Court File and Parties
COURT FILE NO.: FS-19-12-00 DATE: 2019 07 02 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Edyta Janowski, Applicant AND: Jacek Zebrowski, Respondent
BEFORE: Trimble J.
COUNSEL: Applicant – Self Represented Respondent – Self Represented
HEARD: 18 June 2019
Endorsement
[1] On June 19, 2019, I heard the Respondent Father’s motion for an order that the Applicant, Mother is in contempt of the February 21, 2019 order of Fowler-Byrne J., by denying Father access time as set out in that order.
History of These Proceedings
[2] For an application that was started on January 17, 2019, the issue of Father’s access has been before this court 7 times, including the motion before me, two of which were ex-parte at Mother’s request, or as a result of her late service.
Appearance #1 – Mother’s ex-parte Motion:
[3] On January 17th, 2017, Mother brought a motion, without notice, seeking sole custody of the child of the marriage, Isabella Alyssa Zebrowski-Janowski, DOB August 20, 2011, and permitting no access between the Respondent and the child except by consent or court order, a three-year restraining order prohibiting any contact (direct or indirect) between the Applicant and the child on one hand and the Respondent on the other, and asking for police enforcement.
[4] Doi J., ordered that the motion should be served, and the motion returned on January 22. Doi J., and gave a restraining order, as requested, until then.
Appearance #2 – Mother’s ex-parte Motion on Notice:
[5] On January 22, 2019, the parties appeared before Woollcombe J. On the consent of the parties, she ordered, on consent, that the child begin counseling. She also ordered access for Father in public spaces, although unsupervised. Any communication between the parties would be through a defined individual who agreed to act as intermediary. Otherwise there would be no contact between the parties. Woollcombe J., ordered that the Respondent would not consume alcohol beginning eight hours before any access, through to the end of the access. A case conference was set. Woollcombe J., commented:
“In my view, costs should not be ordered. While I agree that this motion should not have been necessary and that the parties should have worked this out, the situation since early January appears to have made this impossible as both sides have been unreasonable with respect to Isabella. There will be no costs order.”
Attendance #3 – First Case Conference:
[6] On February 21, this matter was before Fowler-Byrne J. for the Application’s first case conference. At that time the parties entered into an agreement which was made a consent order, which provided for access between Father and the child. It also addressed child support.
[7] The order provided that there would be joint custody of the child with primary residence with the Mother. Father was to have parenting time every other weekend from Friday at 5 p.m. to Sunday at 6 p.m., and every Monday and Thursday from 5 to 8 p.m. Pickups and drop-offs were to take place at a public place until the suspension of Father’s driver’s licence ended. Each party was to have two non-consecutive weeks with the child in the summer and summer access would override regular access schedules. The order provided standard provisions about the parties not speaking ill of each other and not taking the child out of Ontario without the consent of the other.
Attendance #4 – Father’s Motion to Compel Mother to Follow Fowler – Byrne J.,’s Order:
[8] Father brought a motion May 2, 2019 for an order that the Mother comply with Fowler-Byrne J.,’s February 21 Order. Father indicated that on his first parenting time date following Woollcombe J.,’s Order, he attended to pick up the child after school and found that Mother had removed the child from school, permanently, without notice. On the next parenting time date under Fowler-Byrne J.,’s Order, the child texted the Mother to come and take her home. Father permitted this. At 11:00 that day, Mother made allegations to police that Father had physically abused Mother. There was no parenting time from February 22, 2019 and the return of the motion on May 7, 2019 before Peterson, J.
[9] Peterson J., held that the Father’s request for an order to enforce Fowler-Byrne J.,’s Order was redundant. Fowler-Byrne, J.’s Order was in full force and effect. Peterson J., said, however:
“… Justice Fowler-Byrne’s order is in effect and Miss Janowski is obliged to comply with it. She acknowledged to the court that she has not complied with the order and that she has blocked Mr. Zebrowski’s access to their daughter. She claims to have done so based on reports of abuse by her daughter (i.e. reports that Mr. Zebrowski is abusing his daughter) and on allegations that Mr. Zebrowski has been impaired by alcohol consumption during visits. Her allegations in that regard are unsubstantiated by evidence.
