reunification therapist, I heard argument from both parties and the OCL about the benefits of such therapy. The applicant and OCL suggest that it is critical that this therapy occur.

38I found Ms. Hallman’s submissions on this point to be particularly helpful and illuminating. She has been working with this family since November 2010, when she was appointed to represent the children. In the over four years that have transpired since she first got involved with the Karwal family, Ms. Hallman has been well positioned to gain insights into this matter. It is her view that both parents must share in the responsibility for where things stand now.

39As her clients, Ms. Hallman, of course, has the best interests of the children in mind. She informed the court that it was her view that both of the children are at great risk of harm from the parental discord that has gripped this family. Among other things, if left unaddressed, they may have difficulty developing normal and healthy relationships in the future. Intervention by way of therapy is critical if this risk is to be diminished.

40Ms. Hallman informed the court that the 2013 holiday schedule problem had a significant adverse impact on the relationship between the father and son. The son was understandably angry at his father. As it turns out, this anger was none of the father’s making and, in fact, arose out of the child being misinformed as to the true state of affairs. Ms. Hallman helpfully informed the court that it took some significant period of time to assuage the child’s misplaced anger and to allow the relationship to start to rebuild.

41Ms. Hallman witnessed significant strides being made through the therapy that was being provided by Ms. Barclay, and she observed a relationship between the father and son that was starting to rebuild and take root. Then, according to Ms. Hallman, the mother booked the son’s soccer practices on the night the father was seeing his son. The court is left with only one real inference to draw when the entire constellation of factors is considered: the mother is not taking the steps she should be taking to foster and encourage a relationship between father and son. She needs to be more proactive in this regard and understand that it is in her child’s best interests to have a relationship with his father.

42I order that the therapy with Ms. Barclay is to commence again in accordance with a schedule that is set up by Ms. Barclay. The therapy will be for the parents and their son. While the mother should encourage the daughter to take part in the therapy, she is too old to make an order requiring her to do so.

43While Mr. Karwal is off of work and asked that the mother pay for all of the therapy, suggesting that I impute an income to her of $70,000, I am not prepared to do this. There was no admissible evidence before the court to suggest that Ms. Karwal earns this amount of money. In a Compendium, the applicant filed information, including some taken from a Facebook page, suggesting that Ms. Karwal is working in the area of the performance arts. Assuming it was even admissible, reliable evidence, this information does not contain any insights into how much Ms. Karwal is earning.

44The applicant also filed an email exchange purporting to be between the respondent and a “Dimple Virk”. This appears to be a private communication between the respondent and another individual about the cost the respondent would charge to perform at an event. The origin of this document is unknown. Its veracity is unknown. How it came into the applicant’s possession is unknown and troubling. It is hearsay and I find inadmissible in this proceeding. I note, though, that even if it were admissible, it tells us nothing about the mother’s income level and is of no assistance in imputing a specific income to the respondent.

45As for payment for Ms. Barclay, I find that the father and mother should share the costs of the therapy up to an amount of $3,000. After this amount is exhausted, and bearing in mind the fact that the father is behind on his child support payments, he shall pick up the cost of the continuing therapy if it is required. Half of the amount that he pays shall be credited toward the outstanding child support arrears.

46As for Mr. Karwal’s request that he receive sole custody of his son, having regard to all of the information available at this stage, it would not be in the child’s best interests to change the current custodial arrangement. While the son’s views may have been tainted by the mother’s behavior, particularly around the 2013 holiday issue, the fact remains that his views about where he wishes to live can and have been canvassed by the OCL. His view is that he continue to live with his mother and I accede to that view. Ms. Hallman is clearly of the view that it would be harmful to change his primary residence at this stage, particularly given the amount of therapy that must take place before the son-father relationship can mend. I dismiss the request for sole custody of the son and the ancillary requests for supervised access to the mother and a non-communication order with the sister.

Contempt of Court Order

47This leaves the issue of contempt. The father asks that the mother be found in contempt of Justice Lemon’s order dated June 26, 2013. He says that she intentionally subverted the order when she refused the father access in accordance with that order.

48Criminal contempt includes a public defiance of the court’s authority as an essential element of the offence. As noted by McLachlin J (as she then was) in United Nurses of Alberta v Alberta (Attorney General), 1992 99 (SCC), [1992] 1 SCR 901, [1992] SCJ No 37 [UNA v Alberta], to establish criminal contempt, it must be proved beyond a reasonable doubt that the alleged contemnor not only disobeyed a court order in a public way (which is the actus reus of the offence), but that he or she did it with “intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (the mens rea)” (para 25).

49In contrast, disobeying a court order can constitute the act of civil contempt: UNA v Alberta at para 21; Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 60.11. Owing to the serious nature of the sanctions that can be imposed, whether civil or criminal contempt, a person cannot be compelled to give evidence against themselves. The burden falls squarely on the applicant to prove the contempt. Regardless of whether civil or criminal contempt is alleged, the burden of proof is beyond a reasonable doubt. As such, whether civil or criminal contempt, the process engaged and the potential sanctions available “bear the imprint of criminal law”: Pro Swing Inc. v Elta Gold Inc., 2006 SCC 52 [Pro-Swing Inc.] at para 35 at para 35. Where there is doubt about the effect of a court order that has allegedly been violated, then the person said to be in contempt must be given the benefit of the doubt: Vidétron Ltée v Industries Microlec Produits Électroniques Inc., 1992 29 (SCC), [1992] 2 SCR 1065, [1992] SCJ No 79 at para 20.

