Court File and Parties
COURT FILE NO.: FC-16-2654-0 DATE: 2018/06/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anna Bloom, Applicant AND Robert Bloom, Respondent
BEFORE: Justice S. Corthorn
COUNSEL: Michael Rappaport, for the Applicant Laura Hunt, for the Respondent
HEARD: June 6, 2018
ENDORSEMENT
corthorn j.
Introduction
[1] The respondent father brings this motion for an order finding the applicant mother in contempt of the orders of Justice Doyle dated March 3, 2017 (“2017 Order”) and February 13, 2018 (“2018 Order”). The father was granted leave on May 18, 2018 to bring this motion on an urgent basis. The matter is scheduled to proceed to trial as part of the September 2018 sittings.
[2] In the materials filed in support of the motion the father requests that the mother be found in contempt on the basis of the following allegations:
a) Since April 13, 2018, the mother has suspended the week-on/week-off parenting schedule prescribed by the 2017 Order;
b) The mother has failed to facilitate counselling for Ethan (born February 4, 2008) with Dr. Goldstein mandated by the 2018 Order;
c) The mother has failed to allow either of the children (Ethan and his older brother, Aiddan (born November 8, 2005)) to attend counselling as required pursuant to the 2018 Order; and
d) The mother has refused to download and use Family Wizard as the means by which to communicate and as required pursuant to the 2018 Order.
[3] By the return date for the motion, the mother had downloaded and agreed to use Family Wizard. That issue was therefore not the subject of argument on the return of the motion.
[4] The primary focus on the return of the motion was the mother’s alleged contempt of the 2017 Order with respect to the week-on/week-off parenting schedule. The issues of counselling for Ethan individually and for the two boys were also addressed.
Procedural History to 2017 and 2018 Orders
[5] Following a contested motion heard by Justice Doyle in March 2017, she ordered that, “Pending the June motion, the children will live equally with both parents on a week on[,] week [off] basis” (2017 ONSC 1568, para. 1(iv)). The order taken out pursuant to the endorsement of Doyle J. erroneously identifies the above-noted portion of the 2017 Order as being “on consent”. It was not.
[6] The 2017 Order did not set out particulars of the week-on/week-off schedule. The parties had, however, been following a specific schedule until mid-April of this year. The adherence to that schedule ceased on April 13, 2018 when the mother did not return the boys to their father for his week of parenting time. The father alleges that the mother’s conduct in that regard amounts to a deliberate and wilful disregard of the terms of the 2017 Order.
[7] The “June motion”, to which reference is made in the 2017 Order, was a motion by the mother for an order dealing with parenting on an urgent basis. The mother had, in February 2017, been granted leave to proceed with an urgent motion and the return date assigned was June 13, 2017.
[8] By March 2017, when she made her order, Justice Doyle had become the case management judge for this matter. She was not, however, available on June 13, 2017 for the return of the urgent motion. The urgent motion was therefore adjourned and proceeded before Justice Doyle in July 2017.
[9] The issues addressed on the return of the mother’s motion in July 2017 were related exclusively to imputation of income, child support, and spousal support (2017 ONSC 4506, para. 2). There is no mention whatsoever in the related endorsement to paragraph 4 of the 2017 Order or to parenting time.
[10] In the notice of motion filed for the June (ultimately July) 2017 motion, the relief requested by the mother included, “An order that the Applicant may schedule a motion for interim custody and access within 14 days of Dr. Frances Smyth’s releasing her parenting report for court.” As noted above, Dr. Smyth’s report is dated September 2017.
[11] The mother next served motion materials for her motion heard in February 2018. The relief sought by the mother on the February 2018 motion included (a) an order granting her sole custody of the two children, and (b) access to the father as recommended by the Office of the Children’s Lawyer. The mother also requested the referral of the matter to the OCL for a Voice of the Children Report.
[12] Instead of proceeding with argument on the motion in February 2018, the parties agreed to proceed with a settlement conference. The settlement conference, conducted by Justice Doyle, resulted in minutes of settlement and the 2018 Order. The terms of that order are on consent of the parties.
[13] The terms of the 2018 Order relevant to the father’s contempt motion are paragraphs 1, 3, 4, 5, and 6. The other paragraphs of the 2018 Order are not relevant to the father’s contempt motion. Paragraphs 1, 3, 4, 5, and 6 of the 2018 Order are:
The parties will arrange for counselling for Ethan Bloom with Dr. Goldstein and with BMI. The Respondent shall be responsible for making the arrangements and will provide the Applicant with at least 48 hrs notice of any appointments;
The children shall attend counselling with the Respondent either with Stacey Segal or whomever she recommends.
The parties shall consider all recommendations from the counsellor.
The parties shall notify the other of any appointments for the children with any professionals at least 48 hours in advance.
The parties shall use Family Wizard to communicate with each other.
