Court File and Parties

Citation: Karar v. Abo-El Ella, 2016 ONSC 7926 Court File No.: FC-16-133 Date: 2016-12-16 Superior Court of Justice - Ontario

Re: Abdullah Sayed S. Karar, Applicant And: Shaimaa Abo-El Ella, Respondent

Before: Mr. Justice Calum MacLeod

Counsel: Julius Dawn, for the Applicant Rod Vanier, for the Respondent

Heard: December 15th, 2016

Endorsement

[1] This is a motion brought by the applicant seeking to find the respondent mother in contempt of court for breaching the order of Mr. Justice Beaudoin made on September 23rd, 2016. The motion also seeks a series of specific directives and to a add police enforcement to the existing order.

[2] The respondent brings a cross motion seeking to modify the order of Justice Beaudoin by adding additional terms.

[3] A finding of contempt is of course the most drastic enforcement mechanism available to the court. It opens the door to a range of sanctions including penal sanctions. Although the moving party does not seek a fine or imprisonment at this stage, nevertheless a finding of contempt is quasi-criminal in nature. It requires proof that the respondent wilfully breached a clear and unequivocal court order and it must be proven on the criminal standard, beyond a reasonable doubt.[^1] It is important to underscore that there are various other remedies available to the court to enforce its orders or to sanction breach of such orders even if the failure to abide by an order does not rise to the level of contempt. But it is not necessary to exhaust such steps before moving for contempt.[^2]

[4] The present motion must be viewed in context. We are dealing with two young children. Mariam is 7 and Yousef is 3. The parties have been separated since January 11th, 2016 and have been involved in almost continuous motions involving the children since that time.

[5] The matter is complicated by the fact that the applicant father is facing criminal charges which will not come to trial until later next year. There are restrictions imposed on him as a consequence of those proceedings which prevent direct contact between the parties. Consequently there are other family members involved in pick up and drop off in particular the maternal grandmother and an uncle. They of course are not parties to the proceeding nor at this point are they specifically the subject of any court orders.

[6] There has been considerable involvement with the family by both the Children’s Aid Society and by the Ottawa Police Service as well as other support agencies and a considerable amount of judicial time has already been lavished on the issues.[^3]

[7] I need not summarize all of the allegations or the background facts for purposes of these reasons. Suffice it to say that the respondent claims the seven-year-old daughter and to a lesser extent the three-year-old son are afraid of their father and are refusing to go on access visits. She claims to be doing everything in her power to encourage them to spend time with the applicant but accuses him of bizarre and belligerent behaviour which she asserts has made it impossible to fully comply.

[8] A family assessment was ordered pursuant to section 30 of the Children’s Law Reform Act in February of this year. The appointment of an assessor was fraught with difficulty but ultimately resulted in the parties agreeing to an assessor.[^4]

[9] The present motion does not occur in a vacuum. At the hearing on September 25th, 2016 Justice Beaudoin made several findings. He found that the respondent had delayed the appointment of the assessor by providing false information in regard to Dr. Worenklein. He found that she further delayed complying with his order of February 11, 2016 by seeking an urgent motion in front of Justice Corthorn.[^5] He found that the respondent hired a security guard to supervise access thus doing precisely what the court had declined to order and that she systematically frustrated Friday afternoon access that had been ordered. He found that the mother “has attempted to frustrate the father’s access and his relationship with his children as a result of her negative feelings for him.”

[10] Perhaps most significantly he went on to find that the respondent had continued to delay the custody and access assessment set to be completed by Dr. Weinberger and that continued supervised access was not justified in the absence of any credible evidence justifying its need.

[11] These findings were not appealed. It is not open to the respondent to come before the court today and make a collateral attack on these findings by now swearing that she has always tried to foster the relationship between the children and their father. She cannot credibly attest as she does in her affidavit that “I want the children to see their father”. Nor was it proper to swear a new affidavit putting before me all of the same allegations that were previously before Justices Beaudoin and Corthorn.

[12] What has happened since the September order was made is that access has gradually ceased. On the eve of an unsupervised visit which would have involved a home visit by Dr. Weinberger, she took the children to CHEO and reported a series of symptoms which resulted in a diagnosis of situational anxiety and referral to the CAS as well as an internal CHEO unit dealing with trauma and abuse. While it is argued that she did not know about the home visit, the timing is too coincidental to accept this in light of the previous findings.

[13] Now the mother accuses the father of roughly taking a cell phone from Mariam and breaking it and of downloading “pornography” onto the child’s cell phone. There may be some substance to these allegations but they are clearly exaggerated. There is no proof that the father downloaded an inappropriate video and in any event it is conceded that “pornographic” was an inaccurate description. While there is some evidence of the father throwing the cell phone on the lawn of the house, there is no evidence that he broke the phone. Police who were called to the scene concluded that there was no basis to lay additional charges.

[14] Part of the evidence tendered by the respondent in response to the motion was a series of videoclips. These clips show Mariam yelling at her father and refusing to go with him. Of course this evidence is problematic as it is hearsay. The respondent swears the videos were made by her brother and he has not sworn an affidavit himself. The applicant contends that the videos have been edited and do not contain a fair record of the interaction between father and daughter.

[15] They are nevertheless deeply disturbing videos. What they show is a 7 year old child who has been inappropriately empowered and allowed to yell at her father to shut up and go away while being filmed and recorded. There is no evidence in the video of any reasonable effort by the adults in the house to calm the child or reassure her or to tell her she must go.

