Court File and Parties

Citation: Becker v. McGrath, 2016 ONSC 2807 Court File No.: FS-13-18618 Date: 2016-05-02 Superior Court of Justice - Ontario

Re: Elizabeth Becker, Applicant And: Ryan McGrath, Respondent

Before: Hood J.

Counsel: Tilda M. Roll, for the Applicant Ryan McGrath, appearing in Person via teleconference

Heard: April 21, 2016

Endorsement

[1] The parties entered into a consent order in the Supreme Court of British Columbia on November 16, 2011. The order provided that the primary residence for Leah was with the mother, Ms. Becker ("AM"). Pursuant to paragraph 5 of the order the father, Mr. McGrath ("RF") was to have 4 week-long access visits with Leah. Pursuant to paragraph 13b the RF was to have weekly access with Leah by Skype. Pursuant to paragraph 4 the AM was at liberty to move with Leah to the GTA. She did so.

[2] On April 2, 2013, the AM commenced an application in Ontario for custody, access and child support. On May 2, 2013 the RF filed his answer asking that the Ontario court recognize the British Columbia order or that it be amended in a number of ways. On October 5, 2015, the AM filed a Notice of Withdrawal of Application. On April 1, 2016 the RF brought the within contempt motion pursuant to Rule 31 alleging that the AM had failed to facilitate the weekly Skype access since September 2013 and had failed to make Leah available during one of the two summer week-long access visits in 2013 and 2014, shortened the spring school break access visit in 2013 to 6 nights, and failed to provide Leah's transportation to the airport in Toronto, all contrary to the British Columbia order.

[3] When the contempt motion was commenced the only outstanding order providing for access was the British Columbia order of November 16, 2011.

[4] At the commencement of the hearing of the contempt motion, I questioned whether I had any jurisdiction to hear the motion when there was no order in Ontario dealing with access for which the AM could be found in contempt. The RF then asked, without a formal notice of motion, that I recognize the British Columbia order pursuant to s. 41(1) of the Children's Law Reform Act. This section of the CLRA provides that the court, which includes by definition the Superior Court of Justice, shall recognize the order unless the court is satisfied that one of five conditions dealing with matters such as notice, judicial fairness, public policy, and reciprocity are applicable. The AM made no argument that any of the conditions were applicable. Accordingly, I found that the British Columbia order of November 16, 2011 was to be recognized in Ontario and made such an order on April 21, 2016.

[5] Pursuant to s.41 (2) of the CLRA an order that is recognized is deemed to be an order of the Ontario court and enforceable as such. The AM argues that since the British Columbia order is only now recognized, it is only deemed to be an order of the Ontario court enforceable April 21, 2016 and accordingly there can be no contempt motion as all of the alleged acts of contempt took place prior to April 21, 2016. The RF argues based on McDonald v. Isnor 2005 CanLII 3469 (ONSC) that he is entitled to enforce the order by bringing a contempt motion based upon a previous denial of access. The McDonald decision, as I read it, does not find that. It merely states at paragraph 21 that it might have been open to make this argument. No decision was made as to whether this could actually be done.

[6] Under Rule 31(5) orders may be made against the contemptor if the court finds a person in contempt of the court. Under Rule 31(1), an order may be enforced by a contempt motion made in the case in which the order was made. Case is defined in Rule 2(1) as an application for bringing a matter to the court.

[7] The first order in the within case was made April 21, 2016. While the British Columbia order of November 16, 2011 is now deemed to be enforceable in Ontario, it is only deemed to be an order of the Ontario court on April 21, 2016. Any contempt against the Ontario court can only flow from the violation of its own order, not the order of another court. The recognition of the British Columbia order and enforcing it in Ontario going forward is one thing. To find the AM in contempt of an order of the Ontario court for conduct prior to the Ontario court making an order is another. I find that the AM cannot be found to be in contempt of an order just made enforceable in Ontario based upon prior conduct.

[8] However, even if I am wrong in this and the AM could be found to be in contempt by a court in Ontario for an order made in British Columbia in 2011 and only now recognized in Ontario, I find that the RF has failed to make out his motion for contempt.

