Court File and Parties

COURT FILE NO.: 07-FD-33141-02

DATE: 20180201

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R.R., Applicant

AND:

O.R., Respondent

BEFORE: Mr. Justice M. D. Faieta

COUNSEL: Nancy Iadeluca, for the Applicant

O.R., Self-represented

HEARD: February 1, 2018

ENDORSEMENT

[1] By Notice of Motion dated December 28, 2017, the Respondent father requested that this court make an order finding the Applicant mother in contempt of court for failing to comply with the Custody and Access provisions of the Parenting Plan that forms part of Justice Paisley’s Order dated December 19, 2008, in that:

1. The Applicant fails to make reasonable efforts to require their daughter, T.R., to visit the Respondent at the times stated in the parenting plan;

2. The Applicant failed to to give proper written notice to the Respondent prior to travelling with T.R.;

3. The Applicant made plans to travel during his holiday schedule;

[2] The Respondent provided the following affidavit in support of this motion:

I have not seen my daughter for access/ visitation since November 27, 2017.

I had some contact via telephone and text, but as of late she is not responding and refusing to come over for scheduled visits with me, her sister and step-mother.

Parenting plan not being followed with regards to travel. [R.R.] scheduled a flight to Florida on my vacation week. Didn’t ask my consent, nor proper written notice given.

I am trying to resolve conflict, family interference, asking for family reunification counselling to no avail from my ex-wife.

[3] On December 28, 2017, the Respondent appeared before this court on an urgent basis. Justice Kristjanson dismissed the motion as the Applicant had not been personally served with the Notice of Motion.

[4] On January 25, 2018, the Respondent delivered another Notice of Contempt Motion. It states that the Applicant is in contempt of the court because she “… has failed to comply with the terms of the court order with regards to custody and access”. T.R. has continued to refuse to visit the Respondent. T.R. refused to see the Respondent or his family on her 13th birthday which occurred in mid-January, 2018. This Notice of Motion, and supporting affidavit sworn January 24, 2018, was personally served on the Applicant on January 25, 2018. However the Respondent did not serve the materials appended to his affidavit on the Applicant. I provided a copy of A Guide to Process for Family Cases at the Superior Court of Justice to the parties and directed the Respondent to the text that addresses the preparation and use of affidavits. The Respondent asks that the following orders be made:

• That the parties be directed to use mediation services of 393mediate to address the relationship between T.R. and the Respondent so that T.R. re-commence visiting her father in accordance with the access provisions of the Parenting Plan.

• That T.R. not be removed from Canada with the Respondent’s consent.

[5] The Applicant delivered a notice of motion, dated January 29, 2018, and served on January 30, 2018. The Applicant seeks the following relief:

• An order abridging time for service;

• An order validating service;

• An Order that the Office of the Children’s Lawyer shall be appointed to represent T.R.; and

• An Order requiring the Respondent to provide a copy of the complaint that he sent to the Ontario College of Social Workers against Jacqueline Vanbetlehem.

[6] On January 31, 2018, the Applicant filed a motion to vary the Parenting Plan returnable to a case conference to be held on March 6, 2018. The Applicant seeks an order that, amongst other things, provides that the Applicant shall have sole custody of T.R., that T.R. live with her subject to T.R. having access to the Respondent in accordance with T.R.’s views and preferences as ascertained by the Office of the Children’s Lawyer.

ANALYSIS

[7] Justice Paisley’s Order states that the parties shall share custody and access to T.R. in accordance with the terms of a Parenting Plan that, amongst other things, provides:

B. PARENTING GUIDELINES AND PRINCIPLES

1. We shall exert our best efforts to parent cooperatively, keeping our daughter’s best interest in the forefront. Her needs shall be paramount when addressing child-related disputes, scheduling issues, conflicts and/or concerns.

2. We shall openly and/or subtly support the Parenting Plan to our daughter.

3. We shall recognize [T.R].’s needs for good and ongoing relationships with both parents. We shall make every effort to actively foster and facilitate our daughter’s relationships with the other parent, and with members of the other parent’s extended family.

4. We shall not denigrate the other parent and/or members of the extended family, either overtly or covertly, in any communication with our daughter and/or in her presence. …

5. We shall not interfere directly or indirectly into the life, activities or routines of [T.R]. when she is with the other parent. Unless indicated otherwise in this Plan or in any court order or Arbitration Aware or in the absence of these, without the consent of the other parent, neither parent shall schedule activities during our daughter’s time with the other parent. …

6. If [T.R.] complains to the resident parent about the other parent, she shall be encouraged to talk directly to that parent about her concerns. If she expresses difficulty with this, either parent shall talk to the other parent first on her behalf or the parent shall assist [T.R.] to talk to the other parent.

