Court File and Parties

COURT FILE NO.: FC-09-1815-01 DATE: 20190307 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shane Gagnon, Applicant AND: Marylu Martyniuk, Respondent

BEFORE: The Honourable Justice S.E. Healey

COUNSEL: D. Harris-Lowe, Counsel for the Applicant L. Korhani, Counsel for the Respondent

HEARD: March 1, 2019

Endorsement on Motion

Nature of the Motions

[1] The applicant brings a motion for contempt, alleging that the respondent has committed various deliberate breaches of the terms of the final order dated February 27, 2018 (the “Order”). He also brings a motion to enforce the terms of the Order.

[2] The applicant’s position is that the respondent has no regard for court orders, and that rather than adhering to them, several of which have been made on consent, she interferes with the parenting time granted to him. Further, the applicant believes that the children’s respect for him and desire to spend time with him has been continuously undermined by the respondent, so that the two oldest are now showing a resistance to spending time with him, at least at the outset of his parenting time.

[3] By cross-motion, the respondent seeks a temporary order reducing the applicant’s access granted under the Order, an order requesting that the Office of the Children’s Lawyer conduct an investigation or appoint counsel for the children, and an order compelling the applicant to attend various parenting-related courses.

[4] The respondent’s position is that the children do not want to spend full weekends with the applicant anymore because they are reacting to his temperament. According to her, he is frequently angry and impatient with them, and yells, bullies, threatens and belittles them, along with saying derogatory things to them about her. She wants him to obtain counselling and to attend parenting classes. She asserts that she does not intentionally deny the applicant access to the children, but that it is always challenging to get the children to see their father because they do not want to go. She asserts that the children are at risk of emotional harm. Her counsel argues that there has been a material change in circumstances that justifies altering the access provisions of the Order, which is the emergence of the resistance to access by the two eldest children and the applicant’s uncontrolled emotions.

Background Facts

[5] The parties had an on/off relationship beginning in 2005 and lasting until 2015. They were never married, and resided together for only 7 months during that 10 year period. They have three children: Joseph Shane Gagnon, born June 16, 2006, Jonathan Rich Spartan Gagnon, born March 12, 2008, and Jolie Elsa Gagnon, born June 5, 2016. The last child was conceived during an unsuccessful attempt to reconcile.

[6] Both parties reside a driving distance of approximately 10 minutes away from one another in the town of Bradford, in the County of Simcoe.

[7] When the relationship began, the applicant had just been released from prison after serving a six-year sentence for robbery and manslaughter. As required, the applicant produced his criminal record when he began his last application. In addition to a youth record containing four convictions for break and enter, the applicant has multiple convictions for property related crimes as an adult, which predate his conviction for manslaughter. His record also contains one assault conviction from 1998 and one aggravated assault conviction that accompanied the manslaughter. While not shown on his record, he also admits to a 2014 conviction for possession of stolen property. During the processing of this latest matter, which included additional charges that were withdrawn, the respondent acted as the applicant’s surety, and he was required to reside with her for 7 months.

[8] It is the respondent’s evidence that the applicant has been verbally abusive and controlling throughout their relationship. Her evidence is that this abuse has been occurring since the outset. Her only allegation of physical violence is to say that he once threw a pillow at her.

[9] The respondent relies heavily on the applicant’s criminal record to support her position in this litigation, which is that the applicant has anger control issues that dictate how he interacts with both her and the children.

[10] It is the applicant’s evidence that the parties have always argued and shown a mutual lack of respect. He offers, as an example, a time in 2007 when the respondent destroyed many possessions in his apartment. He has provided photographs that document damage to a television, telephone, laptop and mirror. The respondent has not denied this allegation.

[11] The parties have offered excerpts of text messages which contain sufficient vitriol that the court has no difficulty concluding that their exchanges often devolve into a toxic, immature and mutually disrespectful quagmire.

History of the Litigation

[12] The applicant has brought two applications in this court. The pleadings assert that the applicant started both in reaction to restrictions imposed by the respondent on the time that he was able to spend with the children.

[13] The first application involved only Joseph and Jonathan, and was begun in December, 2009. The applicant only sought access and costs. The pleading states that after the parties first separated in 2006, the parties agreed to an arrangement whereby Joseph and Jonathan would spend alternating weekends with their father from Friday at 7 p.m. to Sunday at 7 p.m.. This went well for over 3 ½ years until, following a brief and unsuccessful attempt at reconciliation, the respondent unilaterally cancelled the arrangement. She would then only allow the applicant to spend brief periods of time with the boys, and so he began the first application. Recognizing that the pleading itself is not evidence, it is nonetheless important to note, given the respondent’s allegations about the applicant’s behavior since the outset of their relationship, how that first proceeding was resolved.

[14] The respondent did not file an answer in the 2010 proceeding, but consented to a comprehensive final order dated July 6, 2010. The 2010 order not only provided for the alternating weekend access which, according to the applicant had been the status quo, but granted custody to the parties jointly, with the primary residence of the children being with the respondent. The applicant was not even seeking custody. The 2010 order also prohibits both parties from physically disciplining the children or speaking negatively about the other or about adult issues in the children’s presence.

