Court File and Parties

Court File No.: FC-13-1879 Date: 2016/06/29 Superior Court of Justice - Ontario

Re: Mary Ann Mountain, Applicant And: Timothy James O’Neill, Respondent

Before: Madam Justice Sylvia Corthorn

Counsel: Tanya Parker Wallace, for the applicant Marc J. Coderre, for the respondent

Heard: March 29, 2016

Endorsement

[1] The respondent father brings this motion for an order finding the applicant mother in contempt of a final order dated January 7, 2015 (“the Order”). The Order was made at the conclusion of a case conference and is based on minutes of settlement. The father says that he must resort to a contempt motion because a “simple motion” is not available to him in the circumstances.

[2] The dispute at this time is as to the terms of the Order which address the parenting schedule for the two children of the marriage – Madison (born February 11, 2009) and Alexis (born August 25, 2010). The mother denies that she is in contempt of the Order.

Background

[3] The case conference held on January 7, 2015 was conducted by Justice Polowin. In her endorsement Justice Polowin wrote, “Final order to go in accordance with M of S signed today.” Paragraphs 1, 3, and 15 of the minutes of settlement and of the Order deal with custody and the parenting schedule.

[4] The minutes of settlement are attached to the endorsement of Justice Polowin. With respect to that document, I note the following:

• The minutes of settlement are typed;
• Hand-written changes are made on the face of the typed minutes of settlement, including at paragraphs 1 and 3 of the document;
• The minutes of settlement are signed by both parties and by their respective counsel at the time; and
• The hand-written changes to the minutes of settlement are initialed by both parties and by their respective counsel at the time.

[5] At the date of the case conference both parties were represented by counsel other than their present counsel. It is not the change in counsel in and of itself that is noteworthy. I raise the point solely because in their respective submissions on the contempt motion, counsel for the parties: a) referred to the events surrounding the manner in which the minutes of settlement were amended by hand at the conclusion of the case conference; and b) made submissions as to what is intended by the hand-written changes to the minutes of settlement.

[6] Paragraphs 1, 3, and 15 of the Order read as set out below. The portions of paragraphs 1 and 3 in bold lettering reflect changes from the wording of the original typed minutes of settlement – namely, the hand-written amendments to the minutes of settlement.

1. The applicant and the respondent will be jointly involved in decision making for Madison born February 11th, 2009 and Alexis born August 25th, 2010 and as such, they will together make all important decisions with respect to the children’s education, religion, health and general well being [sic].

2. Subject to the parties agreeing to vary the schedule, the children’s [sic] shall reside with the applicant and will be [with] the respondent as follows: Week One a) Monday after school during the school year or at 4 pm during the summer month[s] until Tuesday at 9 am with the respondent; b) Friday after school during the school year or at 4 pm during the summer month[s] until Monday at 9 am with the respondent with long weekends extended to Tuesday; Week Two a) Thursday after school during the school year or at 4 pm until Friday at 9 am.

3. On or after September 1st, 2016, the Respondent may seek to increase the time sharing with the children.

[7] The portion of paragraph 3 of the Order in bold print reflects the addition of the phrase, “Subject to the parties agreeing to vary the schedule” to the introduction to the parenting schedule in Weeks One and Two. The change made to the schedule in Week One is a change from Wednesday to “Tuesday”.

[8] The current dispute between the parties arises from: a) their respective interpretations of the phrase, “Subject to the parties agreeing to vary the schedule”; and b) a change to the parenting schedule made subsequent to the date of the Order.

[9] The father’s notice of motion was issued in November 2015. In support of his motion, the father relies on two affidavits sworn by him. The first affidavit is dated November 10, 2015; the second is dated February 25, 2016. In response, the mother relies on her affidavit sworn on March 22, 2016. The first return date for the motion was March 29, 2016 when the matter came before me.

[10] The sole issue to be determined on the motion is whether the mother is in contempt of the Order by reason of her refusal to revert to the parenting schedule set out therein. For the reasons set out below, I find that the mother is not in contempt of the Order.

