Jackson v. Jackson, 2016 ONSC 3466

CITATION: Jackson v. Jackson, 2016 ONSC 3466

COURT FILE NO.: D 22850/11

DATE: 2016/06/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmen Marie Jackson

Applicant

– and –

David Gordon Jackson

Respondent

Maria Lucarelli, counsel for the Applicant

Patricia Lucas, counsel for the Respondent

HEARD: June 23, 2014, June 24, 2014, June 25, 2014, June 26, 2014, June 30, 2014, July 3, 2014, December 7, 2015, December 8, 2015, December 9, 2015, and January 18, 2016

THe Honourable madam justice Deborah L. Chappel

reasons for judgment

PART I: INTRODUCTION

[1] These are my Reasons for Judgment in connection with a contempt motion which the Applicant Carmen Marie Jackson (“the Applicant”) brought dated April 2, 2014, and originally returnable on April 9, 2014, in which she seeks an order finding the Respondent David Gordon Jackson (“the Respondent’) in contempt of three temporary access orders made in this proceeding. The orders relate to the two children of the parties’ relationship, namely Jacob David Jackson, born December 23, 2004 (“Jacob”) and Carter Joshua Jackson, born May 6, 2008 (“Carter”). In her notice of contempt motion, the Applicant alleges the following acts of contempt by the Respondent:

1. The Respondent committed contempt in relation to the order of Maddalena, J. dated May 31, 2013 by failing to make the children available for weekly two hour supervised visits at the Pathstone Mental Health Supervised Visitation and Exchange Niagara program (“Pathstone”) from October 11, 2013 until January 26, 2014.

2. The Respondent committed contempt in relation to the order of Whitten, J. dated January 29, 2014 by failing to make the children available for the full two hours of supervised access required by the order during the visit of March 1, 2014.

3. The Respondent committed contempt in relation to the January 29, 2014 order and the order of Maddalena, J. dated March 17, 2014 in that he did not facilitate the supervised access visits scheduled for March 16, 2014, March 23, 2014 and March 30, 2014 and did not encourage and/or require the children to attend the visits on those dates.

[2] On June 30, 2014, I made an order dismissing the request for a finding of contempt in relation to the March 1, 2014 visit, on the basis that the January 29, 2014 order did not mandate visits of at least two hours. Rather, as discussed in further detail below, that order provided that supervised visits were to be a maximum of two hours in duration.

[3] For the reasons that follow, I conclude that the Applicant has not made out a case for contempt against the Respondent in relation to the orders dated May 31, 2013, January 29, 2014 and March 17, 2014, and I have accordingly dismissed the contempt motion.

PART II: BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS

[4] I make the findings of fact set out in this Part regarding the background in this matter based on the extensive viva voce evidence adduced at the hearing.

[5] The Applicant was born on March 22, 1973, and is therefore 43 years of age. The Respondent was born on December 15, 1968 and is 47 years old. The parties began cohabiting in September 1999 and were married on October 11, 2003. Jacob and Carter are the only two children of their relationship. The parties separated on October 1, 2010, and a divorce order was issued on February 2, 2012. For the first several weeks post-separation, the parties both remained in the matrimonial home.

[6] The parties’ separation was very acrimonious. The Applicant alleges that the break-up was precipitated primarily by the fact that the Respondent had an extra-marital affair with Ms. Kari-Lyn Nielson. The Respondent denies this allegation, and attributes the breakdown of the marriage to a history of abusive treatment by the Applicant towards both him and the children. These allegations will be discussed in further depth later in these Reasons. Unfortunately, the conflict between the parties led to a number of interventions by the Niagara Regional Police Service (“the police”) following the separation. The first such intervention occurred on October 20, 2012. The parties both remained in the home following that police attendance, on the understanding that the Respondent would sleep in the basement. No charges were laid. The Respondent left the matrimonial home and began to reside with his mother, Beverley Jackson (“the paternal grandmother”), sometime in late October, 2010. The police attended the matrimonial home again in response to domestic disputes on November 2, 2010 and November 11, 2010. The Respondent left the home with Jacob following the police attendance on November 11, 2010. He and Jacob went to the home of the paternal grandmother, and the Applicant remained with Carter in the matrimonial home.

[7] The Respondent did not return Jacob to the Applicant’s primary care after November 11, 2010 and did not send Jacob to school for several days thereafter. In response to these developments, the Applicant consulted with counsel and began the process of initiating this court proceeding. On November 16, 2010, she called the police to request assistance in having Jacob returned to her care. The police declined to assist, since there was no custody order in effect. Jacob remained in the Respondent’s sole care from November 11, 2010 until November 23, 2010, when the Applicant picked him up from school without notice to the Respondent and brought him back to the matrimonial home to reside primarily with her and Carter. After that point, the Respondent began to have access to both children every weekend from either Friday night or Saturday morning until Sunday evening, and he typically visited with Jacob every Tuesday and Thursday evening from approximately 4:30 p.m. until approximately 8:00 p.m. The Respondent testified that the Applicant refused to allow Carter to attend these mid-week visits, but the Applicant testified that Carter attended most Tuesday and Thursday evening visits.

[8] The application in this matter was issued on January 11, 2011. The Applicant requested a divorce, joint custody, spousal and child support retroactive from the date of separation, equalization of net family properties and contribution to section 7 expenses. In his Answer and Claim, the Respondent requested sole custody and primary residence of the children, child support, exclusive possession of the matrimonial home and equalization of net family properties. Soon after these proceedings began, the Respondent moved into the residence of his new partner, Kari-Lyn Neilson.

[9] A case conference in this matter was held on May 11, 2011. On that date, Henderson, J. referred the case to the Office of the Children’s Lawyer (“the OCL”) and made a temporary order on consent dealing with custody, time-sharing and child support. The order granted the parties joint custody, and the Applicant was granted primary residence of the children. The Respondent was granted generous and liberal time with the children, including each Tuesday and Thursday from 4:30 p.m. until 8:00 p.m., or earlier if the Respondent was able to pick them up earlier, and every weekend from Saturday morning at 7:30 a.m., or earlier if necessary due to the Applicant’s work schedule, until Sunday at 7:00 p.m. In addition, the Respondent was to have the children during periods when the Applicant was unavailable to care for them if the Respondent was available. The Respondent was ordered to pay the Applicant child support in the amount of $1,034.00 per month commencing June 1, 2011.

[10] The OCL accepted the referral in this matter, and a clinical investigator, Ms. Leiloni Montour, completed an investigation pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended. Ms. Montour held a disclosure meeting on March 12, 2012. She completed a condensed report dated March 20, 2012, as it was her understanding that the parties had settled the custody and access issues on a temporary basis following the disclosure meeting. Ms. Montour concluded based on her investigation that there were concerns regarding the extensive conflict between the parties during the period leading up to the separation, the Applicant’s anger management problems and Jacob’s fear of the Applicant due to her poor impulse control and her excessive consumption of alcohol in the past. She concluded that both parties loved the children, and described the Respondent as calm and patient with the children. Ms. Montour recommended that a temporary arrangement be implemented providing for joint custody, and granting the Respondent time with the children every Tuesday after school until Thursday morning and every weekend from Saturday at 8:45 a.m. until Sunday at 8:00 p.m. She recommended that the Applicant participate in individual counselling, an anger management program, an alcohol assessment and any treatment recommended through that assessment. She further recommended that both parties participate in a parenting program to assist them in appreciating the detrimental effect of their conflict on the children. Ms. Montour had particularly serious concerns about how Jacob was coping with the conflict, based on her discussions with Jacob and reports from collateral sources regarding his behaviour. She therefore recommended that Jacob be enrolled in counselling to assist him in coping with the separation and the ongoing parental conflict.

[11] On Saturday April 21, 2012, the Applicant dropped Jacob and Carter off at the home of their daycare provider, Ms. Michelle Jones, early in the morning before going to work. The Respondent picked the children up later that morning for his regular time with them. The Respondent testified that he noticed soon after picking the children up that Jacob presented as groggy, lethargic and not himself. As I will discuss in further detail below, Jacob disclosed to the Respondent later that morning that the Applicant had hit him on the head with a steel pot the night before, and that his head hurt as a result of this incident. The Respondent testified that he observed a bump on the top of Jacob’s head where the child said his mother had hit him.

[12] In response to Jacob’s disclosure and injury, the Respondent took Jacob to the hospital for a medical examination and assessment. I did not receive any medical evidence from the physicians or other professionals who examined Jacob on April 21, 2012. However, I find that staff from the hospital made a child protection report to Niagara Family and Children’s Services (“NFACS”) based on Jacob’s disclosures to them. NFACS and the police conducted an investigation as a result of the child’s disclosures. Based on this investigation, the Applicant was charged on April 22, 2012 with assaulting Jacob with a weapon. On April 23, 2012, the Applicant was released from custody pursuant to bail terms which prohibited her from communicating or associating directly or indirectly with Jacob or Carter, except under the direct supervision of NFACS, and from attending within a radius of 100 metres of any place known to her to be the children’s place of residence, daycare or school. Jacob and Carter have remained in the care of the Respondent since April 21, 2012.

[13] The Applicant attempted to arrange supervised access with the children through NFACS following her release from custody. However, NFACS closed its child protection file after the Applicant’s arrest and declined to provide supervised access services to the family. In response to this decision, the Applicant attempted to obtain a bail variation through the criminal process to permit her to have access with the children in accordance with a Family Court order. Her initial attempt in 2012 to secure the consent of the Crown to this proposed bail variation was unsuccessful.

[14] On July 4, 2012, the Respondent brought a motion requesting temporary sole custody and primary residence of the children, a termination of the temporary child support order dated May 16, 2011, an order requiring the Applicant to pay him child support and an order for exclusive possession of the matrimonial home. On July 5, 2012, Maddalena, J. made a temporary order granting the Respondent primary residence of Jacob and Carter, terminating the Respondent’s obligation to pay child support, and requiring the Applicant to pay the Respondent child support in the amount of $333.00 per month commencing May 1, 2012, based on an imputed annual income to her of $22,000.00. In addition, the Respondent was ordered to pay the Applicant spousal support in the amount of $509.00 per month commencing May 1, 2012.

[15] On January 4, 2013, the Respondent brought a motion requesting an order requiring the Applicant to vacate the matrimonial home, and granting him exclusive possession of the home. He and the children had been living at the home of his partner, Ms. Nielson, until he separated from Ms. Nielson in late 2012, at which point he and the children had moved to the home of the paternal grandmother. On January 4, 2013, Turnbull, J. made an order directing the Applicant to vacate the matrimonial home by January 31, 2013 so that the Respondent and the children could occupy the residence. The order also incorporated an agreement which the parties had reached regarding the equalization claims and other property-related matters.

[16] On February 27, 2013, the Applicant succeeded in obtaining a bail variation. The terms of her release were changed to permit her to communicate or associate with Jacob and Carter either under the direct supervision of NFACS or pursuant to a Family Court order. Further to this variation, the Applicant brought a motion dated April 11, 2013 and originally returnable on April 24, 2013, requesting access with the children supervised by Pathstone on a temporary basis until the completion of her criminal trial. As of that time, she had not seen the children for over a year. The Respondent opposed the Applicant’s request for access until the completion of the criminal trial, which had been scheduled to commence during the trial sittings commencing October 4, 2013. The access motion proceeded to a hearing on May 31, 2013. On that date, Maddalena, J. made an order granting the Applicant access to the children supervised by Pathstone, subject to the following terms and conditions:

1. The Applicant was to pay all fees including intake fees and supervised access fees relating to the access;

2. The Applicant was not to discuss any issues dealing with court or the litigation with the children;

3. The Applicant was not to make derogatory remarks to the children about the father, his family or anyone else;

4. The Applicant was to refrain from consuming alcohol or non-prescription drugs for 12 hours prior to access;

5. Access was to occur a maximum of two hours weekly, with times and start dates determined by Pathstone; and

6. Both parties were to complete all necessary intake forms within 15 days, subject to Pathstone availability.

[17] On May 31, 2013, Maddalena, J. also made an order reducing the Applicant’s child support obligation to the Respondent to $50.00 per month, based on the fact that the Applicant was in full time attendance in the Law Clerk training program at Niagara College, and based on an imputed annual income to the Applicant of $11,000.00.

[18] The Applicant’s criminal trial remained on the trial list for the sittings commencing October 4, 2013, and both children had to undergo the difficult process of being prepared for that trial. However, at the outset of trial on October 4, 2013, the Crown decided to withdraw the charge on the condition that the Applicant consent to a common law preventative justice order. On that date, Maresca, J. granted such an order, which stipulated as follows:

1. The preamble of the order provided that the Applicant had “acknowledged sufficient of the allegations” and “concedes that probable grounds exist for the granting of the order sought.”

2. The preamble also provided that the court “has probable grounds to suspect future misbehaviour by the Respondent [the Applicant in this proceeding] likely to give rise to breaches of the Queen’s peace.”

3. The Applicant was ordered to keep the peace and be of good behaviour generally, and especially towards Jacob and Carter, for a period of 18 months.

4. The order provided that access to Jacob and Carter was to be through a Family Court Order or through a written agreement between the Applicant and the Respondent.

[19] The access order dated May 31, 2013 could not be implemented until mid-October 2013 due to the lengthy waiting list for supervised access at Pathstone and the centre’s policy against supervising access while criminal charges against the visiting parent involving the children are pending. For reasons that will be discussed in further detail below, supervised access had still not begun by mid-January 2014. The Applicant was of the view that the Respondent was stone-walling efforts to implement access at Pathstone. Accordingly, on January 22, 2014, she brought a motion requesting temporary custody and primary residence of the children, and an order striking the Respondent’s Answer and Claim for failing to obey the May 31, 2013 access order. On the first appearance of the motion on January 22, 2014, Henderson, J. made a temporary order on consent of both parties providing that the Respondent would attend with the children to facilitate a supervised access visit through Pathstone on Sunday January 26, 2014 at 10:00 a.m., for a maximum of two hours. The order further stipulated that the Respondent would refrain from making any negative comments about the Applicant or the supervised access visit to the children. The motion was adjourned to January 29, 2014.

[20] The visit on January 26, 2014 proceeded as ordered. This was the first time that the Applicant had seen Jacob and Carter since April 21, 2012. On the return of the motion on January 29, 2014, the Respondent brought a motion for the production of financial information, a termination of his spousal support obligation, an increase in child support and contribution from the Applicant towards section 7 expenses. Whitten, J. made an order on consent adjourning the motions to March 17, 2014, and directing the Respondent to attend with the children to facilitate supervised access visits through Pathstone on Sundays from 10:00 a.m. for a maximum of two hours. The order reiterated that the Respondent was to refrain from making any negative comments about the Applicant or the supervised access visits to the children.

[21] The Applicant had further supervised access visits with the children on February 2, 2014, February 9, 2014, February 16, 2014, February 23, 2014, March 1, 2014 and March 9, 2014. Based on the progress of access, she served and filed an amended notice of motion that was originally returnable on the previously scheduled court date of March 17, 2014. In this amended motion, she withdrew her request for an order striking the Respondent’s Answer and Claim, since supervised visits at Pathstone had begun. She also withdrew her claim for temporary custody and primary residence of Jacob and Carter. She requested an order permitting her to communicate with and obtain information directly from professionals involved with the children. In addition, she sought an order for unsupervised access with the children on a gradually increasing basis, culminating in a regime of access on alternate weekends from Friday after school until Monday morning and in alternate weeks from Wednesday after school until Friday morning.

[22] On the return date of March 17, 2014, Maddalena, J. adjourned the motions once again to a date to be set with the Trial Coordinator. She ordered that pending the hearing of the motions, the children were to have telephone access with the Applicant on Wednesdays at 6:30 p.m., and that supervised visits were to continue at Pathstone on Sundays at 10:00 a.m. for a maximum of two hours. The motions were later scheduled for a hearing on May 23, 2014.

[23] The Respondent brought the children to Pathstone for supervised visits with the Applicant on March 16, 2014, March 23, 2014, March 30, 2014, April 6, 2014, April 13, 2014 and April 27, 2014. However, on each of those dates, the children refused to enter the visitation room, and the visits therefore did not proceed. Pathstone formally terminated its services with the family based on the children’s repeated refusals to participate in access.

[24] On April 8, 2014, Maddalena, J. scheduled a trial to begin on the sittings commencing January 5, 2015. This contempt motion was originally returnable the next day, on April 9, 2014. On that date, the Applicant also brought a separate motion requesting an order for the following relief:

1. That MaryAnn DuRoss deliver Jacob and Carter to Pathstone to facilitate the weekly supervised visits with the Applicant; and

2. That Maggie Hall or another independent therapist qualified in parental alienation syndrome complete an assessment respecting the children, and that the parties cooperate in making the children available as required by the therapist.

[25] The contempt motion was adjourned to May 23, 2014, to be argued with the other above-referenced motions. The second motion referred to above was also eventually adjourned to be argued on that date as well.

[26] All of the above referenced motions eventually proceeded to a hearing before me that commenced on June 23, 2014. At the outset of the hearing, I ordered that the contempt motion would proceed first, as a stand-alone motion with viva voce evidence, and that I would reserve decision on the motion at the completion of that hearing. I concluded that I would then hear submissions on the other motions, and that the evidence adduced on the contempt motion would be admissible on the motions for the assessment and for access.

[27] I heard viva voce evidence in connection with this contempt motion on June 23, June 24, June 25, June 26, June 30 and July 3, 2014. On July 3, 2014, Henderson, J. held a mid-hearing Settlement Conference. As a result of the discussions and negotiations that occurred during the conference, the parties agreed to participate in reconciliation counselling with therapist Ms. Maggie Hall. On the basis of this agreement, I made an order on consent of the parties on July 3, 2014 which provided as follows:

1. All of the motions before me were adjourned to a date in October 2014 to be scheduled through the Trial Coordinator’s office;

2. The parties were to work with Ms. Maggie Hall for the purposes of reconciliation counselling, with the goal of reconciling the relationship between the Applicant and the children;

3. Both parties were to cooperate with Ms. Hall and participate as required and make the children available for the counselling and for access during the reconciliation process as required, and were to return phone calls from Ms. Hall in a timely manner;

4. Both parties were to permit Ms. Hall to contact their respective counsel for the purpose of assistance if and when necessary;

5. The parties were to equally share the costs of reconciliation counselling and were to provide any retainers required for Ms. Hall’s services; and

6. The Respondent was to make best efforts to have the children’s telephone conversations with the Applicant not occur on speaker phone.