[15] It is the applicant’s evidence that the respondent increasingly ignored the 2010 order. After Jolie was born, she used Jolie as a method of restricting his contact with Joseph and Jonathan as well. So, once again, the applicant sought the intervention of the court by starting a new proceeding in September, 2017. He asked for a joint custody order in relation to Jolie, as well as slightly expanded access to all three children that would include, among other things, access between 5 p.m. and 8 p.m. one night each week.

[16] The latter application resolved at the first case conference. Again, the respondent did not file an Answer to place before the court the concerns that she now raises even though, according to her evidence, the applicant’s anger and control issues have existed since she has known him. The parties entered into final minutes of settlement that became the basis of the Order, made by McDermot, J. on February 27, 2018. The Order provides that the parties will have joint custody of Jolie, whose primary residence will be with the respondent. The Order also provides that the applicant would have care and control of the children as follows:

(a) Gradually expanding access with Jolie until May, 2018, at which time Jolie’s access was to coincide with the regular access of Jonathan and Joseph. (b) Every other weekend from Friday at 7 p.m. until Sunday at 7 p.m. However, the Order provides that the Friday access will begin earlier, after school or at 12 p.m., if the children do not have activities or school. (c) Any contiguous statutory holiday on a Friday or Monday attached to the applicant’s weekend. (d) A midweek visit each Wednesday or Thursday from 5 p.m. until 8 p.m.. (e) Holiday access in respect of summer, March break, Easter, Mother’s Day and Father’s Day and Thanksgiving. As the parties were not able to agree upon the sharing of Christmas, that holiday was to be resolved by a motion. (f) Telephone access daily.

[17] The Order also provides that neither party shall take the children out of the Province without the prior written consent of the other party, which consent shall not be unreasonably withheld.

[18] It is also important to note that within that second proceeding, the applicant brought a motion returnable December 7, 2017 in order to resolve parenting time over Christmas for that year. The parties agreed to a temporary order regarding Christmas and ongoing parenting time. The order also provides that the respondent would arrange for counselling with Dr. Christine Fredrick within five days of the order “to address any parenting concerns related to any of the parties’ children”. The respondent was to notify the applicant of the time and date of the session, and the applicant to make himself available.

[19] The applicant has provided a receipt indicating that he attended one double session. It is his uncontested evidence that he alone paid the cost. It is also his evidence that the psychologist told him that he was dealing appropriately with his anger. He also deposes that he has taken anger management courses on more than one occasion.

[20] The respondent’s evidence is that she agreed to the terms of the final order on February 27, 2018 for two reasons. One was that she had “noticed a change in the applicant’s behaviour that month after him taking counselling. His behaviour improved”. The interesting thing about this evidence is that the receipt provided by the applicant shows that the psychological services were not provided until November 22, 2018.

[21] The respondent’s evidence is that she also agreed to the terms of the final order because she felt pressured; she alleges that duty counsel representing her that day told her that she would be noted in default and the applicant would be able to proceed on an uncontested basis. It is a fact that the respondent had failed to abide by the court-ordered extension of time to file her answer. Her deadline was January 10, 2018. And even though she knew that a case conference was to be held on February 27, 2018, in which the issues of custody and access would be addressed, she did not file a case conference brief. This undoubtedly added to her perception that, in her words, “I…felt as though I was not provided with the opportunity to present my case”. The filing and conference date had all been agreed to by the respondent in the minutes of settlement that she signed on December 7, 2017, at which time she was represented by her current counsel, Ms. Korhani. Any lack of preparedness was her own doing.

[22] The current motions first came before the court on December 13, 2018. Olah J. dealt only with Christmas access, and the issues of contempt and parenting time were put over for a long motion to be argued March 1, 2019. While the parties were able to partially agree on how to deal with December 24, 25 and 26 in the years to come, they were unable to reach a full agreement for 2018. The endorsement of Olah, J. from that motion date notes that the respondent was insisting that the children spend the entire Christmas break with her, other than 24 hours. She endorsed as follows:

Costs of today, per Rule 24, is required as an impetus to the RM to comply with court orders.… Because it was necessary for the court to encourage the RM to be flexible, and to comply with court orders, costs are awarded in the amount of $1500 inclusive of disbursements and GST payable by the RM to the AF within 30 days.

[23] The respondent has now commenced a motion to change both of the final orders from 2010 and 2018. That pleading was issued on January 7, 2019. She seeks an order for sole custody for all three children and an order that the applicant have access every Saturday from 11 a.m. to 6 p.m., and every December 25 from 12 p.m. to 6 p.m. She also seeks financial disclosure, and seeks an order that the applicant pay child support based on his actual income.

[24] The 2010 order provides that the respondent will pay support of $700 per month based on his income of $46,300. There is no evidence that he has failed to comply with that order. After the birth of Jolie, the evidence is that he automatically increased that amount without need for a court order.

[25] On January 4, 2019, the respondent brought an urgent motion without notice, even though the applicant’s counsel remained on record. She was requesting an order to allow her to travel with the children to Aruba from January 7, 2019 to January 14, 2019. It was her evidence, according to the endorsement of Jain, J. that the applicant agreed to sign a consent to travel and then advised on the day of the motion that he would not sign the document because the vacation was to fall on his weekend. The respondent denied that this was so. Even though troubled by the circumstances, Jain, J. granted the request, but ordered that the respondent arrange makeup time for the children and the applicant upon their return from the holiday.