Father’s Position and Evidence

[11] The position of the father is that the intent of the parenting schedule set out in the Order is two-fold. First, the girls would be with him every second Monday and every second Thursday. Second, the girls would be away from his home for no more than three consecutive nights. When the Order was made Madison was almost six years old and Alexis was 3.5 years old.

[12] As of September 2016, when the father is permitted by the terms of the Order to bring a motion for relief in the form of increased time with the girls, Madison will be 7.5 years old and Alexis will be just shy of her sixth birthday.

[13] The father’s evidence is that the parties followed the parenting schedule set out in the Order only for the first two weeks subsequent to the date of the Order. It is his evidence that in February 2015 he was approached by the mother with a request to “slightly change [the father’s] time with the children because of changes to [the mother’s] shift” – in particular because the mother was about to begin working night shifts on certain days. The father’s evidence, as set out at paragraph 14 of his November 2015 affidavit is as follows:

Therefore, in early 2015, we changed the schedule to accommodate [the mother’s] work schedule. The time-sharing would be based on a four week schedule as follows: a. In week 1, the children would be with [the father] Monday after school until Tuesday at 9 a.m. and from Friday [after] school until Monday at 9 a.m. (as per the terms of the Final Order); b. In week 2, the children would be with [the father] from Wednesday after school to the following Thursday morning (instead of the Thursday evening to Friday morning); c. In week 3, the children would be with [the father] Tuesday after school until Wednesday morning and from Friday after school until Monday at 9 a.m. (instead of the Monday evening until Tuesday morning); and d. In week 4, the children would be with [the father] from Thursday after school to the Friday morning. ([A]s per the terms of the Final Order).

[14] The father’s position is that he agreed to the change from the two-week rotation to the four-week rotation in the schedule solely on the basis of a calendar sent to him by the mother and which extended to the end of June 2015. The father’s position is that because the calendar provided to him when he agreed to the change to the four-week rotation did not extend beyond the end of June, the change to which he agreed was time-limited. As of the end of June 2015, the parties should have reverted back to the two-week rotation set out in paragraph 3 of the Order. The mother refused to do so. The four-week rotation continues to this date.

[15] The father did not produce as an exhibit to his affidavit a copy of the calendar sent to him by the mother in early 2015 when the change to the schedule was made. In that regard, the father says at paragraph 28 of his November 2015 affidavit, “There was no signed agreement for the variance just a schedule in an e-mail that only went until the end of June 2015.”

[16] At paragraph 24 of his November 2015 affidavit the father states, “My agreement was to accommodate my wife’s schedule.” He goes on to say that he learned over time that the mother has not, since the date of the Order, worked any night shift. The father argues that the basis for the change in the parenting schedule was therefore a falsehood.

[17] The father’s evidence is that as soon as it became clear that the mother was not going to revert to the two-week rotation, through his counsel he made efforts to resolve the matter. Those efforts did not result in a negotiated resolution. As a result, he has no alternative but to proceed with the motion for a finding that the mother is in contempt of the Order – by reason of her failure from June 2015 and continuing to this date to revert to the two-week rotation.

[18] The father raises practical concerns arising from the four-week rotation. For example, he registered the girls in skating lessons and in hockey subsequent to June 2015. The mother is said to refuse to bring the girls to hockey or skating when those events fall on days when the girls are with her. The girls are therefore only able to attend each activity one week out of every four instead of every second week. Not only do the girls miss regular lessons, but they miss special events associated with each activity from time to time. The girls also lag behind the other girls in the same class or group solely because of missing 75 per cent of the sessions or lessons.

[19] The father acknowledges that he and the mother disagree on the nature of the activities in which the girls are to participate. However, the father’s position is that he has supported the girls in the activities in which their mother has registered them. For example, the mother has in the past enrolled the girls in soccer, gymnastics, and dance. The father’s evidence is that he took the girls to those activities when they fell on days when the girls were with him.

[20] In his most recent affidavit, the father states that the girls were registered in dance classes by their mother for the fall of 2015 and winter of 2016 and that the mother refused to tell him where the classes were being held. As a result the father was unable to attend the classes. It is unclear whether the classes fell on a day when the girls would be with the father and that, in addition to the father being unable to attend the classes, the girls also missed their dance classes.

