Tracy Bernadette Rea v. Natale Antonio Rea
NEWMARKET COURT FILE NO.: FC-15-49190-00
DATE: 20190122
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tracy Bernadette Rea, Applicant
AND:
Natale Antonio Rea, Respondent
BEFORE: The Honourable Mr. Justice D.A. Jarvis
COUNSEL: L. Pawlitza/C. Ashbourne, Counsel for the Applicant
H. Hansen/S. Beddoe, Counsel for the Respondent
HEARD: October 25, 2018
RULING ON MOTIONS
[1] The applicant mother (“the mother”) has brought two motions and the respondent father (“the father”) one motion. The broader of the mother’s two motions seeks thirteen heads of relief, and references in that listing, her second motion to have the father found in contempt of an Order that I made on June 18, 2018 (“the Order”) involving the parties’ son, JR. That Order dealt with reunification therapy and an assessment pursuant to s. 30 of the Children’s Law Reform Act[^1] (“CLRA”). The mother’s second motion (“the contempt motion”) identifies what the mother alleges are the father’s breaches of my Order. The father’s motion requests an Order that JR not be required to participate in the reunification therapy ordered without his consent and that JR first receive independent legal advice dealing with that consent issue.
[2] This Ruling will only deal with the contempt motion. Counsel were informed at the outset of argument that directions would be given later with respect to the other motions. The father undertook through counsel that, notwithstanding the relief requested in his motion, he would comply with the Order and take JR to therapy on a without prejudice basis.
[3] The circumstances giving rise to the Order are reported[^2] and will not be repeated in this Ruling except as may be necessary. Suffice to say, that this proceeding remains high conflict: over 90 endorsements have had to be made and the Continuing Record now exceeds 60 volumes.
[4] The mother alleges that the father breached paragraphs 4, 9, 17, and 18 of the Order. Those paragraphs direct the following,
Both of the mother and the father shall adhere to and abide by all of the conditions that are set out in the FTIA sent to them by Mr. Hurwitz.
All three of the mother, the father and JR shall attend individually and together for sessions with Mr. Hurwitz as Mr. Hurwitz deems necessary on such dates and times as Mr. Hurwitz shall direct. If Mr. Hurwitz determines that other members of the family should become involved in reunification therapy, and if the mother and father cannot agree, then Mr. Hurwitz shall report to me, which report shall set out the reasons why the therapy should include other family members.
Neither the mother, the father nor any designate on behalf of either of them shall attend at Mr. Hurwitz’s office except for pre-scheduled appointments. Neither the mother, the father nor any of their designates shall approach Mr. Hurwitz at any time in public, telephone Mr. Hurwitz except as may be required.
The section 30 assessment with Dr. Butkowsky shall recommence at the earliest possible date. The parties shall each pay the requested retainer to Dr. Butkowsky (10% to be paid by the mother and 90% to be paid by the father), by June 29, 2018. Each party shall complete the questionnaires or such other documents and provide such information as may be required by Dr. Butkowsky within five (5) days of an oral or written request by Dr. Butkowsky. Each party and JR shall attend all meetings with Dr. Butkowsky in person and shall prioritize the scheduling of these appointments over the rest of their schedules. Each party shall be responsible for bringing JR to the scheduled appointments as may be directed by Dr. Butkowsky. Each party shall respond to any request by Dr. Butkowsky’s office to schedule appointments within forty-eight (48) hours of the request having been made by Dr. Butkowsky’s office.
