CITATION: Peters-Webb v. Cloutier, 2017 ONSC 6139
COURT FILE NO.: 3612/14
DATE: 2017-10-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Olivia Peters-Webb
Applicant
– and –
Dominic Cloutier
Respondent
Self-Represented Applicant
Self-Represented Respondent
HEARD: October 12, 2017
JUDGMENT
THE HONOURABLE MR. JUSTICE A. PAZARATZ
[1]. How did parents ever raise children before Family Court was invented?
[2]. Where did they scribble their endless complaints about one another, before we gave them fill-in-the-blank forms called affidavits?
[3]. In Hamilton, where did angry, vengeful parents hang out on Fridays at 10:00 a.m., before the advent of “motions court”?
[4]. As a judicial system, we like to think we’re helping people. Sometimes we even succeed.
[5]. But when many of our regular customers regard repeated trips to Family Court as “no big deal”, perhaps all we’re really doing is creating lazy parents. It’s easier to dump a mess on a judge, than to grow up and raise your own children.
[6]. Most families come to us once, at a time of crisis. They solve their problems. And they never come back.
[7]. But our system is plagued by a small group of frequent flyers who keep adding new chapters to their horror story. They keep coming back because we’ve made it easy for them. And perversely, they almost seem to enjoy it.
[8]. There are all sorts of reasons that this has to stop.
[9]. As a community, we can’t afford to fund courtrooms as a playground for petulance.
[10]. But most importantly, these endless court cases are usually about children. And no matter how much parents pretend that each salvo is “for the sake of the child”, the reality is that endless conflict and litigation inevitably breeds family misery. And children end up being robbed of their joy and innocence.
[11]. This is one of those cases that really shouldn’t have come to court. Both parties represented themselves. So it cost them nothing to create all of this mayhem.
[12]. The background:
a. The Applicant mother and the Respondent father had an unmarried relationship.
b. They have a five year old son Kingston who has always resided primarily with the mother.
c. The Respondent father initially challenged paternity, but he accepted the results of DNA testing.
d. Since then the Respondent’s access has been the primary (and ongoing) issue between the parties.
[13]. There have been a number of temporary and final orders along the way. Two of those orders are the subject of this motion brought by the Respondent father.
[14]. On May 21, 2015, Justice McLaren made an order based upon Minutes of Settlement submitted at a time when the Applicant represented herself and the Respondent had counsel. That order included both temporary and final terms.
[15]. Among the temporary terms in the May 21, 2015 order:
a. The Respondent had access alternate Mondays from 5:00 p.m. to 8:00 p.m.
b. An access exchange location was specified.
c. The Respondent’s access was to be restricted to designated locations.
d. The Respondent was to abstain from the consumption of alcohol or non-medically prescribed drugs during and 12 hours prior to any access.
e. The Respondent was to take a parenting course.
f. A Settlement Conference was scheduled.
[16]. Among the final terms in the May 21, 2015 order:
a. The Respondent was to pay $392.00 per month as child support commencing June 1, 2015, based upon his 2014 income of $43,436.41.
b. The Respondent was required to make annual disclosure.
[17]. On March 24, 2016, I pronounced a final order on all remaining issues, based upon Minutes of Settlement executed at a time when both parties were represented by their own counsel. That order was quite comprehensive and included the following provisions:
a. Sole custody to the Applicant Mother.
b. A gradual expansion of access for the father whereby he would have 5 hour visits for 16 Saturdays; then alternate Saturday overnights for 12 visits; and thereafter alternate weekends Saturday 9:00 a.m. until Sunday 5:00 p.m.
c. Numerous restrictions about the Respondent not consuming alcohol or non-medically prescribed drugs during visits.
d. Respondent not to permit child to be exposed to domestic violence.
e. Respondent to immediately advise Applicant if police are called to his home or have any contact with the child.
f. Respondent to immediately advise Applicant of any emergency or child care difficulties.
g. Respondent not to permit the child to be cared for by any other person and not to leave the child in the care of any other person for any period of time.
