Court File and Parties

COURT FILE NO.: 4107/15 DATE: 2017-06-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lionel Jean, Applicant AND: Krista Nicole O’Callaghan, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Self-Represented Applicant Self-Represented Respondent

HEARD: June 16, 2017

Endorsement

Introduction

[1] This is a Motion for Contempt brought by the Applicant, Lionel Jean, as against the Respondent, Krista Nicole O’Callaghan. Mr. Jean and Ms. O’Callaghan are the parents of Kaelyn Ivory O’Callaghan, born January 17, 2015, who resides primarily with her mother. The contempt allegations relate to the issue of Mr. Jean’s access with Kaelyn. Mr. Jean also seeks make-up access, an Order for police enforcement of access, and in the alternative, an Order placing Kaelyn in his care and custody.

[2] With the consent of the parties, as set out in the Endorsement of Justice Brown, this motion proceeded on affidavit evidence.

Final Order of Madsen, J., dated February 2, 2017

[3] The Final Order, dated February 2, 2017 was made on consent, pursuant to Minutes of Settlement filed that day. That Order has not been varied and there are no Motions to Change presently before the Court.

[4] For the purposes of this Motion, the relevant paragraphs of the Final Order are as follows:

4. The Applicant Father shall have time with the child as follows:

a. Commencing February 2, 2017 the Applicant shall have access to the child every Thursday from 5:30 pm until 7:30 pm at the Respondent’s mother’s home;

b. Commencing on February 5, 2017 and on February 12, 2017, the Applicant shall have access to the child from 11:30 am to 12:30 pm at the Respondent’s mother’s home and then from 12:30 pm – 3:30 pm at the home of the Applicant’s mother or sister Courtney with the Respondent mother present with the child;

c. Commencing February 19, 2017 the Applicant shall have access to the child on every Sunday from 11:30 am to 12:30 pm at the Respondent’s mother’s home and from 12:30 pm to 3:30 pm at the home of the Applicant’s mother or sister Courtney or other place agreed to in advance by the mother and not in the presence of the mother;

d. Commencing March 12, 2017 on every Sunday the father shall have access to the child from 11:30 am to 3:30 pm outside the Respondent mother’s home. The father shall advise the mother where the child will be;

e. Commencing March 16, 2017 the Father’s access on every Thursday shall be from 5:30 pm to 7:30 pm and he may take the child outside of the mother’s home. This shall terminate on May 3, 2017;

f. Commencing April 8, 2017 and every other week-end thereafter, the father shall have access to the child from Saturday at 1:30 pm until Sunday at 4:00 pm. The father shall advise the Mother of the address where the child will be sleeping;

g. Commencing May 3, 2017 the father’s access shall be from 5:30 pm overnight to Thursday at 8:00 am when he shall return the child to the mother’s home. The Thursday visits from 5:30 to 7:30 pm shall terminate;

h. Commencing June 17, 2017, the Father’s alternate weekend access shall expand from Fridays at 5:30 pm to Sundays at 4:00 pm.

3. The Applicant Father shall provide the address of where he will be exercising access to the child and his current residence address;

4. The Applicant shall advise the Respondent Mother at least two hours in advance of cancelling any access or being late.

5. In the event that the Respondent does not exercise access on a regular and consistent basis and misses 3 visits in a row without reasonable excuse his overnight access shall cease and he shall have access Sundays from 11:30 am to 3:30 pm until such time as he exercises four consecutive Sundays or until such further agreement or Court Order is made. After four consecutive Sundays the regular access of alternate weekends and Wednesdays over nights shall resume.

6. The Applicant shall provide proof of having the appropriate items for caring for the child outside the home such as a car seat, stroller and crib or toddler bed.

7. The Applicant shall provide proof of completing a parenting course immediately upon completion.

Emphasis added.

The Law

[5] Rule 31 of the Family Law Rules gives this Court the jurisdiction to hear a Contempt Motion. Section 31.(1) states:

WHEN CONTEMPT MOTION AVAILABLE – An order, other than a payment order, may be enforced by a contempt motion made in a case in which the order was made, even it another penalty is available.

[6] There are broad penalty powers given to the Court under Rule 31(5). That section provides as follows:

CONTEMPT ORDERS – If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

[7] It is settled law that contempt proceedings may be applied where the order in question relates to access. The specific factors to be considered are:

a) Was the fact of the Order’s existence within the knowledge of the defendant at the time of the alleged breach?

b) Was the alleged contemnor given proper notice of the motion for contempt?

c) Are the terms of the Order clear and unambiguous and not open to various interpretations?

d) Has there been a disobedience of the Court order?

e) Did the party disobeying the Order do so in a deliberate and wilful fashion?