Mother’s Position and Evidence

[21] With respect to the change in the parenting schedule from that set out in the Order, the mother’s evidence is that it was known even when the minutes of settlement were signed that a change would be required. It is her evidence that the parties and their respective lawyers “left the courthouse [on January 7, 2015] knowing what the access schedule would look like.” That knowledge, the mother says, is reflected in the text message exchange she had with the father approximately two weeks later.

[22] The mother includes as an exhibit to her affidavit a copy of the text message exchange between the parties on January 20, 2015. The exchange reads as follows: Mother: I work the first of the day shifts and the second of the night shifts Father: So you days or night right now????? Mother: Nights and I work tomorrow night then nights on the wknd then nights next thurs Father: Make a schedule please Mother: I will.

[23] Both parents are paramedics. I infer that the reference to “the first of the day shifts” and “the second of the night shifts” was something the father, who is said to be a supervisor, understood.

[24] The mother does not include in her affidavit a copy of the schedule for the four-week rotation to the end of June 2015. It is her evidence that the calendar was made to “conform with what we had agreed upon in court.” It is also the mother’s evidence that her request for a change from the two-week rotation was genuine and based on her work schedule which included night shifts from time-to-time.

[25] As relates to the girls specifically, the mother’s position is premised largely on the respective health issues they each have. Much of the mother’s affidavit evidence deals with the historical differences as between her and the father with respect to the girls’ health issues. In essence, the mother is of the view that the father does not fully appreciate the seriousness of the health issues and/or take them into consideration during the girls’ time with him.

[26] Madison is described as being diagnosed with chronic vesicoureteral reflux (“VUR”) which resulted in scarring to her kidneys, chronic nasal congestion resulting in hearing loss, and a speech impediment (a lateral lisp). Alexis is described has having delayed growth – due possibly to a milk allergy and alternatively to stress – problems with bowel function, and chipped molars due to grinding of her teeth.

[27] The mother’s evidence with respect to activities for the girls is set out at paragraph 48 of her affidavit. She therein states: [W]e are supposed to mutually agree on one activity per season, excluding hockey. [The father] refused to respond to my request to enrol the girls in gymnastics. He then had a lawyer send a letter saying that “he will be registering the girls in skating lessons”. He sent me no information regarding places, dates, thoughts, prices to seek my input. It was a completely unilateral move. I also just found out that he registered them in soccer for this summer without even consulting me.

Analysis

a) No evidence of end-date for change to parenting schedule

[28] The father acknowledges that a change in the parenting schedule was agreed upon as of January 2015. His position is that the agreement was time-limited – to the end of June 2015 only. On the basis of the evidence before me, I am unable to make such a finding.

[29] If the father was concerned with the particulars of the agreement to change from the two- week to the four-week rotation, it was open to him to set out the particulars in writing – through communication directly with the mother or communication from his counsel either to the mother directly or, if represented, to the mother’s lawyer. There is no evidence of any limitations communicated by the father to the mother as to the duration of the change in the parenting schedule to a four-week rotation.

[30] There is no evidence of any efforts on the part of the father, leading up to the end of June 2015 or in the weeks that followed immediately thereafter, of any steps taken by him or on his behalf to have the parties revert to the parenting schedule set out in the Order.

[31] At paragraphs 15 and 16 of his second affidavit the father makes reference to mediation over the summer of 2015. However, he describes the mediation as related to “various issues” and does not state that mediation related to his request to revert back to the two-week rotation.

[32] In summary, the evidence does not support a finding that the agreement to change the parenting schedule from the two-week to the four-week rotation was time-limited as suggested by the father. As a result, I am unable to find that the mother is, by reason of her adherence to the four-week rotation, in contempt of the Order.

b) Change, once made to the parenting schedule

[33] I find that the Order contemplates that once a change in the parenting schedule is made, the parties shall continue in accordance with that parenting schedule unless and until a further change or a reversion to the terms of the Order is agreed upon. To date, the parties have agreed to change from the two-week to the four-week rotation. That is the parenting schedule in place based on the most recent agreement between the parties. Absent a further agreement between them or a court Order, that parenting schedule is to remain in place.