[28] The parties embarked upon the reconciliation counselling process with Ms. Hall as required by the order dated July 3, 2014. The “to be spoken to” date that was anticipated for October 2014 was not scheduled because the reconciliation counselling was underway at that point. On December 17, 2014, the January 5, 2015 trial date was vacated on consent of both parties to allow the reconciliation process to continue. On March 23, 2015, a further trial date was scheduled for an estimated ten days to the sittings commencing December 7, 2015.

[29] On October 30, 2015, I heard a motion brought by the Applicant seeking the following relief:

1. An order that the contempt motion and all of the other motions that I had adjourned on July 3, 2014 be brought back on for a continued hearing before me;

2. An order that I seize myself of the trial of the application; and

3. An order that the transcripts of the oral evidence adduced at the hearing of the contempt motion be admitted as evidence in the trial of the application.

[30] I made an order on October 30, 2015 seizing myself of the trial of the application, and directing that the hearing of the contempt motion continue before me immediately prior to the commencement of the trial. I adjourned the issue of whether the evidence adduced on the contempt motion should be admitted as evidence in the trial to the commencement of trial.

[31] The hearing of the contempt motion finally resumed before me on December 7, 2015 and ended on December 9, 2015. I heard supplementary Closing Submissions on January 18, 2016. On December 8, 2015, I made an order on consent granting the parties leave to withdraw all of the other motions that I had adjourned on July 3, 2014, on a without costs basis. The trial of the application commenced on December 10, 2015.

PART III: POSITIONS OF THE PARTIES

I. THE APPLICANT’S POSITION

[32] As previously noted, the Applicant seeks a contempt finding against the Respondent in relation to the temporary orders dated May 31, 2013, January 29, 2014 and March 17, 2014. Counsel for the Applicant submitted that the orders remained alive and operative at the time the contempt motion began, and that the contempt motion was brought as a measure of last resort in an effort to enforce the Applicant’s access. The Applicant alleged that the contempt allegations must be considered against the backdrop of the Respondent’s conduct in relation to her and the children following the parties’ separation. She argued that the Respondent engaged in a long-standing campaign post-separation to influence the children against her and to eliminate her from their lives, and that his obstructionist conduct in relation to the access orders was part of this larger plan to alienate the children from her. Counsel for the Applicant submitted that the Applicant pursued other less drastic options in an attempt to enforce access, but that the contempt motion was ultimately the only reasonable course of action available to the Applicant in the face of the Respondent’s alienating conduct.

[33] With respect to the claim of contempt in relation to the order dated May 31, 2013, the Applicant submits that the Respondent had an obligation pursuant to the May 31, 2013 order to take all reasonable steps to ensure that access occurred, and that he chose instead to engage in delay tactics and inappropriate conduct that had the effect of thwarting the implementation of the order. In Closing Submissions, counsel for the Applicant summarized the specifics of the Applicant’s contempt allegations in relation to the May 1, 2013 order as follows:

1. The Applicant alleged that the Respondent breached paragraph 3(g) of the order, which required the parties to complete all necessary supervised access intake forms within 15 days, subject to Pathstone availability.

2. The Applicant noted that in order to set up supervised access, Pathstone required both parties to confirm their agreement to a day and time for a first visit. The centre’s supervised access Program Manager, Ms. Christine Stark, offered Saturdays or Sundays at 10:00 a.m. in correspondence to the parties dated October 11, 2013, and asked the parties to confirm their choice for an access slot. The Applicant alleges that the Respondent did not cooperate in doing so, despite numerous efforts on the part of Pathstone staff to secure his agreement to a time slot.

3. The Applicant alleged that Pathstone offered a visit on Sunday December 8, 2013, but the Respondent declined to bring the children for a visit on that date for no valid reason.

4. The Respondent requested that Pathstone staff meet with the children prior to access commencing, to discuss any concerns or issues that the children may have about access. Ms. Stark met with the children on December 13, 2013, and then left a message for the Respondent to call to set up a visit. The Applicant alleges that the Respondent continued to thwart efforts to arrange access after this meeting, and that he failed to bring the children for additional visits that could have occurred on December 15, 2013, December 22, 2013, January 5, 2014, January 12, 2014 and January 19, 2014.

[34] With respect to the January 29, 2014 and March 17, 2014 orders, the Applicant alleges in her notice of contempt motion that the Respondent was in contempt of those access orders in that “he did not facilitate the supervised access visits scheduled for March 16, 23, and 30, 2014 and did not encourage and/or require the children to attend the visits on those dates.” The Applicant acknowledges that the Respondent brought the children for seven weekly supervised access visits at Pathstone from January 26, 2014 until March 9, 2014. She also acknowledges that the Respondent brought the children to the access centre for several visits after March 9, 2014, but that the children refused to enter the visitation room. However, she alleges that the Respondent engaged in inappropriate conduct before and during the visits on March 16, 23, and 30, 2014, and that his behaviour had the effect of thwarting the implementation of those visits. In her Closing Submissions, counsel for the Applicant elaborated upon the specifics of this alleged conduct as follows:

1. She emphasized that the children’s change in attitude respecting access commencing March 16, 2014 occurred soon after the Respondent was served with her motion for unsupervised access, which was originally returnable on March 17, 2014. The motion materials contained photographs that depicted positive interactions between the children and the Applicant during visits. The Applicant’s theory is that the Respondent discussed this motion with the children and encouraged them to resist access so as to undermine the Applicant’s effort to gain more time with the children.

2. Although the Respondent brought the children to the access centre on March 16, 23 and 30, 2014, he did not insist that they enter the visitation room and did not actively encourage them to do so. Instead, according to the Applicant, he essentially abdicated his parental responsibility with respect to access by leaving the decision about participating in the visit to the children.

3. With respect to the March 30, 2014 visit, the Applicant alleges that Respondent’s conduct and comments on that date had the effect of actively undermining efforts to implement the visit.

4. Pursuant to the January 29, 2014 order, the Respondent was required to refrain from making negative comments about the Applicant and the visits to the children. According to the Applicant, the Respondent breached this provision on several occasions on March 16, 23, and 30, 2014. She alleges that his negative comments and attitude at the visitation center on those dates sabotaged efforts to implement the Applicant’s access.

II. THE RESPONDENT’S POSITION

[35] The Respondent denies that he is guilty of contempt in connection with the orders in question. With respect to the orders dated May 31, 2013 and January 29, 2014, counsel for the Respondent submitted that those orders were superseded by the temporary order of Maddalena, J. dated March 17, 2014. She argued that a contempt finding cannot be made in relation to those orders, since they were not live and operative orders when the contempt motion was brought. Counsel for the Respondent also noted that the temporary order dated July 3, 2014 that I made in the context of the contempt hearing that began in 2014 subsequently superseded the March 17, 2014 order. She initially expressed uncertainty as to whether the granting of that temporary order during the hearing precluded a contempt finding in relation to the March 17, 2014 order, but eventually argued that it did.

[36] Counsel for the Respondent argued that the contempt remedy is one of last resort, and should only be pursued where alternative adequate measures have been attempted and have failed. She submitted that the motion for contempt was not appropriate because other less severe measures had not yet been attempted to resolve the difficulties in implementing access. She emphasized that the contempt motion was issued on April 2, 2014, only three days after the last failed visit on March 30, 2014, and that the previous motion to strike the Respondent’s pleadings had been withdrawn since access had in fact commenced on January 26, 2014,

[37] The Respondent denies that he engaged in a campaign to alienate the children from the Applicant following the parties’ separation. He submitted that he pursued sole custody and primary residence of the children due to legitimate concerns about the Applicant’s history of alcohol abuse, emotional instability, emotional abuse of him and the children, physical aggression towards Jacob and poor impulse control. He denies that he ever took steps to try to exclude the Applicant from the children’s lives, and emphasizes that he consented on May 16, 2011 to a temporary order for joint custody, primary residence to the Applicant, and generous access to him. He emphasized that he did not take any steps to alter that temporary order from May 16, 2011 until the Applicant was charged with assault against Jacob on April 22, 2012. He submitted that he did not have any role in the Applicant’s bail variation applications, and that nobody ever asked him to support the Applicant’s efforts to obtain a variation. Counsel for the Respondent emphasized that the lack of contact between the Applicant and the children from April 22, 2012 until October 2013 was attributable to the no-contact provisions in the Applicant’s recognizance of bail. The Respondent adamantly denied allegations by the Applicant that he set her up to bolster his case by involving NFACS, medical professionals and the police in various incidents that occurred after the separation.

[38] With respect to the allegation that the Respondent was in contempt of the May 31, 2013 order for failing to complete the Pathstone intake forms within fifteen days, the Respondent submitted that the fifteen day period began from the date of the order. He testified that he contacted Pathstone within fifteen days of the order being made to comply with the order, but that he was told that the family would be placed on a waiting list and that the intake process would begin once a time slot became available. His position is that he could not comply with the fifteen day deadline due to Pathstone’s intake policies and procedures.

[39] The Respondent further submitted that the May 31, 2013 order was not clear with respect to the commencement date for supervised access and the days and times when access was to occur. He noted that the order essentially delegated decision-making on those issues to Pathstone. His position was that Pathstone never actually scheduled any visits on December 8, 2013, December 15, 2013, December 22, 2013, January 5, 2014, January 12, 2014 or January 19, 2014, and that he was therefore not in contempt of the May 31, 2013 order for failing to bring the children for access on those dates. He denies that he obstructed efforts to schedule visits from mid-October 2013 until mid-January 2014. His evidence was that he worked cooperatively with Pathstone to implement supervised access during that time period, and that any delays in getting access started were attributable to problems connecting with Pathstone staff, misunderstandings between him and the staff, and efforts on his part to ensure that the implementation of access occurred in a manner that was sensitive to the children’s needs and concerns. He submitted that he had legitimate concerns about how the children would react to access, based on the Applicant’s history of substance abuse problems, emotional abuse of him and the children, physical aggression towards Jacob, and poor impulse control. He also argued that the children had experienced distress in the fall of 2013 as a result of having to undergo preparation for testifying at the Applicant’s criminal trial, and that this had caused them great anxiety about resuming contact with their mother. The Respondent emphasized that the first visit that Pathstone actually scheduled was for January 26, 2014, and that he brought the children to that visit.

[40] The Respondent denied that he committed contempt in relation to the January 29, 2014 and March 17, 2104 orders. He submitted that he brought Jacob and Carter to every visit that was scheduled commencing January 26, 2016, despite the fact that the children strongly resisted attending. His position was that he took all reasonable measures to ensure that access occurred, but that this became increasingly difficult with the passage of time due to the children’s escalating reluctance to participate. He denied that he made any negative comments about the mother or access to the children or within earshot of them, and states that he took appropriate steps during the March 2014 visits to encourage, comfort and reassure the children in an effort to facilitate access.

PART IV: THE LAW

I. GENERAL PRINCIPLES

[41] The classic and often cited definition of contempt is that which Lord Russell of Killowen articulated in R. v. Gray, [1900] Q.B. 36, as follows:

Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of the Court. This is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court.

[42] A more recent general description of the remedy of contempt is found in the Supreme Court of Canada decision of British Columbia Government Employees’ Union v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214 (S.C.C.), where Mr. Justice Dickson described contempt of court as follows:

In the legal context the phrase is much broader than the common meaning of “contempt” might suggest and embraces “where a person, whether a party to a proceeding or not, does any act which may tend to hinder the course of justice or show disrespect to the court’s authority”, “interfering with the business of the court on the part of a person who has no right to do so”, “obstructing or attempting to obstruct the officers of the court on their way to their duties”--- See Jowitt’s Dictionary of English Law, vol. 1, 2nd ed., at p. 441.

[43] The Supreme Court of Canada emphasized in United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901 (S.C.C.) that “the rule of law is at the heart of our society; without it there can be neither peace, nor order, nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.” The law of contempt has evolved through the common law as a means of enabling the courts to achieve these objectives. Although statutory rules of court have been enacted throughout Canada to govern the courts’ jurisdiction with respect to contempt, the law in this area continues to evolve through the common law.

[44] Contempt is generally categorized as either in facie (in the face of the court) or ex facie (not in the face of the court). Contempt in facie encompasses any word spoken or act committed within the court that obstructs or interferes with the administration of justice, or that is calculated to do so (R. v. Kopyto, 1987 CanLII 176 (ON CA), [1987] O.J. No. 1052 (C.A.)). Examples of contempt in facie include failure on the part of counsel to appear in court, the refusal of a witness to be sworn or answer questions, insults to the court or interruptions of court proceedings, and aggression exhibited in court. Contempt ex facie involves conduct that occurs outside of the courtroom. Examples include wilful breach of a court order, interference with a witness, counsel or juror, counselling perjury, fabricating evidence and breaching an undertaking to the court.

[45] The common law has evolved to recognize two further categories of contempt: criminal contempt and civil contempt (R. v. Ellis, 1893 CarswellNB 56 (S.C.C.); Poje v. Attorney General for British Columbia, 1953 CanLII 34 (SCC), [1953] 1 S.C.R. 516 (S.C.C.); United Nurses of Alberta, Supra.; Carey v. Laiken, 2015 SCC 17, [2015] S.C.J. No. 17 (S.C.C.)). An appreciation of the differences between criminal and civil contempt is critical in this case in order to understand the scope of the civil contempt remedy and whether it is available to the Applicant. In United Nurses of Alberta, Supra, the Supreme Court of Canada explained that the distinction between civil and criminal contempt “rests in the concept of public defiance that accompanies criminal contempt.” (see also Carey, Supra.; Poje, Supra.) Criminal contempt involves conduct, words or writings that obstruct or discredit the administration of justice generally or show an intention to do so (United Nurses of Alberta, Supra.; Prescott-Russell Services for Children and Adults v. G. (N.), 2006 CanLII 81792 (ON CA), [2006] O.J. No. 2488 (C.A.)). Examples of criminal contempt include bribing a witness or a juror, attempting to influence a judge, and falsely accusing a judge of bias (Vidéotron Ltée. v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] S.C.J. No. 79 (S.C.C.)). The criminal contempt remedy has a public law element in that its purpose is to protect society generally from conduct that undermines the public’s interest in maintaining a strong and effective justice system (Poje, Supra; British Columbia Government Employees’ Union, Supra.; Prescott-Russell, Supra.; R. v. Ellis, Supra.; United Nurses of Alberta, Supra.; Fresno Pacific University Foundation v. Grabski, [2015] M.J. No. 189 (C.A.)). By contrast, the remedy of civil contempt exists for the purpose of redressing private wrongs (R. v. Ellis, Supra.; Seaward v. Paterson, [1897] 1 Ch. 545 (C.A.); United Nurses of Alberta, Supra.). Civil contempt encompasses a breach of the rules of court, disobedience of a court order or other misconduct in a private legal matter causing a private injury or wrong (Prescott-Russell, Supra.; Chiang (Re) (2009), 98 O.R. (3d) 483 (C.A); SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97 (C.A)). Although the civil contempt remedy promotes respect for the authority of the court and the administration of justice generally, this purpose is realized as an adjunct to its main purpose of protecting and enforcing private rights. The primary objective of civil contempt is remedial, with the goal of coercing the offending litigant into obeying the court judgment or order (Kopaniak v. MacLellan (2002), 2002 CanLII 44919 (ON CA), 27 R.F.L. (5th) 97 (Ont. C.A.); Szyngiel v. Rintoul, 2014 ONSC 3298, [2014] O.J. No. 2590 (S.C.J.)). Since civil contempt is not a public law remedy, it cannot be invoked for the sole purpose of punishment and deterrence (Vidéotron Ltée., Supra.). The fact that a finding of civil contempt can lead to a sanction of imprisonment does not alter the private nature and purpose of the remedy. A distinction must be drawn between punishment and deterrence at the contempt finding stage as opposed to the sentencing phase. In civil contempt proceedings, punishment and deterrence may come into play at the sentencing stage, in that the sanctions imposed may be geared in part to repairing the damage to the administration of justice and preventing future breaches of the order (Carey, Supra; Chiang, Supra.; Boily v. Carleton Condominium Corp, 2014 ONCA 574 (C.A.); S. (G.) v. S.(L.), 2013 BCSC 1725 (S.C.)).

[46] The civil contempt remedy is a mechanism designed to emphasize that court orders cannot be ignored or disobeyed. It reinforces the point that any wilful disobedience of court orders is a very serious matter that strikes at the very heart of the justice system (Kassay v. Kassay, 2000 CanLII 22444 (ON SC), 2000 CarswellOnt 3262 (S.C.J.); Surgeoner v. Surgeoner, [1992] O.J. No. 299 (Gen. Div.); Ricafort v. Ricafort,, 2006 ONCJ 520, 2006 CarswellOnt 8554 (O.C.J.)). Civil contempt may morph into criminal contempt if the private wrong is deliberately repeated or escalates to the point that it amounts to a public defiance of the court’s authority or a public display of disrespect towards the administration of justice (R. v. Ellis, Supra.; Canadian Transport (U.K.) Ltd. v. Alsbury, 1953 CarswellBC 3 (S.C.C.); Ontario (Attorney General) v. Clark, 1966 CanLII 235 (ON SC), 1966 CarswellOnt 20 (H.C), aff’d [1967] O.R. 609 (note) (C.A.), leave to appeal refused 1966 CarswellOnt 2 (C.A.), leave to appeal refused, [1966] S.C.R. vii (S.C.C.); United Nurses of Alberta, Supra.; Stupple v. Quinn (1990), 1990 CanLII 1217 (BC CA), 30 R.F.L. (3d) 197 (B.C.C.A.)).

II. THE ELEMENTS OF THE TEST FOR CIVIL CONTEMPT OF A COURT ORDER

[47] As previously noted, Rules of Court have been enacted to guide the courts in the exercise of their jurisdiction with respect to contempt. Rule 31(1) of the Family Law Rules, O. Reg. 114/99, as amended, governs motions for contempt of court orders in family law proceedings. It provides that 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.