[26] On the return day of this motion, the applicant attempted to rely on an affidavit sworn February 26, 2019. After hearing argument, this court ruled that it would disregard the affidavit due to late service, but if there was a finding of contempt, it could be used during the penalty phase. The affidavit attempted to bring this court up-to-date on the events that had transpired since the argument of the Christmas access motion in December, and the case conference held on January 15, 2019.

[27] Nonetheless, this court does have the benefit of the endorsement of Olah, J. from that last case conference. Her endorsement begins as follows:

RM continues to abuse the AF’s right to parenting time. The AF continues to assert the RM continues to be in contempt of the Christmas order and (Xmas Day and January 7, 2019). The RM does not follow court orders.

The Law

[28] The authority to find a party in contempt and the consequences for contempt are outlined in r. 31 of the Family Law Rules, O.Reg 114/99.

[29] The three-part test that must be met in order to find a party guilty of contempt of court was set out in Les Services aux Enfants et Adultes de Prescott-Russell v. N.G. et. al, 2006 CarswellOnt 10335 (Ont. C.A.), at para. 27, as follows:

1. The order which has not been complied with must clearly and unequivocally set forth what must be done or not done;
2. the party who disobeys the order must have done so in a deliberate and voluntary manner; and
3. the evidence must establish contempt beyond a reasonable doubt. Any doubt must be resolved in favour of the person or entity alleged to have violated the order.

[30] In a comprehensive decision in which she reviewed the law relating to civil contempt, Chappell, J. in Jackson v. Jackson, 2016 ONSC 3466 (S.C.J.), at para. 63, set out the following principles relating to a party’s obligation to promote compliance with a custody and access order:

(a) A custody and access order imposes a general obligation on the parties to the order to do all that they reasonably can to ensure that the order is complied with; (b) A party 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. (c) While it may become more difficult to compel a child to comply with the custody and access order as the child gets older, the obligation of a parent to actively promote compliance does not wane based on the child’s age. (d) In the case of an access order 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. (e) Actively promoting and facilitating compliance with a custody and access order requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following: (i) Did they engage in a discussion with the child to determine why the child is refusing to go? (ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? (iii) Did they offer the child an incentive to comply with the order? (iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order? (f) The determination as to whether the alleged contemnor has taken reasonable steps to require the child to attend visits will ultimately depend on the unique facts of every case. The analysis must take into consideration the child’s age, their growing opinions and the evidence regarding their emotional status. (g) The contempt remedy may also be available where the alleged contemnor has engaged in a history of conduct that has had the effect of generally sabotaging the custody and access order.

[31] Once the court has determined that access is in the child’s best interests and has made such an order, a parent cannot leave the decision to comply with the access order up to the child. A parent has a positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order: Godard v. Godard, 2015 ONCA 568, at para. 28. In Godard, the Court of Appeal endorsed that parents are required to do all that they reasonably can to ensure the access occurs in order to avoid a contempt finding, although they are not required to do the impossible: para. 29.

[32] Contempt findings in family law cases should be the remedy of last resort and must only be made sparingly: Godard, at para. 17; Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.), at para. 3.

[33] The respondent’s motion is governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, and in particular sections 29, 24 and 20(2) and (3). The statutory provisions read:

Order varying an order

29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.

Rights and responsibilities

20 (2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

The Allegations and the Evidence

[34] The applicant alleges multiple breaches of the Order, which will be discussed in turn. All dates referred to below occurred in 2018 unless otherwise stated.

Travel outside of country without consent

[35] The applicant states that since the Order was made, the respondent has travelled to the Dominican Republic, New York, Florida in both March and July, and Cuba without his consent, contrary to paragraph 8 of the Order. His evidence is that he was not consulted about the trips, nor offered makeup access time. It is his evidence that, had the respondent travelled with the children without encroaching on his scheduled parenting time, or provided him with makeup access, he would have had no objection to providing his consent to the travel.

[36] The respondent’s evidence is vague on this issue. She does not deny travelling to the locations identified by the applicant, or deny taking the children with her. She does not give evidence that she offered makeup time to the applicant. She addresses taking the children to Florida during their March break, and being aware that the applicant was insisting that she not leave without a travel consent. Her evidence is that she believes that it is in the children’s best interest to travel and experience other countries and visit other family members. She also addresses taking the children to Florida in the summer. It is her view that she was not in breach of the Order, as each party had a one week vacation with the children during the summer. She states in her affidavit, at para. 54, that she did let the applicant know, and I believe that this refers to providing advanced notice to the applicant regarding her travel plans, and that the applicant “was never happy about it”.

[37] What is completely absent in her evidence is the written consent that is required to be obtained by the parent who has travel plans from the other parent. Not only is that consent to be in writing in order to assist the parent who wishes to cross the border, but in order to provide evidence that both parents have discussed and are in agreement with travel plans made by one another involving the children. There is no evidence that she sought to obtain this consent and that it was unreasonably withheld.

Telephone calls

[38] The applicant’s evidence is that he is consistently denied telephone access and quite often two or three days go by without speaking to the children. Attempts made by him to call the children are thwarted by the respondent ignoring his call.

