Court File and Parties

COURT FILE NO.: F 1537/10 DATE: 2016-04-28 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Derek John Douglas Houben, Applicant AND: Brittany Elizabeth Maxwell, Respondent

BEFORE: Heeney R.S.J.

COUNSEL: B. Barr, for the Applicant S. Merrifield, for the Respondent

HEARD: April 26, 2016 at London

Endorsement

[1] This is a motion by the Applicant for a finding that the Respondent is in contempt of court by reason of having denied him access to his son, Boston James Houben, born July 19, 2010. The Respondent has commenced her own Motion to Change, and asks for an order varying the current access order on an interim basis. Because there has been no Case Conference, she requires leave of the court for such a motion to be heard.

[2] The final order in question was made by Templeton J. on November 6, 2012, pursuant to Minutes of Settlement. It awarded sole custody to the Respondent. The Applicant was awarded unsupervised access to the child every weekend from Saturday at 10 a.m. to Sunday at 6 p.m. The order stated that the access provisions shall be reviewed on or around April 1, 2013 to consider extending weekend access and to review any issues of concern. Neither party initiated any review, because there were no issues of concern.

[3] It should be noted that prior to the final order of Templeton J., several interim orders had provided for supervised access. This was due to the fact that the Applicant had a history of drug and alcohol dependency and mental health issues. However, matters were resolved to the satisfaction of both parties and no provision for supervision was included in the final order. Access exchanges were supervised until August of 2014 but not thereafter. Access was, in fact, expanded starting in August of 2014 such that visits every other weekend went from Friday after school until Sunday at 10 a.m. That access regime continued up until February 13, 2016.

[4] On all of the evidence, access visits went very well until February 10, 2016. At that point in time, Portia Strong, the recently estranged ex-girlfriend of the Applicant, sent a text message to the Respondent, complaining of the Applicant’s behavior. She said the Respondent was taking steroids on a weekly basis. The principle item of information she passed on to the Respondent concerned an alleged verbal and physical altercation that had occurred at the Applicant’s parents’ home during Christmas, 2015, while the Applicant and the child were attending a dinner party.

[5] Portia Strong swore an affidavit for purposes of these proceedings dated March 24, 2016. She states that she and the Applicant met online in May, 2015 and dated for about four months, and then cohabited from August 2015 until February 10, 2016. She states that “the first time I witnessed Derek’s rage was at his parent’s home”, about a week after Christmas. She states that they were about to sit down for breakfast when the Applicant became enraged because his mother did not prepare a vegan breakfast for him. She alleges he called his mother a “dustbag” and said “I hope you die”. He then went outside to have a cigarette. His brother Chad went out to calm him down and they started yelling at each other. Portia went outside and saw the Applicant swinging his fists at Chad. His father came out and intervened, and the Applicant punched his father in the face.

[6] The Applicant’s brother Chad swore an affidavit, and confirmed that there had been an incident in or around December 6, 2015, where the Applicant became upset because there was no vegan food for him to eat. He and his brother argued outside and pushed each other once, but that was the extent of the physical contact. Afterward, the child Boston did not seem concerned or even aware of the incident that had occurred.

[7] The Applicant’s father Louis Houben also swore an affidavit. He denies that the Applicant made the comments to his mother as alleged by Portia. He states that the Applicant did become angry at the lack of any vegan food for him to eat, and went outside in accordance with a coping mechanism that he had been taught at the Partner Assault Response Program that he completed in 2012. Chad and the Applicant got involved in an argument and were grabbing each other by the arms. Mr. Houben intervened and told them both to settle down. He was not punched in the face by the Applicant.

[8] The Respondent’s response to the information she received from Portia was to unilaterally deny access to the Applicant, commencing February 13, 2016. Three letters were sent to her over the following few weeks putting her on notice that she was in breach of Justice Templeton’s order. The denial of access continued.