[5] The mother’s Notice of Motion specifies the alleged breaches and requests that the father be held in contempt because he,
had …not abided by and adhered to all of the conditions that are set out in the “Family Therapy Intervention Agreement” (“FTIA”) that was provided to you by the court-appointed family reunification therapist, Howard Hurwitz (“Mr. Hurwitz”), on June 25, 2018, contrary to paragraph 4 of the June 18, 2018, Order of the Honourable Justice D.A. Jarvis (“the Justice Jarvis Order”);
failed to attend for sessions with Mr. Hurwitz, contrary to paragraph 9 of the Justice Jarvis Order;
allowed a designate of yours and specifically, Laura Gobbatto, to attend at Mr. Hurwitz’s office when she was not supposed to be there for a pre-scheduled appointment, contrary to paragraph 17 of the Justice Jarvis Order; and
failed to pay the retainer that was requested by Dr. Irwin Butkowsky for the recommencement of the section 30 custody or access assessment by June 29, 2018, contrary to paragraph 18 of the Justice Jarvis Order.
[6] My decision on the contempt motion was reserved. Before the release of this Ruling, there were further developments relating to Mr. Hurwitz’ involvement. As required by the June 18, 2018 Ruling Mr. Hurwitz was directed to, and did, provide monthly reports to the court. His December 10, 2018 report resulted in a teleconference with counsel held on December 14: Mr. Hurwitz was directed to deliver an affidavit dealing with his December report, such affidavit to include any updated information relevant to the report’s content. Mr. Hurwitz’ affidavit was sworn on January 7, 2019. The father delivered an affidavit sworn on January 10, 2019 responding to the contents of Mr. Hurwitz’ affidavit. Reference to both affidavits will be made in considering this contempt motion.
Evidence
[7] Each of the breaches alleged will be separately addressed.
Paragraph 4-Failure to comply with Family Therapy Intervention Agreement
[8] The parties signed a Family Therapy Intervention Agreement (“FTIA”). Under the subheading “Responsibility of the Parents” section 15 of that Agreement outlined what was expected of each party.
- The parents agree to fully cooperate, support, and wholeheartedly participate in the family therapy intervention. This includes, but is not limited to: (1) scheduling appointments within 48 hours of the request for such an appointment being made and responding to the therapist(s) within 24 hours unless determined otherwise by the therapist; (2) making all appointments in which he or she is involved a priority over the rest of their schedule (and such shall include ensuring that [JR] attends such therapy if he or she is responsible for getting [JR] to therapy); (3) paying for services in a timely manner in accordance with the fee agreement executed by the parents; (3) ensuring the child(ren) are transported to and from scheduled therapy appointments in a timely manner, and even if the appointment does not involve that parent or if it involves the other parent; and (4) exercising parental authority to require the child(ren) to attend and cooperate with the therapy. If requested by the therapist, a parent, or his/her designate, shall bring the child when it is not that parent’s parenting time, picking up and returning the child to their school, daycare or other location as per the therapist’s instructions.
[9] The mother alleged that the father breached the Order by: (i) not responding to Mr. Hurwitz within the 24 hour period of contact by the therapist; (ii) not responding to an appointment scheduling request within 48 hours of that request; and (iii) not prioritizing appointments with Mr. Hurwitz over the father’s schedule. The father disputed these allegations, saying that he did not willingly or deliberately commit any breaches and added that, not only was he unrepresented for most of July, all of August, and from September 1 until September 5, 2018, but also that, since retaining counsel, he actively engaged afterwards with the therapist.
[10] In his affidavit sworn on September 21, 2018, the father maintained that he “accepted and continued to accept [the June 18, 2018 Order] as authoritative…”, that he respected it and was “…obliged to comply with its terms.”[^3] There is nowhere in any material filed by the father any statement or other evidence that he misunderstood any terms of the Order or the FTIA or that any of their terms was ambiguous.
[11] Since the evidence relevant to this alleged breach overlaps the evidence relating to the other alleged breaches, the summary that follows will include their evidence and, where appropriate, reference will be made to this summary when dealing with them.