[48] There are several components to the test for contempt of a court order. Civil contempt proceedings are quasi-criminal in nature, and therefore each element of the claim must be proven beyond a reasonable doubt (Bhatnager v. Canada (Minister of Employment and Immigration), [1990] S.C.R. 217 (S.C.C.); Carey, Supra.; Rogacki v. Belz (2003), 2003 CanLII 12584 (ON CA), 67 O.R. (3d) 330 (C.A.); Prescott-Russell, Supra.; Fisher v. Fisher, 2003 CanLII 2119 (ON SC), [2003] O.J. No. 976 (S.C.J.); Peers v. Poupore, 2012 ONCJ 306 (O.C.J.) Supra.; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612 (S.C.C.); Vigneault v. Massey, [2014] O.J. No. 1435 (C.A), 2014 ONCA 244 (C.A)). The burden of proof rests with the party alleging the contempt (Brown v. Bezanson (2002), 2002 SKQB 148, 27 R.F.L. (5th) 1 (Sask. Q.B.); L. (A.G.) v. D. (K.B.), 2009 CanLII 14788 (ON SC), [2009] O.J. No. 1342, 2009 CarswellOnt 1764 (S.C.J.); Peers, Supra.). Any doubt with respect to the necessary elements of a contempt case must be exercised in favour of the alleged contemnor (Prescott-Russell, Supra.; Peers, Supra.; Ricafort, Supra.; Hobbs v. Hobbs, 2008 ONCA 598, [2008] O.J. No. 3312 (Ont. C.A.); L. (A.G.) v. D. (K.B.), Supra.).

[49] The first element of the test for contempt of a court order is that there is a court order to be enforced. Given that the fundamental purpose of the civil contempt remedy is to protect and enforce private rights, it is only available to redress breaches of orders that are live and operative when the contempt finding is made, and which the aggrieved party wishes to enforce. It is not available for the purpose of sanctioning historical breaches of orders that have been superseded or are no longer governing the parties for any other reason as of the time when the contempt finding is made (Fiorito v. Wiggins, 2015 ONCA 729 (C.A.)). Rule 31(1) reinforces the private law enforcement purpose of the civil contempt remedy in family law cases by specifically stating that an order may be “enforced” by a contempt motion made in the case. To extend the use of the civil contempt remedy to cases where the purpose is not to enforce an outstanding order, but simply to sanction or deter misconduct in relation to orders that are no longer governing the parties, would fundamentally alter the concept of civil contempt by cloaking it with “the public dimension that lies at the heart of criminal contempt.” (Vidéotron Ltée., Supra.). The Ontario Court of Appeal recently reinforced these points in Fiorito, where it stated that “the civil contempt remedy exists where a party fails to comply with a live or operative order” (at para. 17). In that case, the court set aside contempt findings and sentencing on the basis that the orders upon which the trial judge had based the contempt findings had been superseded by a final custody and access agreement that the parties had reached. The court concluded that the temporary orders were no longer operative at the time of the contempt finding, even though the Minutes of Settlement had never been incorporated into a court order, since the parties had been abiding by the terms of the Minutes of Settlement rather than the orders.

[50] The second requirement for a finding of contempt of a court order is that the alleged contemnor must have had actual knowledge of the order that they are alleged to have breached (Bhatnager, Supra; Carey, Supra.) In Carey, Supra., Cromwell, J. clarified that knowledge may be inferred based on the evidence, and that this requirement may also be satisfied if there is evidence of wilful blindness on the part of the alleged contemnor (see also College of Optometrists (Ontario) v. SHS Optical Ltd., 2008 ONCA 685 (C.A.), leave to appeal refused [2008] S.C.C.A. No. 506 (S.C.C.)).

[51] The third element of the test for contempt is that the order alleged to have been breached must state “clearly and unequivocally what should and should not be done” (Carey, Supra.; Rego v. Santos, 2015 ONCA 540 (C.A.); Vigneault, Supra; Hobbs, Supra.; Prescott-Russell, Supra.; Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85 (C.A.)). A breach of the intent of the order in question is not sufficient to form the basis of a contempt finding; the interpretation of the order must be discernible from its face and not depend on extrinsic evidence. Where the order provides for one thing and the parties agree to do something else, a breach of the “something else” cannot form the basis for a contempt finding (Geremia v. Harb, 2007 CanLII 1893 (ON SC), 2007 CarswellOnt 446 (S.C.J.); Gurtins v. Panton-Goyert, 2008 CarswellBC 908 (C.A.)). An order may be found to lack sufficient clarity for the purposes of a contempt motion if it is missing essential details about where, when or to whom it applies, if it uses overly broad language, or if external circumstances have developed that have obfuscated its meaning (Carey, Supra., at para. 33; Culligan Canada Ltd. v. Fettes, 2010 SKCA 151 (C.A), at para. 21). An access order that does not specify the date and time for access and does not provide a workable mechanism for determining those issues may not satisfy the requirement that the order be clear and unambiguous (J.T. v. C.T., 2004 ONCJ 278, [2004] O.J. No. 4694 (O.C.J.)).

[52] The fourth element of the test is that the moving party must establish that the alleged contemnor disobeyed the order. Proof of a breach of the court order does not require the moving party to establish that the alleged contemnor violated a specific term or terms of the order. Rather, it is sufficient to establish that they engaged in a course of action that had the effect of thwarting the implementation of the order (Brooks v. VanderMeulen, 1999 CarswellMan 610 (Q.B.); Paton v. Shymkiw (1996), 1996 CanLII 17988 (MB KB), 114 Man R. (2d) 303 (Q.B.); Skalitzky v. Skalitzky, 2010 ONSC 7150 (S.C.J.)).

[53] Finally a party seeking a finding of civil contempt must establish that the party who disobeyed the order did so in a deliberate and wilful fashion (Vigneault, Supra.; Prescott Russell, Supra.; Ricafort, Supra.) In order to satisfy this element, it is not necessary to prove an intent to disobey or flout the order or to bring the administration of justice into disrepute, although evidence of such will go to the penalty in the event that a contempt finding is made (British Columbia Government Employees’ Union, Supra.; Carey, Supra; Nintendo of America Inc. v. 798824 Ontario Inc. (1991), 1991 CanLII 14300 (FC), 34 C.P.R. (3d) 559 (Fed. T.D.); Fresno, Supra.) Rather, it must be shown that the party alleged to be in breach deliberately and wilfully did something that the order prohibits, or deliberately and wilfully failed to do something that the order compels (Carey, Supra.; Sheppard, Re (1976), 1 O.R. (2d) 4 (Ont. C.A.); Hobbs, Supra.; Rego, Supra.; Vigneault, Supra.; Prescott-Russell, Supra.; Brooks, Supra.; TG Industries Ltd. v. Williams, 2001 NSCA 105 (C.A.); Merck and Co. v. Apotex Inc. (2003), 241 FTR 16 (C.A.); L. (A.G.) v. D. (K.B.), Supra.; Peers, Supra.; Hatcher v. Hatcher, 2009 CanLII 14789 (ON SC), 2009 CarswellOnt 1765 (S.C.J.); Godin v. Godin, 2012 CarswellNS 357 (C.A); Sickinger v. Sickinger, 2009 CanLII 28203 (ON SC), [2009] O.J. No. 2306 (S.C.J.), aff’d [2009] O.J. No. 5178, 2009 ONCA 856 (C.A.)). A breach will not be considered wilful and deliberate if there were circumstances that made compliance impossible (Carey, Supra.; Jackson v. Honey, 2009 BCCA 112 (C.A.); Fresno, Supra.). Furthermore, in Carey, Supra., Cromwell, J. held that the court may decline to make a contempt finding even if there was non-compliance with the order if the alleged contemnor acted in good faith by taking all reasonable steps to comply with the order.

[54] In addition to the substantive elements to the test for civil contempt as described above, there are notice requirements that must be satisfied. The alleged contemnor must be given proper notice of the application for a contempt finding, including particulars of the alleged breaches clearly laid out so that they are made aware of the case to which they must respond (Geremia, Supra.). It is preferable that the full particulars of the alleged contempt be clearly set out in the notice of motion. However, it will be sufficient if the particulars are outlined in the affidavit supporting the contempt motion (Follows v. Follows (1998), 1998 CanLII 4629 (ON CA), 41 R.F.L. (4th) 248 (C.A.)). A failure to provide appropriate notice will result in the contempt motion being dismissed.

[55] Having regard for the quasi-criminal nature of contempt, the alleged contemnor must be afforded the same protection and procedural safeguards as an accused in a criminal proceeding. These include the following:

1. The right to a hearing, including an oral hearing if requested (Kassay, Supra.)

2. The right to make full answer and defence, including the right to counsel, to call evidence and to cross examine upon the other party’s evidence (Kassay, Supra.).

3. The right not to be compellable as a witness in the hearing (Vidéotron, Supra.; Kassay, Supra.; McClure v. Backstein, [1987] O.J. No. 49 (H.C.).

[56] The contempt power ultimately remains a matter for the court’s discretion. Because of the seriousness and quasi-criminal nature of civil contempt, it must be used cautiously and with great restraint (Carey, Supra.) In Carey, the Supreme Court of Canada, reiterated the caution that it had previously articulated in Vidéotron Ltée, Supra., that the contempt remedy cannot be reduced merely to a mechanism for enforcing judgments. In family law cases in particular, the civil contempt remedy should be used sparingly and as a measure of last resort, where there are no other adequate remedies available to the aggrieved party (Godard v. Godard, 2015 ONCA 568 (C.A.); Hefkey v. Hefkey, [2013] O.J. No. 1535 (C.A.); K. (L.) v. G. (T.), 2006 CarswellOnt 3503 (S.C.J.); Fisher Supra.; Martinez v. Martinez, 1984 CanLII 4792 (ON CJ), [1984] O.J. No. 721 (Prov. Ct.); Peers Supra.; Campo v. Campo, 2015 ONSC 1349 (S.C.J.)). It is typically reserved for cases involving defiant conduct that is at the most significant end of the spectrum, and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted (Fisher, Supra.; Ricafort, Supra.; Peers, Supra.). Evidence of contempt must be clear and unequivocal in family law proceedings (L. (A.G.) v. D. (K.B.), Supra.; Campo, Supra.). Caution is warranted before resorting to the contempt remedy in custody and access proceedings due to two important interests that are often difficult to reconcile, namely the need to uphold and protect the integrity of court orders on the one hand, and the importance of safeguarding the best interests of children on the other (Salloum v. Salloum, 1994 CanLII 18355 (AB KB), 1994 CarswellAlta 577 (Q.B.); J.C. v. C.T., Supra.; Frith v. Frith, 2008 BCCA 2 (C.A.)). The complex emotional dynamics involved in family law disputes and the desirability of avoiding a further escalation of the conflict between the parties are additional factors that prompt a cautious approach to the use of contempt as an enforcement tool in family law proceedings (Paton, Supra.; Salloum, Supra.; Genua v. Genua, 1979 CanLII 3622 (ON CJ), 1979 CarswellOnt 324 (Prov. Ct.); Brooks, Supra.; Frith, Supra).

[57] Remedies that should be considered before bringing a contempt motion in family law litigation include requesting a case conference or settlement conference, bringing a motion for enforcement of the order and costs, bringing a motion for directions or to change or clarify the terms of the order, bringing a motion for make-up access in a case involving breach of an access order, attempting to mediate, and conducting meetings between counsel and the parties (Hefkey, Supra.; Vigneault, Supra.) The party alleging contempt should also consider the remedies outlined in Rule 1(8), which sets out the types of relief that a court may grant if a person fails to obey an order in the case or a related case. That Rule provides as follows:

Rule 1(8):

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

[58] The obligation to pursue alternatives to a contempt motion as a means of enforcing compliance with a court order only extends to other approaches that may be adequate to redress the wrong that has occurred. Family law litigants should not be compelled to pursue avenues other than contempt proceedings in circumstances where there is no reasonable prospect that other options will resolve the situation. For example, in Godard, Supra., the Ontario Court of Appeal concluded that a contempt finding was the only adequate remedy where the Appellant had a history of trying to limit and terminate the respondent’s access, the Respondent had brought numerous motions in the past to resolve the access problems, including a contempt motion, and several settlement conferences had been held following the first contempt motion. A pattern of non-compliance with a court order may support a finding that other alternative remedies would be inadequate to address the contemnor’s breach. However, one act of disobedience may be sufficient if the contemnor acts in a high-handed, wilful and arrogant manner and shows no remorse or recognition that they acted improperly (Poitras v. Bucsis, 2003 BCSC 299 (S.C.); Kassay, Supra.).

[59] In the exercise of its general discretion with respect to contempt, the court may excuse a breach of an order and refuse to invoke the contempt remedy if it is satisfied that the alleged contemnor had a “legitimate justification” or “legitimate excuse” for the breach. (Prescott-Russell, Supra.; R.(S.J.) v. S.(J.), 2013 ONCJ 133 (O.C.J.); Docherty v. Catherwood, 2015 ONSC 5240 (S.C.J.)). As the court stated in Szyngiel, Supra., at para. 24:

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.

In Amid v. Houdi, 2016 CarswellOnt 6667 (S.C.J.), the court noted that a reasonably held belief is “one that is both sincere and has some objective basis in fact” (at para. 15). In Carey, Supra., the Supreme Court of Canada left open the possibility of another defence in contempt proceedings, which would allow a judge to decline to impose a contempt finding “where it would work an injustice in the circumstances of the case” (at para. 37).

[60] In cases involving children, a common defence in contempt proceedings is that non-compliance with the order was justified based on concerns regarding the safety and well-being of the children. In Prescott-Russell, Supra., the Ontario Court of Appeal commented on this defence in the context of an appeal of a contempt finding against the appellant child protection agency. The court held that the same theories and criteria respecting the law of contempt apply whether the case involves the protective supervision of children or any other case. It emphasized that if the order is clear and unequivocal, “the subjective good faith of the alleged contemnor—even if their intention is to act in the best interests of a child- is insufficient to justify breaching a court order.” However, the court noted that a party may be excused from following a court order in circumstances where there is an objectively valid justification for the breach based on the child’s needs and interests. This defence has been accepted by the courts in custody and access cases decided both before and since Prescott-Russell (see Genua, Supra; R.(S.J.) v. S.(J.), Supra.; Docherty, Supra.). In Genua, Supra., Main, J. held that the court’s authority to invoke the contempt remedy in family law proceedings is always “subject to an overriding judicial discretion which will best serve the interests of the children and assist the parties to achieve as normal a state of relations as is possible.” There are several other authorities that do not specifically refer to the defence of legitimate excuse or legal justification, but which have held that the court should be reluctant to make a finding of contempt where it is satisfied from an objective standpoint that the alleged contemnor acted in the best interests of the child and not out of self-interest (Brooks, Supra.; Stupple, Supra.; Campo, Supra.).

[61] Despite the need for caution in resorting to the contempt remedy, contempt nonetheless remains a critically important tool in the judicial toolbox in family law litigation in appropriate circumstances, as a means of reinforcing that compliance with a court order is “neither an option nor a bargaining chip” (Clinton v. Clinton, 2015 ONSC 4256 (S.C.J.)). As Blair, J. stated in the often quoted case of Surgeoner, Supra:

No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its courts' orders at their whim because in their own particular view, it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice. 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.

III. SPECIAL CONSIDERATIONS RELATING TO CONTEMPT OF CUSTODY AND ACCESS ORDERS

[62] Contempt proceedings involving alleged breaches of orders relating to children raise unique challenges for judges. As in this case, there is often a dispute as to whether the problems with enforcement of access were attributable to the child’s refusal to comply or wilful and deliberate interference by the residential parent. The courts have struggled in the context of contempt proceedings relating to custody and access orders to achieve a balance between the importance of enforcing court orders and encouraging contact with both parents on the one hand, and considerations respecting the wishes of children and the need to ensure their safety and well-being on the other hand. One of the difficulties which the courts have faced in these cases is that custody and access orders rarely include clear and unequivocal terms outlining what a parent is expected to do or not do to ensure that a custody and access order is complied with in the face of a resistant child. In addition, the strict legal principles relating to civil contempt have raised challenges for courts seeking to invoke the remedy in situations involving long-term alienating behaviour that over time turns a child against a parent.

