Court File and Parties
Barrie Court File No.: FC-14-1156-00 Date: 2015-09-02 Superior Court of Justice – Ontario – Family Court
Re: John Courtney, Applicant and Candice Sambray, Respondent
Before: The Honourable Mr. Justice R.E. Charney
Counsel: Michael Bury, for the Applicant Christopher Severn, for the Respondent
Heard: August 27, 2015
Endorsement
1This motion is one of a series of motions relating to the custody, access and residence of the parties’ two children, a daughter aged four-and-a-half and a son aged two. Since their separation in May 2014, the parties have been the subject of numerous court orders relating to custody, access and residence.
2The first issue in this motion is whether the children should reside with the applicant father in Midland, Ontario, or with the respondent mother in Barrie, Ontario, pending the final resolution of the custody dispute. While the distance between these cities is only forty-five minutes by car, the older child must be registered for school in one city or the other, and so the residence will determine which school she attends, which may have a significant impact on the existing access schedule in which each parent has the child for one-half week.
3The second issue is the penalty phase of the mother’s motion to find the father in contempt of court. The father was found in contempt of court on July 31, 2015, for failing to comply with the access provisions of the court order of June 24, 2015, and the penalty phase was adjourned to August 27, 2015.
Background
4The parties are the biological parents of the two children. They separated in May 2014. The parties entered into temporary minutes of settlement, dated March 10, 2015, providing for joint custody of the children with the primary residence of the children with the father. The mother was to have a graduating access schedule with increased access premised on her compliance with the access schedule. The April schedule provided for Sunday at 5:30 p.m. to Monday between 8:00 and 9:00 a.m., Mondays and Tuesdays from 3:15 to 7:00 p.m.; and, when she is not working, from Friday after school to Saturday at 1:00 p.m. In the month of May, these visits were scheduled to expand to Sundays at 5:30 p.m. to Wednesdays between 8:00 a.m. and 9:00 a.m., with pick up at the father’s residence and drop off at the children’s respective schools.
5In April 2015, the father indicated his intention to move from his residence in Barrie to Midland on June 1, 2014 to live at his mother’s residence, where he can pay reduced rent and have his mother available for childcare. The father’s intention was to keep the older child in her current school in Barrie until the end of the school year, but to move her to a school in Midland come September.
6The mother was concerned that if the father moved to Midland this would effectively prevent her from having access to the children during the week if the older child were enrolled in a school in Midland. It will be very difficult for the mother to take her daughter to school in Midland on Monday, Tuesday and Wednesday mornings, and to pick her up from school on Monday and Tuesday evenings, particularly in the winter months. Accordingly, the proposed relocation was of sufficient distance to significantly alter the mother’s access with the children.
7The mother brought a motion on April 30, 2015 to prohibit the father from moving the children to Midland. At the time the children were residing with the father in Barrie because the mother had a history of alcohol abuse, but by the date of the motion she was participating in and complying with a program and counselling to address that issue. On May 11, 2015, I issued an order (2015 ONSC 2902) prohibiting either party from moving the children, or either child individually, more than ten kilometres outside the city of Barrie, until further order of the Court.
8Following this decision, a settlement conference was held on June 24, 2015. Between the May 11, 2015 decision and the June 24, 2015 settlement conference, the father had been charged by the police with harassment and had moved the children to Midland. The mother provides convincing evidence that the move took place around May 16; the father claims it did not occur until later in June. The father denied “permanently relocating” the children to Midland, but a term of his bail order was that he reside in Midland with his mother. Accordingly, Justice Olah recommended that the children reside one-half of the week with the father in Midland, and one-half the week with the mother in Barrie, until September. This recommendation was incorporated into minutes of settlement and incorporated into a court order.