[39] In support of his evidence the applicant has provided some text messages between he and the respondent. On April 9, 10 and 11 he told the respondent that he was hoping to speak to the children. While a portion of her response is cut off, on April 11, she stated “yes I will ask them to call you”. Whether part of the same group of messages or not, another text message from the applicant reads “this is the third day in a row I have been asking to speak with my kids. Three days in a row. Don’t you think it’s good for them to say hi on every day”. The response from the respondent was “I did tell them to call you. I do think it’s important they say hi but I think it’s better if they want to call you. I think a lot of things are better but they aren’t that way”. On May 21 he again wrote “you didn’t have the kids call me and it’s been two days I’m supposed to have phone access every day. Go ahead and give me an excuse…” The text message from the respondent in reply was “shut up! I did ask them to call”. In an exchange with no apparent date, the applicant wrote “don’t you think it’s wrong to only communicate well with me when you want something. It’s so transparent.” The respondent wrote “what??? Why would I get the kids to call you. You never asked I don’t do that just because”.

[40] The affidavit of the respondent is silent with respect to the telephone access that she agreed to have occur, and which was ordered to occur, on a daily basis. She provides no evidence of efforts made by her to enforce that term of the Order.

Easter weekend

[41] The Order provides that the parties will share the Easter weekend holiday as agreed each year. If they cannot agree then the children shall spend from Thursday after school until Sunday at 1 p.m. with the respondent and the balance of the weekend until Monday at 7 p.m. with the applicant.

[42] The applicant’s evidence is that he was unable to contact the respondent to arrange his access on the Sunday. He has provided a text message dated April 4 which reads in part “and I texted you three times on Easter Monday so I could visit them and you ignored my text. Only because I dropped by at 8 p.m. did I see them at all thx.” The balance of the text message shows the type of confusion that exists in the parenting schedule, as the applicant also wrote “you had the kids two weekends in a row this is why I took them when you got back. Then last weekend you had them. That’s why I didn’t pick them up. You didn’t call or text me once to pick them up… Understand Marylu there is no dedicated weekends there are only turns for weekends. You clearly spent last weekend with them. This weekend they need to be with me.”

[43] The respondent’s evidence is that the applicant was supposed to pick up the children that weekend on Sunday at 1 p.m. but he did not show up. She provides no evidence of making any enquiries about his absence.

Weekends the respondent took the children to Florida

[44] The applicant asserts that the respondent took the children to Florida without obtaining his consent on two of his access weekends, although he has listed three - March 13, April 3 and July 25.

[45] The respondent does not address the weekend of April 3 in her affidavit. She does state that she took the children to Florida in the summer, but was not in breach of the order as each parent had one week of vacation with the children during the summer.

[46] March 13 fell during the school March break and will be discussed separately. April 3 does not, although it followed Easter Monday.

[47] With respect to the trip on July 25, the Order provides that each party will have up to four weeks of vacation with the children during the school summer vacation, which may be exercised in two consecutive week, subject to certain conditions. However, paragraph 4 of the Order indicates that such access will interrupt the regular schedule.

March Break

[48] The Order provides that the applicant and respondent shall alternate the March break week in each year, with March break in 2018 being with the respondent. Again, this provision falls within paragraph 4 of the Order, which indicates that the special times listed therein occurring throughout the year will interrupt the regular schedule.

[49] The applicant’s evidence is that the respondent was travelling in the United States during his access weekend on the March break.

[50] The respondent’s evidence is that she was aware of the applicant’s concern that the March break fell into his weekend and he did not want the vacation to cut into his time. She discussed the fact that he was adamant that she obtain a travel consent from him. Again it is his evidence that, had the respondent travelled with the children without encroaching on his scheduled parenting time, or provided him with makeup access, he would have had no objection to providing his consent to the travel.

[51] Again the text messages provide insight. First, there is an acknowledgement by the respondent that her March break plans will cut into the applicant’s regularly scheduled weekend falling on March 16-18. She explained that they would be leaving for Florida midweek, on either March 14 or 15, because Jonathan wanted to have friends over on his birthday on March 12. She also wrote “this is more than enough time advanced. My cousin in Florida planned this out for March break I couldn’t make it on my weekend because Jonathan wants to go up to lodge so only this will work for our kids to get together over the March break”. Later during the exchange she wrote “I realize I should give you at least five days notice if I have to cancel a visit. I’m also switching with you in all fairness”.

[52] In that text exchange, the applicant indicated he would not switch weekends but would have the children two weeks (probably meaning weekends) in a row… I will also need you to agree that for next March break if this same thing happens that I will have the seven days and I’ll be able to take them away”. This exchanged spiraled lower and lower, with the applicant ultimately telling the respondent that he would provide the court order to airport security to ensure that she not leave the country without his written permission, whereby she would be arrested and separated from the children, but he did not want the children going through that ordeal.

April 27 Professional Activity Day

[53] The exact wording of the relevant provision of the Order is:

3b. Every other weekend from Friday at 7 p.m. or earlier (after school or at 12 p.m.) if the children do not have activities or school until Sunday at 7 p.m., and any further or other access that the parties may agree upon from time to time.

[54] The applicant’s evidence is that the respondent made plans to take the children to do archery in Toronto, and brought the children home even later then his normal pick up time. He has attached a portion of a text message exchange with the respondent in which he points out that it was a holiday for the children and that the respondent did not inform him of this, made plans for them, and brought them home late, thus interfering with his own plans. A responding message from her acknowledges that they were home at 7:40 p.m., and that she had asked Joseph to let the applicant know that something was happening at Canal Road (presumably referring to traffic on the 400 Highway).