Ms. Janowski requests an adjournment of Mr. Zebrowski’s motion, but what she is really seeking is a temporary suspension of Justice Fowler Byrne’s order for a few weeks so she can obtain a new legal aid certificate, retain counsel, and bring a motion to change Justice Fowler-Byrne’s order. I’m not prepared to order suspension of Justice Fowler-Byrne’s access order because I am not persuaded by the evidence that Mr. Zebrowski poses a threat to his daughter. It is in the child’s best interest to maintain a meaningful relationship with both parents and the current parenting plan, as ordered by Justice Fowler-Burn achieves that goal.
Ms. Janowski is free to bring a motion with supporting evidence to seek to have a parenting plan changed, but until the court orders otherwise, she is obliged to comply with the consent order of Justice Fowler-Byrne dated February 21, 2019. Mr. Zebrowski is similarly obligated to comply with that order, as amended, by me today (i.e. he shall not consume alcohol during access visits or eight hours prior to access business).
I advised Ms. Janowski, who is now self-represented, that her continued willful noncompliance with Justice Fowler-Byrne’s is order may result in contempt proceedings against her and I cautioned her regarding the possible sanctions for contempt.
Mr. Zebrowski seeks an order for costs on a substantial indemnity basis in the amount of $2,000. Ms. Janowski has limited ability to pay costs, but her conduct has been unreasonable and necessitated the bringing of this motion. I therefore order her to pay the Respondent’s costs in the amount of $1,500 all-inclusive within 60 days.”
Attendance #5 – The First Attendance on Father’s Contempt Motion:
[10] On May 28, Father brought this contempt motion before McSweeney, J. Mother sought an adjournment so she could retain and instruct counsel, and file responding material. McSweeney J., granted the adjournment to June 18, 2019, but said:
“… Mother has complied almost not at all with allowing parenting time to Father. This, despite Father’s additional motion on 2 May 2019 to enforce the [February 21, 2019 consent order of Fowler-Byrne, J.]. We are now at the contempt stage.
Mother’s understanding of the [February 21 2019] court order, and her disobedience, are made out on the record and admitted by her [at the motion].
However, the final part of the test for contempt requires a court to determine that the noncompliance was willful. The court must find all parts of the test are met beyond a reasonable doubt in light of the consequences of contempt.”
[11] Mc Sweeney J., warned Ms. Janowski that if she could not comply with the February 21 2019 consent order “…it is her obligation to bring a motion to vary, amend, or set aside that order. She has not done so and now faces this contempt motion .”
[12] McSweeney J., also warned Ms. Janowski that if she was found in contempt, serious consequences could befall her. She ordered that the OCL become involved, and that Isabella’s passport be surrendered to the Father and held in his lawyer’s file until further order of the court. She also ordered access on the three Sundays between then and June 18, 2019. Finally, McSweeney J., set a timetable for Ms. Janowski to file her responding Affidavit, and Father to file his in reply.
Attendance #6 – Mothers Motion, Short Served:
[13] Instead of obeying McSweeney J.,’s Order, on June 13, 2019, at 5:30 p.m., Mother served a motion and supporting Affidavit on Mr. Zebrowski’s lawyer seeking a restraining order. That motion was returned as an add-on to Doi J.,’s list on June 14, 2019. Perhaps due to late service, neither the Father, nor his counsel appeared before Doi J.
[14] I note that the Notice of Motion that Doi J., referred to is not in the Continuing Record. The affidavit before Doi J., is what was filed for this motion before me.
[15] The basis for Mother’s motion for a restraining order was that on June 6, Father assaulted her. On June 9, Father was arrested and charged with assault, but released on his own recognizance. The terms of release in his Recognizance dated June 9 included that he have no contact with Mother except as provided for in a family court order made “after this date” or with respect to child access, and then only through a third party.