9The motion to determine residence was adjourned from July 16, 2015 to August 27, 2015, to permit the Children’s Aid Society to do home study assessments. The settlement conference was adjourned to a date in October 2015
10Notwithstanding this order, the father failed to release the children to the mother for her half week. On July 30, 2015, I heard the mother’s motion to find the father in contempt of court for failing to release the children to her on June 28, July 5, July 12, July 19 and July 26, 2015. In short, the father failed to release the children every week since the June 24 order was made. On July 31, 2015, I issued a decision finding the father in contempt of court (2015 ONSC 4872). I concluded that if the daughter did in fact express any reluctance to go with the mother, the daughter’s reluctance was the result of the father deliberately coaching or frightening her. In that decision I stated (at para. 16):
Even if I were to believe the father’s evidence that the daughter has refused to participate in the access exchange of her own volition and without his coaching or influence, I am still satisfied beyond a reasonable doubt that the father’s refusal to deliver the children to the mother on each of the five occasions complained of was an intentional failure by the father to comply with his obligations under the Court Order of June 24, 2015. Decisions in this case are made by the Court, not by a four-and-one-half year old child. The responsibility to comply with a Court Order is that of the parents’, it is not that of a four-and-one-half year old child. Mr. Courtney’s assertion that he was following the wishes of his four-and-one-half year old daughter even though he knew this was inconsistent with the Court Order leads me to seriously question his parenting capacity and whether he is sufficiently responsible to have shared custody of minor children.
11I am advised by the mother’s counsel that the father has been in compliance with the court’s order since my ruling of July 31, 2015, and that the children have been released to the mother each week since that date.
12In addition, the Simcoe Muskoka Children’s Aid Society has provided an affidavit indicating that its workers have attended at both the father’s home (which is the home of the paternal grandmother) and the mother’s home, and both homes appeared age appropriate for the two children and there were no safety or health hazards noted.
Analysis
Contempt of Court Penalty
13The parties agree that since the court found the father in contempt, he has purged his contempt and permitted the mother to have her access time with the children. The mother’s affidavit states that since July 31, 2015, the father “has been very good at allowing me my visit time”. There are complaints, however, that he continues to demonstrate a negative attitude with regard to the children’s time with their mother.
14The court is given extensive remedial powers if a person is found to be in contempt of court. Family law rule 31(5) provides:
31(5) If the court finds a person in contempt of the court, it may order that the person,
(a) be imprisoned for any period and on any conditions that are just;
(b) pay a fine in any amount that is appropriate;
(c) pay an amount to a party as a penalty;
(d) do anything else that the court decides is appropriate;
(e) not do what the court forbids;
(f) pay costs in an amount decided by the court; and
(g) obey any other order.
15The mother takes the position that since the father has purged his contempt, the finding of contempt is sufficient penalty and no additional penalty need be imposed. This was the approach followed in Chappel v. Hillock, [2015] ONSC 4168 at para. 12 and Szyngiel v. Rintoul, [2014] ONSC 3298, at para. 34. I am not as confident as the mother in this regard, but I recognize that the parties are going to have to cooperate in the future, and perhaps the mother’s position today will usher in a new attitude of respect and cooperation between the mother and father.
16The mother has requested that her costs be paid on a full recovery basis in accordance with rule 24(8) of the Family Law Rules, O. Reg. 114/99, which provides that if a party has acted in bad faith, “the court shall award costs on a full recovery basis and shall order the party to pay them immediately”. As a general proposition, contempt of court, which is a wilful refusal to comply with a court order, will often amount to bad faith. I believe that the father’s contempt of court, as described in my decision of July 31, 2015, did amount to bad faith. Accordingly, I will order costs on a full recovery basis. The mother seeks $3,550 in costs, including 6.5 hours preparation of the contempt materials and 3.5 hours for attendance at the contempt motion, for a total of 10 hours. This is reasonable given the importance, complexity and difficulty in bringing a motion for contempt and proving contempt beyond a reasonable doubt. I will not include the two hours claimed for the attendance at the penalty phase, since that was combined with the interim motion for primary residence. Accordingly, I order costs against the father in the amount of $3,000, payable forthwith.
Recusal Motion
17The next issue is the question of primary residence. At the outset of this motion the father objected to my hearing this issue in this case on the basis of my decision of July 31, 2015, in which I found the father to be in contempt of court and made adverse findings of credibility against him. The father argues that my previous decision gives rise to a reasonable apprehension of bias and I should recuse myself. I rejected this submission from the bench and indicated that I would provide more detailed reasons when I issued my decision on the merits.
18Judges are frequently requested to make interlocutory decisions in the course of a case. They may decide issues of admissibility of evidence or interlocutory motions. These decisions may raise issues of witness credibility, or require the court to comment on the conduct of a party. If such a decision is not in a party’s favour, it does not mean that the judge has pre-determined the merits of the case or has any bias against the unsuccessful party. Otherwise judges making interlocutory decisions would routinely be recused from hearing the rest of the case. Counsel for the father was unable to provide me with any authority to support the proposition that an adverse finding of credibility in an interlocutory proceeding should result in the recusal of the judge from the rest of the case.