[16] In Godard v. Godard[^6] the Court of Appeal recently dealt with a very similar situation and upheld a finding of contempt. In that case the motion judge had held that it was inappropriate of the mother to leave a 12 year old child with the impression that she could decide starting at the age of 12 whether she wished to continue with access to her father. He held that refusing to abide by the access order by leaving it up to the child and “effectively abandoning her parental authority on the issue of access” and allowing the behaviour of the child to sometimes result in positive consequences for her justified a finding of contempt. In that case the finding of contempt was justified because of the history of the case which had shown that alternative approaches were of no effect.

[17] Once the court has determined that access is in the best interests of the child, the parent cannot leave the decision to comply with the access order up to the child. While parents are not obligated to do the impossible, they are required to do all that they reasonably can to comply with the order. Failure to take concrete measures to apply normal parental authority to have the child comply with the access order can constitute contempt.[^7] This is particularly appropriate if the failure comes on the heels of findings such as those made by Justice Beaudoin in September.

[18] On the evidence before me (which I might note constitutes 4 volumes of continuing record) and in light of the previous findings and past history of this matter, I am making a finding of contempt. Far from making all reasonable efforts to cause the access visits to occur the evidence shows that the mother has continued to impede that access. She cannot abandon her responsibility to positively comply by delegating parental responsibility to her mother or by telling a 7 year old that it is her choice whether or not to go on access visits. Encouraging or permitting family members to exacerbate the situation by telling the children that the father killed the family pet is a further example. It is apparent that despite the findings of Justice Beaudoin and his clear direction that the access was to proceed on an unsupervised basis, the respondent has continued to either directly or indirectly thwart that access and has continued to impede the completion of the custody and access assessment. This is the same kind of contempt of court that was sanctioned in the Goddard case. Even passively permitting the court order to be undermined without taking all reasonable steps to cause the children to comply is contempt under these circumstances.

[19] To be clear, this is not approval of everything the applicant has done or is accused of. If he has failed to ensure the children are adequately seat belted while in the car, has destroyed their property or is not feeding them nutritious food then of course that conduct will have to be considered by the court in due course. It is impossible to get to the bottom of all of this or to have an independent review of his capacity to parent if the access is constantly thwarted and the assessor has no opportunity to view the parenting done by the father.

[20] The remedies for contempt are various and in any event it would be appropriate to provide the respondent with an opportunity to purge her contempt. Equally importantly, it is important to craft any remedy so that it does not inadvertently punish the children or for that matter expose them to further conflict or risk. There is more information I require before determining what if any penalty to impose and what further orders are appropriate.

[21] First and foremost, I was told by both parties that there is an access visit planned for this weekend and that Dr. Weinberger would be present to conduct a home evaluation of the father’s interaction with the children. I directed counsel that I wished to be advised as to whether or not that takes place and whether it does so without incidence.

[22] Secondly, although almost the entire CAS file was put in evidence, the notes of the worker regarding her observations or what she was told by the parties or the children are of only limited assistance. I would prefer to receive direct and up to date information from the Society. I am therefore requesting Ottawa CAS to further investigate the latest allegations and counter allegations and to write a report to the court setting out the history of involvement, current observations, any protection concerns and the status of the file.

[23] The parties both request an order that they each provide authorizations to the CAS and the OPS for the release of information. Updated records from both sources seem appropriate.

[24] Both parties request orders directed to CHEO and other clinicians either authorizing them to continue with clinical steps that may be underway or directing that it be halted. I am not prepared to direct orders of prohibition or mandamus towards parties that have not been put on notice of such a request but I am directing that CHEO be advised of the custody access assessment being conducted pursuant to court order. In the event Dr. Weinberger requires access to the clinicians at CHEO or to medical records, he is to be provided with them.

[25] I am also requested to order that Miriam be permitted to carry her own cell phone while on access visits. I am sure there are various opinions as to whether a 7 year old requires her own phone but there is a note in the CAS records suggesting the child welfare worker supports this idea as it may be reassuring for Miriam. Certainly if she has a phone the father should not be snatching it from her and throwing it on the ground though again I understand he is concerned about surreptitious recordings and edited videos. I urge the parties to apply some common sense and see if they cannot find a resolution to this problem that operates in the best interests of the child and in promoting positive access visits. Perhaps the CAS or Dr. Weinberger may wish to provide recommendations on this issue.

[26] In conclusion, there will be a finding of contempt but the question of penalty or sanction is adjourned. The respondent is to comply with the existing order from now on and will have an opportunity to purge her contempt.

[27] A copy of this endorsement is to be sent to Ottawa CAS and the Society is requested to write a report as outlined above.

[28] The parties are to obtain updated police and CAS records and to fully co-operate with Dr. Weinberger with a view to completing the assessment. That report is to be filed with the court as soon as possible.

[29] If any of the third party agencies affected by this order wish an opportunity to be heard or to make submissions then they may arrange to appear before me in order to do so.

[30] I recommend that this proceeding be specially case managed and be given an early trial date. This recommendation will be brought to the attention of the Local Administrative Judge.

[31] Costs are reserved to the return of the motion.

Mr. Justice C. MacLeod

Date: December 16, 2016

[^1]: See for example Woronowicz v. Conti 2015 ONSC 5247 [^2]: See Rule 31 (1) [^3]: See 2016 ONSC 2575 [^4]: See amended amended endorsement of Justice Beaudoin 2016 ONSC 1564 [^5]: Which was dismissed with costs – see note 1 above [^6]: 2015 ONCA 568 [^7]: Paras 28 & 29, ibid