h. Respondent to advise Applicant where overnight access is to take place.
i. Respondent not to remove child from Hamilton or Burlington without the consent of the Applicant.
j. Extra access for Father’s Day, Christmas, Halloween, etc.
k. Respondent to be entitled to receive information about the child from third party service providers.
l. Neither party to speak negatively about the other in the presence of the child.
m. Applicant to provide Respondent with a copy of the child’s health card.
n. Respondent to advise Applicant of any change in his income or employment upon any change occurring, and provide complete details.
o. Respondent to advise Applicant if he obtains health care coverage or life insurance through any employment, and if so, to name the child as a beneficiary.
p. Respondent to produce 2014-2016 tax information, and provide annual financial disclosure.
q. Applicant to submit an application to change the child’s name to “Kingston Dominic Webb”.
r. No costs.
s. All other claims dismissed.
[18]. On March 27, 2017 – one year after that final order, and about six months after the last phase of the expanded weekend access kicked in – the Respondent brought a motion to change both of the aforementioned orders. Among the relief sought:
a. Alternate weekend access to commence Friday after school rather than Saturday morning.
b. A mid-week overnight visit.
c. Four weeks of summer vacation.
d. Expanded access in relation to Christmas, March break, Easter and Halloween.
e. Elimination of the restriction that he not be allowed to leave the child in the care of another person during his access.
f. Elimination of the geographic restriction that his access be limited to Hamilton or Burlington.
g. An order that the Applicant be required to adhere to the same restrictions concerning no alcohol or drug consumption; no exposure to domestic violence; notification of any police involvement; etc.
h. Reduction of child support from $392.00 per month to $209.00 per month based upon a reduction of income to $33,763.00
[19]. The Applicant mother filed responding materials disputing all relief sought by the Respondent. However she did not bring a cross-motion or formally request any relief of her own.
[20]. On July 14, 2017, at a motion before Justice Chappel, the parties consented to a temporary order (based on Minutes of Settlement) which included the following:
a. Alternating week timesharing for the balance of the summer, with the exchanges to occur Monday at 10:00 a.m.
b. Commencing September 1, 2017 the Respondent’s alternate weekend access to be from Friday 5:00 p.m. until Sunday 6:00 p.m.
[21]. Also during the summer, the parties agreed that prior to the Respondent’s non-access weekend he would have the child Friday 3:30 p.m. to 6:30 p.m.
[22]. Accordingly, during the summer, the Applicant actually consented to much of the expanded access the Respondent sought, but on a temporary basis.
[23]. Justice Chappel adjourned the matter to the long motions list for an estimated 1-2 day hearing, with specification that there would still have to be a determination as to whether the motion proceeded on the basis of oral evidence in addition to the extensive written materials in the record. This is the hearing that came before me on October 12, 2017.
[24]. But while all of this was happening, on August 28, 2017 the Respondent brought a contempt motion against the Applicant, alleging that she was in breach of the March 24, 2016 order because:
a. She hadn’t provided him with the child’s health card, despite repeated requests (paragraph 9 of the order);
b. She hadn’t submitted an application to change the child’s name (paragraph 14 of the order).
[25]. Both parties filed additional affidavit materials in relation to the contempt motion. They scheduled the contempt motion to be dealt with on a Friday motions list on October 13, 2017 – the day after the hearing of their long-motion which was called on October 12, 2017. (There were also other conferences and adjournments during the course of the summer.)
[26]. In the interest of efficiency, I proposed that the contempt motion scheduled for October 13 would also be dealt with at the October 12 hearing of the motion. The parties agreed.