19A similar issue of bias was raised in the case of Ontario (Director, Family Responsibility Office) v. Samra, 2008 ONCJ 465. I adopt the following summary of the law as set out by Justice Katarynych (at paras. 18-21):
When considering the issue of bias in regard to a judge, there is a starting presumption of impartiality; specifically, that judges in their exercise of any judicial duty, will be faithful to that part of their oath of office that requires them to act impartially, which in its essence is a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions.
Bias, on the other hand, denotes a state of mind or attitude that is in some way predisposed to a particular result or that is closed to a particular issue. See R. v. R.D.S., supra. See also R. v Valente (No. 2), [1985] 2 S.C.R. 673, 64 N.R. 1, 14 O.A.C. 79, 24 D.L.R. (4th) 161, 19 C.R.R. 354, 37 M.V.R. 9, 23 C.C.C. (3d) 193, 49 C.R. (3d) 97, [1985] S.C.J. No. 77, 1985 CarswellOnt 129 at 685 [S.C.R.].
20On the specific issue of adverse findings of credibility as a ground for reasonable apprehension of bias, Justice Katarynych concluded (at para. 45):
In terms of the relationship between adverse credibility findings and the reasonableness of a litigant’s apprehension of real or perceived bias, the reasonable person, acting reasonably and properly informed of the law, would take into account the settled principle of law that a judge’s adverse finding regarding a litigant’s credibility in a previous hearing does not in itself create a reasonable apprehension of bias. … Something more is required showing a predisposition by the adjudicator with respect to the accused’s credibility, such as to amount to pre-judgment of the result of the second hearing.
21At paragraph 60 Justice Katarynych states:
[T]he mere fact that one judge has issued a number of orders against a party does not justify a conclusion that the judge has taken an obvious dislike to that litigant and is hence not impartial. See D.B. v. I.M., [1999] J.Q. No 5419, 1999 CarswellQue 4037 (Qué. Super. Ct.). Such prior contact is not a factor in determining an appearance of bias, unless real bias can be shown. See R. v. Bolt, supra, cited with approval by Justice Paul G.M. Hermiston in R. v. Bulmer (1999), 44 W.C.B. (2d) 298, [1999] O.J. No. 4406, 1999 CarswellOnt 3721 (Ont. S.C.). That reasonable person would also pay attention to the reason for that stance, as explained in judgment of Justice Hermiston:
Often, in courts where the Ontario Court of Justice sits regularly, a judge will encounter the same accused on different occasions. The reasonable person would be aware that sometimes the trial judge will accept that accused’s testimony and at other times, will not. The fact that a trial judge has previously convicted an accused because he was not credible does not in itself give rise to an apprehension of bias.
22Accordingly, I reject the father’s request that I recuse myself from hearing the issue related to the children’s primary residence.
Primary Residence
23Returning to the merits of the primary residence issue, prior to the father’s move to Midland in May or June 2015, the children resided with the father in Barrie, with access by the mother amounting to approximately 50% of the week (Sunday to Wednesday for the mother, Wednesday to Sunday for the father). The daughter attended junior kindergarten in Barrie. The access schedule could continue over the summer because the daughter was not going to school. It is the father’s decision to move to Midland that has precipitated this dispute and the resulting motion.
24The father points out that because of the mother’s alcohol abuse, the children have lived primarily with him since September 2014. He states that he has provided the children with a stable and consistent environment while the mother has been unreliable. While the mother has sought treatment for her alcoholism, she has only been in recovery for about four months, which is not long enough to demonstrate that she will continue to provide a stable environment for the children during the school year.
25The father denies alienating the children from the mother and claims that he actively encourages the children to have a positive relationship with their mother.
26The father states that he has a carefully structured plan for the school year which involves family support and the services of a regular day care provider with whom the children have been familiar for an extended period of time. He will register the daughter in Port McNicoll School and he maintains a work schedule that does not take him away from the children “during times that parents ordinarily share with their children”.
27In response, the mother makes the following points. Contrary to the father’s contention, he has not encouraged the children to have a positive relationship with her. In fact, he was found to be in contempt of court for failing to comply with the access provisions of the earlier court order. While he has since purged his contempt, his failure to deliver the children to the mother for access weighs against giving him the authority as the custodial parent. There is evidence that the father is actively alienating the children from their mother.
