NEWMARKET COURT FILE NO.: FC-5-49439-00 DATE: 20170413 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Riccardo Ottorino Sandro D’Abruzzo, Applicant and Patricia Giancola (aka Patricia Giancola-D’Abruzzo), Respondent
BEFORE: The Honourable Madam Justice S.J. Woodley
COUNSEL: K. Zaldin, for the Applicant J. Zimmerman, for the Respondent V. Brown, The Children’s Lawyer
HEARD: April 5, 2017
Reasons for Decision
Overview
[1] The Applicant father commenced a motion for contempt seeking to enforce the access and counselling provisions of a consent Order made by Justice Nelson on January 18, 2016.
[2] The Respondent mother commenced a cross-motion seeking temporary sole custody and variance of the provisions of the consent Order to provide for: (i) access as determined by the child; (ii) specific limits on the father’s communications with the child; and (iii) to dispense with the father’s signature and/or consent to travel.
Background
[3] The parties were married on March 28, 1998, and separated on July 1, 2011 (father’s position) or on March 31, 2015 (mother’s position).
[4] The parties have one child, being a son, Nicholas Michael D’Abruzzo, born May 3, 2003. Nicholas is currently 13 years old and is the primary focus of the motions heard by me.
[5] Following separation the parties continued to live together with their son in the matrimonial home until November 11, 2015 at which time the Respondent mother took the child to live at her parents’ home without prior notice to the Applicant father.
[6] The Respondent mother has had primary residence of the child since separation. Pursuant to the temporary consent Order dated January 18, 2016, paragraph 3, the Applicant father was to have access with the child as follows:
a. Each Wednesday from 3:30 p.m. to 8:00 p.m.; b. Alternate weekends from Friday at 4:00 p.m. to Sunday at 7:00 p.m.; c. Additional access in accordance with the child’s wishes; d. The second half of March break commencing Wednesday March 16, 2016 at 4:00 p.m. to and including Sunday March 20, 2016 at 8:00 p.m.
[7] There are two further terms of the consent Order which are relevant to the motions before me as follows:
a. The Office of the Children’s Lawyer shall be involved to provide independent legal representation for the child; and b. The Respondent mother shall provide the Applicant father with the names of three professionals to provide counselling for the child, Nicholas, through counsel, on or before February 1, 2016. The Applicant father shall select one professional from the list to provide counseling services for Nicholas.
[8] Despite the terms of the consent Order, the Applicant father has had minimal access and Nicholas has not begun counselling.
Issues
[9] There are two motions before me.
[10] The issues with respect to the Applicant father’s motion are:
a. Is the Respondent mother is in contempt of paragraphs 2 and 3 of the Order of Justice Nelson dated January 18, 2016, and if so, what is the appropriate remedy.
[11] The issues with respect to the Respondent mother’s cross-motion are:
a. Should the Respondent mother be granted interim sole custody of the child; b. Should the Applicant father’s consent and/or signature be dispensed with for travel outside of Canada; c. Should the terms of the January 18, 2016 Order should be varied as proposed by the mother (and supported by the child); and d. Should restrictions be placed on the Applicant father’s communications with the child.