[27]. After allocating two days of trial time to these parties for a potential oral hearing, as it turns out we only needed one day. But the time was not used very productively.
a. The Applicant mother showed up on time at 10:00 a.m.. The Respondent father showed up at 11:25 a.m., and only after receiving text messages from the Applicant and a telephone call from the court reminding him he had to be here. He said he hadn’t checked his messages, and didn’t realize he had court today.
b. Although each party had spoken of bringing witnesses to testify on their behalf (which is why an oral hearing was contemplated, and so much time was set aside), ultimately neither party called any supporting witnesses.
c. The Respondent father testified briefly, to supplement and update his affidavits. The Applicant did not cross-examine him at all with respect to his evidence in chief, despite my warning about potential evidentiary problems if she did not cross-examine him.
d. The Applicant mother then testified briefly, to supplement and update her affidavits.
e. She alternated on the issue of access. At times she said the issue of expanded access on weekends and mid-week access had already been resolved during the summer, and she was content that the expansion remain in effect. At other times she took the position that the Respondent’s access should actually be reduced below the times set out in the March 24, 2016 order. She acknowledged that she had never initiated any formal proceeding requesting a reduction in access. She said she hadn’t had time and intended to do so in the future. She also indicated she intended to bring a further contempt motion against the Respondent. Throughout the day her position on access wavered. By the end of the day she proposed that he have a single overnight visit each Saturday.
f. The Respondent cross-examined the Applicant in relation to her evidence. He then gave reply evidence and the Applicant cross-examined him.
g. Throughout opening statements, questioning and closing submissions, the parties kept interrupting one another and bickering. For the most part, any “cross-examination” was really nothing more than heated arguing, despite my repeated efforts to maintain some semblance of decorum. Their disruptive behaviour was not so bad as to require any intervention by court security staff. But at times both parties gave me the distinct impression they wished I would butt out.
h. The oral evidence was of limited assistance. I used it to supplement the lengthy written materials. But the affidavits of the parties were also problematic because they included irrelevant information, and at times the tone of written materials was hostile and provocative.
[28]. Both parties testified about involvement by the Children’s Aid Society of Hamilton (“the Society”) during the summer.
a. The Applicant testified she understood the Society was investigating an allegation that the Respondent’s home was unsafe and that drugs were seen on a table in his home. She had little information beyond that.
b. The Respondent testified someone called the Society after he left the child alone with the paternal grandmother while he went to a store to buy some milk. He said the Society investigated and spoke to his social worker and his doctor. He said ultimately the Society closed its file and it took no position in relation to whether he should have access.
c. Each party said they hadn’t been able to produce a letter from the Society in time for the hearing.
d. The Applicant did not dispute the Respondent’s evidence that the Society had investigated and closed its file without recommending any restriction on access.
e. The Applicant also did not dispute that even after she learned the Society was investigating, she continued to allow the child to attend for his last full week of summer access, and she allowed the alternate weekends to resume in September.
f. The Applicant did not dispute the Respondent’s evidence that all of the access has been going well. Apart from complaining that the Respondent had failed to take the child to some sporting events, the Applicant gave no evidence to suggest there had been any problem with respect to the gradual expansion of access which had occurred pursuant to the March 24, 2016 order.
g. And despite her stated concerns about the Society investigation, at times during the hearing the Applicant proposed that the temporary expansion of access implemented in July 2017 should continue. At other times, she speculated – almost in a stream of consciousness manner – that perhaps the Respondent’s access should be reduced. But even when she was proposing an access reduction (never formally requested in any materials) she still suggested that he have a single overnight visit every weekend, as opposed to two overnights every second weekend.
h. Very little of the evidence of either party on the access issue was child-focussed. The parties spent more time arguing about who said what in a text; whether receipts were provided for swimming expenses; etc.
[29]. The Respondent produced a one-paragraph medical report from Dr. Ashley Qaderi dated August 21, 2017 which included the following information:
a. The Respondent has been her patient since May 2017.
b. He is currently on ODSP (Ontario Disability Support Program) due to anxiety.
c. He is compliant with treatment.
d. He is “unable to work due to the diagnosis.”
e. He is not able to multi-task and has poor concentration as a result.
f. He struggles with socializing and communicating with others.
g. Sleep has been poor causing fatigue.
h. He is stable on his current dosing.