[34] To interpret the Order otherwise would be to permit the parties to disrupt the lives of their children by agreeing to a new parenting schedule in one moment and with a change of heart thereafter require the parties to revert to the terms of the Order. A change once made, could never be relied upon by the parties or the girls. Such a scenario could not reasonably have been in the contemplation of the parties, both of whom describe themselves as having their children’s best interests at heart. In any event, I find that such a scenario in not in the best interests of the children.

[35] I note the father’s stated intention to bring a motion, as permitted by the Order, on or after September 1, 2016 for relief in the form of an increase in his parenting time with the girls. The mother indicates in her materials that she intends to bring a Motion to Change not only with respect to the parenting schedule but to seek sole custody and primary care of the girls. In her affidavit, she states that she “will be filing this Motion shortly.”

[36] Assuming each of the parties is earnest in their stated intentions, it is clear that the issues of custody and access will be the subject of further litigation between the parties.

c) Activities for the girls

[37] The Order is silent as to what is to transpire for the girls if they are registered in an activity by one parent and the night of the activity falls, from time-to-time (as it no doubt could), on a night when the girls are with the parent who did not register them in the particular activity. I find that the intent of the Order is that it is expected that the girls will attend the activity (hockey or otherwise), assuming they are physically well enough to do so, regardless of which parent they are staying with on the day on which the activity falls. It is the responsibility of the parent with whom the girls are residing on the day, night, or weekend of an activity to ensure that the girls attend the activity.

[38] I find that when the Order was made the mother fully appreciated and that she continues to appreciate that the girls may from time-to-time be enrolled in hockey. The mother does not in any way contradict the father’s evidence that the girls are not taken to hockey by their mother when that activity occurs on a day the girls are with her.

[39] I also find that the terms of the Order are clear as to the number of activities in which each of the girls may be enrolled in a given season. That number is ‘one’. Hockey is, if the girls are registered in it by their father, in addition to their sole other activity.

[40] Both parties need to be reminded that paragraph 20 of the Order recognizes that it is the girls who are “entitled to be registered in one activity per season”. It is not the entitlement of the parties to register the girls in one activity per season. Nor is one of the parties entitled to unilaterally determine the sole activity, other than hockey, in which each of the girls may be registered.

[41] In considering the activity in which to register the girls it is incumbent upon the parents to: a) Be mindful of the interests and aptitudes of each of the girls; b) Consult the girls, in particular as they grow up, for their input as to the activity selected; and c) “[T]ogether make [the] important decisions” as to the activity in which each girl is to be registered. The passages quoted is from paragraph 1 of the Order.

[42] The ability to work together towards a common goal or in decision-making is something that the girls will learn from their participation in activities. They will benefit greatly from such opportunities so as to offset the negative example set to date in that regard by their parents. Their parents would be well-served personally and in setting an example for their daughters if they were to apply some of the most basic principles of teamwork taught to girls of their daughters’ respective ages through participation in activities.

Disposition

[43] It is unfortunate that the girls have, to date, not enjoyed the support of their parents in activities in which they have been registered. That lack of support is as a result of one or more of the mother’s refusal to take the girls to hockey, the mother’s refusal to inform the father of the day of the week, time of day, and location of activities in which the girls are enrolled by her, and the father’s unilateral decision-making with respect to the sole activity, other than hockey, in which the girls are to be registered.

[44] The affidavit evidence of the parties is replete with accusations that the other parent has failed in any number of ways to comply with the parenting schedule over time and with other aspects of the Order. To sift through each and every such accusation, in the absence of cross-examinations, is not possible nor would it in my view serve a purpose at this time. The one matter about which I have been asked to make a finding of contempt has been addressed and in that regard the motion fails.

