COURT FILE NO.: 1154/18
DATE: 2019-09-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alison Mary Ferrier, Applicant
AND:
Douglas William Edward Ferrier, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Ms. J. Swan, Counsel, for the Applicant
Self-Represented Respondent
HEARD: September 13, 2019
ENDORSEMENT
[1] On consent of the Respondent, his first two affidavits sworn September 5, 2019 (at Volume 3, tabs 16 and 17 respectively) are struck.
[2] I am not striking the Respondent’s third affidavit sworn September 5, 2019 because it relates to the two main issues to be dealt with today.
a. The Respondent seeks an order that the Applicant be found in contempt of the order of Justice Coats dated May 19, 2016. That order provided that the parties have joint custody of their two children Justin (now 13) and Amy (now 11). The consent order further provided that the parties are to “make important decisions about the children together” including decisions about the children’s education (among the list of enumerated items). The Respondent contends that the Applicant is in contempt of that order in that she unilaterally, without consultation or consent, transferred Amy’s school from Adelaide Hoodless school (where she attended last year, and where Justin still attends) to R.A. Riddell school, where she was accepted to participate in a special Sports Academy program, as a result of her proficiency in soccer. The Respondent contends that the Applicant made and implemented this decision without his participation, and that this constitutes contempt of the order.
b. The Respondent asks that the court order that Amy be transferred back to Adelaide Hoodless school immediately. On this second issue, the Respondent hasn’t actually brought a motion requesting this relief, but he sets out his request in the body of his affidavit. The Applicant filed a detailed affidavit in response, not only denying that she is in contempt, but also disputing that it would be in the best interests of Amy to be returned to Adelaide Hoodless school. She also filed a supporting affidavit of her own mother. While I agree with mother’s counsel that technically the Respondent has not provided formal notice of his request about changing schools, the reality is that the self-represented Respondent has provided in his affidavit actual notice of what he’s asking for and what he’s concerned about. Given the fact that the Applicant is not taken by surprise by the Respondent’s request (because she commented extensively on it in her affidavit); and given the fact that the determination of a child’s school placement is very time-sensitive (today being the end of the second week of school), I allowed the Respondent to proceed with both his contempt motion and his “send Amy back to Adelaide Hoodless” motion.
[3] However, there were more procedural complications.
a. The Respondent served the Applicant with three separate affidavits. As stated, two of them were struck at the outset of the hearing because they were completely irrelevant. The third affidavit set out the Respondent’s concerns about Amy.
b. The Applicant’s counsel served the Respondent with a lengthy affidavit in response (and in support of the Applicant’s cross-motion) and a brief affidavit of the maternal grandmother on Monday of this week, September 9, 2019.
c. The Respondent did not file any responding materials challenging any of the very detailed information provided by the Applicant in the two affidavits she filed.
d. When I alerted the self-represented Respondent to the fact that he has not responded to important allegations, he initially proposed that he respond verbally in court. When I explained that that was not appropriate, we had a discussion about the Respondent still having an opportunity to request an adjournment to file responding materials. However, the Respondent ultimately decided that he did not wish to file any further materials because he did not wish to run the risk of incurring any further costs (in relation to a last-minute adjournment request on his part) and he also wanted these issues resolved without further delay, given the aforementioned concerns about the school year already being underway.
[4] So that gets us to the basic factual dispute.
[5] The Respondent’s affidavit includes the following general information:
a. Amy was doing well in her old school, academically and socially.
b. The Applicant unilaterally transferred Amy to another school to pursue a sports program.
c. The Respondent was not consulted and does not agree with this decision.
d. The Respondent feels Amy should focus on her academic performance rather than sports.
e. The Applicant has previously violated the existing order about deciding educational issues jointly, so she is now a “second time offender.”
[6] The Respondent’s affidavit also went on to ask for some other unusual relief (not set out in any notice of motion). This includes a request that the Applicant deposit $5,000.00 into a bank account to pay for counselling for Amy as a result of problems the Applicant has created by refusing to obtain employment and help support the children. That somewhat unusual request is not properly before me, and I will not deal with it.