[30]. The Respondent also produced a letter from the Ministry of Community and Social Services indicating that he has been on ODSP since June 12, 2017 and he will receive $863.00 per month.
[31]. The Respondent sought to use the anxiety/ODSP information to justify a reduction of child support to zero.
a. However, in his materials; during cross-examination; and even during his own evidence in chief, the Respondent clearly acknowledged that when the March 24, 2016 support order was made, he was earning approximately $43,436.00 from two part-time jobs.
b. He voluntarily reduced his employment to one part-time job.
c. He then considered for a long time that he wanted to quit that job because of anxiety he has experienced all his life.
d. He provided no specific evidence as to why he had to quit either job, other than to generally refer to anxiety he was already experiencing when the original order was made.
e. He gave no evidence of any efforts to find replacement employment.
f. From the Respondent’s own evidence, any reduction in employment/income appears to have been entirely voluntary.
g. The Respondent’s medical report was threadbare, and the doctor’s vague reference to the father being “unable to work” is not explained (not to mention that there is no indication or suggestion that the family doctor has the qualifications to give that expert evidence).
h. Under cross-examination the Respondent acknowledged that even though he claims financial hardship, he has been able to maintain fairly expensive car insurance payments.
i. The onus is on the Respondent to establish that there has been an involuntary material change in his circumstances which justifies a reduction in child support. I am not satisfied that he has experienced an involuntary change, nor am I satisfied that the Respondent is unable to generate the income he was previously earning, which formed the basis of the child support order.
j. Accordingly, the Respondent’s motion to reduce child support is dismissed.
[32]. As it happens, the Applicant tried to use the Respondent’s “anxiety” evidence against him on the access issue.
a. At one point she argued that if he has such anxiety that he can’t work or concentrate, then he can’t be trusted caring for his child.
b. But the Applicant did not challenge the Respondent’s evidence that according to his doctor his anxiety is under control and does not impact on his parenting skills.
c. The Applicant did not dispute the Respondent’s evidence that access has been going well. Apart from complaining about missed sporting events, she gave no evidence to suggest that the Respondent’s anxiety was impacting on access in any way.
d. She gave no evidence of any direct observation of inappropriate behaviour by the Respondent.
e. In many ways, the Applicant appeared to be quite transparent in linking the child support and access issues. She suggested that if he’s too sick to work then maybe he’s too sick to care for his child. But she also suggested that as soon as he’s well enough to work (and pay child support) then he’ll be well enough to resume access.
f. Most notably, the Applicant did not maintain a consistent or logical position on access. At times she said the recently expanded alternate weekend access was fine, and her main objection was the request for 4 weeks in the summer. At the end she proposed that he continue to have a single overnight every weekend – which would really amount to a restructuring of access as opposed to a reduction. It is illogical to periodically express great concern about access and then propose that the solution is to continue equivalent unsupervised overnight visits, but on a different schedule.
g. There is no evidence of any mental health, behavioural or parenting issue which would justify a reduction of the Respondent’s access. And the Applicant has never formally requested a reduction. It appears to be a claim she decided to advance since she happened to be in court anyway.
[33]. But most of the Respondent’s other requests in his motion are also unsupported by the evidence.
a. The consent final order (and every previous order) included safety restrictions (no alcohol or drugs; not allowing others to care for the child) against the Respondent only. There was never any suggestion that such restrictions were required for the custodial mother. The Respondent is now simply playing “tit for tat”. He doesn’t like being the subject of restrictions. So he wants the Applicant to suffer the same inconvenience or stigma.
b. Similarly, there’s no justification to eliminate the term of the consent order which prohibits the Respondent from leaving the child in the care of others. It is notable that by his own evidence, he left the child in his mother’s care while he went out shopping, even though this was in contravention of the existing order. And as it happens, that’s when the Society came to be involved. I am not prepared to remove a restriction in the absence of evidence of a material change in circumstances. And the Respondent’s credibility on this topic is diminished by the fact that he violated the restriction, even during the period when he was waiting for the court to rule on his request that the restriction be removed. Self-help and unilateral action is never to be encouraged or rewarded.
c. The Respondent’s credibility is further undermined by the fact that he admits he didn’t arrange health care coverage for the child even after he knew it was available to him through his employment. He said he decided not to comply with this requirement of the order because the coverage would cost him money, and he knew he would be quitting his job in a few months, so he didn’t think there was any point setting up the coverage.