[9] Contempt is a serious remedy and is not to be granted lightly. It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. Any doubt must be exercised in favour of the person alleged to be in breach of the order. While the court will not hesitate to enforce access through a contempt order if there is evidence that the custodial parent has a demonstrated history or pattern of intentionally frustrating, limiting or terminating access, if a custodial parent can show that she acted at all times in the best interests of the child and not with the intention of disobeying the court's order out of self-interest, the courts have been reluctant to make findings of contempt. Evidence of contempt in family matters should be "clear and unequivocal". Restraint is appropriate in making such findings. (See: Perna v. Foss, 2015 ONSC 5636 at paras. 12 - 15, and A.G.L. v. K.B.D., 2009, CanLII 14788 (ONSC) at paras. 30 - 31).

[10] Here, the RF missed one summer week of access in 2013. This is acknowledged by the AM. However, there is no evidence that the AM demonstrated a wilful and deliberate disregard of a court order. Rather, the evidence shows that the missed week was due to a scheduling conflict from both sides and a misunderstanding as to when the RF planned to exercise access. Moreover, the missed weekend was made up in the fall of 2013 so that the RF did get his four weeks in 2013, albeit with only one week in the summer. As to 2014 I am not satisfied beyond a reasonable doubt on the evidence before me that there was in fact a missed week in 2014.

[11] While the spring one-week access in 2013 may have been six nights, based upon the AM's interpretation of what 7 days meant, the AM states that this has not occurred since Goodman J's case conference in August, 2013 where it was first explained to her what 7 days actually meant for access purposes. I am not prepared to find that this reduction in access in the spring of 2013 was a wilful disregard of the court order and worthy of contempt.

[12] As to the non-payment of Leah's transportation to the airport in Toronto by the AM, the order is not so clear that the court can say the AM is in contempt of it. The order provides in paragraph 10 that the RF is responsible for paying all of the costs of air travel associated with access. It is not unreasonable in my view to include the costs of getting to and from the airport as part of the costs of air travel associated with access. The AM looks after the transportation from the Toronto airport when Leah returns to Toronto. Arguably, this is not something that she is required to do under the order but she has decided to arrange for this part of the transportation. Having done so she is not also now obligated to look after the transportation to the Toronto airport.

[13] As to the Skype calls, the AM states that any issues with the calls from late 2013 to October 2015 flowed from her attempting to facilitate the calls based upon her concern with Leah's reaction to the calls and her reluctance to talk to the RF. The RF argues that the AM failed to promote Leah's relationship with him and that the AM should have been more assertive in compelling Leah to talk to him via Skype.

[14] The AM states that she tried to do so but as she did Leah became more resistant. The AM took Leah to The Hincks-Dellcrest Centre for family therapy in part to assist with parenting issues including Leah's reluctance to communicate with the RF via Skype. The Centre made some recommendations as to how the AM could help the process. The AM attempted to use the recommendations, such as engaging the RF in conversation during the Skype call, in the hope that Leah would then become involved and gradually become more willing to speak to the RF. The RF objected to this process and argues that this is contempt. The AM I find did so in the best interests of Leah and with no intention of disobeying the Court order.

[15] The AM says the Skype calls have improved. The RF complains that the computer is not always on when he expects the Skype call to take place and argues this too is contemptible conduct. However, he refuses to make a telephone call to see if there is an issue at the AM's end with the computer or with the timing or to request that the computer be turned on so he can speak to Leah. The AM is not in contempt of any order. Rather the RF should act more reasonably in assisting to make the calls happen.

[16] The RF in argument also seeks to have further orders made under s. 41(4) to "give effect to the consent order". That is not what the RF sought in his motion. He only sought a contempt order against the AM. I am not prepared to make any further orders.

[17] The RF's motion is dismissed. As to costs, neither party had a costs outline. I understand that there were no offers made that could impact upon a costs award. The AM asks for costs on a full indemnity basis arguing that this was a contempt motion and accordingly she is entitled to costs on an elevated scale. She asks for $10,000 for fees and disbursements plus HST. Ms. Roll advises that her hourly rate is $400.

[18] While unsuccessful I do not find that the RF's conduct in bringing the motion for contempt was so reprehensible to result in full indemnity costs being granted. Having considered the factors as set out in Rule 24(11) of the Family Law Rules, I award $6,500 inclusive of disbursements and HST, to be paid by the RF to the AM on or before June 3, 2016.

Hood J.

Date: May 2, 2016