The Parties’ Positions
[12] The positions of the parties and the child are as follows:
a. The Applicant father claims that the mother is in contempt of paragraphs 2 and 3 of the January 18, 2016 Order. The Applicant father alleges that the mother has empowered the child by allowing the child to decide whether and when he will attend access and/or counselling in accordance with the child’s own views and preferences. The mother’s support of the child’s position and her failure to require the child to comply with the terms of the consent Order constitutes contempt. The father submits that the mother should be required to purge her contempt within 60 days failing which the parties shall return to argue further remedies and that her cross-motion should not be heard until her contempt is purged. b. The Respondent mother states that despite her best efforts the child consistently refuses to comply attend for access with his father and refuses to participate in counselling. The mother claims that she has actively encouraged the child to comply with the provisions of the Order, that her encouragement has impacted her relationship with the child, that she has no ability to physically enforce the terms upon her child, and in the circumstances it is not in the child’s best interests to enforce the access and counselling provisions upon the child. With respect to the cross-motion, the mother seeks custody of the child and to dispense with the necessity of consent and/or signature to travel. The mother further seeks to vary the consent Order to provide that access will occur in accordance with the wishes of the child and that communications between the father and son be subject to restrictions. The mother submits that the relief sought by the cross-motion is in the best interests of the child. c. Ms. Brown, on behalf of the child, advises that while the child wishes to have a relationship with his father, he would like it to be flexible in that he (the child) will confirm in advance with his father whether access will take place one week prior to the proposed access visits. Further, the child has advised that he will not participate in counselling and wishes to restrict his father’s ability to communicate with him. In short, the child supports the mother’s position with respect to both motions.
The Applicant Father’s Motion for Contempt
(i) The Test for Contempt
[13] Rule 31(1) of the Family Law Rules, O. Reg. 114/99 states 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 remedy is available.’
[14] The test for a finding of contempt was set out in Hobbs v. Hobbs, 2008 ONCA 598 citing G. (N.) c. Services aux enfants & adultes de Prescott-Russell, 2006 ONCA 686:
- The order that was breached must state clearly and unequivocally what should and should not be done.
- The party who disobeys the order must do so deliberately and wilfully.
- The evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
[15] Contempt findings in family law cases should be made only sparingly and as a last resort: Hefky v. Hefky, 2014 ONCA 199.
1. Does the order that was breached state clearly and unequivocally what is to be done?
[16] The order is not ambiguous. Paragraph 2 of the Order dated January 18, 2016, require steps to be taken by the parties to obtain counselling services for the child. Paragraph 3 determines the access provisions between the father and the child. Despite the clear terms of the Order, counselling has not been arranged for the child. The mother advises that the child will not participate in counselling and there is no utility in forcing it on him. Further, access between the father and the child has minimally occurred and is not taking place at this time.
2. Did the Mother disobey the order deliberately and wilfully?
[17] According to the father’s affidavit sworn January 20, 2017, the access provisions of the consent order have not been complied with since inception. Access was ordered each Wednesday and every other week-end from Friday to Sunday. On a per year basis that equates to 52 Wednesdays and 26 Week-ends (x2). Roughly speaking, since the date of the consent Order the father should have enjoyed 121 access visits (plus March break) with his child. Instead, according to paragraphs 3, 8, and 9 of the father’s affidavit, only five (5) access visits (plus March break minus one day) have occurred. According to my calculations, to date the father has missed approximately 117 access dates.
[18] The mother claims that the statements at paragraphs 3 and 9 of the father’s affidavit sworn January 20, 2017, are “false”. The mother claims that the father “saw” the child on April 27, 2016, Tuesday May 3, 2016 (child’s birthday and select try-outs), Saturday May 14, 2016 (confirmation), June 15, 2016 (Maple Leaf Gardens), Sunday June 19, 2016 (Father’s Day), and Wednesday June 29, 2016.