[16] Having heard only from the Mother, Doi J., suspended all access until the issue of access could be addressed on a full record on June 18. He refused to grant the restraining order, holding that the terms of release were sufficient.
[17] Doi J. noted, as had McSweeney and Petersen, J., that Mother continued to disobey orders. She permitted parenting time between Father and the child on June 9 as provided by McSweeney J, on May 28 (and not Petersen J., as Doi J., noted). Mother insisted, unilaterally, that parenting time should proceed only if it was supervised. McSweeney J., only provided that the child’s aunt should bring the child to and pick the child up from access.
[18] Father swore in his Affidavit of June 12, 2019 one time following McSweeney J.,’s May 28 endorsement, the child was not brought to the access location by the child’s Aunt Katrina, as ordered. Rather, the child was brought by Mother’s adult son from another relationship. At another time, the Mother, herself, showed up at the Father’s access time along with another woman who refused to identify herself. Both Mother and the friend spent the entire parenting time taking notes and recording the access time on her phones.
Attendance #7 – Hearing of Father’s Contempt Motion and Mother’s Cross-motion for Sole Custody:
[19] By Notice of Motion dated June 12, 2019, the Applicant brought her cross-motion also returnable on June 18, seeking an order for interim sole custody of the child, and dismissing all other motions before the court. It appears that she also asked the court to overturn the cost award made by Peterson J., although it has been paid.
[20] Notwithstanding that, the Mother did not serve her motion properly, and notwithstanding the prayer for relieve in her cross-motion, I proceeded on the basis that the Mother wants to suspend Father’s access, completely, whereby undoing the consent orders of Fowler-Byrne J., and the later Orders and endorsements of Petersen, and McSweeney J.
Issue:
[21] In this case, Mother admits that Fowler-Byrne J.,’s order was clear with respect to Father’s parenting time, that she received and understood it, and that she intentionally did not comply with it. The test for contempt, therefore, is met based on Mother’s admissions, alone.
[22] Regardless of Mother’s admissions, I would have found Mother in contempt based on the evidence and the endorsements made to date in this file.
[23] The only issue on this motion, therefore, is whether Mother’s intentional disobedience is justified within the case law. The burden of proving this defence is on the Mother, on the civil standard.
The Law of Contempt in Family Proceedings:
[24] There is a large body of caselaw on civil contempt in family proceedings. From that body of caselaw, I distill the following legal principles:
a. The purpose of a contempt order in Family Law is to force compliance by the defaulting parent with an order, not punishment for non-compliance. The contempt order acts as a deterrent to the specific offender and others of a similar disposition from defying court orders and from undermining the administration of justice (Starzycka v. Wronski, 2005 ONCJ 329, [2005] O.J. No. 5569 (C.J.), at para. 16).
b. Court orders are not suggestions, guidelines, or invitations open to acceptance or rejection by the parties. Disobedience must have consequences (Purcaru v. Purcaru, 2010 ONSC 4031, at para. 37, aff’d 2010 ONCA 92). The court makes decisions when the parties cannot do so, or where supervision of the decision is required to protect the children. Whether an order is on consent or results from a contested hearing is of no moment. The orders are of equal force and must be obeyed.
c. Contempt is a remedy open to either party under FLR 31. It is also a remedy that the court can impose on its own initiative where the court is required to uphold the integrity of the legal system. (Zalman v. Zalman, [2002] O.J. No. 1818 (S.C.)).
d. Civil contempt is the “big stick” of civil litigation, a remedy of last resort imposed sparingly and with great caution in family proceedings, and only where other means to resolve the matter have failed (Hefkey v. Hefkey, 2013 ONCA 44, at para. 3, Fisher v Fisher, [2003] O.J. No. 976 (Ont. S.C.), at para. 11, Woronowicz v. Conti, 2015 ONSC 5247, at para. 17, Godard v. Godard, 2015 ONCA 568, at para. 17, Carey v. Laiken, 2015 SCC 17, at para. 36, and most recently in Ruffolo v. David, 2019 ONCA 385, at para. 18).