See Einstoss v. Starkman, 2002 CarswellOnt 4435 (Ont S.C.J.); additional reasons at Einstoss v. Starkman; affirmed Einstoss v. Starkman, 2003 CarswellOnt 3234 (Ont. C.A.); Fisher v. Fisher, 2003 CarswellOnt 1170 (Ont. S.C.J); Ricafort v. Ricafort, 2006 ONCJ 520.

[8] Civil contempt is a quasi-criminal procedure. Where contempt is alleged, the onus is on the party alleging contempt to prove it beyond a reasonable doubt. Fisher, supra at para. 12. K.A.H. v. B.T.S., supra at para. 8.

[9] Contempt of Court is to be used sparingly. As Justice Chadwick stated in Fisher, cited supra:

Contempt of Court is the big stick of civil litigation. It should be used sparingly and only in the most clear-cut cases. There are other procedures available to enforce Orders: other than a contempt motion. To use contempt motions to enforce minor but annoying breaches of [an Order] takes away and waters-down the effectiveness of the contempt procedure. Contempt should be reserved for those most serious breaches which justify serious consequences.

Fisher, supra at para. 11.

[10] A refusal to permit access out of a legitimate concern for the children, rather than a desire to frustrate access or deny contact, does not amount to contempt. Johannesson v. Johannesson, 2003 CarswellOnt 3924; K.A.R. v. B.T.S., (2005), 2005 ONCJ 44 (O.C.J.).

[11] Even where an Order is clear and a person’s wilful disobedience of a Court Order is established, it would be an unusual case that would call for a finding of contempt on a first non-compliance with an access Order. Accordingly, in a usual case on a first default, a warning, admonition, or penalty in costs would seem to be more appropriate. Halas v. Halas, 1998 CarswellBC 1403 (B.C.C.A.).

Applicant’s Contempt Motion – Discussion and Analysis

[12] Mr. Jean submits in his Affidavit material that he has been prevented by Ms. O’Callaghan from exercising access with Kaelyn on the following dates:

• February 5, 2017;
• February 12, 2017;
• February 19, 2017;
• Four visits since March 3, 2017 (one visit referred to in Exhibit “G” which was not attached to the Applicant’s Affidavit, and three referred to in paragraph 10 of his Affidavit dated May 19, 2017 but not particularized as to date).

[13] In oral submissions the Applicant’s counsel submitted that access had been going reasonably well until April 8, 2017 and that the real issue was that overnight access had not taken effect on that date, as required by the Order. Since then, counsel submitted, the Applicant has had access only on Sundays and Thursdays, with some cancellations (two by the Applicant himself).

[14] The Applicant submits that alternate weekend overnight access should now be in effect but the Respondent has prevented the transition to overnights. In doing so, he says, the Respondent is in contempt of the Order.

[15] The Respondent mother says that on February 5, 12, and 19, access did occur, with modifications. On February 5, 2017, she says the Applicant had access but the time was shifted as he was late. On February 12, 2017, she states that access took place in the home as she and the child were sick, and it was her understanding that the Applicant was “OK” with this. On February 19, 2017, she says the access took place but the Applicant was late. She does not allege, however, that paragraph 6 of the Order applies.

[16] The Respondent concedes that overnight access did not commence as scheduled. She says that this is because she had not been permitted to see Kaelyn’s bedroom at the Applicant’s residence. She also states that since the Order was made on February 2, 2017, the Applicant has not notified her at least two hours in advance if he was going to be late or would be missing a visit. Based on copies of texts attached to the affidavit materials, this appears to be the case at least occasionally.

[17] The Applicant responds that he advised the Respondent that she could come see Kaelyn’s bedroom on March 12, 2017 at 6:00 pm. He states that the Respondent refused because it was dinner time. He believes that the Respondent has no intention of commencing overnight access.

[18] In applying the applicable legal test to the facts of this case, I am unable to make a finding of contempt. However, as I set out below, terms shall be put in place to get the Applicant’s overnight time with the parties’ daughter up and running. This is important for Kaelyn.

[19] First, the Respondent mother clearly had knowledge of the Order. It was made on consent based on the Minutes of Settlement.

[20] Second, I find that proper notice was given to the mother by the father regarding the terms of the Order and the alleged breach.

[21] Third, I am unable to find that the Order was clear and unambiguous. While the timeline for overnight access was clear, the Order also provided that the Respondent was to be able to have “proof” that the Applicant had a crib or toddler bed. The Order did not explicitly link seeing the bed with the commencement of overnight access, but the Order was open to the interpretation given to it by the Respondent mother. The Order was also not clear as to what would constitute “proof”. The Respondent interpreted the Order to mean that she should be able to see the bed before the overnight access began, and the wording was sufficiently vague as to allow that interpretation.