[55] The respondent’s evidence is that she made an archery appointment for the day, which she acknowledges was a Friday adjoined to the applicant’s weekend. It is clear from the exchange of text messages that this was not discussed with the applicant in advance. The respondent sent a text message around 4:30 p.m. to inform him that the appointment was pushed back by one hour. She acknowledged that they were initially supposed to be home by 6:30 p.m. and that she told him that they would be home by 7:30 p.m. In her responding affidavit she includes a text message in which the applicant becomes abusive in his language toward her. It is clear from the messages that he had no advance notice of the event, and that he had made plans involving other people that he had to cancel at the last minute because of the respondent’s timing.

[56] The respondent’s affidavit sums up her point of view on the issue as follows: “He always needs to be in control and he cannot understand that the children are not property and that it is important to be flexible with our time with the children so that it is consistent with the children’s best interests.”

[57] I would pause here to note that although the applicant places blame on the respondent for the fact that he did not know that the children had a day off from school, that information is publicly available on the Simcoe County Board of Education website, where a yearly calendar outlines all school holidays and professional activity days. It is usually published in August. It was his responsibility to inform himself. However, the balance of what occurred that day rests on the respondent.

June 12 weekend

[58] The applicant states that the respondent arranged to have Jolie’s birthday party on the Sunday of that weekend, even though it was during his parenting time. I infer from the evidence overall that Jolie had not been permitted to be in the applicant’s care at all that weekend. Instead, he brought the boys back so that they could participate in Jolie’s birthday party. Jolie’s birthday falls on June 5, which was midweek on a Tuesday.

[59] The respondent does not explain in her evidence why Jolie’s birthday party was arranged for June 12. She alleges that they spoke about it over the phone and the applicant agreed. She states that the applicant brought the children home earlier than 7 p.m. and only therefore lost a couple of hours with them plus they wanted to be there for Jolie’s birthday party.

[60] The applicant and the respondent did arrange, however, for the respondent to go to her home for dinner on the actual date of Jolie’s birthday.

Father’s Day

[61] Paragraphs 4(e) and 4(f) of the Order deal with Father’s Day and Mother’s Day. The Order states that the applicant shall have the children every Father’s Day, regardless of the weekend access schedule. Similarly, the Order provides that the respondent shall have the children every Mother’s Day, regardless of the weekend access schedule.

[62] The applicant alleges that the respondent made the children available on Father’s Day at noon. By contrast, his evidence is that he brought the children to her house on Saturday night of Mother’s Day weekend, with flowers for the children to give to her, even though it was his weekend with the children.

[63] The respondent’s evidence is that Father’s Day fell on Joseph’s birthday and they agreed to share that weekend so they could both have time with him. Joseph had a birthday party the day before his birthday with a sleepover. According to her, the applicant picked up the children at 11 a.m. on Sunday.

[64] There are no specific provisions in the Order dealing with parenting time on the children’s birthdays.

[65] Joseph’s birthday is June 16. Father’s Day was June 17. If Joseph had a sleepover birthday party the day before his birthday, there should have been no interference with Father’s Day.

Parenting time with Jolie

[66] After some graduated access, the Order provides that by the first weekend in July the applicant’s parenting time with Jolie shall be consistent with that of the boys’ schedule ie. alternating weekends and midweek access.

[67] The applicant’s evidence is that as of July, the respondent was refusing to cooperate with having Jolie spend time with him at all, unless it was in her home and in her presence. On July 16 he sent the respondent a text message that reads “I’m hoping for our daughter’s sake you can arrange a time for an hour or so that she can visit with me. I’m sure that she’s missing me”. He indicated that he would take any time at all, even 15 minutes in the parking lot or lobby of the police station if that would make the respondent feel better.

[68] The respondent does not address this issue in her affidavit at all, other than her allegations that “the children” are afraid of the applicant. The respondent has also alleged that the applicant spent very little time with Jolie following her birth, that she has encouraged him to spend more time with her, and that she never interfered with his access with Jolie.

[69] The applicant has attached a multitude of photographs as exhibits to his responding affidavit showing that he has been in Jolie’s presence since she was very young, with all of those photographs showing him holding her or interacting with her. The photographic evidence of the two boys interacting in activities with their father is also extensive.

Mid-week access

[70] The Order provides for mid-week access. The Order provides that the applicant is to have parenting time on either Wednesday or Thursday from 5 to 8 p.m., to occur at a location chosen by the applicant, unless the children have a prearranged extracurricular activity. If they do have such an activity, the applicant is to take them to the activity.

[71] The applicant’s evidence is that he is consistently denied mid-week access. He has attached text messages which support his assertion. As an example, on June 28, a Thursday, the respondent wrote “Joseph and Jonathan are with friends after school today so we have to cancel tonight”. And “do not pick them up tonight, do not pick them up this weekend. You seriously need to know your place as their father and understand how to deal with it.”

[72] The respondent’s evidence is that mid-week has always been a problem. Her affidavit states that the children work and are involved in activities such as the film industry, with the children being on set and attending auditions. She states that “sometimes there are time adjustments last minute that fall on the applicant’s midweek access visits”.