e. The paramount consideration in access cases is the best interests of children, and the courts ought to encourage the parents to involve professionals to speak and work with the children to address their relationship with their parents (Ruffolo, supra, at para. 19).
f. Contempt proceedings arise frequently in family cases because of lack of compliance with orders (Gordon v. Starr, [2007] O.J. No. 3264 (S.C.), at para. 23).
g. In order for the court to find contempt, the court must find a) that there was an order, b) the order was brought to the notice of the alleged contemnor, c) the order is clear as to what should or should not be done, d) the alleged contemnor did not obey the order, and e) that the failure to obey the order was willful and intentional. The burden of proof is on the moving party to prove these elements beyond a reasonable doubt (Van de Mierden v. Van de Mierden, [2009] W.D.F.L. 4947 (Ont. S.C.) at para. 29, Prescott-Russell Services for Children and Adults v. G.N. (2006), 82 O.R. (3d) 686 (C.A.), at para. 27, Hobbs v. Hobbs, 2008 ONCA 598 at para. 26, Sickinger v. Sickinger, [2009] O.J. No. 2306 (S.C.) aff’d 2009 ONCA 856, Woronowicz, supra, at paras. 33-25, and Godard, supra, at para. 11).
h. The “willfulness” that is required is that the failure to obey the order must be deliberate and not accidental or unintentional. The willfulness requirement may be met by intentional, willful or reckless disregard, or indifference to the authority of the order or the court (S.R. v. M.R., [2002] O.J. No. 1519 (S.C.) at paras. 219-221).
i. The absence of contumacious intent or a justification for the breach of the order is a mitigating, not exculpatory factor, relevant to punishment, not liability. This is especially so in family proceedings where feelings run high, a party often believes that only s/he is right and the other is wrong, there are feelings of bitterness and betrayal and self-righteousness, and that these feelings persist even after the court has made its determination such that a party feels justified in defying an order (S.R., supra, S.V. v. C.T.I., [2009] O.J. No. 816 (S.C.) at para. 6, Coletta v. Coletta, [2003] O.J. No. 81 (S.C.), Starzycka, supra, at para. 16 and Zadegan v. Zadegan, [2003] O.J. No. 5282 (S.C.), at para. 23).
j. A parent is not entitled to ignore an order, even one made on consent. Where a parent is concerned about harm during the other parent’s access time, the solution is to obtain an order varying access. She or he cannot unilaterally ignore an order unless there is serious, imminent harm (R.R.K. v. K.T.M.K., [2007] O.J. No. 600 (S.C.) at para. 29, L.M.K. v. E.P.R., [2005] O.J. No. 5782 (S.C.), at paras. 19-20).
k. There must be clear and compelling reasons to legally justify violation of an order. In order to do this, the parent must show, by admissible evidence, that he or she has a reasonably held belief that there is a good reason to defy the order, such as imminent harm to the children. Putting it another way, the defaulting parent’s belief must be sincerely held. A sincere belief of immanent harm or danger, alone, is not sufficient. There must be a validly objective justification for the breach based on the child’s needs and interests, based in evidence (Kassay v. Kassay, [2000] O.J. No. 3373 (S.C.), at para. 25; Docherty v. Catherwood, 2015 ONSC 5240, at para. 19; and Houben v. Maxwell, 2016 ONSC 2846, at p. 12 and 23, Jackson v. Jackson, 2016 ONSC 3466, at para. 59 to 61).
l. Whether there is a need to protect the children is a question for the Court to determine, not the parent. The parent must abide by the order and move promptly to modify the order being disobeyed (Salloum v Salloun, [1994] A.J. No. 304 (Alta. Q.B.), at para. 20; Houben, supra, at para. 23; Chatur v. De Los Reyes, [2012] O.J. No. 2690 (C.J.), at para. 31, Prescott, supra, at paras. 47-50, Ralston v. Schultz, 2005 ONCJ 44, [2005] O.J. No. 635 (S.C.), Docherty v. Catherwood, 2015 ONSC 5240 (S.C.) paras. 18-21).
