Court File and Parties

BARRIE COURT FILE NO.: FC-04-1135-04 DATE: 20150831

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Stephanie Knapp, Applicant and Kevin Munro, Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: John C. Rogers, as agent for the Applicant David S. Zeldin, for the Respondent

HEARD: August 13, 2015

ENDORSEMENT

[1] This case involves two motions brought by the respondent father: the first to restrain the applicant mother from moving from Barrie to Niagara Falls, and the second to find the mother in contempt of court for wilfully disobeying the temporary order of Justice Wildman, dated July 2, 2015, by removing the children from Simcoe County before the first motion could be heard.

[2] I conclude that the mother was in contempt of court when she disregarded the July 2, 2015 court order. I also conclude that it is in the best interests of the children to permit the family to move to Niagara Falls pending the final resolution of the father’s motion to change.

Background

[3] The parties were married in 2005 and finally divorced in 2009. Between those dates, and even after 2009, there appear to have been several separations and reconciliations in which the father would move in temporarily with the family. There are two children of the relationship, a son born in 2004 and a daughter in 2005. Both parties now live in Barrie Ontario, but the children have always lived with the mother and two older siblings (a boy age 13 and a girl age 16) from the mother’s previous relationship. The final separation was on February 2, 2010, when the father was charged with (and later found guilty of) assaulting the mother and threatening to kill her two older children.

[4] By court order dated July 27, 2006, the mother was given sole custody and primary residence of the children, with a requirement that she give the father sixty days written notice if she intended to move outside of the city of Barrie. The father was originally given supervised access according to a schedule set out in the order, which was expanded to unsupervised access every second weekend by a consent Order dated April 4, 2014. The father was mostly absent from their life until about two years ago when he started exercising his access and building a relationship with his two children.

[5] On or about June 16, 2015, the father found out that the mother was planning to move with the children (and the two older siblings) to Niagara Falls, Ontario, which is not in Simcoe County and is a two hour drive from Barrie. The mother was not planning to tell the father until after she had made the move.

[6] On July 2, 2015, the father brought an urgent motion to prevent the mother from moving to Niagara Falls. The mother did not attend the motion although she was served by email. On July 2, Justice Wildman issued a temporary without prejudice order (expiring July 16 unless extended) that the children were not to be removed from Simcoe County until further order of the court. The motion was then adjourned to first appearance court in Barrie on July 8, 2015, and also to the motions list for July 16, 2015. The order was served on the mother that same day.

[7] Despite that order, the mother moved the children to Niagara Falls on or about July 4, 2015. She did not attend first appearance court on July 8, 2015, although she did attend the motion on July 16, acknowledging that she had moved to Niagara Falls, and requesting an adjournment to retain counsel.

[8] Justice McDermot granted the adjournment but his endorsement of that date confirms that “the court order made by Wildman J. had to be adhered to in the meantime and the children returned to Simcoe County”. The mother apparently left the courtroom at that point and did not return. Justice McDermot stated, “It is necessary for the children to return to Simcoe County pending argument of this motion. Court orders are not suggestions; they are mandatory.”

[9] He further ordered that the “Applicant mother forthwith return the children to Simcoe County and advise the solicitor for the respondent father where the children are staying”. He adjourned the father’s motion to August 13, 2015 for argument peremptory on both parties.

[10] The father tried to serve Justice McDermot’s endorsement on the mother at her residence in Barrie, but the apartment was empty and he was advised by neighbours that she had moved. He went to the police station in Niagara Falls with a copy of the order and asked them to enforce it. On July 20, 2015, the Niagara Regional Police located the mother and children at their home in Niagara Falls, and advised her to return to Barrie with the children. The mother did comply with the police request and returned to Barrie on the evening of July 20, 2015.

[11] The mother’s affidavit states that she understood from Justice McDermot’s comments that her choice was either to move to Niagara Falls and leave the children with the father or move back to Barrie. She claims she left the court because she thought that the proceeding was finished, and her intention was to move back to Barrie with the children. She thought that she would have a few days to comply with the order and was planning to move back on July 20, 2015, even before the police came to her door to enforce the order.

Analysis

Contempt of Court

[12] The court order of July 27, 2006 did not prohibit the mother moving away from Barrie, but imposed a sixty-day written notice requirement, so that if she chose to move the father would, if he objected, have ample opportunity to bring a motion to ask the court to prohibit the move, or impose conditions to preserve his access. Her failure to comply with that notice requirement resulted in the July 2, 2015 order of Justice Wildman. Her failure to comply with Justice Wildman’s order resulted in the July 16, 2015 order of Justice McDermot.

[13] Contempt is a serious remedy and is not to be granted lightly[^1]. It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. Often, although not always, a trial is necessary to establish the alleged contempt beyond a reasonable doubt[^2]. The cases state that the civil contempt remedy is one of last resort and that great caution must be exercised when considering contempt motions in family law proceedings. Contempt remedies should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order[^3].