Summer Holidays

[73] Paragraph 4(a) of the Order addresses the summer. It provides:

Both parties shall have up to four weeks of vacation with the children during the school summer vacation period, which may be exercised in two consecutive week periods subject to the conditions below:

(i) Access with Jolie shall be for a maximum of one week, with a mid-week visit for the other parent arranged, until she is four years of age. (ii) This may be subject to the advice of a therapist agreed to by the parties. (iii) The parties shall notify the other of his/her choice of weeks by May 1 of each year.

[74] The applicant had one week of vacation with the two older children, when he took them to Calgary. His evidence is that he was allowed to have Jolie stay with him for a long weekend. Otherwise, the respondent refused to discuss summer holiday access or to make the children available in accordance with the Order.

[75] The respondent does not deny these allegations. She references the trip to Calgary in her affidavit, and states that the children were stressed about going and that Joseph expressed to her how much he disliked the trip while he was gone. She was in contact with him throughout the trip through text messaging. The subsequent text message exchanges between the respondent and the applicant make clear that she was unwilling for the children to spend more summer holiday time with their father because of what she asserts was the children’s negative reaction to that trip and toward their father generally.

Friday, August 17

[76] The applicant’s evidence is that this was his weekend to have the children in his care. That morning, he received a text message from the respondent telling him that Joseph would be unavailable because he was going to work with her at a festival that evening and the next day. The respondent told him that he was to pick up the other children. The text message exchange shows the respondent writing that she had asked Joseph to call his father to “let him know”, or alternatively that Joseph was going to speak with his father about this when they went out mid-week.

[77] The respondent agrees that this interruption in the schedule occurred. She believes that it was a valid interruption because of the reason for it – Joseph was expressing a desire to work and she believes that it is in the children’s best interests for the parties to be flexible about the parenting schedule to accommodate these things.

Involving the Children

[78] The Order provides that neither party shall speak negatively about the other party in the children’s presence, and both shall make their best efforts to prevent other parties from doing so. Also, neither party shall discuss this court case or any other adult issues involving the parties with the children.

[79] When the applicant went to the respondent’s home to pick up Jonathan and Jolie for the weekend referred to in the preceding paragraph, Jonathan became upset and was refusing to go with his father because Joseph was not going. The parties began to argue about this through text messaging. Without the applicant being immediately aware that this was occurring, Joseph began participating in the text messages. The respondent later advised him that Joseph had access to all of their text messages because their phones were connected. It is clear from the text messages that Joseph was advocating for Jonathan, and taking his mother’s position.

[80] The applicant has provided additional text messages. The evidence is not clear whether these exchanges happened on the same day as August 17 or a different date. The respondent made two statements reflecting Joseph’s involvement in the exchange of messages: “I’ll get right in that lol your son just red that and also thinks your way out of your mind (sic)” and “I am not allowing him to read you fool you are sending such texed. His phone is linked to mine you can’t hide your stupidity (sic)”.

[81] The respondent’s position is that this involvement was not deliberate. Her evidence is that she does her best to hide messages from the children but is not always with her phone and sometimes the messages appear through her Bluetooth in her car and the children can see them. She acknowledges that Joseph’s phone was at one point connected to hers, so that when they were together he would sometimes see the messages from the applicant. She states that she did not know that Joseph would have access to the messages from the applicant; she had set up the access so that she could see Joseph’s messages.

The Respondent’s Motion to Vary

[82] As indicated, the respondent seeks to vary the access order, both on a temporary and permanent basis as set out in her Motion to Change. She believes that it is in the best interests of the children to see less of their father because they are now resisting spending time with him. There is objective evidence of this where Joseph is concerned, through text messages exchanged with his father, and the one incident where Jonathan was upset because Joseph was not accompanying him to his father’s house. There is no evidence regarding any upset where Jolie is concerned.

[83] I will address only one incident that I believe highlights the dynamic in this separated family. The applicant was taking the children to Calgary for the week in the summer. The respondent’s evidence is that the children were stressed about this for a month before it occurred. On the way to the airport Joseph was disregarding his father’s demand that he take his feet off the car’s dashboard. When Joseph did not comply, the applicant warned him that he would throw his shoe out the window. Joseph did not comply with his father’s threat and the applicant made good on it, took off Joseph’s shoe and threw it out the window. Joseph had an extra pair of shoes in his suitcase to put on at the airport, and his father purchased another pair for him while in Calgary.

[84] Joseph told his mother about the incident via text message. He told his mother not to address it with his father while they were away because “I don’t want a problem in this hell”. The respondent’s texts with Joseph about this incident are: “no big deal about the shoe it’s replaceable daddy will have to replace ok”, “and I know I don’t have to explain his behaviour was wrong because you already know that was not a good way to handle the situation”. They talked about the fact that the applicant had expressed that it was a lesson. Joseph expressed that it was a horrible way to show someone how to learn. His mother responded “yes I agree because it’s not his property to throw away and his hand on your foot taking off the shoe is aggressive not right but he really is just looking for respect and that’s his way”.

[85] The respondent also wrote “a few more days babe. You must be enjoying some time”, and “is Jonathan okay tho?”, and “is Jonathan happy?” Later on in the vacation the topic returns to the shoes, with Joseph telling his mother that his foot hurts because of the shoes. The respondent wrote “tell daddy your feet hurt I bought you those shoes especially for your comfort. What kind of shoes are you wearing please don’t tell me the converse? You need good walking shoes.” Joseph responds by telling her that he is wearing his converse running shoes. She wrote “that’s why your feet hurt. Converse are horrible for walking and comfort. Especially all the activities you are doing [sad face emoji.]. That makes me sad and [angry face emoji] because you had great shoes for this type of stuff”.