m. The children’s wishes are to be considered, depending on the children’s ages (S.V., supra, at para. 20).
n. The burden of proving any defence or mitigating factor is on the responding party. I was referred to no authority as to the nature of the burden. As with defences and justifications in criminal law, the burden on the responding party should be on the civil standard.
o. A parent must take all reasonable steps to ensure compliance with the order. A parent cannot justify his or her failure to follow an access order because the child did not want to go. This makes the child responsible for the parent’s breach of the order. Often, the parent abdicates to the child the decision the parent ought to make because the parent knows that the decision the child will make will be the decision that the parent would have made and which is one which violates the order. The parent abdicates his or his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences. A parent’s obligation is to do what is reasonable and necessary, and actively require the child to comply with the order by explanation, exhortation, and the threat and execution of discipline (S.V., supra, at para. 46, Haywood v. Haywood, 2010 ONSC 5615, [2010] O.J. No. 4317 (S.C.), at paras. 29, 41-43, Stuyt v. Stuyt, [2009] O.J. No. 2475 (S.C.), at para. 54, Geremia, supra, at para. 63, and Godard, supra, at para 29).
p. What steps a parent must take to have the child attend access with the other parent depends on the circumstances and age of the child. Usually, passive “reasoning with the child” is insufficient and is in breach of the access order. There is a positive obligation to ensure that a child complies with the order. The parent is not entitled to leave access decisions to the child (Geremia, supra, at para. 63, Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.), at para. 8, B.K. v. A.P., [2005] O.J. No. 3334 (S.C.) at paras. 22-25, Godard, supra, at para. 29).
Analysis:
[25] Subject to my comments at the end of these reasons, on the evidence that Mother has provided to date, she fails to meet her burden.
[26] Mother filed an Affidavit comprising 68 handwritten pages attaching 23 tabs, each containing multiple “exhibits.” Mother’s portion of the record is 1 ½ inches thick.
[27] In her Affidavit, Mother attempts to explain why she believes that the child is in danger when in the company of her Father. She refers to many incidents, including:
a. An assault against Mother and “abuse Isabella Janowski endured on June 9, 2019” and subsequent charges Mother had laid;
b. An assault against Mother which occurred on December 29, 2018 and release terms following that;
c. Unspecified charges laid on May 11, 2018;
d. Vague allegations of drug use at an unspecified time, supported by an undated photograph of boxes which Mother has labelled as “injectables”;
e. An incident in May 2019 in which the child had vaginal discharge following an alleged event where the child allegedly told Mother that Father applied coconut oil to her body to help her sleep. No medical records have been produced with respect to this event;
f. In early February, with no date specified, the child had a tear of the right side of her labia which caused the Applicant to notify CAS. No medical or CAS record has been produced;
g. A report from the child to Mother that on an unspecified night, Father, who was not living with the Applicant, appeared at the door of the bedroom in which the Mother and child shared a bed, repeatedly, staring at the two of them sleeping. This may have been a nightmare, but Mother presented it as a real event;
h. The child has various recurrent illnesses which Mother attributes directly to the stress that Father puts the child under with his continued threats;
i. Allegations of physical abuse at various times including pinching the child when she had an ear infection;
j. An allegation that because Mother fears that Father will have them shot, she and the child sleep on the bedroom floor.
k. An allegation that Father abused the family’s 13 year old dog that had to be put down in December 2019;
l. Allegations that Father was drinking in violation of orders.
[28] These are but a few of the allegations Mother raises.
[29] I have no doubt that Mother has an honest, ardent belief in what she alleges. The issue, however, is whether her belief is objectively supported by evidence.