[14] Finally, and as set out Bowman v. Bowman [2009] O.J. No. 2993 (S.C.J.) at para. 17[^4], to make a finding of contempt, the court must be satisfied as to three elements of the alleged contempt:

(a) The order must be clear and not subject to different interpretations;

(b) The acts stated to constitute the contempt must be wilful rather than accidental; and,

(c) The events of contempt must be proven beyond a reasonable doubt.

[15] Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed.

[16] Notwithstanding the court’s reluctance to exercise it contempt powers, it is important that such powers be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip. In Surgeoner v. Surgeoner, [1992] O.J.No.299, Justice Blair stated (at paras. 6 and 7):

The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness.” In this environment it is all too easy for a spouse to believe that he or she “knows what is right”, even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated.

[17] The availability of a contempt order to enforce a court order is set out in s. 31(1) of the Family Law Rules, O Reg 114/99, which provide:

31. (1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.

[18] The 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.

[19] On the other hand, where a person who has been in contempt of court comes into compliance with the court order by the date of the contempt motion (“purges” their contempt), courts have concluded that a finding of contempt may be a sufficient penalty without imposing any additional penalty[^5].

[20] Having reviewed the evidence in this case, I am satisfied beyond a reasonable doubt that the mother deliberately moved her children to Niagara Falls even though she was aware of Justice Wildman’s July 2, 2015 order and knew that the move was inconsistent with that order. She provides various excuses for her failure to comply with that order, but does not seriously dispute that she wilfully disobeyed it. Her affidavit essentially states that she was too busy with the move to Niagara Falls to pay attention to the court’s order. In Szyngiel v. Rintoul, supra, the court stated (at para. 24) that: “There are situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order”. None of the excuses offered by the mother provides a reasonable excuse for breaching the court order in this case.

[21] Whether or not she understood Justice McDermot’s use of the word “forthwith” in his July 16, 2015 order, she was already in contempt of Justice Wildman’s order of July 2, 2015. While she did finally did comply with these orders by returning to Barrie on July 20, she did so only because the father went to the expense of bringing a contempt motion on July 9 and involving the Niagara Regional Police in the enforcement of Justice McDermot’s July 16, 2015 order.

[22] On the other hand, the mother has purged her contempt and when she attended court on August 13, 2015, expressed her sincere regret for her earlier failure to comply. At this point, I do not see what is to be gained by imposing further penalty on the mother. I agree with the decisions in Szyngiel v. Rintoul, supra, and Chappel v. Hillock, supra, that, in these cases, the finding of contempt is a sufficient penalty. That being said, the father was successful in his motion for contempt and he is entitled to his costs for that motion.

Mobility

[23] The July 27, 2006 court order (as amended by the Order, dated April 4, 2014) represents the status quo. While it was premised on the fact that both parents lived in Barrie, it clearly contemplated the possibility that one of them might move.

[24] In this case, I have come to the conclusion that it is in the children’s best interest to permit the family to move to Niagara Falls, pending the final resolution of the father’s motion to change, with the understanding that, on the mother’s undertaking, she will provide the transportation for the father’s access and that the move will not interfere with that access. While two hours in each direction every other weekend will be an inconvenience, the inconvenience does not outweigh the anticipated benefits of the move to Niagara Falls. I am satisfied that the mother’s intended move is made in good faith for the best interest of the children and is not intended to frustrate the father’s relationship and access to the children.

[25] In determining, on an interim basis, whether one parent may move the children away the following principles apply:

(a) The courts should be reluctant to upset the status quo where there is a genuine issue for trial as to custody and access.

(b) There may be compelling reasons to allow the move, but those reasons must reflect the best interest of the child(ren), not the parent.

(c) The move can be allowed on an interim basis if the court is satisfied that the move would likely be ordered after the trial.

(d) The onus is on the parent seeking to move the children to establish that it is in the child’s best interest.

(e) The move should not be granted unless it is clearly in the best interests of the children.[^6]

[26] In making this decision, I have reviewed the principles relating to determinations of temporary mobility set out by the Supreme Court of Canada in Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27, and the summary and discussions of those principles prepared by Justice Sherr in more recent cases such as Costa v. Funes [2012] ONCJ 466 and Boudreault v. Charles [2014] ONCJ 273. I have also considered the recent decision of Justice G.A. Campbell in Kapoor v. Kapoor, [2015] ONSC 4000.

[27] The mother’s affidavit explains in some detail why she has decided to move to Niagara Falls. These are summarized below:

(a) This year, her sixteen-year-old daughter was sexually assaulted by a boy at school and has become the target of teasing and bullying at school. She has been called “rape-girl” at her school. The daughter was afraid to attend and frequently missed school as a result.