[86] When he was asked whether Jonathan was happy, Joseph wrote “Jonathan’s sad for me because of the shoe”. The respondent responded “I’m sure it was a very disturbing situation I’m sooo sorry [sad face emoji]. But it could have been worse so be happy it was not worse K lol love you”. She asked for clarification from Jonathan about whether the applicant grabbed the shoe off his foot. Throughout the exchange she gives the child encouragement to have fun, but the subtext under the messages is for him to attempt to have a good time in a bad situation. Along the way she wrote “you make fun you create your mood to stay positive and keep your brother close to you k take care of him”.

[87] The applicant made a threat to do something extreme; the situation could have been handled in any number of more effective ways. The holiday got off to a much rockier start than necessary. It undoubtedly affected Joseph’s feelings toward his father, angering him even more than he already is. The respondent then made matters much worse by engaging with Joseph in a discussion about the incident without ever finding out from the applicant what actually occurred. While it may not have been what she would have done in the same situation, she deliberately undermined the applicant’s decision to discipline, in a situation that she knew nothing about. Worse, she made comments to Joseph that can only be interpreted as suggestions that his father is someone to fear, and encouraged him to assume the role of protector of his younger brother.

Analysis

[88] There has been no material change in circumstances since the Order. These parties have the same dynamic that they have always had, except with the conflict becoming more entrenched. And the children have grown older, become more involved and vocal, and more impacted by their parents’ behavior. All of that coupled with normal pre-adolescent conduct.

[89] The applicant is a strict authoritarian who feels that he must over-respond to the respondent’s lax attitude toward court orders and her disrespect for his role in their children’s lives. The applicant appears to be attempting to correct the impact of the respondent’s attitude on how the children perceive him. Yet he needs to learn to do so in a much more effective tone, and with different methods than those that are contributing to Joseph’s alienation. To his credit, he partly understands this; in his affidavit he describes how he has begun a dialogue with the boys about respect and understanding one another’s viewpoints.

[90] To make matters worse, the applicant struggles with a temper that does not always remain in check. But the respondent presents no convincing evidence that the applicant has ever been physically or verbally abuse to the children, and aside from tossing a pillow at her, no evidence of physical abuse toward her. His language in the text messages sent to the respondent is, as she protests, abusive and vulgar and immature. The respondent points to this as evidence of his character. She utterly fails to see how she has been the catalyst for the poor interaction by making unilateral decisions in breach of the Order.

[91] Although the applicant has a history of offences involving dishonesty, I find that the evidence presented by him on this motion is credible. It contains no inconsistencies, and the applicant has offered up evidence that also reflects poorly on his judgment at times. The respondent’s evidence, by contrast, is general, vague and contains inconsistencies when recounting events. While I accept that there has been much verbal unpleasantness throughout their relationship, I reject the respondent’s evidence that casts her as a victim in this dynamic. When she acted as the surety she describes having to live with the applicant as being one of the worst periods. Yet she held all of the control; if he was mistreating her as she alleges, she had only to revoke her consent and the arrangement would be over. And her text messages to him reveal frustration, but her manner of taunting him betrays any true fear.

[92] The respondent excuses all of her behavior as being in the best interests of the children. She accuses the applicant of inflexibility where the children’s needs and plans are concerned. What she misses is that flexibility in relation to court orders only works in situations where two parents 1) recognize what is required of them; 2) respect that the other parent has rights; 3) do not impose changes unilaterally and without the express agreement of the other parent; and 4) are prepared to offer makeup time where a change impacts on the other parent’s time with the children. None of these are present for the respondent.

[93] The respondent does not acknowledge how she is aligning the children with her and turning them away from their father. In her affidavit she writes that there is nothing wrong with her parenting.

[94] Although the respondent criticizes the language used by the applicant in addressing her at times, she too uses belittling and profane language that can predictably provoke a negative reaction from the applicant.

[95] The respondent seeks the involvement of the OCL. There is no good reason to do this given that there are no clinical issues raised in this case other than the dysfunctional dynamic that exists.

[96] And although the respondent wants the applicant to take various parenting courses and have psychological intervention, these are interventions needed on her part as well. The applicant has indicated a willingness to do so, and has also carried through with obtaining some assistance in the past. The respondent has not yet gained any understanding of how she is harming the children.

[97] The first step in resolving some of these long-standing communication problems is to have the parties strictly abide by the terms of the order that they agreed to, and to present a common front to the children that that is what they require must happen. No changes to the schedule should occur without the express mutual agreement of the parties, in writing, with zero involvement from the children.

[98] I find that the respondent has committed multiple breaches of the Order. Specifically, I find that she has wilfully and deliberately decided not to follow several clear provisions: para. 3(a)(iii) regarding access with Jolie; para. 3(b) regarding alternating weekend access; para. 3(d) regarding mid-week access; para. 3(e) regarding daily telephone access; para. 4(a)(i) and (iii) regarding summer access; para. 8 regarding travel with consent; and para. 10 with respect to discussing adult issues in the presence of the children.