[12] The following evidence is relevant:
(a) after the Order was made, Mr. Hurwitz met with each of the parties individually as part of the intake process;
(b) a subsequent joint appointment scheduled for August 10, 2018, could not proceed because the mother was apparently out of the country. Efforts by Mr. Hurwitz to reschedule this appointment to be held before August 31, 2018, were unsuccessful. The father advised through an assistant that he was unavailable until October 1, 2018, due to a planned vacation with the children and work commitments;
(c) Mr. Hurwitz made two requests to meet with JR. The first request was made on August 15, 2018, for an August 17, 2018 meeting. The father said that JR had a prior engagement and that, despite his (i.e. the father’s) best efforts, JR refused to attend. A second meeting request was then made for August 27, 2018. JR did not attend that meeting either because the father reported that JR was unwell;
(d) the father described the lack of therapy progress as a collective failure “most critically that I was unrepresented until September 5, 2018 [and that] contributed to the fact that therapy progressed in a less than ideal manner”[^4];
(e) on October 25, 2018, the mother’s motion for contempt was argued and the Ruling reserved;
(f) on November 2, 2018, Mr. Hurwitz met with counsel for the parties where there was discussion about ways to move forward with the clinical work needed. Counsel indicated that they needed instructions from their clients. Mr. Hurwitz prepared a summary of a proposal for the parties’ consideration. The mother provided her feedback; there was none afterwards from the father;
(g) on November 7, 2018, Mr. Hurwitz met with JR and two of his older siblings. He spoke to each of the three boys separately. It was his view that the two older boys were struggling with what had happened, and was continuing to happen, in their family and that it was difficult to know to what extent JR’s views about his mother were influenced by his brothers. JR was unable to articulate any substantive reasons for thinking that his mother was “the problem” and why he should not engage in therapy to have regular contact with her;
(h) on November 8, 2018, Mr. Hurwitz contacted an experienced reunification therapist to work with him in an integrated treatment approach wherein he would work with the parents and the therapist with JR. Both parents were given the therapist’s contact information.
[13] The following excerpts from Mr. Hurwitz’ affidavit are pertinent,
My efforts to engage Mr. Rea, however, have been met with delays on his part in responding to my many emails or his failing to respond at all. On those occasions when he did respond, it was to emphasize his view that [JR] did not want contact with his mother or should not have contact with her.
After the November 7, 2018 meeting with [JR] and his brothers…I made numerous efforts to meet with or speak with Mr. Rea but he has not responded to any of my requests. Specifically, I have asked him to set up a telephone meeting and/or in-office meeting. Attached as Exhibit “C” are the emails I sent to him requesting a meeting. He has not been in contact with me to set up any meeting or phone meetings. He has forwarded an email which appears to be from his sons …to Ms. Rea, to me. I will address that in more detail, below.
In an effort to problem-solve Mr. Rea’s reluctance to have contact with me, I reached out to his counsel, Ms. Heather Hansen, and requested a meeting with her. At our meeting on November 26, 2018 (without Ms Pawlitza or Ms Rea present), I suggested a further meeting with Mr. Rea and Ms Hansen at her office to deal with any concerns Mr. Rea has. I have not heard back from Ms. Hansen or Mr. Rea about my request.
As I said in my December 10, 2018 report to the Court, on December 6, 2018, Mr. Rea forwarded a letter that indicated had been prepared by his sons…and sent to their mother, Ms. Rea. A copy of this email is attached as Exhibit “D” to my Affidavit. In summary, this email expresses that [the two older boys] are not supportive of Ms. Rea’s effort to obtain counselling for [JR]. It is their view that [JR] does not need counselling.
This letter is very concerning as it is very clear that the older children have been drawn into the parental conflict and have aligned themselves with their father against their mother.
Also, I am very concerned that [JR] is being supported or encouraged by his brothers not to obtain the necessary counselling.
As I suspected earlier in the process, the older brothers appear to be enabling behaviours in [JR] which will, and are, having negative consequences on [JR].