D. USUAL SCHEDULE

(a) [T.R]. shall alternate weekends with each parent, from Friday 5 pm until Sunday 7 pm (Father), Monday morning (Mother). Father shall pick up [T.R.] from Mothers at 5 pm and return T.R. to Mother’s at 7 pm.

(b) [T.R]. shall be resident with the Father alternating Monday (after Mother’s weekend) and Wednesdays and Thursday (before Mother’s weekend) overnight. Father shall pick up [T.R.] at 5 pm from Mother’s and return her to Mother’s between 7:30 and 8 am. …

E. HOLIDAY SCHEDULE

IV. Winter School Break

(a) The break shall begin at 5 pm of the last day of school and shall end the evening before school resumes. [T.R.] shall be resident with each parent for eight consecutive days and nights. … In odd-numbered years [T.R.] shall be resident with Father for the first part of the break and with Mother for the second part of the break. …

K. TRAVEL

II. We may travel with [T.R.] as per the usual and holiday schedules, with two weeks written notice to the other parent prior to departure. We understand that on occasion this notice may not be possible, in which case we shall provide as much notice as possible.

III. The prepared notarized letter shall contain required information (ie. Location, hotel/accommodation name, flight numbers and any other pertinent information) and be provided by the travelling parent to the other parent four weeks in advance of travel. The executed notarized letter shall be returned to the travelling parent, one week in advance of travel accompanied by [T.R.]’s passport. …

IV. Travel not covered by II requires the mutual consent of the parents …

N. FUTURE DISPUTE RESOLUTION

I. … In the event that either parent considers that the parents alone cannot resolve a conflict or concern in regard to any issues pertaining to the implementation and/or maintenance of this Parenting Plan, then the issue shall be referred for open mediation. ….

II. The initial mediator will be Dr. Fidler, or such other mediator as shall be agreed by the parties. …

III. If, after thirty (30) days from the commencement of the mediation, or form either spouse’s request for mediation, a resolution of an issue has not been reached by agreement between the parents through the mediation process, then either party is free to have this matter dealt with by the court.

[8] The civil contempt remedy is one of last resort. Great caution should be exercised when considering contempt motions in family law proceedings. Contempt finds should be made sparingly and only when conferences to resolve problems or motions for enforcement have failed: Hefkey v. Hefkey, 2013 ONCA 44. Rule 1(8) of the Family Law Rules provides this court has a variety of other powers when a person fails to obey an order in a family law proceeding, including an order for costs and an order postponing any other step in this case.

[9] In order to find contempt, the following must be proven beyond a reasonable doubt:

• The relevant order was clear and unambiguous;

• The fact of the order’s existence was within the knowledge of the respondent at the time of the alleged breach;

• The respondent intentionally did, or failed to do, anything that was in contravention of the order; and

• The respondent was given proper notice of the terms of the order: See Haywood v. Haywood, 2010 ONSC 5615, [2010] O.J. No. 4317, paras 41-43.

[10] The primary objective of a contempt order in a family law proceeding is remedial – “… the basis object being to coerce the offender into obeying the court judgment or order”: Kopaniak v. MacLellan (2002), 2002 CanLII 44919 (ON CA), 27 R.F.L. (5th) 97 (Ont. C.A.).

[11] I am satisfied that the Applicant was well aware that she failed to obey the ordered holiday schedule.

[12] Her affidavit states:

The Respondent’s holiday week would have been from December 22, 2017 to December 30, 2017. My holiday week was from December 30th to January 7, 2018. T.R. sent a text to her father on December 22, 2017 indicating that she wanted to go to Florida to stay with her grandparents. She did not want to see her father.

T.R. travelled to Florida as an unaccompanied minor. She stayed with my parents from December 28th to January 6th. The Respondent knows the Florida address of my parents. I advised the Respondent when she was traveling. He knew that she was staying with my parents.

[13] The Respondent sent an email to the Applicant which indicated that T.R. may go on this trip to Florida so long as it was during the Applicant’s holiday period.

[14] The above episode also supports a finding that the Applicant has scheduled activities during T.R.’s scheduled holiday access with the Applicant.

[15] Further, the fact that T.R. has not seen her father since November 27, 2017, raises the concern that the Applicant has not “openly supported” the Parenting Plan.

[16] On December 1, 2007 T.R. sent the following message to her Dad:

Hi Dad, I hope you won’t be upset but I’ve decided not to come to your place this weekend or next Wednesday or Thursday. I get really upset and my stomach gets sick before I’m to come over and I’ve decided to take a short break from visiting you. I hope you respect my feelings.