[30] I have difficulty in accepting Mother’s evidence with respect to any danger that the Respondent poses, for a number of reasons, including, in no particular order:
a. She admits that she has intentionally ignored all court orders regarding access.
b. Her evidence does not indicate that she attempted to reassure the child of any concerns she may have had, or tried to require the child to attend access with her Father.
c. Her evidence and argument were histrionic. This may indicate the depth of Mother’s emotion and conviction. Equally, this may indicate the extent to which she may have unintentionally coloured her evidence.
d. Mother’s evidence was often vague and general. It was uniformly positional, and frequently a characterization of evidence, rather than a recitation.
e. Mother does not allow for the possibility that Father loves the child, and has any positive interaction with the child.
f. She reports that Father violates the no alcohol provision of the order, based on one incident of the child complaining that Father had bad breath.
g. Except as detailed below, there is an absence of confirmatory evidence. The police, Peel CAS and Toronto CCAS have been involved with this family for most of the child’s life, and mostly at the request of Mother. None of those records have been produced. I was told that they were only requested in the first week of June.
h. The exhibits Mother attaches in support of her statements in her Affidavit either do not support the statements in her Affidavits, or do so only marginally.
i. The exhibits contain screen shots or photographs of a phone containing selected texts. Often, the texts do not establish what Mother swears that they establish. For example, Ex. 3 does not support “abuse” and “harassment” as Mother claimed. On their face, they indicate that Mother corresponded with Father through the child’s cell phone. In any event, they are only snippets of longer conversations, and lack context.
j. Further, with the texts, it is clear that the texts are between Mother and Father, and that they are selective screen shots.
k. Many of the “exhibits” attached to the Affidavit are of her own creation, for example, collections of business cards or photographs, which she frequently and heavily annotated.
l. Many “exhibits” are irrelevant to the issue of custody and access. For example, Ex. 5 contains documents supporting the Mother’s evidence at p. 11 of her Affidavit that the child contracted lice while at school.
[31] Of greatest concern is that, subject to the few exceptions discussed below, all of the evidence of the child’s statements come from Mother. There is a paucity of reports of the child’s statements from trained, experienced, reliable third parties, notwithstanding the long-time involvement of Peel Police, Peel CAS and Toronto CCAS.
[32] The only evidence from a neutral party is the notes from the therapist arranged for the child through school. The therapist’s notes span the period of February 20 to June 3, 2019, reflecting visits every 3 to 4 weeks. Most of the information in those notes appears to have come from discussions with Mother, not the child. Most of the issues raised by Mother in the notes also appear in Mother’s Affidavit. The relevant information that the therapist appears to have received from the child is as follows:
a. February 20, 2019 – child describes her most frequently described emotions as mad, tired and hyper, and identified her stressors as when she is asked to clean the house, when her brother hangs up the phone on her, when her Father swears on the phone, and her parents’ separation. The therapists opinion was that the child is well adjusted and coping with her parents’ separation normally.
b. March 4, 2019 – the child spoke about her Father’s drinking habits. She spoke about an incident recently where he yelled at her while holding a knife in his hand. She expressed fear about being alone with her Father and sadness about his choosing alcohol over the family. There is no indication in this note, however, that the child was threatened when Father yelled when holding a knife. It appears that Father was merely angry.
c. April 8, 2019 – the child indicated the Father found out where she and Mother are living and is now fearful that Father will attack her and Mother. She reported that her Father gets physical in terms of pinching her ears, squeezing her legs, or rolling over her or sitting on her legs, which she found painful. The therapist expressed concern about possible sexual abuse because of what the child and Mother reported, including Mother’s fear for their lives.