[14] In summary, the “June motion” referred to in the 2017 Order, and specifically relating to parenting time, was never pursued by the mother.
Contempt in the Family Law Context
a) Generally
[15] The father’s motion is made pursuant to sub-rule 31(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”). That rule provides that, “[a]n 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 penalty is available.”
[16] The parties are in agreement that the three-part test to be met for a finding of contempt to be made is as set out in Prescott-Russell Services for Children and Adults v. N.G. et al. (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (S.C.J.), at para. 27:
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; and
The evidence must establish contempt beyond a reasonable doubt. If there is any doubt it is to be resolved in favour of the party alleged to have breached the order.
[17] When a contempt motion proceeds by way of affidavit evidence, as opposed to by oral evidence, the Court is not in a position to make a ruling based on contradictory facts (Prescott-Russell, at para. 45).
[18] Neither party referred in their argument to the 2013 decision of the Ontario Court of Appeal in Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65. At paragraph 3 of his decision in Hefkey, MacPherson, J. expressed the following cautionary opinion with respect to contempt motions in the family law context:
The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the alleged aggrieved party. The Courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motion for enforcement have failed. [Citations omitted.]
[19] Without referencing that specific case, the mother argued that the father’s resort to a contempt motion without first giving consideration to other possible avenues of recourse is inappropriate. The mother’s position in that regard is addressed below.
b) Service of Notice of Contempt Motion
[20] In addition, the mother argued that the father failed to comply with the procedural requirement of special service of a notice of contempt motion (FLR, sub-rule 6(4), item 1). The father acknowledged that special service of the notice of contempt motion was not carried out.
[21] The father relies on the decision of R. Smith, J. in Lampron v. Lampron, [2006] W.D.F.L. 3144 (Ont. S.C.J.). Justice Smith cited five factors upon which he relied in concluding that lack of personal service (the type of special service the mother argues is required in the present matter) was not fatal to the applicant’s motion. The approach taken by R. Smith, J. was a practical one and is equally applicable to this matter. In that regard, I note the following:
• The mother has been represented by counsel throughout these proceedings, including when the 2017 and 2018 Orders were made and the notice of contempt motion was served on her counsel. There is no doubt that the mother was aware of the motion;
• The mother filed materials in response to the contempt motion. She was also represented by counsel on the return of the motion. She is not at risk of having an order made in her absence; and
• The primary objective of the FLR is to deal with cases justly, which includes procedural fairness, cost effectiveness, and the appropriate use of court resources (FLR, sub-rules 2(2) and 2(3)).
[22] I reject the mother’s argument that lack of special service is fatal to the father’s motion for contempt. The father is granted leave to proceed with the motion on the basis of service of the relevant materials on the office of counsel for the mother.
Analysis
[23] In support of his motion, the father relies on affidavits sworn by him on April 20 and May 1, 2018, and on the report of Dr. Smyth dated September 2017. The respondent relies on affidavits sworn by her on April 21 and June 1, 2018. There are significant contradictions in the evidence on this motion. For example:
• The father expresses his belief that the mother is attempting to alienate the children from him and to prevent them from seeing their father. The mother denies that she is attempting to do either;
• The mother describes the children as reluctant, if not unwilling, to spend time with their father. The father describes behaviour on the part of the children that in his view demonstrates the children’s desire and willingness to spend time with him; and
• The mother describes the children as unhappy with their father’s home, in particular because they lack privacy due to the size of the home. The father denies that the children have any concerns about the living arrangements when they are with him.
[24] These are but a few of the contradictory elements of the evidence on the motion. The contradictions reflect (a) the father’s position that the mother is alienating the children from their father; and (b) the mother’s position that the children are becoming estranged from their father; a situation for which she denies responsibility.
[25] Circumstances changed for the parties and the children in April 2018. The father’s evidence is that as of April 13, 2018, the mother “refused to return the children” (Apr. 20 affidavit, para. 16).
[26] The mother’s evidence is that during the week of April 9, 2018 (i.e. the week leading to the impending change in parenting for the children), the children “repeatedly told [her] that they did not want to be forced to go to the Respondent’s on Friday” (Apr. 21, 2018 affidavit, para. 22). The mother’s counsel wrote to Justice Doyle on April 12, 2018 requesting an urgent hearing because “the parenting arrangement had broken down”. Subsequent to the delivery of that letter to Justice Doyle (copied to the father’s counsel), the father’s notice of contempt motion was served.
[27] The children are 10 (Ethan) and 12 (Aiddan) years old. They are at an age when it is entirely possible that they are voicing their respective opinions about the parenting schedule. In the circumstances, it is not possible to ascertain which, if either, of the parties has accurately reflected the children’s respective opinions, wishes, etc. in the affidavit materials.
[28] I agree with the mother that the immediate resort to a motion for a finding of contempt, in particular with respect to the parenting arrangement, without first attempting to resolve the matter through a case conference or a case management conference was not appropriate in the circumstances. It is clear from the record that there is a significant level of conflict between the parents, a significant level of stress for the children, and the best interests of the children are in all likelihood suffering.
