Court File and Parties
Court File No.: FC-49-2016 Date: 2018/11/26 Ontario Superior Court of Justice
Between: Johanne Trépanier, Applicant – and – Jasen Harvey Hunter, Respondent
Counsel: Mimi Marello, for the Applicant Patrice Cormier, for the Respondent
Heard: November 23, 2018
Justice Sally Gomery
Endorsement
[1] Johanne Trépanier and Jasen Hunter separated on February 25, 2016. They had been living together since July 2009 and married on October 8, 2011. There are two children of the marriage: Connor Trépanier, who is now 11 years old, and Austin Hunter Trépanier, who is 7 years old. [^1] A trial to make final decisions on custody, access and support is set to proceed in April 2019.
[2] On November 23, 2018, I heard submissions on interim motions filed by each party. After some discussion, they were able to resolve almost all issues on consent. Based on their submissions, the following order will be issued:
Mr. Hunter will pay child support of $354 per month as of November 1st, 2018. This is the Guideline amount for one child, Austin, based on Mr. Hunter’s projected 2018 income of $39,578. [^2] This order is made subject to Ms. Trépanier’s right to seek arrears of support from the date of separation and an increased amount to take into account support for Connor. Support for Connor remains an issue because his biological father has also been ordered to pay child support for him, although, based on an arrears statement from the Family Responsibility Office, he has never done so.
Mr. Hunter will sign a consent permitting Ms. Trépanier to travel abroad with the children in March 2019.
Paragraph 3 of the October 25, 2017 order is replaced by the following: a. Mr Hunter shall have supervised access with Austin for two hours each week at York Centre, at a time to be arranged between the parties; b. Within the next 7 days, Ms. Trépanier will ask a case worker with Valoris to meet with Connor to try to persuade him to participate in these visits. If this is successful, Connor shall join Austin during the supervised visits with Mr. Hunter at the York Centre. c. Ms. Trépanier shall take all necessary steps to ensure that Mr. Hunter has the access to Austin and Connor provided for in this order.
Mr. Hunter shall not speak disparagingly to Connor or Austin about Ms. Trépanier or her partner Julien Jules Mainville. Ms. Trépanier and Mr. Mainville shall likewise not speak disparagingly to Connor or Austin about Mr. Hunter, or encourage them in any way to avoid participating in access visits. The parties and Mr. Mainville shall refrain from any discussion with the children about these proceedings or any criminal proceedings against Mr. Hunter.
The remaining issues raised in Ms. Trépanier’s motion will be spoken to, if necessary, on January 17, 2019 at 9h30.
[3] A separate order has also been issued, on consent, asking the Office of the Children’s Lawyer provide an update to its 2017 report on custody and access.
[4] This leaves one issue for determination on the motions: whether Ms. Trépanier is liable for civil contempt because she prevented Mr. Hunter from having access to Connor and Austin between March 2018 and the date of this motion.
Background
[5] When the parties separated in February 2016, Ms. Trépanier obtained an ex parte order granting her sole custody and restraining Mr. Hunter from contact with her or the children. She alleged that he had engaged in threatening and abusive behaviour and harassment, and had threatened to commit suicide if she left him. The parties subsequently agreed to vary the order so that, as of March 4, 2016, Mr. Hunter had access to Connor and Austin for visits for a few hours once a week. These visits were initially supervised by Ms. Trépanier’s mother or sister but were later unsupervised.
[6] At various times in 2016 and 2017, Mr. Hunter breached recognizances requiring him to refrain from any contact with Ms. Trépanier except as required by an order in this litigation. This eventually resulted in a four month conditional sentence extending the restrictions on his communication with her and the children in December 2017.
[7] In September 2017, the Office of the Children’s Lawyer produced a report on its investigation of the family situation. The investigator interviewed Ms. Trépanier, Mr. Hunter, Connor, a child protection worker at Valoris, and Ms. Trépanier’s psychotherapist.
[8] According to the OCL report, Ms. Trépanier agreed that Mr. Hunter should have access to the boys every second weekend, as well as occasional dinners during the week. The child protection worker at Valoris supported this plan. Valoris had a file open on the family from January 2016 to July 20, 2017. The file was closed because visits with Mr. Hunter were going well and Valoris concluded that the children were no longer in need of protection. The child protection worker told the OCL investigator that the boys’ visits with Mr. Hunter should continue “en raison de l’impact positif sur les enfants”.
[9] A facilitator at the Caring Dads program had some negative comments about Mr. Hunter. He concluded that Mr. Hunter demonstrated “a weak capacity in terms of taking responsibility … placing more emphasis on ongoing conflicts with his former spouse (Ms. Trépanier), particularly in relation to access to children”.