[22] Fourth, I find that there has been disobedience of the Court Order. While the Respondent offers an excuse, she herself concedes that the overnight access did not commence as scheduled and indeed it had not commenced when the motion was heard, over two months after it should have commenced. As stated, her reason was not having proof of the crib or toddler bed, but it is clear that she did not follow the timeline regarding when overnight access was to commence.

[23] Fifth, notwithstanding that I have found that the Respondent breached the Order, I am unable to find that the Respondent did so in a deliberate and wilful manner. She interpreted the Order, which was not clear and unambiguous, to mean that she could see the bed before overnight access commenced. While I find that her interpretation was not correct, and that she should not have delayed overnight access on this basis, given the wording of the Order, this does not constitute wilful and deliberate disregard.

[24] On balance, I am unable to make a finding that the Respondent is in contempt of the Order dated February 2, 2017.

The Applicant’s Parenting Time with Kaelyn

[25] While I have not made a finding of contempt, there is no question that terms must be put in place to commence overnight access forthwith, and to address the question of make-up access, given the overnights that have been missed.

[26] The Order contemplated that the Applicant father would have a number of single overnights with the child before alternate weekend access was to commence on the weekend of June 17, 2017 (alternate Saturday overnights commencing April 8, 2017, followed by adding Wednesday overnights commencing May 3, 2017). The child has missed this overnight time with her father. The overall transition time from single overnights to full weekends would have been approximately two months from April 8, 2017 to June 17, 2017.

[27] Given the missed time, I find that the appropriate timeline for the introduction of overnight access should be expedited, while still respecting the need for a transition period for Kaelyn. I find that it is appropriate to start overnights on Wednesdays and Saturdays, commencing Wednesday July 5, 2017. Thereafter, commencing August 11, 2017, the Father’s weekend parenting time shall be from Friday to Sunday as contemplated by the parties under paragraph 4(h) of the Order. By August 11, 2017, then, overnight access must be up and running as set out in the Order dated February 2, 2017.

[28] I find that paragraph 7 regarding the car seat, stroller, crib or toddler bed is no longer required.

[29] The Applicant, quite understandably seeks make-up time for the lost overnights with the parties’ daughter. I find that some make-up time is appropriate in the circumstances. This needs to be balanced with the appropriate transitions for Kaelyn and making sure that she adapts to the new schedule.

[30] As noted, the Father missed numerous overnights with Kaelyn. It is not practical to make up all of this time. However, I find that it is appropriate that some of the time be made up as follows. For the months of September and October, at which time regular overnights will be well established, on the weekends that that the child would be regularly scheduled to be with the Respondent mother, Kaelyn shall reside with her father from Saturday at 4:00 p.m. until Sunday at 4:00 p.m. The specific dates are set out below. This will go some way to addressing Kaelyn’s loss of time with her father.

[31] Accordingly, I make the following Order, which varies paragraphs 1(f),(g),(h) and 7 of the Order dated February 2, 2017:

1. Commencing Wednesday, July 5, 2017 and continuing weekly thereafter, the child shall reside with the Applicant each week, from Wednesday from 5:30 p.m. to Thursday at 8:00 a.m.;

2. The child shall reside with the Applicant father from Saturday, July 1, 2017 at 1:30 p.m. until Sunday at 4:00 p.m.; from Saturday, July 15 at 1:30 p.m. until Sunday, July 16 at 4:00 p.m.; and from Saturday July 29 at 1:30 pm until Sunday July 30, 2017 at 4:00 pm.

3. Commencing Friday, August 11, 2017, in addition to the time provided for in paragraph 1, the child shall reside with the Applicant on alternate weekends from Friday at 5:30 p.m. until Sundays at 4:00 p.m.;

4. In addition to the schedule set out above, the child shall have the following make-up time with the Applicant: On the following weekends during which the child would be regularly scheduled to reside with the mother, she shall reside with the Applicant from Saturday at 4:00 p.m. until Sunday at 4:00 p.m.:

a) Sept 2 and 3, 2017

b) Sept 16 and 17, 2016

c) Sept 30 and Oct 1, 2017

d) Oct 14 and 15, 2017; and

e) Oct 28 and 29, 2017.

5. Paragraph 7 of the Order dated February 2, 2017 shall be vacated.

6. If the parties cannot agree on costs, the Applicant may provide brief costs submissions by July 14, 2017; the Respondent may provide brief responding costs submissions by July 31, 2017; and the Applicant may provide brief Reply submissions by August 8, 2017.

Madsen, J. Date: June 29, 2017