[45] What I am able to discern from the affidavit evidence and from the submissions made on behalf of the parties is that “[The] parties cannot agree upon what day it is, let alone on matters relating to their children.” [1] The relief ordered below is intended for the specific purpose of bringing some sense of order to the lives of these two young girls as relates to what should, at their young ages, be a most enjoyable part of their lives – activities with other children of their age the purposes of which include fun, socialization, and the development of basic physical and/or other skills.

[46] The Order is clear that the girls are to be enrolled in one activity per season in addition to hockey, with the latter being at the father’s choice and sole expense. There is no evidence on the motion to suggest that the parties intended anything other than that regardless of the activities, including hockey, in which the girls are enrolled in a season:

• The girls shall be taken to the activity regardless of with whom they are staying on the day on which the activity falls; and
• Both parents shall be permitted to attend to watch and support the girls when they participate in the particular activity.

[47] A reasonable parent would support their child in an activity, including by taking the steps necessary to ensure that the child attends as many of the sessions of the activity as is practicably possible. Fully supporting the girls in their respective activities, teaches them many life-long lessons including with respect to commitment to activities and projects, et cetera, a good work ethic, and pride in accomplishment.

[48] The relief set out below reflects that which I find is intended by the parties in paragraphs 6 and 20 the Order to which they consented. In summary, I order as follows:

1. The children shall be entitled to be registered in one activity per season not limited to dance, gymnastics, and soccer. Said activity shall be in addition to hockey in the event the father chooses to register one or both of the children in hockey;
2. In the event the parties are unable to agree upon the activity in which each of the children is to be enrolled in a given season, and recognizing that one child may be enrolled in a different activity from the other, the parties shall: a) Take all reasonable steps to consult with one another and agree upon the activity far enough in advance of the registration deadline to ensure that the children do not miss out on the intended activity because of the passage of the deadline before they are registered for the particular activity; and b) Refer their dispute, if any in that regard, to mediation in a timely manner so as to permit registration to be completed prior to the deadline stated for the activity.
3. Regardless of which party registers a child for an activity that party shall, in a timely manner following the completion of the registration, provide the other party with the particulars of the activity including day of the week, time of day, and location for the activity;
4. In the event the father registers one or both of the children in hockey, he shall continue, as provided in paragraph 20 of the Order, to be solely responsible for the expenses associated with same; and
5. The terms of this order remain in effect pending a further Court order or an agreement in writing signed by each of the parties and with the signature of each of the parties witnessed and dated.

[49] I was struck by the decision in Fisher (see footnote 1) – a decision of Justice Chadwick, upon which both parties rely. In his reasons, Justice Chadwick referred to an earlier endorsement in the matter in which Justice Rutherford made observations about the conduct of Mr. and Mrs. Fisher. The parties in the matter before me appear to be equally as acrimonious as the Fishers appeared to Justice Rutherford to be. The parties in this action would benefit from consideration of Justice Rutherford’s thoughtful remarks: [This family litigation file] represents what must be a most bitter dispute between a man and a woman who once decided to become life partners. The impact of the ongoing battle on their 3 young teenaged children can only be guessed at, but it cannot but be adverse. I wish I had the ability to persuade both parties to step back and take a hard look at what is happening and to try to adopt a less destructive course that would enable them to be the best models for their children for coping with life’s difficulties. The present course certainly prevents that and the long term consequences are worrisome.

[50] The parties in Fisher were the parents of three teenaged children. The children’s lives were clearly negatively affected by the acrimony between their parents.

[51] In the matter before me, both parties have described the stress on their very young children by reason of the conduct of one or both of the parties – stress which at least one of the parties recognizes appears to be manifested in physical symptoms. Given the ages of Madison and Alexis, their parents may still have an opportunity to improve the long-term outcome for the girls by stepping back, taking a long hard look at their respective behaviour (as the adults in the situation), and setting a course which offers a more positive environment in which to raise the girls.

[52] I am of the view that neither of the parties is entirely blameless in this matter. As a result, there shall be no order as to costs.

Released: June 29, 2016 Madam Justice Sylvia Corthorn

[1] Fisher v. Fisher, [2003] O.J. 976; 2003 CarswellOnt 1170 at para. 5. (S.C.J.).