[63] The law relating to contempt in custody and access cases has evolved over the past several years in response to these challenges so as to make the contempt remedy available in appropriate situations where alienation has occurred, or where one parent has not been supportive of access. The courts have held that a custody and access order imposes a general obligation on the parties to the order to do all that they reasonably can to ensure that the order is complied with (Godard, Supra.; Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.J.); Campo, Supra.; K. (B.) v. P.(A.), [2005] O.J. No. 3334 (S.C.J.); Hatcher, Supra.; Sickinger, Supra.; Haywood v. Haywood, 2010 ONSC 5615, 2010 CarswellOnt 7701 (S.C.J.); Stuyt v. Stuyt, 2009 CanLII 43948 (ON SC), 2009 CarswellOnt 3432 (S.C.J.)). Having regard for this obligation, the courts have concluded that the contempt remedy may be available where the moving party establishes beyond a reasonable doubt that the other party has failed to take all reasonable steps to ensure compliance with the order (Godard, Supra.). In this regard, the case-law has established the following principles respecting a party’s obligation to promote compliance with a custody and access order:

a) A party cannot simply leave the questions of custody and access up to the child. To do so amounts to an abdication of parental responsibility generally and a breach of the party’s positive obligations under the order (Godard, Supra.; McGinn v. McGinn, 2006 SKQB 105 (Q.B.); Blair v. Blair, 1995 CanLII 6977 (ON SC), [1995] O.J. No. 2962 (S.C.J.); Howe v. Whiteway, 2015 SKCA 72 (C.A.); Gharabegian v. McKinney, 2008 CarswellOnt 7884 (S.C.J.); Quaresma, Supra.; K. (B.) v. P.(A.), [2005] O.J. No. 3334 (S.C.J.); Hatcher, Supra.; Sickinger, Supra.; Haywood, Supra.) As Quinn, J. stated in Geremia, Supra.:

Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

b) While it may become more difficult to compel a child to comply with a custody and access order as the child gets older, the obligation of a parent to actively promote compliance does not wane based on the child’s age (Godard, Supra.).

c) In the case of access orders specifically, the custodial parent’s obligation in regard to access goes beyond simply accommodating it, making the child available for access and encouraging the child to comply. Rather, the parent must require that access occur and actively facilitate it (Godard, Supra.; V.(S.) v. I. (T.), 2009 CanLII 9396 (ON SC), 2009 CarswellOnt 1023 (S.C.J.); Hatcher, Supra.; K.(B.) v. P.(A.), Supra.; Sickinger, Supra.; Haywood, Supra.; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551 (S.C.J.); Styut, Supra.; Scrivo v. Scrivo, 2013 CarswellOnt 5156 (S.C.J); Campo, Supra.).

d) Actively promoting and facilitating compliance with a custody and access requires the parent to “take concrete measures to apply normal parental authority to have the child comply...” (Godard, Supra.; Wright v. Meyer, 2012 CarswellOnt 14827 (S.C.J.)). In determining whether appropriate measures were taken, the court should consider whether the custodial parent did the following:

i. Did they engage in a discussion with the child to determine why the child is refusing to go?

ii. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?

iii. Did they offer the child an incentive to comply with the order?

iv. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order? (Godard, Supra.; Jackscha v. Funnell, 2012 CarswellOnt 10467 (S.C.J.)).

e) The determination as to whether the alleged contemnor has taken reasonable steps to require the child to attend visits will ultimately depend on the unique facts of every case. The analysis must take into consideration the child’s age, their growing opinions and the evidence regarding their emotional status (Stupple, Supra.).

f) The contempt remedy may also be available where the alleged contemnor has engaged in a history of conduct that has had the effect of generally sabotaging the custody and access order (Brooks, Supra.; Paton, Supra). For example, evidence that a parent has a history of intentionally frustrating or inappropriately suspending access, or negatively influencing a child against the other parent to the point that the child is refusing to comply with the custody and access order may lead the court to conclude that the party thwarted the order and may support a contempt finding (Godard, Supra.; Rego, Supra.; Thomas v. Pearcy (1993), 1993 CanLII 16086 (ON SC), 48 R.F.L. (3d) 407 (Ont. Gen. Div.); Wood v. Miller (1993), 1993 CanLII 16057 (ON SC), 45 R.F.L. (3d) 244 (Ont. U.F.C.); Campbell v. Campbell, 1994 CarswellOnt 4468 (Gen. Div.); Ebrahim v. Ebrahim, 2000 BCCA 398 (C.A.); Paton, Supra.; Cooper v. Cooper, 2004 CanLII 47783 (ON SC), [2004] O.J. No. 5096 (S.C.J.)); L. (A.G.) v. D. (K. B.), Supra.; V.(S.) v. I. (T.), Supra.; Courtney v. Sambray, 2015 ONSC 4872 (S.C.J.); Carr-Carey v. Carey, 2014 ONSC 5441 (S.C.J.); Perna v. Foss, 2015 ONSC 5636 (S.C.J.). The challenge in these cases is to determine whether it is a true case of parental alienation or a situation of justified estrangement between the child and the parent.

[64] In determining whether an alleged contemnor has breached their obligation to ensure compliance with a custody and access order, the court must maintain a steady focus on the proper burden of proof in contempt proceedings. The onus of proof remains on the moving party at all times. Accordingly, if the moving party’s theory is that the alleged contemnor did not take all reasonable steps to promote compliance with a custody and access order, they must establish this point beyond a reasonable doubt. To shift the onus onto the responding party to prove that they satisfied their obligation to encourage compliance is an error of law (Jackscha, Supra.; Godin, Supra.; Stupple, Supra.).

PART V: CREDIBILITY AND RELIABILITY ASSESSMENT OF THE PARTIES

[65] Before turning to my factual findings and analysis in this case, some general comments regarding the credibility and reliability of the Applicant and the Respondent are in order. This contempt motion was heard as a trial, with viva voce evidence. Both parties testified at length during the hearing. Unfortunately, there were discrepancies in their evidence on several important points. A careful assessment of their overall credibility and reliability was therefore necessary.

[66] There were aspects of the evidence of both parties that supported their credibility and reliability. They both remained calm and responsive during many periods of difficult cross examination. In addition, both of them were able to recall details of numerous events that occurred in the past, and they both acknowledged facts that were not helpful to their case. For instance, the Applicant acknowledged that the child Carter did not say “I love you” during visits and sometimes avoided hugs, that she consumed excessive amounts of alcohol during the period around the parties’ separation and that she was emotionally unsettled during that time. She also acknowledged kicking the Respondent’s car in anger when the police attended the family home on November 2, 2010. The Respondent acknowledged having made a number of comments during the supervised visits that occurred in March 2014 which the Applicant relied on in support of her contempt claim.

[67] Despite these positives, I had concerns regarding the overall credibility of both the Applicant and the Respondent. Both parties presented as resistant, angry and avoidant during parts of their cross examination. I had to redirect each of them on occasion to answer questions that were put to them. Furthermore, the testimony of both parties was highly problematic in certain respects. Examples of the problems with the Applicant’s testimony include the following:

1. The Applicant was questioned about two letters that the Respondent alleged she wrote to him around the time of the separation, which included statements that did not assist the Applicant’s case. At first, the Applicant identified the handwriting in the letter as being hers. She seemed to acknowledge having written the letters, but stated that she could not recall when she wrote them or when she gave them to the Respondent. Later in her testimony, she denied that the signature at the end of the letters was her signature, and stated that she could not remember what her signature looked like in 2010. She also backtracked and suggested that she could not say whether the writing was her handwriting. She eventually returned to her original story, stating that she recalled the letters, but that she could not remember writing them or giving them to the Respondent. She acknowledged in cross examination that the Respondent attached the two letters as exhibits to his affidavit sworn January 4, 2013, and that she did not deny writing or signing the letters in her responding affidavit sworn on April 11, 2013. I find that the Applicant was the author of the two letters. Her inconsistent testimony relating to the letters detracted significantly from her credibility.

2. The Applicant’s evidence relating to the police attendances at the family home on November 2, 2010 and November 11, 2010 was also problematic. As discussed later in these Reasons, the Respondent testified that on November 2, 2010, the Applicant threw and broke the home telephone before the police arrived, and the occurrence report confirms that the telephone was broken and lying on the floor when the police entered the home. During her interview with Ms. Montour, the Applicant adamantly denied having thrown and broken the telephone on this date. However, during her testimony, she stated that she could not recall if she had broken the telephone.

3. There were also numerous discrepancies between the Applicant’s testimony about the November 11, 2010 police attendance at the family home and the information contained in the occurrence report relating to that incident, as summarized in Ms. Montour’s report. For instance, the Applicant denied that she was yelling at the Respondent to get out of the home when the police arrived, whereas the occurrence report indicates that she was agitated and screaming at the Respondent to get out of the house. She also denied that Jacob expressed fear about staying in the house with her that night, whereas the police report indicates that Jacob expressed such fear. The evidence of the Respondent was consistent with the information contained in the occurrence report.

[68] Similarly, there were aspects of the Respondent’s testimony that were not credible. Examples that highlight the concerns regarding his credibility include the following:

1. The Respondent adamantly denied that he was romantically involved with Kari- Lyn Nielson prior to the parties’ separation. There is compelling evidence to the contrary, and I find that he was in fact involved romantically with Ms. Nielson prior to the separation. This was an important issue in this case, since the Applicant stated that her emotional instability and excessive consumption of alcohol around the time of the separation were primarily attributable to her belief that the Respondent was having an affair. I accept the Applicant’s evidence that the parties’ home telephone records revealed that telephone calls occurred between the Respondent and Ms. Nielson prior to the separation. In addition, I find that the Respondent went on a seven day vacation with Ms. Nielson to Cuba in January 2011, and that he moved into her residence soon after returning from that trip. He openly acknowledged that he was in a relationship with her at that point.

2. The Respondent was not credible in discussing his conduct in relation to Saturday morning exchanges of the children pursuant to the temporary order dated May 16, 2011. That order provided that the children would be with the Respondent every weekend from Saturday at 7:30 a.m., or earlier if required for the Applicant’s employment, until Sunday at 7:00 p.m. Counsel for the Applicant suggested to the Respondent on cross examination that he refused at times to pick the children up earlier than 7:30 a.m. if necessary due to the Applicant’s work, and that the Applicant would have to take the children to the daycare provider on Saturday mornings on those occasions. The Respondent testified that his solution to this problem was to request that the children come to his home on Friday evening when the Applicant had to start work early. He suggested that he was willing to pick the children up from the Applicant’s home earlier than 7:30 a.m. on Saturday, but that his preference was to take them on Friday night. However, an email exchange between the parties dated March 19, 2012 and marked as Exhibit 13 supports the Applicant’s version of events. The Respondent’s answers to questioning about this issue and the email exchange were avoidant and unconvincing.

3. The Respondent did not present as credible on cross examination about a number of comments that Jacob made to Ms. Montour. He accepted without question statements that Jacob made that were helpful to his case, but rejected those that did not advance his position. For instance, although he accepted that Jacob was truthful about concerns that he raised respecting the Applicant, he questioned the child’s honesty in relation to negative comments that he made about Ms. Nielson yelling at him. He minimized those concerns, denied that Ms. Nielson was a yeller, and suggested that perhaps Jacob thought that Ms. Nielson’s “loud voice” was a yell. The Respondent also questioned the reliability of Jacob’s comments that he liked going back and forth between his parents’ homes, but that he wanted to stay with his mother.

[69] Based on the concerns regarding the overall credibility and reliability of both parties, I was unable on a general basis to favour the testimony of one of them over that of the other. Where there was inconsistencies in their testimony on important points, my decisions regarding their credibility and reliability were made on an issue by issue basis, taking into consideration all of the evidence relating to each issue.

PART VI: ANALYSIS

I. ISSUE #1: DO THE ORDERS OF MAY 31, 2013, JANUARY 29, 2014 AND MARCH 17, 2014 REMAIN LIVE AND OPERATIVE?

[70] I turn now to the analysis of whether the Applicant has made out her claims for contempt findings against the Respondent. The first issue that the Applicant must establish is that the orders dated May 31, 2013, January 29, 2014 and March 17, 2014 (“the orders”) can be the subject of a contempt finding. During initial closing submissions, counsel did not refer me to the Ontario Court of Appeal decision in Fiorito, Supra., and did not address the issue of whether the orders were alive and operative. I requested that they appear before me again on January 18, 2016 to specifically address this issue, given that I had made a temporary order on July 4, 2014 on consent of the parties providing for access to be as arranged by the reconciliation counsellor, Ms. Hall. I have carefully considered counsel’s supplementary Closing Submissions. For the reasons that follow, I conclude that the contempt motion should be dismissed on the basis that the orders are no longer live and operative and therefore cannot be the subject of contempt findings.

[71] Counsel for the Applicant submitted that the relevant time for determining whether the access orders were live and operative for the purposes of contempt findings was the original return date for the motion, which was April 9, 2014. I do not agree. In Fiorito, the contempt motion was originally brought on October 16, 2009, and the final Minutes of Settlement were not signed until October 19, 2010. The orders that were the subject of the contempt motion were still alive and operative when the contempt motion was brought. It is clear from the Court of Appeal’s ruling that the relevant time for determining whether the orders remained live and operative was when the contempt findings were made. As discussed previously in these Reasons, the purpose of the civil contempt remedy in cases where a breach of a court order is alleged is to enforce the order for the benefit of the aggrieved party. To accept counsel’s argument would allow the civil contempt remedy to take on the purpose of criminal contempt simply on the basis of the timing of the contempt motion and the superseding order.

[72] Counsel for the Applicant also argued that the facts in this case are distinguishable from those in Fiorito in two ways. First, she stated that the orders that were the subject of the contempt motion in Fiorito were temporary orders that were subsequently superseded by final Minutes of Settlement executed by the parties. By contrast, the July 4, 2014 order made in this case was another temporary order rather than a final order. Counsel submitted that where a final order or agreement is made, it is clearly not in the interests of justice to go back in time and make a finding of contempt in relation to previous temporary orders. I do not accept this submission. A temporary order can be superseded by a later temporary order that overrides all aspects of the earlier order. Where this occurs, the effect is the same for the purposes of the contempt remedy as when a final order supersedes the earlier order: the previous order is no longer operative and therefore the enforcement purpose of the contempt remedy is lost.

[73] Counsel for the Applicant also attempted to distinguish this case from Fiorito by asserting that the orders made after May 31, 2013 were enforcement orders rather than orders that superseded the May 31, 2013 order. She referred me to the case of Van de Mierden v. Van de Mierden, 2009 CanLII 34789 (ONSC) for the proposition that a distinction must be drawn between an order that supersedes a previous order and one that is simply intended to enforce the previous order. In that case, the court held that the order made subsequent to the orders that were the subject of the contempt proceeding was in the nature of enforcement, and that a contempt finding could therefore be made in relation to the earlier orders.

[74] I do not agree that the January 29, 2014 and March 17, 2014 orders made in this case were in the nature of enforcement of the May 31, 2013 order. The facts in the Van Mierden case are distinguishable from those in this case. In Van Mierden, the orders that were the subject of the contempt motion related to disclosure in a family law case. A disclosure order had been made against the Applicant on September 25, 2007. He did not comply with the original order by the deadline set in that order, and the parties agreed to several extensions of the deadline over the following several months. The Respondent finally brought a motion for contempt, and on the first appearance of that motion, Miller, J. made an order on consent of the parties adjourning the contempt motion, requiring the Applicant to pay interim disbursements by a specified date, and extending the deadline for disclosure once again if the disbursement payments were made on time. The Applicant complied with this order. On the return of the contempt motion, the Applicant alleged that the February 25, 2009 order had superseded the previous orders for disclosure, and that the court was therefore precluded from making a finding of contempt in relation to the previous orders. Bielby, J. concluded that the February 25, 2009 order did not supersede the previous disclosure orders, but was intended to give the Applicant one final opportunity to purge his contempt pending the return of the contempt motion. A careful review of the terms of the February 25, 2009 reveals that the order was clearly made for enforcement purposes. The order did not replace the terms of the September 25, 2007 order respecting disclosure, but rather included terms aimed at compelling the Applicant to comply with the previous disclosure terms and established sanctions if he failed to do so. By contrast, in this case, the orders made after May 31, 2013 cannot be characterized as simply enforcement orders. The January 29, 2014 order contained terms of access that differed significantly from those in the May 31, 2013 order. Pursuant to the May 31, 2013 order, the Applicant was granted access “for a maximum of two hours weekly with times as arranged by Pathstone and start dates determined by Pathstone Mental Health.” That order allowed for the possibility that access would not occur each week. By contrast, the January 29, 2014 order granted the Applicant access each week on Sunday, starting at 10:00 a.m., for a maximum of two hours on each occasion. The subtle changes in the wording of the two orders resulted in very different outcomes. I conclude that the March 17, 2014 order simply provided for a continuation of the access terms set out in the January 29, 2014 order. However, the July 3, 2014 order established a completely new access regime. Pursuant to that order, the parties were to engage the services of Ms. Hall, and the Applicant’s access was to be as arranged through her. The parties both acknowledged that they had no intention at that point of pursuing supervised access at Pathstone. The July 3, 2014 order completely superseded all of the previous access orders that had been made up until that time.

[75] The Applicant’s counsel further argued that the facts of this case are distinguishable from Fiorito in that the orders made after May 31, 2013, including the July 4, 2014 order, were made specifically in response to the Respondent’s contempt of the access orders, as a means of resolving the problems that had arisen due to the Respondent’s alleged wrongdoing. She submitted that it would be contrary to the interests of justice to preclude a party from relying on the contempt remedy where they consent to another order specifically for the purpose of moving the case forward and remedying the wrongs resulting from the alleged contempt. I reject this argument for a number of reasons. First, as I have already noted, the case-law is clear that contempt is a remedy of last resort in family law proceedings that should be used sparingly. Parties are expected to pursue other adequate remedies before resorting to contempt proceedings, including changes to existing orders to address any problems that have developed. The contempt remedy is available where problems persist despite the pursuit of other avenues of redress, or where other courses of action would be inadequate. Where other appropriate avenues are pursued without success, the contempt route becomes available to enforce the order that is in existence at the end of the line. To allow parties to pursue contempt claims in relation to the historical orders that were made along the litigation journey that are no longer operative would open an unwieldy Pandora’s Box that would divert the focus of the litigation from remedying the family’s pressing issues to sanctioning a parent’s history of wrongdoing. The second reason for rejecting counsel’s argument is that a review of the trial judge’s Reasons in Fiorito reveals that the Minutes of Settlement that superseded the previous temporary access orders were, as in this case, the product of numerous attempts to rectify the problems with enforcement of access. In that case, the parties had been involved in protracted conflict and litigation about access issues, and an access order had been made on October 24, 2008. The father brought a contempt motion in October 2009 due to difficulties in exercising his access under that order. When the motion for contempt was brought before the court on November 6, 2009, the matter was adjourned and an order was made appointing a parenting coordinator and providing for reintegration counselling to be conducted by a psychologist. The mother subsequently brought a motion to suspend the father’s access, and on March 5, 2010, Quinn, J. had made an order providing for the terms of the October 24, 2008 order to continue. The matter finally went on the trial list, and the parties signed the final Minutes of Settlement in October 2010. Those Minutes of Settlement granted the father generous access, and required the parties to participate in reconciliation counselling. Although this outcome was the result of a long history of attempts to enforce the father’s access, the Court of Appeal concluded that the father was nonetheless unable to pursue contempt findings in relation to the previous temporary orders that had been superseded.