[29] The evidence with respect to the counselling with Dr. Goldstein (for Ethan alone) and with Dr. Goldstein (for both children) is equally as conflicting as the evidence with respect to the reasons why the parenting arrangement broke down in April 2018.
[30] The appropriate first step upon the breakdown of the parenting arrangement is a further case conference or case management conference. In my view, it was incumbent upon the father, after being granted leave to proceed with an urgent motion on June 6, 2018, to attempt to secure the co-operation of the mother in attending at a case conference in an effort to resolve issues without having to proceed with the motion. There is no evidence of any effort in that regard on the father’s part.
[31] I pause to note that when the father was granted leave to proceed with a motion on an urgent basis, there was no finding made that the children were being “overheld”. The relevant endorsement dated May 10, 2018, says, “[i]t appears that the children are being overheld by the mother contrary to Justice Doyle’s Order of March 9, 2017 that provides for a week on/week off parenting schedule.”
[32] I have identified through the Family Trial Co-ordinator’s Office that Justice Doyle is available on July 19, 2018 at 2:00 p.m. and on July 20, 2018 at 10:00 a.m. for a one hour conference.
[33] I therefore order that:
The parties shall attend a conference with Justice Doyle on one of July 19, 2018 at 2:00 p.m. or on July 20, 2018 at 10:00 a.m. for a one hour conference, assuming that one of those dates is convenient for the parties and their respective counsel.
In the event those dates are not convenient for one or both of the parties and their respective counsel, a case conference shall be scheduled before another Family Patent Judge of the Superior Court of Justice on a date prior to July 19, 2018.
Regardless of whether the conference is scheduled for July 19, July 20, or a date prior to July 19, the father shall be responsible for scheduling the conference.
The purpose of the conference is to attempt to resolve any outstanding issues with respect to the parenting arrangement, counselling with Dr. Goldstein, counselling with Dr. Segal, and any other issues that were otherwise the subject of the father’s contempt motion.
The father’s contempt motion is adjourned to a date subsequent to the date of the case conference or case management conference, as the case may be, and shall be brought back by the father on notice in accordance with the FLR.
The Prevailing Terms – Parenting Time and Counselling
[34] One of the arguments raised by the mother in response to the contempt motion is that the 2017 Order does not state clearly and unequivocally what should and should not be done. Although I have not addressed the merits of the father’s contempt motion, in my view, the 2017 Order does state clearly and unequivocally what should be done and not done. At no time since that order was made has either party obtained an order resulting in any change to the prevailing parenting schedule. The parties were able to follow that aspect of the 2017 Order without difficulty for more than a year (March 2017 to April 2018).
[35] I find disingenuous the mother’s argument that, because the relevant term is prefaced with the phrase, “Pending the June motion”, the term lacks clarity and is equivocal. From my review of the Continuing Record it appears that the mother has, on at least two occasions since the 2017 Order was made, brought the matter before the Court. Her motions were returned in June 2017 and February 2018. On neither occasion did the motion result in a change to the prevailing parenting schedule. Either party has, since the 2017 Order was made, had the opportunity and ability to seek an order changing the prevailing parenting schedule.
[36] Even though I have not made any specific findings with respect to the three-part test applicable on a contempt motion, it is important that the parties conduct themselves in a way that reflects their respective obligations to encourage the children to have consistent, regular contact with both parties. The parties’ respective conduct in that regard will, no doubt, be considered by the judge presiding at the case conference or case management conference to be scheduled and by the trial judge in the event the matter proceeds to trial.
[37] The same is true with respect to the manner in which the parents address the counselling ordered by Justice Doyle. Not only do the parents risk harming their respective positions on the merits of the issues in dispute, more importantly, they risk further harm to their children if they do not co-operate in ensuring that the counselling ordered is carried out.
Costs
[38] In the event the parties are unable to agree upon costs of the motion, they may make written submissions as follows:
a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs;
b) Written submissions shall comply with sub-rule 4.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;
c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with sub-rule 4.01, item 2 of the Rules of Civil Procedure with respect to font size;
d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages;
e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this endorsement is released; and
f) In the event any party wishes to deliver a reply to the costs submissions of an opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this endorsement is released. Reply submissions shall comply with paragraphs (a) to (d) above.
Madam Justice Sylvia Corthorn
Released: June 13, 2018
COURT FILE NO.: FC-16-2654-0
DATE: 2018/06/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anna Bloom, Applicant
AND
Robert Bloom, Respondent
BEFORE: Justice S. Corthorn
COUNSEL: Michael Rappaport, for the Applicant Laura Hunt, for the Respondent
HEARD: June 6, 2018
endorsement
Madam Justice Sylvia Corthorn
Released: June 13, 2018