Following Mr. Rea sending me [the two older boys’] email, I requested an opportunity to meet with him. A copy of that email is at Exhibit “E”. He did not respond to this request. Instead, he sent an email later that same day (December 6, 2018) stating, ‘Howard, After receiving this letter from the boys. I will not have any further discussions with you until, [JR] has legal counsel and representation. Thank you, Nat.’ A copy of this email is attached to my affidavit as Exhibit “F”.
On December 12, I received an email from [one of the older brothers] and copied to his [other] brother…and both parents, indicating that they do not support [JR] having contact with their mother. This email is concerning because the older brothers now have been put in a position to advocate in a negative manner to prevent [JR] and his mother from having contact, despite [the older boys’] discussion with me on November 7, 2019. A copy of the email from [the older boy] is attached as Exhibit “H”.
On December 16, I received the following email from Mr. Rea, sent to his sons, but copied to me and to Ms Rea:
“Boys it is clearly evidence that Howard is in conspiracy with Tracy due to the lack of caring for what [JR] wants (The Voice Of The Child) and a response that bares (sic) any fact or substance. I don’t trust either of them and will now seek every possible action legally to ensure [JR] has been given full legal advice and rights. As for Howard I’ve paid him his LAST dollars every (sic) from me again and wish him luck with Tracy whom (sic) claims to be the mother. Howard is like lauire (sic) & only after the money, but tracy cant (sic) see that. A mothers relationship with her son is one on one and that no one is going to help her except herself.’
Yes Howard I copied you to (sic) and Tracy. Voice of the child and brothers maybe listen to them. You both should be ashamed of yourselves.”
The custody/access assessment with Dr. Butkowsky was scheduled to begin in January of 2019.
I am concerned about any further delay with respect to starting the assessment.
As the reintegration therapist, my role is restricted to attempting to facilitate healthy contact between [JR] and his mother. It is not my role in reintegration therapy to determine the root causes of Mr. Rea’s resistance to participate, nor evaluate the nature of Ms Rea’s relationship with [JR] in an effort to determine suitable recommendations as to future decision-making and living arrangements for [JR]. It is also not my role to determine the validity or otherwise of concerns about Ms Rea expressed by [JR and his two brothers], nor the reason those concerns are being expressed, such as whether alienation is occurring or has occurred. This is the role of the assessor when conducting a s. 30 clinical assessment.
It is my view, however, that further efforts by Mr. Rea and the older sons to prevent contact between [JR] and his mother will be harmful to [JR].
It should be emphasized that if the parties enter the assessment process, unless the Court orders it or both parties consent, there would not be individual counselling for [JR] during the assessment, given the clinical nature of the assessment process. (bolding added)
[14] As noted, Mr. Hurwitz expressed his concern about further delay with respect to starting the assessment. The father also challenged Mr. Hurwitz’ professionalism in his January 10, 2019 affidavit. He said that since Mr. Hurwitz acknowledged that the mother’s counsel had suggested that he focus as much as possible on the progress of the reunification therapy that meant that Mr. Hurwitz was taking direction from her and the father felt that was unfair to him. He also noted that, at no time, did Mr. Hurwitz seek direction from his counsel. That may be understandable in light of the fact that Mr. Hurwitz did not hear back from Ms. Hansen after his meeting with her (it appears that the father did not attend this meeting) and the father’s clear opposition to any further interaction with Mr. Hurwitz. The father stated that he continued to be opposed to reunification therapy and that there remained outstanding the issue raised in his motion that JR’s consent to this therapy should be required. This opposition applied equally to the reunification therapist proposed by Mr. Hurwitz to work with JR, the clear implication being that the father was not prepared to co-operate with that process either, just as he was no longer prepared to engage with Mr. Hurwitz.