50The elements of civil contempt include that the alleged contemnor had knowledge of the court order and engaged in an intentional act that was, in fact, prohibited by the order. As pointed out by Cromwell JA (as he then was) in TG Industries Ltd. v Williams, 2001 NSCA 105 [Williams] at para 17, the intention relates to the act and not to the fact that the act will result in disobedience to the court: “the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order, is not an essential element of civil contempt”. While a nuanced distinction, it is an important one. A civil contempt simply requires knowledge of the court order and the intention to commit an act that is in fact prohibited by the order: Williams, at para 17. In Laiken v Carey, 2013 ONCA 530, leave granted [2013] SCCA No. 431, Sharpe JA agreed, noting that it is a well-established principle of law that only the act that contravenes the court order must be intentional to constitute civil contempt. It is unnecessary to demonstrate that the act was “deliberately contumacious”: at para 57.

51Court orders must be respected. Even if they are wrong, or improvidently granted, they must be respected. In Henco Industries Ltd. v Haudenosaunee Six Nations Confederacy Council, 2006 41649 (ON CA), [2006] OJ No 4790, 82 OR (3d) (CA) Laskin JA held at para 90: “The law is clear that an order of the court, however wrong, must be obeyed until it is reversed or varied”.

52While the principles surrounding civil contempt seem fairly well set, contempt in the context of family law matters operates differently. As noted in Hefkey v Hefkey, 2013 ONCA 44, at para 3, contempt orders should only be granted “sparingly” in family law matters and as a “last resort” (see also: K(L) v G(T), [2006] WDFL 2571 (Ont SC), at para 58; Fisher v Fisher, 2003 2119 (ON SC), [2003] OJ No 976 (SC) at para 11; and Martinez v Martinez, 1984 4792 (ON CJ), [1984] OJ No 721 Prov Ct (Fam Div) at para 4). To ensure that contempt is truly a remedy of last resort in the family law context, the test has been tweaked to ensure that the threshold is not easily met. A three-part test is set out in Les Services aux Enfants et Adultes de Prescott-Russell v NG et al, 2006 81792 (ON CA), [2006] OJ No 2488 (CA) at para 27 as follows:

Firstly, 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.

See also: Hobbs v Hobbs, 2008 ONCA 598 at para 26.

53The June 26, 2013, order of Justice Lemon is in question here. Justice Lemon ordered that the son was to reside with the applicant, when he was not working, from Friday after school until Sunday at 6:00 p.m. The order also contained the following clause:

The Applicant father and the Respondent mother shall review this residential schedule when the Applicant returns to work, and has a new work schedule for the next one year, or at the commencement of September, 2013, school year, whichever comes earlier. The Applicant and the Respondent shall make best efforts to reach an agreement with respect to any variation to the above residential schedule so that [the son] has simple blocks of time in each of the applicant’s and the respondent’s household and he is primarily at the Respondent mother’s home in the morning during the week when he attends school.

54The applicant’s position is that, at a minimum, the respondent breached this order when she failed to provide access to the child as of December 19, 2013. Her position is two-fold: (1) that the child has refused to go with the father since the 2013 holiday period; and (2) the June 26, 2013 order of Justice Lemon is unclear. As it relates to the latter point, the respondent maintains that the parties were to review the residential schedule in September 2013. They did not do so. As such, the order related to access, specifically the part pertaining to weekend access for the father, came to an end in September of 2013.

55I disagree with this latter position. Justice Lemon’s June 26, 2013, order is entirely clear and binding. While both parties were ordered to review the residential schedule no later than September 2013 (and earlier if the applicant received a new work schedule), any such discussions were to pertain to a “variation to the … residential schedule”. As no discussions took place, there was no variation of the schedule and, as such, the schedule continued. The order is clear and unequivocal. Leaving aside the holiday schedule issue altogether, the father should have continued with access to his son. If the respondent did not want this to occur, she should have sought to vary Justice Lemon’s order.

56Nonetheless, I find that she has not wilfully and deliberately disobeyed that order and the evidence does not show contempt beyond a reasonable doubt. Rather, I find that this whole situation has resulted from confusion over the December 2013 agreement about the holiday schedule and the unfortunate fallout from that confusion. The reality is that the child has not wanted to go with his father overnight since then and the mother has been deferring to wishes on this. I do not find the mother in contempt.

Final Order

57I order that the parties forthwith engage the services of Ms. Andrea Barclay for the purposes of restarting therapy for the son. The daughter shall be provided with the opportunity to attend therapy with the family or alone, but is not required to do so. The mother shall not discourage her from doing so.

58I further order that they share the costs of this therapy up to the amount of $3,000, at which time the father shall pay for the costs of therapy. Half of the amount paid by the father, following the exhaustion of the initial $3,000 shall be credited toward his outstanding child support arrears. I further order that, once the therapy has commenced, and in accordance with input from Ms. Barclay and Ms. Hall, the father may start to have access to the son for at least three hours during a weeknight. The mother shall not discourage the son from having contact and a meaningful relationship with the father.

59At such time as the father-son relationship starts to mend, and assuming the parties cannot come to an agreement, the father should seek further access from the court.

FAIRBURN J

DATE: March 27, 2015

CITATION: Karwal v. Karwal, 2015 ONSC 2025

COURT FILE NO.: FS-10-3131-00

DATE: 2015 03 27

SUPERIOR COURT OF JUSTICE

• ONTARIO

RE: KULBIR SINGH KARWAL

V.