[10] Taking all of this into account, and notwithstanding the report from the Caring Dads program, the OCL investigator recommended that Mr. Hunter should have the children every second weekend from Friday after school until Monday morning (or Monday at 5:00 p.m., in the case of a long weekend). The investigator recommended that, once Mr. Hunter was no longer subject to a recognizance or sentence restricting his contact with the boys, visits on weekday evenings could also be negotiated between the parties.
[11] On October 25, 2017, the parties signed minutes of settlement regarding disclosure, interim custody and access. They were both represented by counsel. An interim order was issued the same day on the basis of these minutes. Paragraph 3 states that:
The Respondent father shall have access to the children, Austin Hunter Trépanier and Connor Trépanier, as follows:
a) Every second weekend starting October 27, 2017 from Friday at 5pm until Sunday at 5pm. (…)
[12] As a result of this order, Mr. Hunter began having Connor and Austin with him every second weekend as of late October 2017.
[13] Unfortunately problems arose early in 2018.
[14] According to Mr. Hunter, his last weekend visit with Connor was in January 2018. According to Ms. Trépanier, Mr. Hunter’s visits with Connor ended in late March 2018. She says that, after a weekend visit in mid-March, Connor told her that he did not want to continue the access visits. He apparently said that Mr. Hunter asked him many questions about her and her new partner, Mr. Mainville, making him feel overwhelmed. She says that Connor has since refused to participate in visits with his father.
[15] According to Ms. Trépanier, Austin continued seeing his father for regular weekend visits after March 2018. Beginning in February, however, Ms. Trépanier says that she became concerned because he had stomach aches, headaches and episodes of vomiting, which she attributed to anxiety. She says that these symptoms became more frequent and occurred after access visits with Mr. Hunter. Ms. Trépanier arranged for Austin to be seen by a psychologist, Dr. Rose.
[16] In March 2018, Valoris re-opened its file after an undisclosed person reported concerns about the children as a result of their contact with their father. A case worker interviewed the parties, the children, the school, the family physician and Dr. Rose. In May 2018, she issued a report saying that Connor was well-adjusted at home and at school, but “ne veut plus aller chez papa”. She wrote that Austin was depressed and anxious, which she attributed to Mr. Hunter’s inappropriate discussions with him about the parties’ conflicts. At the same time, she noted that Dr. Rose believed that greater contact with Austin’s father was in his best interest:
Selon la psychologue la relation entre Austin et papa est bonne – attachement mutuel. Il ne semble pas y avoir de la manipulation émotionnelle de la part du père; c’est bien un profond désir d’Austin d’avoir des contacts plus fréquents avec son père. Il a commencé à avoir une visite de plus par semaine (avant il le voyait seulement aux 2 weekends). Les professionnels croient que ceci est dans l’intérêt d’Austin de voir son père plus fréquemment, dans la mesure où le chantage émotif est adressé.
[17] According to the Valoris case worker, both the family physician Dr. Lortie and Dr. Rose had recommended that Mr. Hunter get a psychiatric evaluation for a potential personality disorder. Valoris nonetheless closed its file in September 2018. It concluded that although the parties were still in conflict, the children were not in need of protection.
[18] On July 6, 2018, according to Ms. Trépanier, Mr. Hunter said that, if Mr. Mainville accompanied her to retrieve an iPad that Austin had inadvertently taken with him on a visit with his father, Mr. Hunter would “beat him up”. Mr. Hunter made these remarks in front of Austin. Ms. Trépanier reported Mr. Hunter’s threat to the police.
[19] On July 22, 2018, Austin returned home from a visit with his father having vomited twice. Ms. Trépanier was convinced that Austin was sick due to anxiety caused by his father’s inappropriate discussions with him. She believed that Mr. Hunter had told Austin that he might have to go to jail as a result of Ms. Trépanier’s report to the police earlier that month, had said unflattering things about her and Mr. Mainville, and had shown him photos of a recent car accident he had been involved in.
[20] Based on what she believed had happened during the July 20-22 access visit, Ms. Trépanier unilaterally decided that Mr. Hunter should not have any further visits with Austin. The parties agree that Mr. Hunter has not had any regularly scheduled visits with Austin since late July. He attempted to obtain police assistance to enforce the order but was unsuccessful.
[21] In September 2018, a four-day trial was set for October 2018. This was postponed because Mr. Hunter’s new legal counsel was not available for the dates selected. This was the second time that Mr. Hunter had retained new counsel, and resulted in a delay of the hearing until April 2019.