[9] The Respondent attempted on her own to obtain an ex-parte order changing the access order, but this was denied by McSorley J. on the basis that service on the Applicant was essential. Shortly after, she was served with the Applicant’s contempt motion. With the assistance of counsel, she then commenced a Motion to Change.

[10] Access has been reinstated commencing March 26, 2016, pursuant to interim without prejudice orders, supervised by the Applicant’s parents or his brother. The Applicant seeks an immediate return to the access order made by Templeton J.

[11] A great deal of caselaw was submitted by both counsel, but it is not necessary to refer to most of it because the law in this area is well-established. In Docherty v. Catherwood, 2015 ONSC 5240, Price J. dealt with a contempt motion relating to a denial of access. At para. 16, he accurately summarized the law as follows:

The court applies a three-part test to determine whether a party is in contempt:

(a) The order that was breached must state clearly and unequivocally what should and should not be done;

(b) The party who disobeys the order must do so deliberately and willfully; and

(c) The evidence must show contempt beyond a reasonable doubt. [ endnotes omitted ]

[12] In that case, as in the one before this court, the mother denied access because she unilaterally came to the conclusion that access needed to be supervised, in the children’s best interests. He dealt with that argument at para. 19:

Ms. Catherwood asserts that, while she deliberately withheld the access that Justice Donohue's order had granted to Mr. Docherty, she did not "wilfully or deliberately" breach the order, because she considered it necessary, in the children's interests, to require that the access be supervised. I find that there is no justification for Ms. Catherwood's position in this regard. Where there is no dispute that there has been conduct that, objectively speaking, is in breach of an order, the only thing that can save the behaviour from amounting to contempt is legal justification, in the form of a serious risk of harm to the children. [ emphasis added ]

[13] There can be no question that contempt of the order of Templeton J. has been proven beyond a reasonable doubt. On the Respondent’s own admissions, she was well aware of what the order obligated her to do, and deliberately chose to defy the terms of the order. She was properly put on notice by Applicant’s counsel as to the nature of her breach, yet persisted with her conduct.

[14] The real question is whether her behaviour is legally justified, due to the presence of a serious risk of harm to the child.

[15] In my view, the Christmas incident reported by Portia falls short of demonstrating a serious risk of harm to the child. The child was not directly involved in the incident, and was apparently unaffected by it. It is noteworthy that, according to Portia, this was “the first time” she was exposed to the Applicant’s “rage” even though they had been a couple since the preceding May. This suggests that this incident was an isolated one, and not part of a continuing course of conduct.

[16] While the fact that the Applicant was taking steroids might create some cause for concern, he explained that he took them on Sundays once per week to deal with sexual dysfunction that was affecting his relationship with Portia, and at her request. While the access order prohibits him from taking drugs or alcohol 72 hours prior to an access visit, taking steroids as he has described would not amount to a breach of that order. He has, in any event, discontinued doing so given the termination of his relationship with Portia.

[17] There is nothing about the December incident that gave rise to a situation of serious risk to the child that justified the unilateral action of the Respondent in choosing to defy the access order. It is significant that the incident had occurred two months before she even became aware of it, and throughout that period she was of the view that access was going well.

[18] While it is abundantly clear that it was Portia’s intervention that led to the denial of access, the Respondent raises other concerns in justification of her actions. She alleges that the child has hidden in closets and cried, covering his ears when his father would get angry. There is no detail as to when this allegedly occurred, or how the Respondent came to know about it. She also alleges that the child’s behaviour has been of concern over the past year, such as using his fork to make stabbing motions at his sister, and throwing himself to the floor, but there is no basis upon which any such behaviour, if true, could be said to be the result of access visits with his father. Significantly, any such behaviour did not raise sufficient concerns to cause the Respondent to seek any variation in access prior to Portia’s intervention. Quite the contrary, she admits on her own evidence that she thought that things were going quite well with respect to Boston’s access until she heard from Portia.