[76] Although I am dismissing the contempt motion on the basis that the access orders that are the subject of the motion are no longer alive and operative, it is necessary to address the other elements of the contempt claim for two reasons. First, an allegation of contempt is an extremely serious matter, and therefore a full analysis of the claim is desirable in fairness to the Respondent. Second, a fulsome analysis is required in order to properly address the issue of costs at a later date. The July 3, 2014 order that superseded the previous access orders was made mid-way through the contempt hearing, after several hearing days and following a settlement conference that I strongly urged the parties to participate in. If that superseding order had been the only basis for dismissing the motion, and there was otherwise evidence to support the elements of a civil contempt claim, this could have been a mitigating factor with respect to costs at least up until July 3, 2014. However, for the reasons that follow, I conclude that the other elements of a claim for contempt have not been made out in this case.

II. ISSUE #2: DID THE RESPONDENT ATTEMPT TO ALIENATE THE CHILDREN FROM THE APPLICANT AND ELIMINATE HER FROM THE CHILDREN’S LIVES?

[77] The Applicant’s contempt claims are based largely on her position that the Respondent engaged in a long-standing campaign from the time of the separation to alienate the children from her, and to eliminate her from the children’s lives. This basic allegation was central to her argument that the contempt remedy was a measure of last resort. She submitted that the Respondent’s alienating behaviour was so persistent and pernicious that the contempt remedy was the only appropriate means of sending him the message that court ordered access terms must be obeyed. The Applicant also relied on the Respondent’s alleged alienating conduct in support of her argument that the Respondent wilfully and deliberately breached the orders in question. Her position was that his alienation of the children against her had the effect of thwarting the implementation of the access orders that are the subject of this motion.

[78] I am addressing the Applicant’s allegation of alienating and undermining conduct by the Respondent in a comprehensive fashion at this point in my analysis because of the pivotal nature of the allegation to all of her contempt claims. Upon carefully reviewing all of the evidence, I conclude that the Respondent has at times been overly protective of the children and has not given sufficient consideration to the progress that the Applicant has made in addressing concerns about her emotional functioning and parenting. However, for the reasons that follow, I do not accept the Applicant’s allegation that the Respondent has engaged in a malicious campaign to alienate the children from her and eliminate her from the children’s lives.

[79] The Applicant’s argument respecting alienation is based on numerous events that have transpired since the parties separated. First, she testified that at the time of separation, the Respondent stated to her that he would give her anything, and even buy her a house, but that she could not have “his” children. The Respondent denies having made this comment. He acknowledged that he told the Applicant that he did not intend to be a weekend father, and that he wanted to remain meaningfully involved in the children’s lives. The Respondent was credible in giving his evidence on this point. Furthermore, even if I had found that the Respondent made this comment, I would not have accorded it any significant weight in the contempt analysis. The period around the time of the separation was clearly an emotionally charged time for both parties, and any statements which they may have made at that time must be considered within that general context and weighed accordingly. Moreover, I find that both parties remained in the home for a period of time after this statement is alleged to have been made, and that the Respondent then voluntarily began to leave the home most evenings after putting Jacob and Carter to bed in order to avoid conflict. By late October 2010, the Respondent had left the matrimonial home and was living with his mother. As discussed in more depth below, he did not remove either of the children from the Applicant’s primary care until November 11, 2010. These are not the actions of a father who was intent on ensuring that the mother would not be involved in the children’s lives.

[80] In further support of her alienation claim, the Applicant alleges that around the time of the separation, the Respondent orchestrated a number of police attendances at the family home in an attempt to portray her as an unstable and unfit parent, and to support his effort to take the children from her. The evidence does not support these allegations. I find that the police attended the family home on three occasions during the fall of 2010 due to incidents of significant domestic conflict between the parties. I make the following findings respecting these incidents:

1. The first attendance by the police at the matrimonial home occurred on October 20, 2010. The parties were separated at that time, but they were both still residing in the matrimonial home. They became embroiled in an argument on this date about the Respondent not returning home after work, and the Applicant kicked the Respondent during this dispute. The Respondent was on the telephone with his mother during the argument, and I find that his mother called the police out of concern that Jacob and Carter were being exposed to domestic conflict. The police did not lay any charges in relation to this domestic dispute. There is no evidence that the Respondent deliberately set up these events or sought the intervention of the police to bolster his custody and access case.

2. The police attended at the family home again on November 2, 2010. On that date, the Applicant had gone out with a friend for the evening and had then gone to the home of another friend, MaryAnn DuRoss. She testified that while she was at the home of Ms. DuRoss, she found out that a telephone number that the Respondent had been calling from the home line was that of Kari-Lyn Nielson. The Applicant testified that she called the Respondent from Ms. DuRoss’ home and confronted him about having an affair with Ms. Nielson, and then told him that she was returning home. She also called family friends, Herman and Elizabeth Winter, to meet her at the home “as a protective measure” for herself, because she was upset. I find based on the Respondent’s testimony that he was on the telephone with his mother when the Applicant arrived at the home. It is clear that a disturbance occurred at that point, because there were broken pieces of phone on the floor by the time the police arrived. The Respondent alleged that the Applicant was under the influence of alcohol when she arrived, and that she was in an angry and aggressive state. He testified that she grabbed the telephone and threw it across the room, and that she began to kick things in the garage. According to the Respondent, the children woke up and began to cry as a result of the Applicant screaming and breaking items in the home. The Applicant denied kicking things in the garage, but admitted to kicking the Respondent’s car and throwing a pop can. She testified that she could not recall if she grabbed the telephone and threw it. However, when she discussed this incident with the OCL investigator Ms. Montour, she denied that she threw the telephone. The police were dispatched to the home because of the domestic disturbance. The Applicant alleges that the Respondent called the police in an attempt to “set her up.” The Respondent adamantly denies that he called the police, and there is no evidence confirming that he did so. Given that he was on the telephone with his mother when the Applicant arrived, it is entirely possible that his mother called the police again, as she had done on October 20, 2010. I find based on the summary of the occurrence report found in the OCL report dated April 19, 2012 that the police observed the mother and Mr. and Mrs. Winter in the driveway when they arrived on the scene, and that the Respondent was inside the home when police arrived. The Respondent was calm, whereas the Applicant presented as agitated and having alcohol on her breath. While the police were in the home talking with the Respondent, they could hear the Applicant yelling and cursing. Upon carefully reviewing all of the evidence relating to this incident, I find the Respondent’s version of events more credible than the Applicant’s account. The Applicant was understandably distraught after having uncovered evidence that she felt supported her belief that her husband was having an affair. I find that she was extremely angry when she arrived at the home, that she was under the influence of alcohol, and that she began yelling. I also conclude that she threw the telephone, caused a commotion in the garage and kicked the Respondent’s car. In addition, I accept the Respondent’s evidence that the children were awakened by their mother’s behaviour and began crying. The situation was finally resolved with the assistance of the police, and the Respondent left the home. There were no charges laid.

3. The third police attendance at the family home occurred on November 11, 2010. The Respondent arrived at the home that night with Jacob after picking Jacob up from karate class. I find based on the Applicant’s evidence that Carter was at the home of the children’s daycare provider, Michelle Jones, that night. The Applicant arrived home late because she had an appointment in Welland. The Applicant alleges that after she arrived home, the Respondent’s sister and brother in law, Suzanne and Keith Osborne, arrived and Mr. Osborne blocked her car in the driveway. She testified that Ms. Osborne began to berate and yell at her, stating that the house belonged to the Respondent. Her theory was that the Respondent called the police to the home on this occasion. The Respondent denied doing so. He testified that he was talking to his sister Suzanne on the phone when the Applicant arrived, and that Suzanne called the police for assistance because she heard a dispute erupting between the parties. I accept the Respondent’s evidence on this point over that of the Applicant. There is no evidence indicating that the Respondent called the police. The Applicant stated that when the police arrived, the presenting problem was that Suzanne was yelling at her. However, I find based on the summary of the occurrence report included in the OCL report dated April 19, 2012 that the Applicant was yelling at the Respondent to get out of her house when the police arrived. Jacob woke up during this incident and the Respondent was holding him when the police arrived on the scene. While the police were present, the Applicant told the Respondent to “get the fuck out of my house or I will call the police.” The Respondent testified that Jacob was very frightened as a result of the Applicant’s behaviour. He alleged that Jacob told the police officer that his mother was scaring him and that he wanted to leave with his father. The mother denied that the child made these statements to the police. I accept the Respondent’s evidence on this issue. The information from the police confirms that when the police asked Jacob if he was all right, Jacob responded “I don’t want to be here. My mom scares me. I want to go with Dad.” The Applicant agreed to allow Jacob to leave the home with the Respondent that night. The attending police officer asked the mother where Carter was, to which she responded “It’s none of your fucking business.” When the police left the home, the Applicant slammed the door and almost hit the police with the door. No charges were laid in connection with this incident.

[81] Based on the foregoing findings, I reject the Applicant’s allegation that the Respondent machinated the police attendances at the home to serve his purposes respecting custody and access of the children. There is no evidence to support the Applicant’s assertion that the Respondent called the police, and I find that the police intervention was justified based on legitimate and serious conflicts that erupted between the parties on the three occasions.

[82] As part of her argument regarding alienation, the Applicant suggested that the Respondent deliberately woke Jacob up on November 11, 2010 so that he could take the child with him when he left the home. I do not accept this proposition. I find that Jacob woke up on his own accord due to the commotion in the home, and that the Respondent picked him up to calm him down. There is no evidence that the events that occurred on that date were the result of a pre-planned “set-up” concocted by the Respondent to remove Jacob from the Applicant’s care.

[83] In further support of her alienation argument, the Applicant asserted that the Respondent wrongfully kept Jacob away from her and from school from November 11, 2010 until November 23, 2010. As I have already noted, Carter remained in the mother’s primary care during that time period, and Jacob remained with his father at the home of the children’s paternal grandmother. There is a dispute about how often each party saw the child who was not in their care during that time, but the parties agree that contact was minimal. I do not accept the Applicant’s suggestion that the Respondent’s refusal to return Jacob to her care was evidence of alienation by him. The parties had both remained in the matrimonial home caring for the children until shortly before the police involvement on November 11, 2010. There was no custody and access order in effect at that point respecting custody and access, and therefore the parties were equally entitled to have the children in their care. I find that an unfortunate impasse developed after the November 11, 2010 police incident, whereby the Applicant was not allowing the Respondent to have Carter and the Respondent was not returning Jacob to the Applicant. To assign the blame for this situation entirely to the Respondent is overly simplistic. Both parties were responding to a crisis in their family in the way they thought was most appropriate at the time. The Respondent testified that his decision to keep Jacob in his care and from school was based on bona fide concerns about Jacob’s emotional well-being and his expressed fears about his mother. I conclude that these concerns were justified, based on the following findings:

1. The period leading up to the November 11, 2010 incident was extremely chaotic for the family. The Respondent testified that there was a considerable amount of conflict between the parties for at least a year prior to their separation in early October 2010. He attributed the conflict in part to excessive alcohol use by the Applicant. The evidence satisfies me that the Applicant at times consumed excessive amounts of alcohol during the period leading up to the separation. The Applicant acknowledged both in her testimony and during her interview with Ms. Montour that she drank too much at times during that period because she was having difficulties coping. There is a reference in her letter to the Respondent around the time of the separation, marked as Exhibit 16 in the hearing, to the Applicant promising to stop drinking. The Respondent testified that there were times when the Applicant was not working when he had difficulty awaking her in the morning to watch the children because she had consumed too much alcohol the night before. I found him credible in giving this testimony. The evidence indicates that on October 20, 2010 and November 2, 2010, when the police attended the family home, the mother had a smell of alcohol on her breath and she presented as emotionally volatile. Furthermore, Jacob disclosed to Ms. Montour that his mother drank more than his father, and that “mommy gets drunk and she falls down and I help her up.” He talked about him and Carter taking care of his mother when she fell after drinking too much alcohol. Ms. Montour made a referral to NFACS after receiving this disclosure from Jacob, since the children were in the mother’s primary care at the time of the OCL investigation. Jacob did not repeat his disclosure to the child protection worker who investigated, and therefore the agency did not verify protection concerns relating to excessive alcohol consumption. Notwithstanding that decision, I am satisfied on a balance of probabilities based on the evidence adduced at this hearing that the Applicant experienced problems with excessive alcohol consumption during the time leading up to the parties’ separation and for a period of time afterwards, and that those problems impacted on her parenting.

2. There were concerns regarding the Applicant’s emotional volatility and impulse control prior to the separation and for a period of time thereafter. The Respondent advised Ms. Montour and testified at trial that the mother frequently berated and belittled him, and that she yelled at everyone in the family. He described her as having no patience with Jacob and Carter, and being particularly impatient and belittling towards Jacob. In the Applicant’s letter to the Respondent around the time of the separation (Exhibit 16), the Applicant appeared to acknowledge that she had yelled at and berated the Respondent and thrown things at him. The Applicant admitted to Ms. Montour and during this hearing that she had difficulty coping emotionally around the time of the separation. She acknowledged to Ms. Montour that she yelled at the children in the past, but stated that she no longer did so. Furthermore, Jacob disclosed to Ms. Montour that his mother would yell and throw things when she was angry. He later told the Pathstone Program Manager Ms. Stark and the access facilitator Ms. Madden that his mother was mean and that she had said mean things to him in past. He advised his care-giver, Wendy Weaver, that his mother was mean and used to yell at him, and he described hiding in his closet at times when he was in the Applicant’s care. The evidence relating to the police involvement with the family in the fall of 2010 also highlights concerns regarding the mother’s emotional instability and impulse control. The Applicant presented as agitated and volatile on the three occasions when police attended the home. Jacob was present in the home on each of those occasions. Considering the evidence as a whole, I find that the mother had significant anger management problems near the end of the parties’ relationship and following the separation, and that the children were exposed to her emotional volatility.

3. There were also valid concerns as of the fall of 2010 regarding the Applicant’s tendency to become physically aggressive when she was under stress. She admitted to yelling at the Respondent and kicking him on October 20, 2014, and to throwing a can of coca cola and kicking the Respondent’s vehicle on November 2, 2010. As noted above, I find that she also threw the telephone on that date, causing it to break. On November 11, 2010, she almost hit the police with the front door when they exited the family home. I am satisfied that she also became aggressive at times towards Jacob. During the OCL investigation, Ms. Montour made another referral to NFACS after learning that Jacob had told his paternal grandmother that the Applicant had in the past yelled at him, dragged him by his arm and pulled his hair. Jacob did not repeat these allegations when the worker from FACS interviewed him, and therefore the agency did not verify any protection concerns. The Applicant has denied ever dragging Jacob by his arm or pulling his hair in an aggressive manner. She described how she would tug gently on Jacob’s hair at his request because he liked it when she did that. However, Jacob subsequently made the same disclosures to Ms. Weaver, Ms. Stark and Ms. Madden, in the context of talking about his mother being mean to him. Having considered all of the evidence relating to the Applicant’s impulse control issues and Jacob’s disclosures, I find that there were occasions in the past when the Applicant dragged Jacob by the arm and pulled him by the hair in an aggressive manner.

4. Finally, there were significant concerns as of the fall of 2010 about both children having been exposed to domestic conflict between the parties. The Respondent bears a significant amount of responsibility for this conflict. Both parties acknowledged to Ms. Montour that in addition to the occasions when the police attended at the home in fall of 2010, there has been a prior significant domestic incident between them. The Applicant alleged that the Respondent had been drinking on that occasion and punched her in the eye, whereas the Respondent alleged that he pushed the Applicant away from him and that she sustained a black eye accidentally. The situation worsened between the parties during the fall of 2010, due in large part to the Applicant’s suspicions that the Respondent was having an affair. Those concerns were well-founded. It is understandable that the Applicant was struggling emotionally during the fall of 2010 in the face of evidence that the Respondent was involved with another woman, and this situation clearly contributed to her emotional volatility. Regardless of who was to blame for the increase in tension between the parties, the fact is that the children were being exposed to significant domestic strife. As I have already noted, Jacob was present for all three police attendances at the home in the fall of 2010. I am satisfied that he was experiencing emotional distress as a result of his exposure to his parents’ ongoing disputes.

[84] Having regard for all of the evidence regarding the chaos that this family was experiencing as of mid-November 2011, I conclude that the Respondent’s decision to keep Jacob in his care and home from school for a period of time after the November 11, 2010 police attendance was a sound one from the perspective of Jacob’s overall well-being.

[85] In assessing the Applicant’s claim that the Respondent embarked upon a mission to alienate the children from her, I have considered the evidence regarding the custody and access arrangements that evolved after November 11, 2010. That evidence does not support the Applicant’s alienation argument. In this regard, I find as follows:

1. The Respondent did not take any steps to try to remove Carter from the Applicant’s care after November 11, 2010.

2. The Applicant picked Jacob up from school on November 23, 2010, and after that time, both Jacob and Carter remained in her primary care. The Respondent did not try to take Jacob back into his primary care and did not proceed to court at that point to challenge this arrangement. In fact, the Respondent took three trips with Ms. Nielson prior to April 2012 and left the children with the Applicant on each occasion when he went away.

3. The parties reached an agreement that the Respondent would have the children on Tuesday and Thursday evenings until approximately 8:00 p.m., and every weekend from either Friday evening or Saturday morning until Sunday evening. This arrangement continued until April 21, 2012. The Respondent never kept the children from the Applicant beyond the agreed upon time during this period.

4. Ms. Montour held a disclosure meeting on March 12, 2012. At that meeting, she recommended a temporary order granting the parties joint custody, granting the Applicant primary residence, and moving towards an arrangement for the father to have the children from Tuesday after school until Thursday morning every week, and from Saturday at 8:45 a.m. until Sunday at 8:00 p.m. every week. The proposed order included a number of terms and conditions aimed at addressing the concerns that had been identified respecting the Applicant. The Respondent indicated at that time that the matter would likely settle on a temporary, without prejudice basis in light of Ms. Montour’s recommendations. As of that point, the parties appeared to be making progress towards a resolution of the custody and access issues between them.

[86] The landscape in this case changed dramatically with the events that occurred on Saturday April 21, 2012. As I have already noted, on that date, Jacob disclosed to the Respondent that his mother had hit him on the head with a pot the night before, on Friday April 20, 2012. As part of her position that the Respondent has alienated the children from her, the Applicant alleges that the Respondent deliberately blew this incident out of proportion to further his own goals and purposes in the custody and access case. For the reasons set out below, I do not accept this argument.