28The courts have recognized the importance of ensuring that young children have the opportunity, when appropriate, to have contact and build a relationship with both parents. In in cases of high conflict, “custody should be awarded to the parent who is more likely to ensure that the child reaps the benefit of both households” (see: D.W. v. G.N.W. [2015] ONSC 479, at para. 63). Based on his track record, the father cannot be trusted to assume this responsibility.
29In addition to the father’s refusal to deliver the children to the mother for access, the record indicates that the father has also engaged in inappropriate touching, groping and harassing of the mother during some of these access exchanges, as detailed in police reports appended to the affidavit material.
30The mother now works as a general manager at a restaurant in Barrie on Wednesday through Sunday. She has control over her schedule to accommodate the children’s activities and can obtain day care near where she lives. She can drop her daughter off at school every morning and on days when she cannot pick her up (Thursday and Friday), she can have the day care provider bring her to day care after school.
31The mother’s affidavit material contains records that indicate that their daughter was not in regular attendance at school when in the care of the father. Her attendance records filed with the court show that she missed 49.5 days of school from September 2014 to June 16, 2015 out of a total of 190 school days. All of the missed days were when the daughter was in the care of the father. The father acknowledges that the daughter “had some attendance issues” at school but blames this on “her medical condition (stomach and anxiety related issues), not through any fault of mine getting her to and from school”.
32The mother has also provided uncontradicted evidence that the day care provider, whom the father claims in his affidavit that he will rely on for day care for the children, actually stopped offering day care several months ago and has moved Oshawa.
33In determining primary residence I must be guided by s.24 of the Children’s Law Reform Act, RSO 1990, c C.12, (the CLRA) which requires that issues relating to custody and access be determined on the basis of the best interest of the child and, in particular, the criteria set out in s.24(2) of the CLRA.
34While both parents have their issues, they have both exhibited love, affection and emotional ties with their children. Due to the mother’s alcohol abuse problems, the father has enjoyed a slightly longer stable home environment. On the other hand, while he was in contempt of court, he actively thwarted the ability of the mother to establish a stable relationship and bond with the children.
35The evidence I have reviewed in this case causes me real concerns regarding the father’s ability to promote a positive environment where the children are free from adult conflict. I am also concerned with the many days of school missed by the daughter and the father’s excuse for those missed days, which is reminiscent of his excuse for his failure to comply with the access order: he blames his four year old daughter. If the daughter is indeed suffering from the medical condition he claims has resulted in so many missed days of school, I would expect to see medical records to demonstrate that the father has sought medical attention to deal with this condition. No such records were provided. I am, to say least, sceptical of this claim, but even if I believed it, I would be concerned that the father has not sought appropriate medical care to investigate this medical condition.
Conclusion
36Based on the foregoing, and taking into account the various factors listed in s. 24(2) of the CLRA, I conclude that it is in the best interest of the children to reside with their mother in Barrie and be registered in school in Barrie, until the custody issue is finally determined. At the same time, I conclude that the father should continue to have as much access to the children (up to 50%) as is consistent with their residence and attendance at school in Barrie. Accordingly, I would alter the access schedule so that the father, while he lives in Midland, will have the children from Friday after school until Sunday evening, or, if he is able to get the daughter to school in Barrie on-time Monday morning, the access can continue until Monday morning drop-off. This order is as close as I can get to the status quo while taking into account the father’s decision to move Midland.
37This court orders:
(a) Pending the final resolution of the custody application, the children Jadelyn Averyana Courtney, d.o.b. December 10, 2010 and Arcadian Christopher Courtney, d.o.b. June 1, 2013, shall reside with their mother in Barrie, and Jadelyn will be registered for school in Barrie;
(b) The father will have access with the children from Friday after school until Sunday evening, unless the father is able to get Jadelyn to school on time (8:30 a.m.) on Monday mornings, in which case his access may continue until Monday drop-off; and,
(c) When access exchanges take place between the parents, they will be arranged through a third party.
38If the parties cannot agree on costs, the mother may provide submissions of not more than three pages in length within 30 days of the date of release of this endorsement and the father shall provide submissions 15 days thereafter.
Charney J.
Released: September 2, 2015