The test for civil contempt
[22] In order to find Ms. Trépanier liable for civil contempt under rule 31(1) of the Family Law Rules, Mr. Hunter must convince me that he has met the test set by the Ontario Court of Appeal:
First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, 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. [^3]
[23] Even if I conclude that Mr. Hunter has met this test, I am not required to find Ms. Trépanier in contempt. Because it involves the violation of a Court order, the remedy is quasi-criminal in nature. As a result, the power to find contempt must be exercised “cautiously and with great restraint”. [^4] This is especially true in family law cases:
In family law cases in particular, the civil contempt remedy should be used sparingly and as a measure of last resort, where there are no other adequate remedies available to the aggrieved party. It is typically reserved for cases involving defiant conduct that is at the most significant end of the spectrum, and where it appears to be the only reasonable means of sending a message to a litigant that Court orders cannot be flaunted. Evidence of contempt must be clear and unequivocal in family law proceedings. [^5]
Did Ms. Trépanier breach a clear and unequivocal order?
[24] The October 2015 order is clear and unequivocal with respect to Mr. Hunter’s right to access. Mr. Hunter is entitled to have the boys from Friday after school until Sunday at 5 p.m. every second weekend.
[25] According to Mr. Hunter’s affidavit, he has not seen Connor since January 5, 2018 and he has not seen Austin since July 22, 2018. He says that he had one visit with Austin between April and July 2018.
[26] According to Ms. Trépanier’s affidavit, Connor’s last weekend with his father took place on March 16 to 18, 2018. She maintains that Mr. Hunter had regularly scheduled access visits with Austin until July 23. Ms. Trépanier says she has emails that support her version of events, but for unexplained reasons she has not produced them. I nonetheless must accept Ms. Trépanier’s evidence on this point because, on a contempt motion, the respondent must be given the benefit of the doubt.
[27] This still means that Mr. Hunter has not had any access to Connor for eight months, and Austin for four months, contrary to the October 25, 2017 order.
[28] As a result, I conclude that Ms. Trépanier clearly breached the Order.
Did Ms. Trépanier willfully and deliberately breach the Order?
[29] Emails between Mr. Hunter and Ms. Trépanier show that he repeatedly sought to exercise access with Austin and Connor after July 22, 2018 in accordance with the Order. Each time he did, Ms. Trépanier refused to give him access. Here are some examples of their exchanges:
- On the morning of Friday, August 3, Mr. Hunter tried to arrange a time and location to pick the children up. Ms. Trépanier replied that, as she had advised him in emails on July 24 and 31, she did not think it was in Austin’s best interest to continue to see him. When Mr. Hunter protested that she did not have the right to change the Court order, she replied: “It is not up for debate. I can make the decision based on what I feel is best for Austin. Connor is not even a part of this conversation.”
- On Friday, August 17, Mr. Hunter again sought to exercise access. Ms. Trépanier replied: “No access Jasen. I was very clear about that.”
- On Wednesday, August 29, Mr. Hunter asked if he could pick Austin up from school on Friday for the weekend. Ms. Trépanier wrote that: “Your access, as previously indicated has been suspended therefore, no, you cannot pick up the kids. I have advised the school as such.”
[30] These email exchanges show that Ms. Trépanier was fully aware that she was making a unilateral decision about access that was not consistent with the Court order. Ms. Trépanier in fact told the Valoris case worker on July 26 that she knew she was violating the order. In her report on her visit to Ms. Trépanier’s home on that date, the Valoris caseworker states:
La mère a coupé tout accès avec le père depuis ce temps. Elle réalise qu’elle est en outrage avec son ordonnance de cour , mais ne veut plus voir Austin souffrir et subir ce que le père fait et indique qu’elle doit le protéger. [Emphasis added.]
[31] Based on this evidence, I find that Ms. Trépanier deliberately breached the order when she denied Mr. Hunter any access to the children after July 22 2018.
[32] Ms. Trépanier argues that the breach was not “willful” because, in Connor’s case, she was simply supporting his decision and, in Austin’s case, she was acting in his best interests. Other judges have rejected arguments like these, and I do as well.
[33] A person may be found to have willfully breached an order even if their motivation for doing so was not malicious or based in bad faith:
[I]t is not necessary to prove an intent to disobey or flout the order or to bring the administration of justice into disrepute, although evidence of such will go to the penalty in the event that a contempt finding is made. Rather, it must be shown that the party alleged to be in breach deliberately and wilfully did something that the order prohibits, or deliberately and wilfully failed to do something that the order compels. [^6]
[34] A Court may exercise its discretion not to hold someone who breached an order in contempt if it is satisfied that the person had a legitimate excuse for the breach. [^7] But having an excuse does not mean that the breach was not willful. It is instead an argument that the Court should not punish the breach.