[87] The Applicant’s version of the events that occurred on April 20, 2012 paints a picture of a trivial incident during which Jacob suffered no harm whatsoever. The Applicant testified that before dinner that night, Jacob brought her a bag of microwave popcorn and asked her to make it. She stated that she told Jacob to put it away because it was almost dinner time. However, according to the Applicant, Jacob returned shortly afterwards with the popcorn and a flexible plastic bowl that she always uses for popcorn and asked her once again to make the popcorn. The Applicant stated that she responded to this second request by taking the bowl and gently tapping Jacob on the head with it. She alleged that the bowl was light and that the tap could not have injured Jacob at all. She insisted that Jacob did not show any signs of having been affected by the tap to his head during the morning of April 21, 2012. Her position is that the Respondent exaggerated the seriousness of the situation by telling medical professionals that Jacob was unusually lethargic and not himself that day, and that he vomited. She also postulated that the Respondent initiated a referral to NFACS and the police respecting this incident. Her theory is that the Respondent engaged in these tactics in response to Ms. Montour’s custody and access recommendations, which she had relayed to the parties during her disclosure meeting on March 1, 2012.

[88] I do not accept the Applicant’s version of the incident involving Jacob that occurred on April 20, 2012 or her theory that the Respondent exaggerated the seriousness of the situation to bolster his claims for custody and liberal time-sharing. I find that the Applicant became frustrated with Jacob during the evening of April 20, 2012 because he repeated his request for popcorn, and that she responded by hitting him on the head with a metal bowl or pot used for popcorn. I also find that the hit to Jacob’s head was forceful enough to cause a bump to the back of his head, and to cause him side-effects the next day, including lethargy, nausea and vomiting. I make these findings based on the following evidence, which I found to be credible:

1. Jacob’s disclosure regarding this incident has been consistent over time. He made the same disclosure to the police and later to his child-care provider Wendy Weaver. Jacob did not show any signs of having exaggerated or made up the allegation as time passed. He did not minimize the incident over time, and did not express any remorse for having made the statement to his father about the event. In fact, I find that with the passage of time, and particularly after he went through the process of being prepared for the criminal trial relating to the assault, Jacob became more upset about the incident and angry at his mother for not apologizing. Based on the evidence of the Respondent and Ms. Weaver, I conclude that Jacob became increasingly upset with his mother about the incident because she did not acknowledge having hurt him and never apologized to him.

2. Carter confirmed Jacob’s version of events to his father, the police and Wendy Weaver. He also disclosed to the Respondent that after the Applicant hit Jacob with the pot, he witnessed Jacob fall to the floor and start crying.

3. The Respondent presented as credible in giving his testimony about Jacob’s disclosure and the child’s physical presentation on April 21, 2012. He became very emotional and choked up, and seemed genuinely distressed during his testimony. His detailed account of the events on April 21, 2012 lends credibility to his evidence. He was able to provide many specifics about what occurred, and how Jacob’s disclosure came out. He explained that Jacob did not want to go to karate, that he was moping around and lying on the couch, and that he said “ouch” when he went to hug him. Jacob disclosed what had occurred after the Respondent asked him what was wrong.

4. The Respondent was able to describe the bump on the back of Jacob’s head where Jacob said the Applicant had struck him, and that description corresponded with the description which Wendy Weaver gave of the bump that she observed on the child’s head at that time.

5. The investigating officer, Constable Jason Myers, found both children to be credible in their description of the events that occurred on April 20, 2012, and found that there were sufficient grounds to charge the Applicant with assault. Officials from the Crown Attorney’s office opposed the Applicant’s request for a bail variation to allow for access in accordance with a Family Court order based on their assessment of the strength of the evidence in the case.

6. Although the Crown Attorney eventually agreed to withdraw the assault charge against the Applicant on October 4, 2013, it did so only on the basis that the Applicant would consent to a common law preventative justice order. The preamble to that order stipulates that the mother “acknowledged sufficient of the allegations” and conceded that “probable grounds exist for the granting of the order sought.” In addition, the preamble provides that “the Court has probable grounds to suspect future misbehavior by the Respondent [the Applicant in this case] likely to give rise to breaches of the Queen’s peace.”

[89] I conclude that the Respondent reacted appropriately to the assault disclosure that Jacob made, taking into consideration the physical symptoms that Jacob was exhibiting. I accept his evidence that on April 21, 2012, Jacob was lethargic, not his normal self and vomited. The Applicant emphasized that the Respondent did not call her to discuss what had occurred before going to the hospital, and argued that this supports her theory that the Respondent took advantage of the situation for his own gain. I agree that it would have been prudent and desirable for the Respondent to have contacted the Applicant to obtain her version of what had occurred. However, I do not accept that his failure to do so before attending the hospital is reflective of an attempt on his part to manipulate the situation for his benefit in the custody and access proceedings. I am satisfied that the Respondent acted in good faith with a focus on ensuring that Jacob received appropriate and timely medical attention. I find that events snow-balled after his attendance at the hospital with Jacob. Hospital staff contacted NFACS in response to Jacob’s disclosure at the hospital about what had occurred and his presentation while at the hospital. There is no evidence to support the Applicant’s suggestion that the Respondent called NFACS. Furthermore, the evidence does not support the Applicant’s theory that the Respondent initiated contact with the police relating to this incident. I accept the Respondent’s evidence that a police officer attended his home without advance notice to him after he and Jacob returned from the hospital, and that he received a telephone call from Constable Jason Myers shortly after the first police officer left his home. The Respondent then attended the police station with Jacob and Carter that evening at the request of Constable Myers so that the police could interview the children.

[90] As previously noted, the Applicant was charged with assault against Jacob on April 22, 2012. Her recognizance of bail included a term that she abstain from communicating or associating directly or indirectly with Jacob or Carter except under the direct supervision of NFACS. In furtherance of her alienation argument, the Applicant submitted that the Respondent did not support contact between her and the children after April 21, 2012. However, for the period from April 22, 2012 until February 27, 2013, there was no possibility of the parties negotiating access terms due to the bail terms that were in effect. The Applicant made two attempts to change her bail terms to allow for contact with the children in accordance with a Family Court order, due to the refusal of NFACS to supervise her access. These attempts were unsuccessful because the Crown opposed the requested variation. There is no evidence that the Respondent was consulted regarding the bail variation requests, or that he had any involvement or influence in the Crown’s decision to oppose the Applicant’s variation applications. Furthermore, I find that the Applicant did not request assistance from the Respondent to have the bail terms changed.

[91] The original bail terms continued to apply until February 27, 2013, when the Applicant was finally able to obtain the variation that she requested. As already noted, the Applicant brought a motion originally returnable on April 24, 2013 seeking supervised access with the children at Pathstone. The Respondent acknowledged that he opposed the mother’s request for supervised access. It is unfortunate that he adopted this position at that point. The Applicant had been attending counselling with Mr. Jay Stukel at Niagara Counselling Services since October 2011 to deal with her impulse control difficulties and the emotional stress that she experienced as a result of the marriage breakdown. She had also attended for an alcohol assessment at Community Addiction Services and had received support services through that agency with Ms. Shelly Villella. There was no evidence that she had breached the terms of her bail. The Respondent’s outright opposition to access ultimately had the effect of further polarizing the parties and impeding efforts to mend the relationship between the Applicant and the children. However, I do not accept that the Respondent’s position was representative of a desire to alienate the children from their mother and to eliminate the Applicant from the children’s lives. While he was overprotective of the children with respect to the access issue, I conclude that he acted based on his honest belief that access would not be in the children’s best interests at that point. He was legitimately worried about how the children would react to seeing their mother again, based on the historical concerns regarding the Applicant that I have outlined in detail, the fact that the criminal proceedings had not yet been resolved, and the fact that the children had not seen their mother for over a year. Furthermore, the Respondent testified that the children were indicating to him around that time that they did not wish to see the Applicant, and that they had anxiety about their mother trying to connect with them. He relayed that Jacob had been traumatized by the assault, and that he had gained confidence and become much more settled since contact with the Applicant had ceased. In addition, the father and the children had moved back into the matrimonial home in February 2013, and the Respondent testified that the children exhibited a great deal of anxiety about this move because they were fearful that the Applicant would show up unexpectedly at the house. The Respondent testified that the children began to have nightmares, wanted to sleep in his bed at night and insisted that he put the alarm on in the house before they went to sleep. He also recalled that Jacob ate very little for a few weeks following the move. In addition to his anxiety about how the children would react to access, the Respondent had significant concerns that the Applicant would attempt to discuss the criminal proceedings with the children and influence Jacob with respect to the criminal case. I found the Respondent credible in testifying about all of these issues, and I am satisfied that his response to the Applicant’s access motion was based on genuine concerns about the well-being of Jacob and Carter. The Applicant was ultimately successful in obtaining an order for supervised access on May 31, 2013. However, Maddalena, J. appears to have appreciated the Respondent’s concerns, as she included terms in the order that were aimed at addressing the issues that the Respondent raised on the motion. Specifically, the order prohibited the Applicant from discussing any issues dealing with court or the litigation with the children, from making any derogatory remarks to the children about the father, his family or anyone else, and from consuming alcohol for twelve hours prior to visits. It also stipulated that access would terminate immediately if the Applicant breached any of those terms.

[92] Unfortunately, access could not begin at Pathstone until October 2013 for two reasons. First, there was a lengthy waiting list at the access centre, and an access spot did not become available until that time. Second, Pathstone has a policy that it will not supervise access if the visiting parent has outstanding criminal charges relating to a child who is the subject of the supervised access order. As previously noted, the Crown agreed to withdraw the assault charge against the Applicant on October 4, 2013. The Applicant testified that on October 7, 2013, after the charge was withdrawn, she called the Respondent and asked to speak with the children. I find that the Respondent did not answer the telephone and did not call the Applicant back. Instead, his counsel wrote to the Applicant’s counsel on October 11, 2013 and asserted that the Applicant’s telephone call to the Respondent and her request to speak with the children were inappropriate. She indicated that if the Applicant persisted in this behaviour, the police would be contacted. The Applicant argued that this response to her telephone call further evidenced the Respondent’s intention to eliminate her from the children’s lives. She presented as very emotional and resentful towards the Respondent in testifying about this issue.

[93] It is understandable that the Applicant desperately wished to at least speak with Jacob and Carter after the criminal charge was finally resolved, and after not having seen them for 18 months. However, I do not agree that the Respondent’s response to this situation amounted to alienating behaviour. While the tone of the Respondent’s counsel’s letter dated October 11, 2013 was in my view overly harsh, I conclude that the father’s general response to the Applicant’s unexpected telephone call was entirely reasonable and appropriate. As I have already noted, when the assault charge was withdrawn, Maresca, J. made a preventative justice order that stipulated that access to Carter and Jacob was only to be through a Family Court order or through a written agreement between the Applicant and Respondent. I accept the Respondent’s evidence that the Victim Witness Worker advised him after the charge was withdrawn that he should contact the police if the mother breached the preventative justice order. The previous Family Court order of Maddalena, J. dated May 31, 2013 did not include a provision for telephone access, and the parties had not entered into a written agreement allowing for telephone contact. I agree with the Respondent that introducing telephone contact between the mother and the children immediately after the assault charge was withdrawn would have not been in the children’s best interests. The children had not had any contact with the Applicant for almost 18 months by that time, and both of them had just gone through the process of being prepared for the criminal trial that had been scheduled for October 4, 2013. The Respondent testified, and I accept, that that process had been emotionally challenging for the children. According to the Respondent, Jacob became increasingly angry and resentful towards his mother during this period because he felt that she was calling him a liar and that nobody was listening to him. The Respondent explained that Jacob was frustrated that his mother never apologized to him for hitting him on the head. The Respondent also noted that during the period leading up to the criminal trial, the children had begun to exhibit the same signs of anxiety as they had experienced after moving into the matrimonial home. I found the Respondent to be very credible and reliable in discussing all of these concerns. Given the challenges that the children were experiencing and the amount of time that had elapsed since they had seen their mother, it was appropriate for them to be re-introduced into their mother’s life in a cautious, gradual and planned manner, with professional third-party guidance and supervision.

[94] An access spot became available at Pathstone in mid-October 2013. Since the assault charge had been withdrawn by that time, Pathstone staff began the process of initiating access. The Applicant alleged that from mid-October 2013 until mid-January 2014, the Respondent continued his alienating behaviour by engaging in tactics aimed at stonewalling efforts to implement access at Pathstone. She argued that the Respondent’s persistent efforts to prevent access despite Pathstone’s attempts to arrange visits support her position that the Respondent wilfully and deliberately breached the May 31, 2013 access order, and that the contempt remedy was the only appropriate remedy available to her. For the reasons that follow, I conclude that the Respondent struggled with the implementation of access in late 2013 because of bona fide concerns about how the children would react to the access plan. However, I am not satisfied that he deliberately engaged in stonewalling tactics to prevent access from occurring.

[95] I have carefully reviewed all of the evidence relating to the efforts to commence access in late 2013. I make the following findings in this regard:

1. Christine Stark, the program manager for Pathstone’s access program, contacted the parties by telephone on October 11, 2013 and advised them that an access spot was available for the family. She spoke directly to the Applicant on that date, and left a message for the father. She informed both parents on that day that visits could occur on either Saturday or Sunday on a weekly basis. One of the access slots offered was Sunday commencing at 10:00 a.m. Ms. Stark’s message to the Respondent included a request that he contact her to discuss whether he could facilitate access on those days.

2. In order for access to begin at Pathstone, the parties had to agree between themselves on a day for visits to occur, subject to available time slots at the access centre. The policy of the centre is that it does not decide on an access time for the parents in the absence of agreement on the issue.

3. The Respondent had not responded to Ms. Stark’s message by October 22, 2013, which was seven business days after her initial call. The Respondent’s explanation for the delay was that it was difficult for him to make personal calls during his work day, due to his long work hours and the fact that he worked in a very loud production environment. Ms. Stark left another telephone message for the Respondent on October 22, 2013, asking him to commit regarding a day and time for access. The Respondent called her back that evening and left a message stating that the times offered were not suitable, and asking her to call him to discuss the situation further.

4. Ms. Stark called the Respondent back on Wednesday October 23, 2013, but did not reach him. She left another message advising him of available times to talk. The Respondent called Ms. Stark back on Sunday October 27, 2013. Ms. Stark was not available and therefore the Respondent left a message apologizing for not calling sooner, and asking to meet with her that week or to schedule a time to speak by telephone.

5. Ms. Stark called the Respondent back on October 29, 2013. The Respondent was not available and therefore she left a message for him explaining the intake process and advising that any concerns could be discussed at that time. She also stated that she needed a commitment from the Respondent regarding a time slot for access before an intake appointment could be scheduled.

6. The Respondent called Ms. Stark back on October 30, 2013 and left a message for her. During that message, he indicated that the offered visitation times were problematic because the children were afraid of their mother and were stating that they did not want to see her. In response to this message, Ms. Stark left a message for the Respondent on Friday November 1, 2013 asking if he intended to follow through with visits, and indicating that visits could not proceed unless he committed to a day and time for access. The Respondent left another message for Ms. Stark later in the day on November 1, 2013 clarifying that he never said that he was not following through with the access. He explained that he was simply struggling with how he would actually get the children to the access centre given how resistant they were to seeing their mother.

7. Ms. Stark wrote to counsel for the parties on November 1, 2013 indicating that the mother had committed to two possible visitation times, but that the Respondent had still not committed to a time. She explained that intake appointments could not be scheduled until the parties agreed to a visitation time.

8. Ms. Stark tried to call the Respondent again on November 4, 2013 but could not reach him. She left a message asking him to verify an agreed-upon time for access so that she could book intake appointments. The Respondent called her back on November 6, 2013 and left a message verifying visits for Sundays at 10:00 a.m. In response to this message, Ms. Stark booked an intake appointment for the Applicant on November 12, 2013 and for the Respondent on November 14, 2013. Both parties attended their intake meetings with Ms. Stark.

9. The next step required after the completion of the intake appointments was for the children to attend the access centre for an orientation session, which is a tour of the facility. The Respondent brought Jacob and Carter to their orientation on November 30, 2013, which was the earliest possible date that the access centre could arrange.

10. After the orientation session was completed, Ms. Stark left a message for the Respondent on December 3, 2013 indicating that she wished to book the first visit for December 8, 2013, and inquiring if he agreed to that date. The Respondent called Ms. Stark back later on December 3, 2013 and was able to reach her. He indicated during this conversation that the children felt they were not given an opportunity to discuss their concerns during the orientation. Ms. Stark advised the Respondent that she could speak with the children before they went into the visit on December 8, 2013. However, the Respondent stated that he would prefer that this meeting take place before any visits occurred. The Respondent testified that his hope was that a meeting between Ms. Stark and the children would give the children a chance to talk about their concerns and provide Ms. Stark with a chance to alleviate their anxieties about access. Ms. Stark agreed to meet with the children, however the earliest date that was available to her was December 13, 2013. Accordingly, there was no visit scheduled for Sunday December 8, 2013. Ms. Stark testified that she had had similar meetings with children in advance of access occurring on approximately five occasions in the past with other families. She advised the Respondent during her telephone call with him on December 3, 2013 that if the children were willing to try a visit after her meeting with them, then a first visit could be set for Sunday December 15, 2013.

11. The Respondent brought Jacob and Carter to the access centre to meet with Ms. Stark as scheduled on Friday December 13, 2013. Ms. Stark met with both boys together, independently of their father. She talked to them about the visitation site and the plan for them to see their mother at the centre. Jacob told her at that point that he had wanted to talk to her before having any visits. Ms. Stark encouraged the children to talk to her about any issues they had. Jacob responded by stating that his mother was mean, that she had pulled his hair, grabbed his arm and said mean things in the past, and that he did not want to be with someone like that. Carter was initially silent, but then repeated what Jacob had said. Ms. Stark testified that she reminded them that a staff member would be supervising visits, and that they could have a signal for the supervisor to come into the visit if they felt uncomfortable or needed help. She encouraged the children to try a visit with their mother, and told them that she would follow up with their father about trying a visit.