[19] To determine the truth of the access issues I have thoroughly reviewed the 189 pages of text messages exchanged between the father and the child which were filed by the mother in support of her position. I make the following specific observations concerning the mother’s claims that the father’s evidence regarding the access visits was “false”:
a. The father’s birthday was on Wednesday April 27, 2016 (an access day). While the father “saw” the child on this day it was not in accordance with the access Order (4 p.m. to 8 p.m.) but for dinner at the grandparent’s home (as directed by child) from 5 p.m. to 7 p.m. When the father complained to the child that it was not enough time the child responded “it’s 5 to 7 or nothing”, “I’m coming to see u be grateful”. b. As for Tuesday May 3, 2016 (child’s birthday), the father went to the child’s try-out to watch him. The child had no contact with the father and refused to attend for his scheduled access the next day being Wednesday May 4, 2016. c. On Saturday May 14, 2016 (confirmation), the father requested to attend and asked if he could sit close to the child (request denied by the child). The child does not appear to have spoken to his father at the confirmation and the father was not invited to the restaurant celebration following event. The father asked child how the restaurant was and the child replied “good”. The father’s responded “Excellent – hope you had a great day I’m glad I was part of it”. The father requested to see child the next day (Sunday) to deliver his birthday gift and received no response which the father interpreted to be “no” (no response). When father advised he would see child on Wednesday the child replied that he was “busy” with “stuff”. d. On Father’s Day (Sunday June 19, 2016) access occurred from 12 p.m. to 5 p.m. (not Friday to Sunday) after the father offered to rent out “a whole rink” for a father/son hockey game to which the child responded “I don’t want a father son game I want to rent ice and practice by myself”. e. As for Wednesday June 29, 2016, this was the last day of school and access did occur after much pleading by the father to the child.
[20] Throughout the messages the father pleads, cajoles, begs, and bribes the child to see him. To seek the child to engage in access the father offered: to take child to the movies (with or without a friend); to take child to Wonderland (with or without a friend); to take child for ice cream and/or a sundae; to take child to the ACC to watch NHL Old Timers; to take child to hockey practice; to take child to Marlies’/Maple Leaf hockey games; to buy child valuable hockey cards; to take child to Mass; to take child to grandparents; to rent out entire ice arena; to take child to Windsor; to take child to tournaments; to take child to the mall, to take child to go carts; to go to Blue Jays games (private box); to pick him up in a Corvette; to buy child gifts; to buy child PS4 games; to give child money; to bring father’s brother to play videogames; and generally to do anything that the child wishes and/or desires. The father’s desperation is palpable and fluctuates between begging, bribing and eventual threatening the child with the authorities to seek compliance with the access Order.
[21] With respect to the threats, the father reminds the child that the court has ordered access. The father advises that if the child does not respond to him (and is supposed to be with him for access) the father will assume that he needs assistance and will call the police or CAS. The father advises the child that he will be in trouble for failing to comply with the court order. The father blames the mother (directly) for the child’s refusal to respond or see him and attempts to explain adult issues – he seeks to convince his son that he has not acted in a manner that deserves his child’s anger or contempt. The father repeatedly asks what he did to deserve such treatment and no response is provided by the child.
[22] On January 19, 2016, the father attempts to convince the child to exercise the access as ordered by the court. The child responds “idc” (I don’t care). When the father requests an explanation the child advises that he has homework/projects. When the father suggests that there is no reason that the child can’t do the work at his home - the child - who is 12 at the time states “I have spoken”. When the father says that those words do not belong a child he responds by texting “well they r and ur pissing me pf”.
[23] Generally speaking the father’s texts to his child go unanswered. This obviously frustrates the father who would often respond in a manner that he advises he greatly regrets. However, while the father’s behavior is admittedly less than perfect – the father is enrolled in therapy and will seek counselling to assist with his communications with his child.
[24] The child on the other hand refuses to participate in therapy and further refuses to have access with his father except on his terms. According to Ms. Brown’s correspondence dated January 23, 2017, the child “would like a relationship with the father”. However, the child’s instructions are that while he is open to “more activity based visits” he “wants to leave it flexible” in that he (the child) “will confirm in advance with his father if access will take place” and will text his father “one week prior” to advise if he (the child) will attend access. At the hearing Ms. Brown advised that the child supports the relief sought by the mother’s motion, including the restrictions sought to be imposed upon father’s communications with the child. Frankly speaking, having reviewed the exchange of messages between the father and child, the child’s position that he is open to “more activity based visits” is difficult to accept and appears blatantly disingenuous.