[99] Where I have not found a breach, I find that the Order is sufficiently ambiguous to not meet the test, or that the supporting evidence does not prove a breach beyond a reasonable doubt. In particular, para. 3(c) concerning professional activity days is awkwardly worded, although I have serious doubts that the respondent was misled by the wording. Nonetheless, the standard of proof is not there. Similarly, in paragraph 4(c), the March Break “week” is not defined, and the Order contemplates that such a special holiday will “interrupt the regular schedule”. With respect to Father’s Day, there is no set time for an exchange to occur. With respect to the Easter weekend, the evidence is not clear about whether the applicant attempted to exercise the access on Sunday at 1:00 p.m as set out in the Order.

[100] I find beyond a reasonable doubt that the breaches enumerated were carried out wilfully and deliberately by the respondent. The evidence shows has not actively encouraged the boys’ attendance and involvement in compliance with the Order; instead, she has deliberately allowed them not to spend time with their father, not call him, take them places when they should be with him, and made plans when they should be with him. She has very deliberately engaged Joseph in the tug-of-war over time spent with the applicant. She knowingly has permitted Joseph to be involved in text messaging regarding these matters. Excusing the children’s exposure to the applicant’s messages by saying that she cannot control the Bluetooth feature in the vehicle is ridiculous and shows how little the respondent actively does to shelter the boys from the interactions. She has clearly engaged in a history of conduct that has had the effect of generally sabotaging the custody and access order.

[101] While all of the evidence reviewed on this motion thus far proves to this court that that respondent’s breaches have been flagrant and deliberate, the respondent’s own words, sent via text message, leave no room for argument on this point: “The judge does not rule my life or make decisions for my kids Shane. I’m sorry you live in that kind of mentality but I don’t. I respect people and the law but my kids are everything and I do my best to keep them happy children”.

Order

[102] Paragraphs 5 to 8 of the order below addresses, in part, the issue of penalty. This court will be monitoring the respondent’s compliance with these terms between the date of release of this decision and the return date.

[103] For clarity, paragraph 7 does not mean that the respondent is being given the final say where there are discretionary aspects to the Order that must be worked out by the parties.

[104] To assist the respondent in her attempts at compliance with the Order, there are a few aspects of the Order that require interpretation. Based on the evidence presented on this motion, I interpret the Order in accordance with the intentions of the parties at the time that it was entered into.

[105] First, the reference to “activities” in para. 3(b) refers to extracurricular activities occurring on a regular basis. What that means is that on Fridays when school is in session, the children will only wait to be in the care of the applicant until 7:00 p.m. if they have no such regularly scheduled activities. It does not mean that the respondent can arrange intermittent acting gigs or playdates or other activities on those Fridays. If they do not have such regularly scheduled activities, they are to be in the applicant’s care after school. Further, when the children do not have school ie. it is a professional activity day, the applicant is entitled to have the children in his care at noon.

[106] Second, the children are never to be in the care of the respondent on the night of the mid-week visit between the hours of 5 and 8. If there are regularly scheduled activities, the applicant is to take them. It does not mean that the respondent can arrange acting gigs or playdates or other activities on those evenings. When scheduling such things, she is to avoid Wednesdays and Thursdays.

[107] The parties are encouraged to pick one of those dates as the recurring date for ease of scheduling for both parties.

[108] Third, in paragraph 4 of the Order, in all circumstances, the term “week” means 7 consecutive days. Where possible, the parties should select their regular weekend and 5 days contiguous to that weekend when arranging any holiday time involving a “week”. If that is not possible, and the 5 days absolutely must attach to what would regularly be the other parent’s weekend (where, for example, two consecutive weeks of summer holidays occur), the other parent is to be provided with the same amount of time when arranging for holiday access.

[109] Fourth, there is no term of the Order that permits the respondent to cancel the applicant’s access on 5 days’ notice, although she references her belief that there is in at least one text message. There is a term requiring the applicant to give such notice if he is required to cancel a regularly scheduled access weekend.

This court orders:

1. There is a finding that the respondent is in contempt of the Order of February 27, 2018.
2. The parties shall make arrangements through the trial co-ordinator to schedule a date to address the issue of penalty (1 hour).
3. Each party shall have the right to file affidavit evidence bearing on the issue of penalty. The applicant’s affidavit shall be served 10 days prior to the return date. The respondent’s affidavit shall be served 5 days prior to the return date. There will be no right of reply.
4. The respondent shall comply with all terms of the Order. This includes shielding the children from any and all communication that must take place to make any arrangements required by the Order.
5. The respondent shall register for the next available 9 week parenting course offered by JMS Law, and shall attend all sessions with the applicant. The parties will share the cost of the course equally.
6. The respondent shall pay $180 to the applicant, being one-half of the cost of the counselling session with Dr. Fredrick, in accordance with the order of December 7, 2017, prior to the return date.
7. The respondent shall immediately provide the applicant with a calendar for the months of March, April, May and June, outlining each of the parties’ parenting time, including the times of exchange, all of which must comply with the Order.
8. Both shall also comply with paragraph 4(a)(iii) of the Order by notifying the other, in writing, of his or her choice of summer holiday weeks by May 1, and shall bring such written notice with them to provide to the court on the return date.
9. The parties are to address the cost of the motions at the return date, within the 1 hour allotted.

Justice S.E. Healey Date: March 7, 2019