12. The Respondent testified that he saw Ms. Stark with the children briefly at the end of the meeting on December 13, 2013, and that his understanding was that Ms. Stark said she was not in the business of forcing children to do things they do not want to do. Ms. Stark could not recall whether she had made this statement. The Respondent testified that Ms. Stark advised him at the end of the meeting on December 13, 2013 that she would connect with him the next week. No visit was actually scheduled for December 15, 2013.

13. I find that there was a genuine and honest misunderstanding between Ms. Stark and the Respondent after the December 13, 2013 meeting as to what would be occurring with respect to access. The Respondent and the children were under the impression that Pathstone would not be conducting supervised visits, having regard for the concerns that the children had expressed to Ms. Stark, whereas Ms. Stark’s intention was to at least attempt a supervised visit with the Applicant to see if the children would go into the room.

14. Ms. Stark called the Respondent on Monday December 16, 2013 and suggested that a visit be scheduled to see if the children would go into the visitation room. The Respondent called Ms. Stark on December 19, 2013 and left a message indicating that he and the children thought that visits would not be happening at Pathstone, since they believed that Ms. Stark had told the boys that she would not force them to do something they did not want to do. Ms. Stark called the Respondent back on Friday December 20, 2013 and left a message clarifying that she had talked to Jacob and Carter about attempting at least one visit. She asked the Respondent to call her back to advise if he would be verifying a visit. Later on December 20, 2013, the Respondent’s counsel Ms. Lucas left a message for Ms. Stark inquiring whether a visit was scheduled for the upcoming weekend, or whether access would be deferred to the New Year. Ms. Stark left a message back for Ms. Lucas indicating that the father had expressed concerns about access beginning so close to Christmas, and that in any event, the access centre was now deferring access to the new year given the proximity to the centre’s Christmas shut-down.

15. The Applicant mother contacted Ms. Stark when the access centre opened again on January 6, 2014 to inquire about the status of access. Ms. Stark spoke to her on January 13, 2014 and advised that she was awaiting confirmation from the father about whether he intended to verify a visit. The Respondent testified that he was under the impression that staff from the access centre would be contacting him once the centre opened again in the new year to set up a visit. Again, I conclude that there was a genuine and honest misunderstanding between the Respondent and Ms. Stark about who would be initiating the process of scheduling a visit in the new year. It was clear from Ms. Stark’s discussion with the Respondent’s counsel on December 20, 2013 that the Respondent was aware that a visit was going to be scheduled, and that he intended to go ahead with access.

16. Ms. Stark left a voice mail message for the Respondent on January 15, 2014 asking him to call staff and let them know if he wanted to book a visit. Counsel for the Respondent called Ms. Stark on January 20, 2014 and confirmed a visit for January 26, 2014. The father also called Ms. Stark on that day and confirmed a visit for January 26, 2014.

[96] The findings set out above indicate that from October 2013 until mid-January 2014, the Respondent continued to be genuinely concerned about how Jacob and Carter would respond to resumed contact with their mother. It is important to keep in mind that by that time, the children had been on a two year journey characterized by family upheaval, domestic conflict, loss of contact with their mother, several residential changes, the breakdown of their father’s relationship with his partner Ms. Nielson, the loss of Ms. Nielson’s children as extended family members and involvement in the criminal system. I accept the Respondent’s evidence that these experiences had inflicted a significant emotional toll on the children. I conclude that the Respondent was very much attuned to the children’s emotional fragility, and that he was worried about how they would be able to manage access with the Applicant. He also found himself in a quandary, as he was aware that access needed to begin, but he was also dealing with considerable opposition from the children about seeing their mother. I accept the Respondent’s evidence respecting the children’s resistance to seeing the Applicant. It is important to recognize, however, that this resistance was not necessarily attributable solely to anxieties about their mother. There are many reasons why children resist contact with a parent, and these can include fear of additional complications in their life or renewed domestic conflict between family members, or anxiety about loyalty conflicts between parents.

[97] Upon carefully reviewing the evidence regarding the implementation of supervised access, I find that the Respondent struggled in attempting to reconcile the need to implement access with his legitimate concerns about the children’s emotional well-being and how they would manage visits with the Applicant. I conclude that he was not as timely as he should have been in mid to late October 2013 in responding to efforts by Pathstone to get access started. However, he clearly made numerous attempts to connect with Ms. Stark from October 22, 2013 onward to address access plans. Many of the delays were due to practical difficulties which the Respondent and Ms. Stark experienced connecting with each other due to the Respondent’s employment hours, Pathstone’s hours of operation and the nature of the Respondent’s work environment, which made it difficult for him to place telephone calls during regular business hours. Ms. Stark and the Respondent were unable to communicate directly from October 11, 2013 until the Respondent’s intake appointment on November 14, 2013 due to these challenges. Some of the delay was also attributable to scheduling challenges from Ms. Stark’s end.

[98] I also find that the Respondent continued to be extremely protective of the children with respect to access, and that this created delays in the implementation of visits. For example, his request that Ms. Stark meet with the children independently to give them an opportunity to air their concerns caused a delay. However, I do not accept that the Respondent was intent on preventing access from happening or that he deliberately sabotaged efforts to get access started. He clearly accepted the need for access to begin, but he wanted to ensure that it was implemented in a manner that was sensitive to the children’s needs and concerns. In my view, his request for a meeting between Ms. Stark and the children was appropriate having regard for the anxiety that the children were exhibiting about the access plan. The meeting provided the children with an opportunity to discuss their concerns and for Ms. Stark to explain how those concerns would be addressed. After everything that the children had been through since their parents’ separation, they deserved that opportunity to be heard and to be reassured that they would feel safe during visits.

[99] Finally, as I have discussed above, I find that the delay in implementing access from mid-October 2013 until mid-January 2014 was in large part due to honest misunderstandings between Ms. Stark and the Respondent. They communicated back and forth primarily by leaving voice mail messages for each other. I find that their inability to have regular direct, responsive conversations contributed significantly to the problems in implementing access.

[100] The Applicant had seven access visits with the children at Pathstone, on January 26, 2014, February 2, 9, 16 and 23, 2014, and March 1 and 9, 2014. I find that although the children were initially anxious to go into the visitation room during the first two visits, they settled well and did not demonstrate any anxiety going into the room for subsequent visits up until March 9, 2014. I am satisfied that overall, the visits went very well. The mother brought appropriate food and activities for Jacob and Carter, and the boys enjoyed themselves. The activities that the Applicant and the children engaged in included making and cooking pizza, playing with a chemistry set, arts and crafts activities, watching movies, playing board games, playing hockey and soccer and making a scrapbook of family photographs. The Applicant was loving, affectionate and appropriate with the children. Jacob and Carter also showed affection towards the Applicant. However, the mother alleged that the Respondent continued to engage in behaviour that was aimed at undermining her role in the children’s lives during this period. Examples of this alleged behaviour include the following:

1. The Applicant testified that the Respondent attempted to undermine and marginalize her by interfering with a scrapbooking activity that she planned for the February 16, 2014 visit. I find that the mother brought several historical photographs of her, the children and other people to insert into a scrapbook for the children on that date. The access observer took several of the photographs to the access facilitator, Ms. Madden, to obtain her approval. Ms. Madden asked the Respondent for his input, and he objected to a wedding photograph of him and the mother, as well as several other historical photographs. His explanation for his objection to the photographs was that he had been advised by Pathstone staff that the centre’s policy was for access visits to focus on the present rather than the past. Ms. Madden testified that this is in fact a policy of Pathstone. The Respondent felt that this policy made sense, since he was worried that memories of the past would stir the children up emotionally, given the difficult times that they had been through. I find that Ms. Madden spoke to the program manager Ms. Stark, who supported the Respondent’s position regarding the photographs. Taking into consideration all of the evidence relating to the access centre’s policy, the Respondent’s reasons for his actions and Ms. Stark’s support for his objections, I conclude that the Respondent acted reasonably in requesting that some of the historical photographs be excluded from the scrapbooking activity.

2. In further support or her alienation claim, the Applicant testified that she gave Jacob a gold chain with a cross on it during the first visit at Pathstone as a belated first communion gift, but that Jacob did not wear it for subsequent visits. The Applicant accused the Respondent of taking the chain from Jacob and not allowing him to wear it. There is no evidence to substantiate this allegation. The Respondent adamantly denied taking the gift from Jacob or telling him that he should not wear it. The only evidence as to what actually happened to the chain and cross was Jacob’s statement during the visit on March 9, 2014 that he had taken the chain off to play hockey because he did not want to lose it.

3. The mother also testified about a call that the Respondent placed to the access centre after the February 9, 2014 visit, during which the Respondent reported that Carter was very upset about his mother hugging him and squeezing him too hard during the visits. The Respondent also relayed concerns that Carter had reported this to staff, and that the staff had not responded to assist him. The access facilitator, Ms. Madden, did not observe any problems relating to excessive hugging during the February 9, 2014 visit, and she testified that Carter did not relay any concerns to staff. While there appears to be a disconnect between what the child reported to his father and what was actually observed during the February 9, 2014 visit, this does not lead me to conclude that the Respondent was influencing Carter or fabricating concerns. The February 9, 2014 visit was only the third supervised visit between the Applicant and the children, and the children were still adjusting to seeing their mother again after over 1.5 years. Having regard for the many difficult experiences that the children had been through, I find it credible that Carter would have had anxiety about frequent requests for physical affection from the Applicant this early on in the access plan. The evidence relating to the visit of March 9, 2014 supports the suggestion that Carter was experiencing some anxiety about physical affection from the Applicant. I find that the Applicant asked the children frequently for hugs and kisses during that visit, and that Carter responded by moving away from her on several occasions.

[101] The Applicant’s last visit with the children at Pathstone was on March 9, 2014. The children refused to go into the visitation room after that date. The Applicant alleged that their refusal to continue with visits was attributable to ongoing negative influence by the Respondent and his failure to encourage the children to enter the visitation room. Upon carefully considering all of the evidence adduced on the contempt motion, I conclude that the Applicant’s characterization of the reasons for the children’s refusal to participate in further visits as of mid-March 2014 is far too simplistic. I find that the children’s resistance to ongoing access was attributable to their general emotional vulnerability coupled with events in early 2014 that caused them to feel extremely anxious that their situation would become unsettled again. One significant development was that the children learned from the Applicant during one of the visits at Pathstone that she had moved to a residence that was very close to the former matrimonial home where the Respondent and the children were residing. This residential move around the same time that access was resuming with the children would have sent a clear sign to the children that their mother was planning to resume a significant role in their life. The Respondent testified that the children exhibited a great deal of anxiety after learning this information, and started asking him once again to make sure that the alarm was on the house at night. I found the Respondent credible in giving this evidence and I accept that the news of the Applicant’s move caused the children significant stress.

[102] Another important development in early 2014 was the Applicant’s decision in early March 2014 to bring a motion in which she sought an order permitting her to attend all of the children’s activities, liberal telephone contact with the children and gradually increasing unsupervised access. The Applicant served this motion on counsel for the Respondent on March 7, 2014, after only six supervised visits at Pathstone. The motion was originally returnable on March 17, 2014. The Applicant suggests that the Respondent told the children about this motion and influenced the children against access in order to foil her attempts to resume a meaningful role in the children’s lives. I find that the children somehow became aware of this motion. Their first refusal to go into the access room was on March 16, 2014, the day before the hearing of the motion. Furthermore, when Ms. Madden spoke to the children on March 23, 2014 about why they were refusing to go into the visitation room, Carter expressed concern that the Applicant was trying to take the children away from their father. He also commented that his mother had lost him and his brother. Jacob told Ms. Madden that he could sense that his mother was trying to take them away from their father. I am not satisfied beyond a reasonable doubt, however, that the Respondent told the children about the motion or influenced the children against participating in access in response to the motion. He adamantly denied telling the children about the motion, and there is no evidence that he did so. The mother was having weekly visits with the children at this point, and it is just as possible that either she or other family members on the paternal side mentioned to Jacob and Carter that the Applicant was seeking more liberal access. In any event, even if the Respondent had told the children about the motion, I would not have considered his sharing of this information to be inappropriate. While children should not be brought into the thick of custody and access litigation between parents, and should not be made privy to allegations that parents make against each other, they do have a right at Jacob’s and Carter’s age to be given basic information about litigation that relates to them and their best interests, and to have a voice in that litigation.

[103] Regardless of how the children found out about the Applicant’s motion returnable on March 17, 2014, I conclude that their awareness of their mother’s attempts to significantly increase her access would have been extremely unsettling to them. The visits at the access centre had gone very well, and I can certainly appreciate the Applicant’s wish to play a greater role in the children’s lives given the positive steps that she had taken to improve her situation since the separation. However, the motion was in my view very premature. The children were just getting used to the idea of seeing their mother in a highly structured and supervised setting. Jacob, in particular, was still feeling a great deal of anxiety due to his memories of negative experiences with his mother. I find that the children had been gradually developing a sense of security and stability during the period leading up to the commencement of access in January, 2014. The children needed to move slowly with respect to access, and to gradually rebuild a sense of trust with their mother. The Applicant was not moving slowly. Viewing the situation from the eyes of the children, it is understandable why they dug in their heels and refused any further contact with the Applicant in mid-March 2014. In addition to the developments discussed above, the Applicant succeeded in obtaining a temporary order for weekly telephone access at the court appearance on March 17, 2014. This additional layer of involvement with their mother at this critical juncture would have further reinforced to the children that the Applicant was seeking to become increasingly involved in their lives.

[104] Counsel for the Applicant argued that the decision to bring the contempt motion was also prompted by evidence that the Respondent failed to encourage and facilitate the access visits commencing March 16, 2014. In my view, the Applicant has not painted a fair picture of the Respondent’s overall conduct in relation to access as of mid-March 2014. The general picture that emerges from the evidence is of a father who struck a reasonable balance between encouraging the children to attend visits on the one hand, and supporting and comforting the children when they exhibited distress relating to visitation. In considering the evidence as a whole, I accept the Respondent’s testimony that the children resisted leaving their home to go to Pathstone on every visitation day, and that the Respondent had to exert a considerable amount of effort and discipline each time to simply get the children to the access centre. The Respondent continued to bring the children to the access centre for five more visits after the children’s first refusal, notwithstanding the significant effort required to get them to the centre and their repeated resistance to the visits.

[105] With respect to the allegation that the Respondent did not actively encourage the children to enter the visitation room from March 16, 2014 onward, I find that there was never any clear direction from Pathstone staff until March 25, 2014 about the role that the Respondent was expected to take in getting the children into the access room once they arrived at the centre. On March 16, 2014 and March 23, 2014, the access facilitator Ms. Madden assumed a clear lead role in attempting to address the children’s refusal to enter the room. Specifically, she took on the responsibility of speaking with the children, trying to ascertain their concerns, attempting to reassure them, and encouraging them to enter the room. Ms. Stark subsequently reviewed the case-notes relating to these two visits and recognized that Ms. Madden was assuming a lead role in trying to encourage the children to participate in the access. She specifically addressed this issue with Ms. Madden and told her that the Respondent should be taking the lead in encouraging the children to go into the room. In addition, she contacted the father on March 25, 2014 and explained that he needed to take on this role on a go-forward basis. Based on this evidence, I find that it was reasonable for the Respondent to assume at least up until March 25, 2014 that his job was to get the children to the centre, and that Pathstone staff would assume primary responsibility for getting the children into the access room.

[106] Counsel for the Applicant highlighted certain aspects of the Respondent’s behaviour during the visits on March 16, 2014, March 23, 2014 and March 30, 2014 that she alleged had the effect of thwarting the implementation of access. I have therefore carefully considered all of the evidence relating to the Respondent’s conduct at the access centre on those dates. With respect to the March 16, 2014 visit, I find that the Respondent did not interfere with Ms. Madden’s attempts to speak with the children and encourage them to enter the visitation room. He was dealing with a very difficult situation, because Jacob stated at the outset of the visit that he did not want to go in, and both children then went to him for comfort. Counsel for the Applicant suggested that the appropriate course of action would have been for the Respondent to actively encourage the children to enter the room. However, Ms. Madden was already doing that, and I find that the Respondent attempted to support the children through the process. The evidence indicates that both children were genuinely distressed on this date. When Ms. Madden spoke with Jacob, he stated that he did not want to go into the visit, and then went to the Respondent and rested his head on his stomach. Carter then went to his father and wrapped his arms around his legs. As Ms. Madden questioned Jacob about whether something had happened, Carter’s bottom lip began to tremble, his face flushed and his eyes started to tear up. When Ms. Madden asked Carter if he was ready to go in, he began to cry. Ms. Madden asked the boys to talk to their father when they got home about whether there was any reason they did not want to go into the visitation room. Carter began to cry again at that point and hugged his father’s leg. Having regard for the emotional distress that Jacob and Carter exhibited on this date, I find that the Respondent reacted reasonably as a concerned parent by attempting to comfort them. Ms. Madden eventually told the children that they could go home, and the children walked towards the exit door. Ms. Madden then asked the Respondent if he was okay, and the Respondent stated that he did not want to say anything “that would come back and bite him in the ass.” Counsel for the Applicant alleged that this comment was made within earshot of the children, and that it was a negative comment that had the effect of undermining the access efforts. However, I am not satisfied that the children were within earshot when the father made this comment. The evidence indicates that the children had moved away from Ms. Madden and the Respondent and were waiting at the exit door when the comment was made.

[107] At the outset of the next visit on March 23, 2014, Ms. Madden asked the children about going into the visit. The children both shook their heads and said that they did not want to go in. Ms. Madden then asked the Respondent if there was any reason for their refusal to see their mother, and he responded that it had been very difficult just getting them there. Ms. Madden asked the Respondent to remind the boys that they had been having fun, and the Respondent proceeded to ask Jacob if he had been having fun. Counsel for the Applicant suggested that the Respondent’s decision to question Jacob about whether he had been having fun rather than telling him that he had been having fun during visits clearly evidenced his lack of support for access. The Respondent testified that his comments were not intended to undermine access, and that he was simply trying to encourage Jacob to go into the visit. It is important to note that Jacob actually responded to the Respondent’s question by acknowledging that he had been having fun in the visits, but explaining that he had changed his mind. I conclude that the Respondent’s question was not intended to create a negative impression about access, and that it did not in fact have such an effect.