[17] On December 14, 2017, the Applicant sent the following message to the Respondent:

This is a difficult time for T.R.. She has spoken to me about the reasons she doesn’t want to come to your house. I don’t have T.R.’s permission to disclose that information. I’m trying to encourage her to have a relationship with you. I am not at all being passive in this matter. Her exact words to me are, “Don’t force me”. It may help if you were more flexible and sensitive to T.R.’s needs, not be so controlling. She will be a teenager next month and needs some space.

[18] The reason for T.R.’s estrangement from her father appears to lay at his own feet:

• T.R. has told the Applicant over the last several years that her father “yells at her a lot for no reason”; “he gets mad if I do not text him back after two minutes”; “I feel sad that he does not want to take me to Bat Mitzvah classes”; “ do not like it when Dad talks badly about you [Mom] in front of me”; “ad makes me feel guilty if I do not want to spend time with Dani”; “I do not feel that I can tell Dad how I truly feel”: see paragraph 43 of the Applicant’s affidavit;

• In 2016 T.R. started complaining of stomach aches whenever she was going to see the Respondent. Her family physician confirmed there was no physical ailment and referred T.R. to a psychologist, Dr. Gail White. The Respondent refused to permit T.R. to see Dr. White;

• In early 2017, the parents agreed to hire Jacqueline Vanbetelhem to prepare a Voice of the Child Report in lieu of attending mediation. The issues to be addressed were: a) change of residential schedule; b) choice of school; c) more flexible travel; d) attending a parent’s family functions on the other parent’s scheduled parenting time; e) extra-curricular activities. Ms. Vanbetelhem met with both parents and T.R. in August, 2017. Ms. Vanbetelhem resigned without providing recommendations to both parties, according to the Applicant, after she learned of the Respondent’s complaint against her to the Ontario College of Social Workers; and

• On December 18, 2017, T.R. received a referral for a child and adolescent psychologist, Dr. Patricia Title from T.R.’s pediatrician so that T.R. could talk to a child psychologist. The Respondent refused to consider this person on the basis that he did not feel that she was qualified.

[19] On January 11, 2018, T.R. sent the following text to the Respondent:

Sorry I won’t be able to see you this weekend, I have plans all weekend. You told me that I should tell you how I feel so I am going to tell you. I tried to go to Gail White for years and you said no. I tried mediation to help me and you blocked it. Doctor Kupfert recommended a therapist that I could have talked about what I am feeling but you said no. Now you want me to go to a therapist down town and I am not going. I am 13 now and I have my own feelings and I feel that I have a voice now. Right now this is about how I feel.

[20] I am not satisfied that the Applicant has failed to “openly support” the Parenting Plan. In coming to this conclusion, I am mindful that a “child who refuses to go on access visits should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves”: Geremia v. Harb, 2007 CanLII 1893 (ON SC), 2007 O.J. No. 305, para. 44. However, there is no requirement for contact at all costs. The best interests of the child must prevail. Given these circumstances, I find that a resumption of access should be facilitated, in part, through counselling to support the reconciliation of the relationship between father and daughter, especially given T.R.’s anxiety around speaking frankly with her father about her feelings. I order that such counselling be undertaken: E.T. v. L.D., 2017 ONSC 4870, para 51-53. In her submissions, the Applicant indicated that her mother, with whom T.R. has a warm relationship, could accompany T.R. and the Respondent to a lunch or dinner as a means of “breaking the ice”. I expect this step will be taken. I also expect that access will resume before issues between T.R. and the Respondent are resolved and that the Respondent will treat his daughter with sensitivity and respect.

[21] There was much discussion regarding the “best interests of the child”. Amongst other things, this means that a child should have a good relationship with both parents. Both parents should do all they can to ensure that T.R. has a good relationship with them and the other parent. Neither a contempt motion nor a motion to vary achieves that end. Each parent must re-commit to implement the Parenting Plan both in letter and spirit for the sake of T.R.’s well-being.

[22] Order to go as follows:

1. The Office of the Children’s Lawyer (“OCL”) shall be requested to represent T.R. in the usual form;

2. The parties shall complete and file the OCL’s intake form by February 6, 2018;

3. The consent of the parties is dispensed with for T.R. to seek psychological counselling from Dr. Title or Dr. White;

4. By February 8, 2018, the parties shall make best efforts to make arrangements for them and T.R. to attend family reunification counselling as soon as possible in February, 2018;

5. The parties shall attend a case conference on Tuesday, February 12, 2018 at 4:00 pm at 393 University Avenue, 9th Floor, Toronto, Ontario.

6. I shall hear any motions and case conferences in this proceeding, including pertaining to the motion to vary, subject to my availability; and

7. No costs shall be awarded in respect of today’s motions.

Mr. Justice M. D. Faieta

Date: February 1, 2018