[7] The Applicant’s reply affidavit sets out very detailed information about the change of school issue:
a. When Amy was in grade 4 her gym teacher at Adelaide Hoodless recognized her athletic ability and told Amy about this special program at Riddell school.
b. In grade 5 Amy made inquiries about the sports program, and in January 2019 she applied to see if she could be accepted.
c. Amy was ultimately accepted. Documentation in relation to the application and acceptance was attached to the affidavit.
d. Amy told the Respondent in January 2019 that she had applied for the program.
e. The Applicant says she discussed Amy’s application with the Respondent in January 2019.
f. The Applicant advised the Respondent of Amy’s acceptance which was conveyed by e-mail on February 20, 2019.
g. While they were waiting to hear if Amy would be accepted, the Applicant advised the Respondent about a parent information night on January 17, 2019. The Applicant attended but the Respondent did not.
h. The Applicant says the Respondent never conveyed any objection about Amy changing to Riddell school to participate in the sports program – either before or after the child was accepted.
i. There is no concern about the sports program jeopardizing Amy’s academic performance. Part of the criteria for admission to the program was that Amy’s academic performance had to be satisfactory.
j. When Amy was accepted she was excited and boasted about it to everyone – including the Respondent.
k. Amy was also pleased to be changing schools because she had been experiencing bullying at the old school.
l. Amy is excited to be in her new school and in her elite sports program. She is very happy in the new school and would be devastated if she were forced to return to the old school, without the sports program.
[8] The Applicant’s mother filed an affidavit setting out that in mid-June 2019 the Respondent contacted her making inquiries about the Applicant. The maternal grandmother says during that conversation the Respondent acknowledged that he was aware that Amy had been accepted into an elite sports program in another school, and he didn’t express any disapproval.
[9] As stated, the Respondent’s very general affidavit basically says “he was never asked and he doesn’t agree”, but the responding materials set out in a great deal that there was extended discussion and he didn’t express any disapproval.
[10] The Respondent has elected not to file any reply materials. Based on the evidence before me, I find that the Respondent has not nearly established with the required level of certainty that the Applicant is in contempt of the May 19, 2016 order. While it is generally impossible to make credibility determinations based solely on conflicting affidavits, here the affidavits are not really in such conflict.
a. The Respondent makes a blanket statement that he wasn’t told and didn’t know.
b. The Respondent makes no effort to respond to significant, compelling, and logical evidence that he was informed about all of this. The Respondent regularly exercises access, yet in his affidavit he makes no mention of whether he ever discussed school issues or this sporting program with the child.
[11] Quite apart from other potential defects in the Respondent’s contempt motion (eg: the Applicant was not personally served; there is no evidence that the Respondent approached contempt as a “last resort” method of resolving the issue): I find that the evidence does not support a contempt finding.
[12] For there to be a finding of contempt, the order must be unambiguous, and not subject to interpretation as to what should or should not have been done. Here the consent order required the parties to “make important decisions together” but it did not set out or contemplate the appropriate method of proceeding if there was disagreement as to an educational decision.
[13] A finding of contempt also requires evidence – beyond a reasonable doubt – that a party intentionally disobeyed or contravened an order, having actual knowledge of the requirements which prevailed. The Respondent’s evidence does not satisfy any of this.
[14] I accept the Applicant’s evidence that in various ways the Respondent was aware of the proposal, and that he did not convey any disapproval until September 2019, at the same time that the school year was about to commence.
[15] As for the Respondent’s request that Amy be transferred back to Adelaide Hoodless, this entails a “best interests of the child” analysis, which must include “views of the child” considerations. Again, the Applicant’s evidence is not disputed:
a. Amy specifically applied for this change long ago.
b. Amy expressed to everyone – including the Respondent – her happiness about being accepted in the new program in the new school.
c. Amy has started school and is very happy there.
d. Amy is doing well.
e. The Respondent’s materials provide no evidence to contradict any of this. One would think that if a father has a strong view about whether a child should change schools, the father might address whether he has spoken to his 11 year old daughter about her views on the subject.
[16] I note that determination of the child’s perspective is hampered because we are still waiting for the Office of the Children’s Lawyer to respond to a request that they become involved.
a. On July 11, 2019 Justice Bale requested OCL involvement.
b. The OCL declined because the Respondent failed to file his intake form as required.
c. On August 11, 2019 I made a second request for the OCL. That’s the request which is pending.
d. Had the Respondent filed his intake form in a timely manner pursuant to the July 11, 2019 order, we might have had an OCL appointed by now, and that might have assisted in determining whether the Applicant is correct that Amy is really happy and excited to be attending Riddell school.
[17] Based on the evidence before me, the Respondent’s motion to change Amy’s school is dismissed.
[18] Any other requests set out in his affidavit are dismissed, without prejudice to his pursuing them in proper form.
[19] Ms. Swan was entirely successful. She requests $750.00 costs which is extremely reasonable. The Respondent agrees to that figure.
[20] The Respondent shall pay to the Applicant $750.00 in costs inclusive of HST and disbursements, payable by October 31, 2019.
Pazaratz J.
Date: September 13, 2019