[25] The mother denies that she has disobeyed the order deliberately and wilfully. In support of her position the mother filed an affidavit sworn March 28, 2017 and attached thereto an exchange of text messages between the father and the child, selected text messages between the mother and the child, a letter from Ms. Brown (counsel for the child), various reports relating to historical events (police reports, CAS reports), and other miscellaneous documents.
[26] More specifically, at paragraphs 72 to 81 of the mother’s affidavit, she sets out her efforts to “encourage” the repair of the relationship between the father and the child and the steps taken by her to persuade the child to attend access. At paragraphs 82 to 87 the mother advises why in her opinion “bribery and punishment” would not work. There are no specific examples of any “punishment” for the child’s behavior merely a statement that taking away privileges such as a cell phone or Playstation is “also ineffective”. The mother notes at paragraph 87 that the father criticizes the child for not spending time with him. She notes that this makes the child feel “guilty”. The mother concludes that “further punishment by me would only serve to isolate (the child) from both of his parents. It would be contrary to (the child’s) best interests to “punish him” for not attending his scheduled access visits with his father.
3. Is the Mother in Contempt of the Order beyond a Reasonable Doubt?
[27] The situation where a parent falls back on the alleged ‘wishes of the child’ to unilaterally alter a court ordered parenting schedule is regrettably a common one in family law matters. The parent seeking to enforce the parenting schedule is often left with few remedies other than the ‘big stick’ of contempt.
[28] The father attempted to resolve the issues without resorting to a contempt motion. The text messages exchanged between the father and the child and the father and the mother exhibit the father’s continued frustrated attempts to obtain and enforce access. Further, the father’s lawyer wrote to the mother’s lawyer seeking an explanation as to why access was not taking place. No response was received to his query.
[29] At paragraphs 88 to 94 the mother summarizes her position on the father’s access with the child. The mother states that she is “supportive of (the child) having a relationship with his father, and it is my wish that they will repair their relationship and become close. Given the way that (the father) has been communicating with (the child) over an extended period of time, and to date, I believe that it would be contrary to (the child’s) best interests to force him to spend time with his father. I believe that their relationship has to develop naturally, and cannot be forced.” The mother advises that the child has stated that he will not participate in counselling and states that “there is no utility in forcing it on him. I believe that counselling will not be effective if he is unwilling to engage”.
[30] I have already cited examples of the child’s communications with his father above. The child communicates with his mother (who has primary residence) in a similar manner. Although there are only selected text messages provided – it is apparent the child controls the decision whether he will attend access without fear of consequences.
[31] At first blush it appears that the mother has done everything within her control to satisfy the terms of the January 18, 2016 Order. However, when a fulsome review is undertaken, I find that the mother, through her permissiveness and submissiveness, has completely and utterly empowered the child. In particular I note the following examples of improper child empowerment:
a. Tab L (mother’s affidavit), text message dated 2016-06-08 from mother to father regarding child reads “As always, you can see (child) in accordance with his wishes. I will continue to convey your messages to (child)”; b. Tab L (mother’s affidavit), text message dated 2016-09-13 from mother to father regarding child reads “Once again, (child) makes all decisions about spending time with you. My efforts to encourage him have not changed. However, your refusal to acknowledge (child’s) feelings cannot continue to result in these harassing emails to me. You are not to communicate with me directly, instead, utilize your counsel. Call fairway divorce if you are ready to settle. (Child) deserves a happy life!”; and c. Tab D (father’s affidavit sworn January 20, 2017), letter from mother’s counsel to father’s counsel dated November 25, 2016, in part reads “In any event, our client has never interfered with your client’s access to (child) and has always been supportive of same. However, she is not prepared to force (child) to attend an access visit or outing with your client if he is unavailable or unwilling to go”.