Mother reported an incident to the therapist, allegedly reported by the child, in which Father rubbed coconut oil on the child’s whole body to help her fall asleep, that in the morning the child reported feeling strange, and a couple of days later, the child developed vaginal discharge. Mother had reported this to CAS. Hospital for Sick Kid’s tests on the vaginal discharge were inconclusive. The therapist reported the matter to the CAS as well.
d. April 23, 2019 – The child reported that she had been very sick, which frightened Mother. A cousin’s communion (on Father’s side) was coming up and the child was worried about what would happen if they were left alone in a room together. Mother said (apparently in front of the child) that she will give the child a cell phone and intended on waiting in the car, with a friend, in front of the church, should the child call for help. The therapist noted that “ Edyta appears supportive of [the child] maintaining good relationships with her Father’s side of the family, so long as she feels comfortable doing so. ” In context, it is unclear whether “she” in this sentence refers to Mother or the child.
e. May 6, 2019 – The child was excited for another communion coming up, which Mother planned for her. The child also reported that while Mother does not tell her specific stories about Father, she notices her Mother is stressed, and this made the child sad and stressed. She said that she only felt safe living with her Mother. By this time, tthe therapist was dealing with the Mother and child. The therapis noted Mother used her sessions to vent and discuss her trauma. She paced the room, sweated, and sometimes experienced severe nausea. The therapist described her trauma memories as “vivid.”
f. May 22, 2019, child disclosed having recurrent nightmares about her Father hiding in bushes and watching she and her Mother. She wakens from these nightmares and sometimes is afraid to go back to sleep. The therapist noted Mother’s commitment to “fighting for her and [the child’s] rights.”
g. June 3, 2019 – This session was conducted on the phone as Mother reported that she and the child were ill and, although home, had been in hospital. The therapist noted that she could provide no further support for Mother and the child as CAS funding was exhausted, and the family needed more resources. Toronto Jewish Child and Family Services had a program to offer.
Mother reported that the two became sick with a viral infection because of stress caused by Father. She reported that this followed her first court appearance as a self-represented litigant as she fired her lawyer because she did not trust him.
The child said that her visit with her Father (as ordered by McSweeney J.) was both “good and not so good.” She was happy to see the Father and showed him pictures of school projects she was working on. She felt safe because they were in a public place with her brother sitting at a small table nearby. The child made reference to the Father’s family and that “they did stuff to us to” and did not make much of an effort with her in the past, but admitted that she misses them too. Her nightmares about her Father had ceased.
[33] The therapist’s records are the only records from a neutral third party. They provide a useful record of the child’s statements, as recorded. I treat these records with caution, however, for several reasons:
a. It is unclear whether the interviews with the child took place in Mother’s presence. While the initial retainer was with respect to the child, part way through the sessions, Mother asked to be taken on as a patient too.
b. Much of the information on which the therapist acts, and on which she bases her comments concerning the child, including all allegations of sexual abuse, come from Mother, and is not supported by statements from the child or other independent evidence.
c. Aside from the April 22 visit, the therapist did not report the allegations made by Mother or anything said by the child to CAS or the Police, as she is required to do.
d. Much of what the therapist reports the Mother and child to have said raises the concern that Mother may be influencing the child, whether subconsciously or consciously. For example, telling the child about the “safety plan” while she was at her paternal cousin’s communion, or having Mother’s adult son from an earlier relationship supervise the first and only access following McSweeney J.,’s order (and, according to Father, video and take notes of the access visit), sends the message to the child that she is in danger when with Father, and that Father is that danger. There is no reference in the therapist’s notes that Mother, or the therapist attempted to reassure the child with respect to Father.
e. Most of the reports by the child as reported by the therapist, do not reflect what Mother says the child reported to her.
f. While the therapist’s records raise concerns, the concerns do not rise to the level of concern for imminent danger to the child while in Father’s company.
[34] For the forgoing reasons I conclude as follows:
a. Based on Mother’s admissions, I find, beyond a reasonable doubt, that the February 21, 2019 Order of Fowler-Byrne J., and every order thereafter, were clear with respect to Father’s access, that Mother knew of the orders, and that she wilfully disobeyed them.
b. Even without Mother’s admissions, I make the same findings beyond a reasonable doubt based on the record before me.
c. Based on Mother’s evidence, I am unable to conclude that she has met her burden to prove that her wilful disobedience was justified because there was serious risk of harm to the child in complying with the orders (see: Houben, supra, at para. 12, and Jackson v. Jackson, 2016 ONSC 3466, at para. 59 to 61).
d. Normally, any inability to conclude that Mother has met her burden would result in the finding that her defence of necessity or justification failed, and that she should be held in contempt. In the circumstances of this case, however, and cognizant of the Court of Appeal’s admonition in Ruffolo of the exceptional nature of the contempt power, I defer my finding on Mother’s defence or justification because records exist with Peel Police, Peel CAS, and Toronto CCAS, which were not produced and which are also likely relevant.