(b) The two youngest children and their thirteen-year-old brother will be changing schools this September in any event because their present school is being converted to a French immersion school.

(c) The mother currently lives in subsidized housing in Barrie. She is on ODSP because of anxiety and depression. She claims that the neighbourhood is unsafe, and that she has drug addicts as neighbours. She cannot afford a house of her own and cannot afford housing in Barrie. The opportunity to move with the children to house in Niagara Falls, which she is buying with help from her mother, was a chance to improve everyone’s life. The new home offers the family a safer place with more room (eight bedrooms so that each child and adult, including her mother, will have their own room) and it is close to their proposed new school.

(d) Living with her aging mother will enable her to assist her mother, who has severe chronic health issues, but it will also give her someone to help on a daily basis with the children.

(e) The mother believes that this move out of low income housing in Barrie to a house in Niagara Falls will give everyone in her family a better future.

(f) The mother states that she has no wish to interfere with the father’s access to his children and will provide the transportation for his access. The drive from Barrie to Niagara Falls is approximately two hours. While this is no doubt inconvenient, it is certainly not an insurmountable obstacle every other weekend. Since the children frequently visit their grandmother in Niagara Falls, they will likely have to make the trip from Niagara Falls to Barrie no matter where they live.

[28] While I have considered all of the relevant factors set out in the cases referred to above, the principles most relevant to the present case relate to the need for the mother to establish a secure and safe residence for herself and her children. For example, in Boudreault, supra, Justice Sherr states at paragraph 26(j):

Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child’s best interests. (citations omitted)

[29] In the same case, at paragraph 26(k), Justice Sherr states:

There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Del Net v. Benger, 2003 CarswellOnt 3898 (Ont. SCJ).

[30] There are really only two choices in this case. The first is to permit the mother to move to Niagara Falls with all four of her children, the second is to require the mother to move to Niagara Falls with only her two oldest children and leave the two younger children in Barrie with the father. The second alternative, which would involve separating the two younger children from their older siblings and removing them from their mother, with whom they have lived all of their life, would not be in the children’s best interest. The move to Niagara Falls may present some additional inconvenience for the father to exercise his access, but the convenience of the access parent does not override the best interest of the children.

[31] I am satisfied that the mother has met her onus to demonstrate that moving the children from Barrie to Niagara Falls is in their best interest and that it will not interfere with the father’s access to the children. While this interim order creates a new status quo, I am of the view that the move will likely be permitted if there were a trial (see Kapoor v. Kapoor, supra, at para. 20).

Conclusion

[32] Therefore, in the interim, I order that:

(a) The father’s motion to restrain the mother from moving from Barrie to Niagara Falls pending his motion to change is dismissed.

(b) The mother shall ensure that the children have transportation to Barrie, in accordance with the access schedule set out in the Order, dated April 4, 2014.

(c) Neither party shall discuss this case or other adult-related issues with the children.

(d) The mother is found to be in contempt of court for wilfully disobeying the temporary order of Justice Wildman, dated July 2, 2015. That contempt has been purged and no penalty is imposed.

(e) My temporary order, dated August 13, 2015, and the temporary orders, dated July 2 and 16, 2015, are vacated.

[33] The father is entitled to his costs for the contempt of court motion. The mother is entitled to her costs for the father’s motion to restrain her from moving to Niagara Falls. If the parties cannot come to an agreement on costs, the father may serve and file costs submissions of not more than three pages within thirty days. The mother has an additional fifteen days to reply.

Charney J.

Released: August 31, 2015

[^1]: See: Fisher v. Fisher, 2003 2119 (ON SC), [2003] O.J. No. 976 (S.C.J.). [^2]: See: Coletta v. Coletta, 2003 2412 (ON SC), [2003] O.J. No. 81 (S.C.J.). [^3]: See: Prescott Russell Services for Children and Adults, (2006), 2006 81792 (ONCA), 82 O.R. (3d) 686 (Ont.C.A.); Hefkey v. Hefkey, 2013 ONCA 44; and Children’s Aid Society of Ottawa v. S.(D.), 2001 28152 (ONSC), [2001] O.J. No. 4585. [^4]: See also: Prescott Russell Services for Children and Adults v. G(N), supra; Davydov v. Kondrasheva, 2012 ONCA 488), and Hobbs v. Hobbs, 2008 ONCA 598, [2008] O.J. No. 3312 (Ont. C.A.). [^5]: See: Szyngiel v. Rintoul, 2014 ONSC 3298, at para. 34; and, Chappel v. Hillock, 2015 ONSC 4168, at para.12. [^6]: Crewson v. Crewson [2014] O.J.No. 3455, para. 10 and cases cited therein.