[35] I am satisfied beyond a reasonable doubt that Ms. Trépanier deliberately and willfully breached the October 2017 order.
Should I find Ms. Trépanier in contempt?
[36] Having found that Ms. Trépanier willfully and deliberately breached a clear and unequivocal order of the Court, I must now consider whether, in the circumstances, she should be held in contempt. Any doubt on this point must be resolved in her favour.
[37] In cases involving children, a party who has not complied with an access order often argues that their conduct was justified based on concerns regarding the safety and well-being of the children. But the involvement of children in a legal proceeding does not relieve the parties of the obligation to comply with Court orders, even if they sincerely disagree with them. The same principles with respect to civil contempt apply in family law proceedings as in other proceedings.
[38] The Prescott-Russell case provides a good example of this. In that case, a judge found that a child protection worker was in contempt of a Court order by not returning a child to their parents as ordered by motion judge. The worker argued that she was justified in not complying with the order because, when she arrived at the parents’ home, she considered that it was not in a fit state for a young child. The Court of Appeal held that a parent or child protection worker does not have any greater right to ignore Court orders than anyone else:
If the order is clear and unequivocal, the subjective good faith of the child protection worker alone -- even if the worker's intention is to act in the best interests of the child -- is insufficient to justify breaching the order. As the motion judge noted:
[TRANSLATION] The Court is not omniscient and does not have the monopoly over wisdom when deciding what is in the best interests of the child. A child protection worker or parent may very well disagree with a Court's decision. This disagreement may be in good faith and based on very good reasons. However, a Court's decision must be respected and complied with because the community has democratically entrusted the Court with the mandate of ruling on such issues. This is essential for the survival of our democratic society and the maintenance of law and order. Otherwise, anarchy will reign. [^8]
[39] The Court concluded that a defence of legitimate excuse must be based not solely on the respondent’s subjective belief but on objective criteria. [^9]
[40] With these principles in mind, I turn to the evidence regarding Ms. Trépanier’s justification for defying the October 2017 order.
[41] Dealing first with Connor, the Valoris record supports Ms. Trépanier’s claim that Connor decided at some point that he no longer wished to spend every second weekend with Mr. Hunter. This does not however mean that Ms. Trépanier was justified in supporting this decision. A child’s preferences can be an important element of determining what access arrangement will be in their best interests. A custodial parent cannot, however, deny the other parent access on the pretext that she is simply following the child’s wishes:
A parent cannot simply leave the questions of custody and access up to the child. To do so amounts to an abdication of parental responsibility generally and a breach of the party’s positive obligations under the order. (…)
In the case of access orders specifically, the custodial parent’s obligation in regard to access goes beyond simply accommodating it, making the child available for access and encouraging the child to comply. Rather, the parent must require that access occur and actively facilitate it. [^10]
[42] A parent who fails to take appropriate steps to encourage a child to participate in access visits may be found in contempt. As another judge aptly observed:
Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent. [^11]
[43] Ms. Trépanier says that her decision not to encourage or force Connor to visit Mr. Hunter was supported by Dr. Lortie. There is no evidence of this in the documents from Dr. Lortie produced by Ms. Trépanier. Dr. Lortie mentions a visit in July 2016 with Connor as the only record she has of any discussion on this issue.
[44] Because this is a contempt motion, I must give Ms. Trépanier the benefit of the doubt on whether Dr. Lortie supported her decision not to require Connor to participate in access visits. But whether or not Dr. Lortie agreed with her approach, Ms. Trépanier could not delegate the decision about whether to respect the October 2017 order to Connor. I recognize that she was in a difficult situation. She did not however have the option of simply agreeing to Connor’s stated desire to cut off contact with his father. Connor is 11 years old. He is not in a position to make critical decisions about access. By allowing him to do so, Ms. Trépanier abdicated her role as a parent.
[45] Turning now to Austin, Ms. Trépanier claims that she suspended Austin’s visits with Mr. Hunter in late July 2018 because she thought this was in his best interest. She says that her decision was supported by the Valoris case worker, Dr. Rose and Dr. Lortie.
[46] Some of the evidence on the motion contradicts Ms. Trépanier’s claim that she made the decision to suspend access after consulting with professionals. The Valoris record does not indicate any change in their May 2018 recommendation that Austin spend more, rather than less, time with his father. The case worker’s report on July 26 indicates that Ms. Trépanier had, by that time, already made the decision to cut of Mr. Hunter’s access. Ms. Trépanier has not produced Dr. Rose’s record and the letter from Dr. Lortie does not mention any consultation in late July.