[35] For the foregoing reasons, and subject to any further order, I make the following interim order:
a. The Father’s motion and Mother’s cross-motion are adjourned, to be brought back before me, on 5 days’ notice, once the Peel Police, Peel CAS, and Toronto CCAS’ records have been produced.
b. The child has had no meaningful contact with Father since February, 2019. It is important that Father and the child begin to rebuild their relationship. Therefore, between Sunday July 7 and Monday September 2, 2019, Father’s access with the child shall be as set out below, and shall be unsupervised except as stated otherwise:
(i) Sunday, July 7 and 14 – 4 to 5 p.m., in a public place, supervised by a third party acceptable to both parties.
(ii) Each of Sunday, July 21 and 28 – 3 to 7 p.m., in a public place, with Sunday, July 21 supervised by a third party acceptable to both parties.
(iii) Sunday, August 4 - 4 to 7 p.m.
(iv) Monday, August 5 (Civic Holiday) – 1 to 7 p.m.
(v) Sunday, August 11 and 18 - 8 a.m. to 7 p.m.
(vi) Saturday, August 24, 4 p.m. to Sunday, August 25, 1 p.m.
c. Beginning September 3, 2019 and continuing thereafter, the access provisions contained in paragraph 2a and b of Fowler-Byrne J.,’s February 21, 2019 order shall apply. The remaining sub paragraphs of paragraph 2 no longer apply as they have been superseded by time, or replaced by other orders or recognizances.
d. Because of Father’s Recognizance conditions, pick up and drop off of the child will take place at the Pizza Pizza located at 606 Brown’s Line, Etobicoke. Mother shall appoint her own agent to drop off and pick up the child.
e. Paragraphs 3, 4, 6 to 9, 11 to 19 of Fowler Byrne, J.’s Order remain in full force and effect.
f. Paragraph 5 of Fowler-Byrne J.,’s February 21, 2019 Order is superseded by time.
g. The closing words of paragraph 10 of Fowler-Byrne J.,’s February 21, 2019 Order of “except as it relates to facilitating access.” are deleted from that paragraph. The balance of the paragraph remains in full force and effect.
h. Petersen J.,’s May 2, 2019 amendment to paragraph 2 of Fowler-Byrne J.,’s February 21, 2019 Order remains in full force and effect.
i. Petersen J.,’s May 2, 2019 Order with respect to serving Mother remains in full force and effect.
j. McSweeney J.,’s May 28, 2019 endorsement, page 4, item 4 inviting the participation of the OCL, and page 6 item 7 regarding placing the child’s passport in Father’s lawyer’s file, remains in full force and effect.
k. Doi J.,’s endorsement of June 14, 2019 is of no further force and effect.
l. Mother will scrupulously follow the February 21, 2019 Order of Fowler-Byrne J., as I have modified it.
m. If Mother fails to provide Father’s parenting time as set out in the February 21, 2019 Order of Fowler-Byrne J., as I have modified it, make-up access will be made up within 7 days on a day agreed to between the parties.
n. If there is any breach of the February 21, 2019 Order of Fowler-Byrne J., as I have modified it, Father may bring a Motion before me at 9 a.m., on any day, and at any place I am sitting, with 4 days’ notice to Mother.
Costs
I will address the question of costs in writing. Submissions are limited to 3 double-spaced pages, excluding bills of costs or offers. Father’s submissions shall be served and filed by 4 PM, 19 July, 2019. Mother’s submissions are to be served and filed by 4 PM, 31 July, 2019.