[108] Ms. Madden continued to take the lead in speaking with the children and encouraging them to participate in the visit on March 23, 2014. However, I do not accept the Applicant’s suggestion that the Respondent stood idly by and did not facilitate or encourage access on that date. When Ms. Madden inquired of Jacob about why he had changed his mind, the Respondent encouraged Jacob to explain. He told Jacob that Ms. Madden needed to understand, and that he needed to use his words and express his feelings if he had something to say. Jacob responded by whimpering that Ms. Madden did not know what his mother was really like, that his mother was mean, that she blamed him for everything and pulled his hair, and that he could sense that she was trying to take them away from their father. Jacob started crying at that point, and the Respondent comforted him and reassured him that he was not going anywhere. This evidence confirms that the father was involved in attempting to manage the children’s emotions and allay their anxiety so that access could occur. Ms. Madden advised the children that they did not have to go in, and that they could go home. When she asked if the children wanted to tell their mother anything, Carter asked her to tell the Applicant that she lost him and Jacob.

[109] The first visit that occurred after Ms. Stark directed the Respondent to take the lead in encouraging the children to enter the visitation room was on March 30, 2014. The children refused for the third time to enter the access room on that day. When Ms. Madden asked the boys if they had told their mother that week that they wanted to bake cookies with her, they both shook their heads. The Respondent tried to assist Ms. Madden by telling Jacob that Ms. Madden needed to hear him. Jacob responded by clearly stating that he did not want to go into the access room. Jacob presented as very anxious again. He clung to his father while Ms. Madden addressed the children and the Respondent. At that point, the Respondent explained that Ms. Stark had called him that week to urge him to be more encouraging about access. He explained that he had been encouraging the children all morning just to get them to the access centre. Ms. Madden responded that considering he had gotten them all the way to the centre, it was only ten more feet. The Respondent then turned to Jacob and said “ya, but that’s the hardest part, right buddy?” and then ruffled Jacob’s hair. Counsel for the Applicant was critical of this comment. She argued that it fed into Jacob’s fear at a time when the Respondent should have been telling Jacob to go into the room. When considered in isolation, this comment could be interpreted as casting a negative light over access. However, portions of evidence cannot be cherry-picked in this fashion. I have considered all of the evidence respecting the Respondent’s conduct in relation to access and the children’s reaction to visits in order to formulate a fair overall impression of the Respondent’s cooperation in implementing access. The March 30, 2014 visit was the third time that the children had shown distress at the access centre and had refused to enter the visitation room. I find that the Respondent had once again spent the morning coercing the children to go to the access centre against their will, and that he had joined Ms. Madden in trying to encourage the children to go into the access room. To expect a parent in these circumstances to show no empathy or understanding in response to their child’s clear distress is simply not realistic or appropriate. I conclude that it was reasonable by this point for the Respondent to acknowledge to Jacob that he recognized this was hard for him. This was the response that Jacob desperately needed at that time. Moreover, immediately after making this comment, the Respondent tried again to encourage Jacob to go into the access room by asking what he thought about going in. Jacob continued to refuse.

[110] When Jacob again refused to enter the access room, the Respondent commented that he did not know why the children had to keep going through this. The Applicant was critical of this comment as well, suggesting that it undermined the efforts to get the children into the visitation room. Again, this comment must be considered in the context of all of the evidence. In my view, the Respondent had good cause to be concerned at this stage about how the children were managing emotionally with repeated scenes at the access centre due to their refusal to enter the room. While it would have been more appropriate for the Respondent to make this comment without the children present, the court must be cautious about placing parents under a microscope in these types of emotional situations and expecting a standard of absolute perfection as it looks back in time with the benefit of 20/20 hindsight vision. Moreover, after making this comment, the Respondent continued to work with Ms. Madden to facilitate the visit. Ms. Madden again urged the children to enter the access room, and she asked the father if he would stay close by in case there were any problems. The Respondent again tried to assist in getting the children into the room by reassuring the boys that he always stayed close by.

[111] In response to the children’s ongoing refusal to enter the visitation room on March 30, 2014, the Respondent finally became exasperated and said that he did not know what people wanted from him. He commented about different people telling him different things. Ms. Madden asked the Respondent what he meant, and he responded that he did not like to speak about this sort of thing in front of the children. However, in response to Ms. Madden’s questioning, he went on to explain that the children had told Ms. Stark that they did not want to see their mother, and they had understood that they would not be forced to go for visits. He indicated that he had tried to call Ms. Stark during the week to discuss the challenges he was experiencing in facilitating access, but that he and Ms. Stark had been playing telephone tag. He expressed his frustration that despite his efforts to encourage the children to visit with their mother and his attempt to speak to Ms. Stark, he was now being told that he was not doing enough. In my view, these comments did not have the effect of obstructing access and were not intended to alienate the children from their mother. I find that it was patently clear by this point that the children were not going to participate in supervised access with their mother at Pathstone. The Respondent was reacting to a situation that was very stressful to him and the children. His conversation with Ms. Madden occurred within this context. Ms. Madden asked him for clarification about what he meant by his comment that he did not know what was expected of him, and he was attempting to respond to her question. In answering Ms. Madden, he clearly emphasized that he did not like talking in front of the children. While it is unfortunate that this conversation occurred in front of the children, I find that the Respondent was under pressure to respond to Ms. Madden’s questioning.

[112] Near the end of the exchange between the Respondent and Ms. Madden on March 30, 2014, the Respondent stated in exasperation “I’m not the abuser,” a comment that was clearly intended as a reference to the Applicant. I find that Ms. Madden responded by stating that she was not going to force the children to go into the visit, and that the Respondent replied that it was difficult talking to her because he did not like to talk in front of the children. He then asked if he should call Ms. Stark again that week. Counsel for the Applicant argued in her Closing Submissions that the “abuser” comment was made in the presence of the children. The Respondent adamantly denied that he made this comment within earshot of the children. He testified that the children were sitting in the chairs down the hall from where he and Ms. Madden were speaking during this portion of the conversation. The question of whether this comment was made within earshot of the children was not clearly put to Ms. Madden in examination in chief or reexamination. I found the Respondent to be credible in giving his evidence on this issue. He presented as genuinely upset about any suggestion that he would have made this comment within earshot of the children, and he was able to provide clear details about when the children walked away from him and Ms. Madden and where precisely they were sitting when he made the comment. In assessing his credibility on this point, I have also considered the fact that the Respondent openly acknowledged other aspects of his conduct during the visits of March 16, 2014, March 23, 2014 and March 30, 2014 that the Applicant criticized.

[113] In assessing the Respondent’s conduct in relation to the visits from March 16, 2014 onward, I have taken into consideration Ms. Madden’s evidence as to whether the Respondent presented as resistant to access occurring. She indicated that when the children were going into the visitation room without difficulty, the Respondent did not show any concern or anxiety when he dropped the children off at the centre and said goodbye to them. He would bring the children in, “fist-punch” them when he said goodbye and then leave. I find that it was only when the children began to show resistance to entering the room that the Respondent began to hold back to see what would happen. Counsel for the Applicant asked Ms. Madden whether the Respondent at that point began to show resistance to access. Ms. Madden initially suggested that the Respondent presented as more resistant, but later clarified that it was difficult to answer the question, because she could not delineate between resistance and protectiveness towards the children. Based on all of the evidence before me, I find that the changes in the Respondent’s general presentation at the access centre as of March 16, 2014 were due to his sense of protectiveness towards the children.

III. ISSUE #3: WAS THE CONTEMPT MOTION A REMEDY OF LAST RESORT?

[114] The Applicant’s allegation of alienation by the Respondent was a keystone to her position that the contempt motion was a measure of last resort. Based on my findings and analysis outlined above, I do not accept the Applicant’s alienation argument. However, the Applicant also alleged that she pursued numerous other options to address the access problems prior to initiating the motion. For the reasons that follow, I do not accept that the contempt motion was a remedy of last resort in this case.

[115] Counsel for the Applicant relied on the Applicant’s access motion that was originally returnable on April 24, 2013 as an example of one of the steps that the Applicant took to address the access problems. This was the motion that resulted in the temporary access order of Maddalena, J. dated May 31, 2013. However, this motion was not brought in response to any misconduct on the part of the Respondent with respect to access; it was required due to the terms of the Applicant’s bail variation, which provided that access could only occur in accordance with a Family Court order. I have already commented on the position that the Respondent took on the motion and my conclusion that he should have taken a more reasonable stance. However, as I have previously noted, success on the motion was ultimately divided, since the order included a number of terms and conditions that addressed the Respondent’s concerns.

[116] The next step that the Applicant took to address the access issue was her motion originally returnable on January 22, 2014 to strike the Respondent’s Answer and Claim, and for an order granting her temporary custody and primary residence of the children. The Applicant relies on this motion to demonstrate that she attempted alternative remedies before bringing the contempt motion. The difficulty with this argument is that the motion was unnecessary. As I have discussed above, the Respondent had made good faith efforts to implement access in a manner that was sensitive to the children’s needs and concerns. Furthermore, he had verified a visitation date of January 26, 2014 prior to the first appearance on the motion. I am not satisfied that the filing of the motion was a catalyst to the scheduling of the January 26, 2014 visit date. At best, the outcome of this motion supports a finding that alternative measures other than a contempt motion would have been effective.

[117] The next step that the Applicant took to address access was her motion originally returnable on March 17, 2014, seeking unsupervised and gradually increasing access. Again, that access motion was not brought due to any concerns that the Respondent was undermining or obstructing access at that point. The Respondent brought the children for all access visits from January 26, 2014 onward, and visits were progressing very well. The motion was motivated by a desire on the part of the Applicant to have more time with the children, and not by any need to address problems with the implementation of access.

[118] The Applicant responded to the children’s third refusal to enter the visitation room on March 30, 2014 by bringing the contempt motion originally returnable on April 9, 2014. She also brought a separate motion returnable on that date seeking an order that her friend MaryAnn DuRoss deliver the children to the access centre, and an order for an assessment of the children by a professional qualified in parental alienation syndrome. I find based on Ms. Stark’s testimony that the parties were able to arrange for a third party to bring the children to one visit after this motion was brought, but that the children again refused to enter the access room. It is important to note that when the motions finally came before me for a hearing on June 23, 2014, there was argument about the order in which the various motions should be heard. However, the Applicant never requested that the contempt motion be adjourned sine die for the purpose of ascertaining whether the outcome of the other motions would result in progress on the access issue. She sought to proceed with a hearing and argument on the contempt motion, regardless of the order in which the motions were heard.

[119] I find that there were a number of other reasonable alternative options that the Applicant should have pursued before resorting to a contempt motion on the facts of this case. These include the following:

1. A four way meeting between counsel and the parties could have been arranged to discuss the access problems and possible solutions.

2. The parties could have requested a settlement conference before a judge to seek some direction from the court regarding appropriate next steps.

3. The Applicant could have brought the motion for an assessment prior to considering a contempt motion, instead of seeking to argue the two motions in tandem.

4. Alternatively, the Applicant could have brought a motion for an order identifying an appropriate counsellor for the children and requiring the Respondent to cooperate in bringing the children for counselling to assist in ascertaining the underlying reasons for the children’s refusal to participate in access.

5. Finally, the Applicant could have brought a motion for an order requiring the parties and the children to participate in reconciliation counselling with a qualified social work professional. An order to this effect was finally made on July 3, 2014 in the midst of the contempt hearing. Significantly, it was the reconciliation counselling process that in fact ultimately resulted in the Applicant enjoying much more liberal access than she had been granted under the previous temporary access orders.

[120] When I made the order of July 3, 2014 directing that reconciliation counselling occur, the Applicant requested that the contempt motion be adjourned. My expectation at that time was that the contempt motion would be withdrawn if the reconciliation process was successful. Despite the progress that was made respecting access through the reconciliation process with Ms. Maggie Hall, the Applicant insisted that the contempt motion be returned for a continuation of the hearing. This decision was misguided. It resulted in a further polarization of the parties in this high conflict case, and caused both parties to incur significant additional legal expenses. Both of these outcomes have been contrary to the best interests of Jacob and Carter.

IV. ISSUE #4: HAVE THE OTHER ELEMENTS OF THE TEST FOR CONTEMPT BEEN MADE OUT?

[121] I have considered whether the other elements required for a finding of contempt have been made out in this case. For the reasons that follow, I conclude that the Applicant has not established the other components of the test.

[122] Dealing first with the May 31, 2013 order, the Applicant alleged that the Respondent breached the order by failing to complete his supervised access intake form by the deadline set out in the order. Her argument was that paragraph 3(g) of the order required the parties to complete the intake forms within fifteen days from the date when Pathstone confirmed that an access spot was available. This claim of contempt fails for two reasons. First, neither the notice of motion for contempt dated April 2, 2014 nor the affidavit evidence filed in support of the motion gave notice of this allegation of contempt. Second, paragraph 3(g) of the order does not clearly state that the fifteen day deadline began to run from the time an access spot became available. The more reasonable interpretation of that section is that the fifteen day period began from the date of the order. I find that neither party was able to complete their intake form during that deadline due to Pathstone’s policy that it does not commence the intake process until an access spot becomes available for the family. In this case, a spot did not become available until October 11, 2013.

[123] With respect to the allegation that the Respondent did not make Jacob and Carter available for supervised access from October 11, 2013 until January 26, 2014, this claim would have failed on two additional grounds. First, I conclude that paragraph 3(f) of the May 31, 2013 lacked sufficient clarity to sustain the Applicant’s claim for contempt. As I have previously noted, that paragraph provided that access at Pathstone was to occur “for a maximum of two hours weekly with times as arranged by Pathstone, and start dates determined by Pathstone Mental Health.” The order does not specify the date for the commencement of access or a set day of the week and time for access visits. Maddalena, J. could not include these details in the order because the parties had not been able to secure a specific access slot at Pathstone by that point. Furthermore, the order does not set out a workable means of settling the days and time for visits. The task of deciding those issues was delegated to Pathstone. However, Pathstone never consented to this delegation of decision-making authority. Moreover, I find based on the evidence of Ms. Stark that the centre’s policy is that staff are only authorized to fix a commencement date and a regular access time once both parties have confirmed their agreement on these issues. For the various reasons that I have discussed at length above, the parties were unable to reach an agreement regarding the commencement date for access until mid-January, 2014. The date that they eventually agreed to was January 26, 2014, and the visit occurred on that day.

[124] As previously noted, the Applicant’s argument is that the Respondent intentionally thwarted attempts by the Applicant and Pathstone to get access started. I have already discussed at great length the Respondent’s conduct in connection with the implementation of access. I am not satisfied that the Respondent wilfully and deliberately failed to take all reasonable steps to implement access from mid-October 2013 until mid-January 2014. While there was an unfortunate delay in implementing access at the centre, there were a number of factors that contributed to that delay. The Respondent’s conduct was certainly not perfect. However, as I have already stated, he had reasonable grounds to be concerned about how the children would react to access, and I am satisfied that his objective during the access implementation efforts was to ensure that access was introduced and proceeded in a manner that was sensitive to the children’s concerns and needs. In cases involving allegations of contempt of access provisions, there is often a very fine line between conduct that is appropriately protective of children and behaviour that is contemptuous in nature. I am not satisfied that the Respondent crossed the line in this case.

[125] Similarly, the Applicant has not satisfied me that the Respondent wilfully and deliberately breached the access terms of the orders dated January 29, 2014 and March 17, 2014. In reaching this conclusion, I rely on my findings set out above respecting the Respondent’s conduct in relation to access from January 26, 2014 onward. The evidence satisfies me that the Respondent took reasonable efforts to facilitate supervised access, to require the children to attend visits, and to encourage them to visit with their mother. With respect to the allegation that the Respondent committed contempt in relation to paragraph 3 of the January 29, 2014 order by making negative comments about the Applicant or the supervised access visit to the children, this claim fails on the basis that the Applicant did not give notice of this allegation. There is no mention of this alleged breach in either the notice of contempt motion or the affidavit evidence that the Applicant filed in support of the motion. In any event, I am not satisfied that the Respondent breached this term. Specifically:

1. The comment that the Respondent made to Ms. Madden on March 16, 2014 about not wanting to say anything that would “bite [him] in the ass” was made in response to Ms. Madden’s inquiry about why the children were not entering the room. It was not a negative comment about access, and the Respondent did not make this comment to the children.

2. The Respondent’s inquiry of Jacob on March 23, 2014 about whether he was having fun was not a negative comment about access.

3. As I have already discussed, the Respondent’s comments to Jacob on March 30, 2014 that the last ten feet into the visitation room was “the hardest part” and his comment to Ms. Madden that he did not know why the children had to “go through with this” cannot be considered in isolation. They must be assessed in conjunction with the totality of the evidence respecting the difficulties that the Respondent had been experiencing in getting the children to access, and the Respondent’s overall conduct on that date. When considered in this broader context, the Respondent’s comments are properly characterized as appropriate attempts on his part to demonstrate a sense of empathy towards the children and to deal with the children’s resistance rather than negative comments about access.

4. Finally, as I have already noted, the Respondent’s comment during the March 30, 2014 access visit that he was not “the abuser” was not made to the children or within earshot of them.

PART VII: TERMS OF ORDER TO ISSUE

[126] Based on the foregoing, an order shall issue as follows:

1. The Applicant’s contempt motion dated April 2, 2014 is dismissed.

2. The issue of costs in connection with the contempt motion is reserved, to be argued if necessary at the same time as argument on costs in connection with the trial of the application herein.

The Honourable Madam Justice Deborah L. Chappel

Released: June 2, 2016

CITATION: Jackson v. Jackson, 2016 ONSC 3466

COURT FILE NO.: D 22850/11

DATE: 2016/06/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmen Marie Jackson

Applicant

-and –

David Gordon Jackson

Respondent

REASONS FOR JUDGMENT

The Honourable Madam Justice Deborah L. Chappel

Released: June 2, 2016