[32] The Ontario Court of Appeal in Godard v. Godard, 2015 ONCA 568, [2015] O.J. No. 4073, considered a case very similar to that before me. In Godard, the mother argued that there was insufficient proof to satisfy the motion judge beyond a reasonable doubt that she wilfully disobeyed the access order. Specifically, the mother argued that once the motion judge accepted that the child did not want to see the father and the mother was making some efforts to encourage the child to see the father – it was inconsistent to find deliberate and wilful disobedience beyond a reasonable doubt. The Court disagreed and rejected the mother’s argument. At paragraph 28 of the Judgment, the Court stated as follows:
Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child…a parent has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order…No doubt it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order”.
[33] The Court concluded that the appellant did not go beyond mere encouragement to attempt any stronger forms of persuasion and left the decision concerning compliance with the access order up to the child.
[34] The court must preserve the integrity of and the respect for the administration of justice by ensuring that parties understand that wilful breached or court orders have consequences. A parent has an obligation to take reasonable means to ensure that their child complies with the law (See Bergeron v. Roy, 2011 ONSC 460, at par 13).
[35] In Sickinger v. Sickinger, 2009 ONSC 3152 (aff’d at 2009 ONCA 755), Justice Greer states: “It is not sufficient for the Court to overlook a first breach. Child custody and access Orders are not like a game of baseball, where it takes three (3) strikes before you are "out".”
[36] The Respondent mother failed to provide any evidence that she took all reasonable means to ensure that the access provisions of the January 18, 2016 Order were complied with. Further, despite the clear instructions to provide for counselling for the child the Respondent mother has failed to finalize the counselling arrangements. The mother is not entitled to leave the decisions regarding access and counselling to the child.
[37] In the particular circumstances of this case I find beyond a reasonable doubt that the Respondent mother is in contempt of paragraphs 2 and 3 of the Order of Justice Nelson dated January 18, 2016, for failing to require the child to attend for visits with the father on all dates but those few specified herein, and for failing to comply with the counselling provisions of the Order.
[38] Contempt in the family law context is remedial. I have therefore delayed sentencing to give the mother an opportunity to purge her contempt.
[39] To assist the Respondent mother’s efforts to purge her contempt relating to the January 18, 2016 Order, the schedule shall re-commence as follows:
a. Regarding paragraph 2 of the January 18, 2016 Order, the Respondent mother shall complete all necessary steps required to ensure that counselling commences through the father’s EFAP on an expedited basis; and b. Regarding paragraph 3 of the January 18, 2016 Order, the Respondent mother shall require the child attend for access with the Applicant father in accordance with the January 18, 2016 Order, said access to re-commence as at Wednesday April 19, 2017 (Wednesday access) with the alternate week-end access to re-commence as at Friday April 21, 2017.
The Respondent Mother’s Cross-Motion
[40] By the Respondent mother’s cross-motion she seeks the following orders:
a. An Order dismissing the Applicant father’s contempt motion; b. An Order granting the Respondent mother interim sole custody of the child of the marriage, namely Nicholas Michael D’Abruzzo, born May 3, 2003; c. An Order that the father shall have access to the child on a flexible schedule in accordance with the child’s wishes; d. An Order that the father’s communication with the child shall be limited as follows: i. The father shall not threaten the child that he will contact the York Regional Police, the Children’s Aid society, or any other person or body; ii. The father shall not text the child or call the child during school hours, including when the child is on the bus to or from school, being the hours from 7:00 a.m. to 8:00 a.m. and from 2:25 p.m. to 3:35 p.m.; iii. The father shall not text the child or call the child seeking a response to a prior message without waiting at least 3 hours for a response; iv. The father shall not text message the child more than 3 times per day; v. The father shall not disparage the child in the father’s communications to the child; vi. The father shall not disparage the mother to the child nor threaten the child that he will provide information that may disparage the mother to him; vii. The father shall not discuss adult issues with the child, including but not limited to financial issues, child support, payment of special or extraordinary expenses, details of Court Orders, or any other issues arising from the parties’ marriage, separation, or this litigation; and e. An order dispensing with the father’s signature and/or consent for the mother to travel with the child outside the jurisdiction of Canada.