[47] On a motion such as this, however, contempt must be proved beyond a reasonable doubt. In her affidavit, Ms. Trépanier says that Mr. Hunter has repeatedly had inappropriate discussions with Connor and Austin, and that Austin’s behaviours shows that this has made him anxious and aggressive. This evidence is uncontradicted. There is also information in the Valoris file that substantiates some of her concern about the impact of Mr. Hunter’s conduct on the children.
[48] Taking all of this into account, I am giving Ms. Trépanier the benefit of the doubt and declining to find her in contempt. I conclude that there was some objective basis for her belief that the children should suspend visits with Mr. Hunter based on his inappropriate discussions with them. At the time, she thought they would be going to trial and so the Court would make a final decision on access fairly soon. Austin was also going to undergo some testing to see whether his anxiety was related to his ADHD or to the family conflicts. Ms. Trépanier attempted to persuade Mr. Hunter to participate in parenting courses, but he refused. In all these circumstances, I cannot conclude that the serious sanction of contempt is appropriate.
[49] This was frankly a very close call. As one judge noted:
No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its Courts' orders at their whim because in their own particular view, it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice. The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and "self-rightness." In this environment it is all too easy for a spouse to believe that he or she "knows what is right," even after a matter has been determined by the Court, and to decide to ignore, disobey or defy that determination. [^12]
[50] I am troubled by the tone and content of Ms. Trépanier’s email exchanges with Mr. Hunter in August 2018. They show a fundamental disrespect for the Court and does not inspire confidence in her willingness to comply with further Court orders.
[51] Ms. Trépanier repeatedly refers to “her” decision to suspend Mr. Hunter’s access. She does this again in her affidavit. Ms. Trépanier does not have the power to suspend a Court order. She cannot unilaterally decide if and when Mr. Hunter will see his children. Her conduct has inevitably given Connor and Austin the impression that they can simply ignore Court orders as well. Convinced that she alone understands what is best, Ms. Trépanier is deeply critical of Mr. Hunter’s actions but lacks insight as to the impact of her own conduct on her children.
[52] I am also concerned about Ms. Trépanier’s decision to simply permit Connor to avoid any further visits with Mr. Hunter as of March 2018, and the permanent impact this may have had on their relationship. She cannot abdicate her role as a parent based on what an 11-year old boy might prefer.
[53] In the interim order on access set out at paragraph 2 of this decision, I am requiring Ms. Trépanier to take all necessary steps to ensure that Mr. Hunter has the access to Austin and Connor provided for in the order. Should she fail to fully comply with the terms of this order, the outcome of a future contempt motion will likely be different.
[54] Mr. Hunter’s motion to find Ms. Trépanier in contempt is dismissed. Given the divided success on the motions, I am not awarding costs to either party.
Justice Sally Gomery Released: November 26, 2018
Footnotes
[^1]: Connor is not Mr. Hunter’s biological son, but he meets the definition of a child of the marriage under section 2(2) of the Divorce Act, which provides that this term includes “any child of whom one is the parent and for whom the other stands in place of a parent”.
[^2]: According to Mr. Hunter’s financial statement sworn Sept. 27, 2018, he will receive income of $33,486.96 from WSIB, which for the purpose of calculating support payable under the Guideline is grossed up to $39,578.
[^3]: Prescott-Russell Services for Children and Adults v. G. (N.) (2007), 2006 ONCA 81792, 82 O.R. (3d) 686, at para. 27; Hobbs v. Hobbs, 2008 ONCA 598, at para. 26.
[^4]: Jackson v. Jackson, 2016 ONSC 3466, at para. 56, citing the Supreme Court of Canada’s decision in Carey v. Laiken, [2015] 2 SCR 79, 2015 SCC 17.
[^5]: Jackson v. Jackson, supra, at para. 56. To make it easier to read, I have omitted the citations to other caselaw in this passage.
[^6]: Jackson v. Jackson, supra, at para. 53. Once again I have omitted internal citations to make the passage easier to read.
[^7]: Prescott-Russell Services for Children and Adults v. G. (N.), supra.
[^8]: Prescott-Russell Services for Children and Adults v. G. (N.), supra, at para. 31.
[^9]: Prescott-Russell, supra, at para. 50.
[^10]: Jackson v. Jackson, supra, at para. 63.
[^11]: Geremia v. Harb, 2007 ONSC 1893, 2007 CarswellOnt 446 (S.C.J.).