ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-12-2284

DATE: 2015-11-27

BETWEEN:

Raana Alashkar
Applicant

– and –

Mohamed Khattab
Respondent

Arnold Schwartz, for the Applicant

Self-represented

HEARD: November 25, 26, 27 / 2015

Justice b. glass

Contempt Motion by Applicant against Respondent

[1] Mother is the Applicant and father is the Respondent. On April 27, 2015, Applicant was found in contempt of the final order of Rowsell J. The foundation for the Respondent’s contempt motion at that time was that the Applicant did not consult with the Respondent regarding their son. In a nutshell, she advanced her own course of action and did what she wanted without regard for the other parent. The sanction was simply finding her in contempt and directing her to follow the terms of the order of Rowsell J. That order had been made on November 12, 2013.

Elements of Contempt

[2] The order must clearly set out directions without leaving an opportunity for several interpretations;

[3] The party failing to comply with the order must act deliberately and wilfully;

[4] The improper conduct in this case is acting without consulting the other parent about the medical needs of the child and knowing that the court order requires such consultation; further, if the parents are not able to agree, the final decision is that of mother. If father does not approve, his course of action is to go to court;

[5] There is no need to prove that the party allegedly in contempt is deliberately acting contrary to the court order as if to say to the court that he or she just won’t follow the terms of the order.

[6] Proof of the deliberate breach must be proven beyond a reasonable doubt.

[7] Civil contempt emphasizes that the need for the administration of justice to be respected. Failure to do so can lead a society to slide into an abyss of disorganization and anarchy.

Analysis

[8] After the Applicant was found in contempt on April 27, 2015, she commenced her own contempt motion against the Respondent because he took their son to doctors without her consent. The final order had directed both parents to consult with each other about their son’s medical issues with a proviso that if they reached an impasse the final decision would be made by the Applicant.

[9] The Applicant had changed the family doctor from Dr. Gretsinger who had been named in the August 8, 2013 temporary order. The name of the doctor is not included in the final order of November 12, 2013.

[10] The parents are both intelligent and strong-willed people who can irritate each other very quickly. That approach to their lives does not assist their son.

[11] I am not surprised that mother was found in contempt. Her conduct appears to have been that of a person who looks at herself as the boss at all times pursuant to the existing order and that she is intent on telling father that he will do what she says. She got herself into trouble with the order by failing to discuss with the other parent medical issues for their son. Although the order of Rowsell J. dated November 12, 2013 provides that when all else fails with consultation between the parents about the medical needs of their son, the starting point is that each parent is to work with the other. In the contempt hearing before Lack J., it is evident from a review of the endorsement of the judge that mother did not do so.

[12] I conclude that mother has brought this motion for contempt allegations against father as a revenge motion. In other words, if I am tagged by a court order, I ’ll make sure that you are as well. Even though I make this observation, that does not absolve father of his obligations pursuant to the order of November 12, 2013.

[13] It appears to me that father at the end of the day breached the order of Rowsell J. by unilaterally making decisions to take the son of the parties to other medical professionals without consulting with the mother. There was no confusion for father about what the order stated. Both parents were to consult with each other obviously with the intent of making joint decisions. His faulty conduct is that he acted deliberately and wilfully to take their son to other doctors without consultation or agreement with mother, and father knew that the order required consultation between the parents. Father knew that if the parents could not agree, the proper course of action was to go to court.

[14] Father did not do so. He went with the child to see medical advisers of his choosing without approval from the other parent. In the spring of 2015, the notice to father that mother had arranged for surgery for their son came as a surprise to father because he had not been consulted about this situation. He wanted a second opinion.

[15] Father commenced a contempt motion against mother. Then, mother appears to have eased her intransigence to alternative considerations and agreed to hold off further medical proceedings until father obtained a second opinion. This involved an opinion from an ear, nose and throat specialist. Although mother did so, father did not resile from his contempt motion, advanced to a hearing before Lack J. at which mother was found to be in contempt. The sanction from Justice Lack was that mother was directed to comply with the order. There was no penile or financial sanction.

[16] I find that father was in contempt of the order of Rowsell J. As with mother, the sanction will be a direction that father comply with the order of Justice Rowsell dated November 12, 2013.

[17] There is no need for a fine or custodial sentence.

[18] As with mother, there is no need for costs to be awarded.

[19] This is an attempt by mother to balance her position with father as the parties continue with this proceeding. I do not find father in contempt to achieve such an end. Rather, the contempt finding is the result of the actions of father in this case.

[20] I have cautioned both parents to put their animosity to each other behind them for the benefit of their son.

Conclusion

[21] There is a finding of contempt by the Respondent / Father.

[22] Father is ordered to comply with the provisions of the existing court order of November 12, 2013.

[23] No costs will be awarded to either party.

Justice B. Glass

Released: November 27, 2015