[34]. In relation to the Respondent’s contempt motion:
a. The Respondent said he’s not proceeding in relation to the Applicant’s refusal to provide the child’s health card, because she finally complied with this requirement – after he served her with his contempt documents.
b. The Applicant said she had provided a copy of the health card on multiple occasions and there was never any basis for this complaint.
[35]. The Respondent’s evidence in relation to the Applicant’s failure to apply to change the child’s name (to include the Respondent’s first name as a middle name) is more compelling.
a. Paragraph 14 of the consent order is very clear.
b. The Applicant was well aware of the obligation. She signed Minutes of Settlement at a time when she was represented by counsel. She was in court when the order was pronounced. She had long-since been in possession of a copy of the order.
c. The Applicant testified that she didn’t file the change of name documents because the Respondent only provided the $140.00 fee by a cheque which she described as “irregular” in appearance. She didn’t really explain why she didn’t even try to cash it. In any event, she wanted cash.
d. During her submissions the Applicant suggested that the Respondent has waited so long, she should no longer be required to proceed with the name change. She said he “doesn’t deserve” the name change, after how he has behaved.
[36]. The Respondent quite correctly noted that the order creates an unconditional obligation on the Applicant to file the change of name documents.
a. There is nothing in the order – which she consented to at a time when she had a lawyer – that requires that he provide her with funds to pay for the change of name.
b. The Respondent said that after it became evident that the Applicant wasn’t going to comply with paragraph 14 of the March 24, 2016 order, as a gratuitous gesture – just to get her to comply with the order – he offered to give her $140.00.
c. He said he always insisted on advancing money by cheque because he didn’t trust her to acknowledge receipt of cash.
d. He was unaware that she hadn’t cashed his cheque, and couldn’t understand why she would not do so.
e. During submissions he volunteered that he was still prepared to pay the $140.00 and he undertook to provide her with a replacement cheque.
f. But he also requested that the Applicant be found in contempt because she has ignored this obligation for a year and a half.
[37]. The Applicant’s own evidence confirms that the Respondent has satisfied the test for a finding of contempt:
a. The order that was breached must state clearly and unequivocally what should and should not be done.
b. The party who disobeys the order must do so deliberately and wilfully.
c. 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. Hobbs v. Hobbs, 2008 ONCA 598, 2008 CarswellOnt 5037 (Ont. C.A.); Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.); Prescott-Russell Services for Children and Adults v. N.G. et al. (2006) 2006 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.).
[38]. The civil contempt remedy is one of last resort and should not be granted in family law cases where other adequate remedies are available to the aggrieved party. Hefkey (supra); Fiorito v. Wiggins, 2015 ONCA 729 (Ont. C.A.).
[39]. While contempt proceedings in family court are always regrettable – and to be avoided if possible – in this case it is difficult to imagine what more the Respondent could have done to secure compliance with the court order.
a. The obligation on the Applicant was clear and well-known to her.
b. She should have complied even without demanding payment from the Respondent.
c. She definitely should have complied after he gave her a $140.00 cheque, even though the order did not require that he pay for the name change application.
d. The Applicant gave no plausible explanation as to why she insisted on cash, or why she failed to cash the cheque.
e. Her candid acknowledgement that at this point she doesn’t think she should have to comply – and that the Respondent “doesn’t deserve” the name change – clearly reinforces the Respondent’s evidence that the Applicant acted in bad faith and was simply fabricating excuses about why she failed to comply with the order.