[41] Where an application is made under subsection 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the Court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of an and access to, any or all children of the marriage pending determination of the application under subsection (1).
[42] Custody or access shall be determined on the basis of the best interests of the child. (See Children’s Law Reform Act, R.S.O. 1990, c. C.12, subsection 24(1))
[43] In determining the child’s best interests, the Courts shall consider many factors including past conduct of a parent is relevant to the extent it relates to that person’s ability to act as a parent.
[44] While the child’s best interests are not necessarily synonymous with the child’s wishes, the older the child, the more an Order as to custody requires the cooperation of the child and consideration of the child’s wishes.
[45] In the present case the facts considered by me are set out in the materials filed by the parties on both motions and otherwise summarized herein.
[46] Having considered the relief sought by the cross-motion I note that the relief sought at paragraphs 1, 2, 3, and 5, if granted, would severely curtail access and communication between the child and the father. In the particular circumstances of this case, I find that granting this relief would not be in the best interests of the child nor would the result properly reflect the overriding desirous principle of maximum contact between a child and his parents.
[47] Further, I find that the relief sought, if granted, would drastically minimize and compartmentalize the relationship between the child and his father and would most likely result in the child becoming further isolated and perhaps becoming completely alienated from his father.
[48] The child is currently caught in the middle of parental adult conflict which needs to be corrected. However, it is unfair to place all blame at the father’s feet. Each of the father and the mother must accept responsibility and work together to ensure that the child shares a healthy, respectful and loving relationship with both of his parents.
[49] Re-instating access and ensuring that the child attends therapy is the starting point. The parents must learn to set aside their differences for the health and well-being of their child.
[50] For these reasons, the relief sought by the cross-motion at paragraphs 1, 2, 3, and 5 is denied.
[51] With respect to the relief sought by the cross-motion at paragraph 4, this relief is in the best interests of the child and is granted, as amended by me as follows:
i. Granted; ii. Granted; iii. Granted as amended to provide that the father shall not text or call seeking a response without waiting at least 10 minutes for a response; iv. Granted as amended to provide that the text messages are limited to five (5) times per day (unless the child engages the father and requests further exchanges) provided that if the child does not respond in a meaningful manner to the father’s text messages the father shall be entitled to receive an appropriate response without limitation as to the amount of texts except that the father must act reasonably in his communications in a mature adult manner; v. Granted; vi. Granted but amended to be a mutual obligation owed by both father and mother; vii. Granted but amended to be a mutual obligation owed by both father and mother; and viii. A further condition to the father’s communications with the child shall be that the father shall provide a copy of the text messages exchanged between the father and the son (filed herein at CR 3, Tab 2 D) to his personal counsellor and shall seek guidance and therapy with respect to the appropriateness of the communications with his child on an ongoing basis.
Order on Applicant’s Motion and Respondent’s Cross-Motion
[52] This court orders:
a. The Respondent Patricia Giancola a.k.a. Patricia Giancola-D’Abruzzo, is in contempt of paragraphs 2 and 3 of the order of Justice Nelson dated January 18, 2106 and shall take immediate steps to purge her contempt as set out at paragraph 39 herein. b. The penalty phase, if necessary, is adjourned to a date to be set before me by the trial coordinator which date shall not be prior to 60 days from today’s date. c. The Applicant Riccardo Ottorino Sandro D’Abruzzo shall immediately comply with the instructions regarding communications with the child as set out at paragraph 51 herein. d. As the results of the motions were mixed, unless there are any Offers to Settle affecting costs, each party shall bear their own costs of the motions to date. e. If there are any Offers to Settle affecting costs, the party seeking costs shall serve and file costs submissions (limited to 3 pages) with a cost outline and any offer to settle attached within 20 days. Any responding submissions (limited to 3 pages) to be served and filed within 30 days. Any reply submissions (limited to 2 pages) to be served and filed within 40 days.
Justice S.J. Woodley Released: April 13, 2017