[19] The Respondent’s unilateral action amounts to a gross overreaction to the information she received from Portia, and falls far short of constituting legal justification for breaching a court order.

[20] I give no weight to the letter from Children’s Aid dated March 18, 2016, which states that “Based on concerns reported to the Society” the Society supports her decision to allow supervised access. Significantly, the letter goes on to state that, as their investigation is not complete, “the Society is not able to take a position on access at this time”.

[21] Much of the Respondent’s affidavit deals with historical complaints about the Applicant’s behaviour and substance abuse issues prior to the final order of Templeton J. Given that these events predate the final order, this evidence has little or no relevance to the present proceedings, and certainly cannot justify the imposition of supervised access now when that same history resulted in a final order for unsupervised access.

[22] Mr. Merrifield, for the Respondent, cited several cases that stand for the proposition that contempt proceedings should be a “last resort”. While I agree with that proposition, I do not see that the Applicant had any other option, faced with a continuing and blatant breach of the court order. It would have been redundant for him to have brought a motion asking for an order that the earlier court order be enforced.

[23] Orders of the court must be respected. While she may have sincerely believed that she was acting in the best interests of the child, it is for the court to decide, not her, as to whether her concerns justify a variation of the existing access order. Absent a situation of emergency that shows a serious risk of harm to the child, she must bring a Motion to Change to place her concerns before the court. In the meantime, she is expected to abide by the existing court order unless and until it is changed by the court.

[24] I am satisfied beyond a reasonable doubt that contempt of para. 5(a) of the order of Templeton J. dated November 6, 2012 has been proven. Breach of para. 6(f) has also been proven, which would have provided the Applicant with access for all of March Break in 2016.

[25] An order will go that the final access order of Templeton J. shall be reinstated commencing Saturday April 30, 2016.

[26] In terms of the relief sought, the Applicant seeks makeup access only, and does not seek an order for imprisonment or a fine. In his proposed order, he seeks additional access from Friday after school until 10 a.m. on Saturday mornings commencing April 29, 2016 up to and including June 24, 2016. He also seeks access for March Break 2017, which otherwise would have been the Respondent’s week. Both requests are reasonable, and orders will go as asked.

[27] The Applicant also seeks a police assist order. In my view, that is premature. I am confident that these proceedings will bring home to the Respondent her obligation to abide by court orders. If a further breach occurs, a police assist order will be appropriate at that time.

[28] With respect to the Respondent’s motion for an interim variation of the final access order, I find, for the reasons outlined above, that she has not met the threshold of urgency to be granted leave to hear this motion in advance of a Case Conference. Had leave been granted, I would have denied the motion. Her material does not make out a clear case for relief, nor does it establish that the need for the variation is urgent: see Crawford v. Dixon, 14 R.F.L. (5th) 267 (Ont. S.C.J.) at para. 14. Her motion is adjourned to the Case Conference scheduled for June 13, 2016 to be spoken to.

[29] She has also requested an order that there be an assessment under s. 30 of the Children’s Law Reform Act. Once again, there is no urgency to this request, and it is adjourned to the Case Conference to be spoken to. Had it been necessary to rule on the request, I would not have ordered it. Given the fact that access went very well for four years up until Portia’s intervention, there is no reason to believe that this status quo cannot be successfully restored. Assessments are extremely expensive, and should only be ordered where it is clearly necessary to do so in the child’s best interests.

[30] I encourage the parties to resolve the issue of costs, bearing in mind the reality that they need to put this episode behind them and get along once again, in their child’s best interests. A punitive costs award would do nothing to accomplish that objective. If costs cannot be resolved, I will accept brief written submissions from the Applicant within 15 days, with responding submissions from the Respondent within 10 days thereafter and any reply submissions within 5 days thereafter. Failing that, the parties will be deemed to have resolved the issue of costs as between themselves.

“T. A. Heeney R.S.J.” Regional Senior Justice T. A. Heeney Date: April 28, 2016