[40]. Overall, this motion entailed a lot of aggression and nastiness, but with very little justification.
a. The Applicant already agreed to expanded weekend and alternate Friday access on a temporary basis, so it’s unclear why it remained a contested issue at the oral hearing.
b. The Applicant acknowledged the facts supporting a contempt finding on the name-change issue. Again, the Respondent gratuitously offered to provide her with a replacement cheque for the administrative fees, and the Applicant undertook in court to proceed with the name change.
c. Beyond that, there is no evidence to support the Respondent’s request for any further expansion of access or any imposition of restrictions on the Applicant. Based on the current evidence it is premature to make any determination of summer access starting in 2018.
d. There is no basis for the Respondent’s request that child support be reduced, given the fact that he voluntarily quit employment in a pre-planned manner, without regard to his obligations, and without adequately addressing opportunities to generate replacement income. Income should be imputed to the Respondent.
[41]. This is the kind of case that neither party would ever have pursued in such an aggressive manner, if they had to pay legal (or other) fees to come to court.
a. The Respondent may have had no choice on the contempt issue.
b. But all of the other issues were quite straightforward and easily resolvable.
c. At most, access needed to be “tweaked” slightly.
d. Most of the rest of the Respondent’s motion was simply an effort to undo terms he had consented to one year earlier.
e. The parties created a lot of fuss – and a lot of false issues – which required our Family Court system to allocate very significant (and scarce) judicial resources.
f. At their request, we set aside two days of trial time (although mercifully we didn’t need the second day). In any event, their trial time was largely wasted, because neither party was really prepared.
g. Despite the inadequacy of the Applicant mother’s materials, during her evidence she quite casually mentioned future court proceedings she plans to bring.
[42]. Both parties clearly demonstrated an attitude that they will keep coming back to court whenever they get mad at one another.
[43]. And why not? We offer a free service. Right?
[44]. The order:
a. The Respondent’s motion to change access is granted only to the extent that his alternate weekends shall commence Friday at 3:30 p.m. and continue until Sunday at 6:00 p.m.; and on the alternate Fridays preceding his non-access weekend the Respondent shall have a visit from 3:30 p.m. until 6:30 p.m.
b. All other requests for a change of access are dismissed, with the exception that the issue of expanded access for summer vacation is adjourned without a return date, returnable before me, but not to be dealt with prior to April 1, 2018. Prior to any determination of that issue, the parties will be required to attend for at least one mediation session.
c. The Respondent’s request for the imposition of terms and restrictions on the Applicant is dismissed.
d. The Respondent’s request for a reduction of child support is dismissed.
e. The Applicant is found in contempt of the March 24, 2016 order in relation to failing to submit an application to change the child’s name to Kingston Dominic Webb.
f. Adjourned to November 30, 2017, 11:00 a.m. to be spoken to, at which time the Applicant should provide evidence that she has purged her contempt by processing the application to change the child’s name.
g. On the return date, each party should provide the court with a letter from the Children’s Aid Society of Hamilton, updating any involvement by the Society. (Court staff are to fax a copy of this endorsement to the Society, for its information.)
h. Also on the return date, I will schedule a date to be spoken to after April 1, 2018 for the parties to attend at the free on-site mediation service in Family Court at 8:30 a.m.
i. Any other residual issues may also be addressed on November 30, 2017 at 11:00 a.m.
j. Neither party may initiate any further motion without leave of the court. Any request for leave should be brought by motion to my attention, served on the opposing party, and returnable on a Friday motions list. The supporting documents in relation to any such motion shall not be more than one typed page.
[45]. These parties need to be brought under control, to prevent further abuse of our court system. Accordingly, I will remain seized of this matter until December 31, 2019. That way, if they choose to return to court, their case will be dealt with by a Judge familiar with the history of this file.
Pazaratz, J.
Released: October 16, 2017
CITATION: Peters-Webb v. Cloutier, 2017 ONSC 6139
COURT FILE NO.: 3612/14
DATE: 2017-10-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Olivia Peters-Webb
Applicant
– and –
Dominic Cloutier
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: October 16, 2017