Paragraph 9-Failure to attend therapy sessions
[15] There have been no further therapy sessions with Mr. Hurwitz since the father’s December 6, 2018 email. This is contrary to paragraphs 4 and 9 of the June 18, 2018 Order. The reason given for this refusal is the father’s stated position that he “will not have any further discussions with you [i.e. Mr. Hurwitz] until [JR] has legal counsel and representation”. A motion by the father for the appointment of a lawyer for JR was dismissed in my June 18, 2018 Ruling[^5] and, as noted in paragraph [2] above, the father undertook through counsel (the father was present in court at the time that undertaking was given) that he would comply with the Order and take JR to therapy. While the father said in his affidavit that he had instructed his new counsel to appeal my Order, there is no evidence about when those instructions were given, whether a notice of appeal or for leave to appeal has been served, and if so, its status.
Paragraph 17- Communications with Mr. Hurwitz
[16] Paragraph 17 of the Order required that no one other than the parties attend Mr. Hurwitz’ office except for scheduled appointments or communicate with him except as required. The mother alleged that she understood from Mr. Hurwitz that the father attended his first appointment with Mr. Hurwitz accompanied by his executive assistant, a Ms. Gobbatto. The father did not directly respond to this allegation but disputed that he had delegated most of his communication obligations to her and he said that he had not otherwise acted contrary to the FTIA in his communications with Mr. Hurwitz or by his inclusion of Ms. Gobbatto on correspondence.
[17] The genesis of this term of the Order lies in the history of this proceeding and the father’s use of Ms. Gobbatto as his agent. Further light on the court’s concern is shed by Mr. Hurwitz in his August 27, 2018 report to the Court:
Mr. Rea has also made several requests which I have deemed not reasonable. First, he wants a witness at all appointments held; he wants a transcript provided of all interviews held; he wants the communication between himself and me to be confidential and he does not want to communicate directly with me so has Ms. Laura Gobatto act as the intermediary in writing his correspondence to me. I have stated that I cannot communicate with Ms. Gobatto since he is the parent and my contract is to work directly with each parents. (The one exception to this was when Mr. Rea contacted my office on August 24 to talk to me but I was unavailable so returned his call but he was also unavailable.)
[18] The father acknowledged that he should have been more actively involved in managing his obligation to communicate with Mr. Hurwitz but claimed that he was a very busy person and that he had been unrepresented during most of the 2018 summer. There is no evidence that he did not understand the Order or the FTIA. Since retaining counsel the father said that he was communicating directly, and consistently with, Mr. Hurwitz although in light of his December 6, 2018 email to Mr. Hurwitz that is no longer happening.
Paragraph 18-Failure to pay Assessment retainer
[19] The mother alleged that she paid her share of Dr. Butkowsky’s assessment retainer by June 29, 2018, as required by the Order and that the father had not. This was confirmed by a letter to the Court from the assessor dated July 3, 2018, that also stated that, as a consequence, no appointments had been scheduled. In a further letter to the court dated August 16, 2018, Dr. Butkowsky confirmed that there had been no change from his earlier report.
[20] Ms. Gobbatto wrote to Dr. Butkowsky on August 16, 2018, saying that payment of his retainer “had fallen through the cracks” and that a cheque was being mailed. The amount being sent was $2,373.55, not the $10,500 required. When this was pointed out to the father Ms. Gobbatto requested a full refund of the father’s share of the retainer, with which request Dr. Butkowsky complied and reported to the Court on August 29, 2018.
[21] The father did not send to the assessor his share of the retainer until on or about September 14, 2018. He explained that his failure for two and a half months to comply with the Order was an oversight. The mother’s motion for contempt is dated September 7, 2018. The father said that he sent his cheque after having the benefit of counsel.
[22] There is no evidence that the father did not understand the term of the Order dealing with payment of the assessor’s retainer by June 29, 2018. There is no evidence of any effort afterwards by him even before he was no longer represented by his former counsel to inquire of the assessor what was his share of the retainer required. There is no evidence of any such effort between June 30, 2018 and August 16, 2018, and no satisfactory evidence explaining a further delay to September 14, 2018, after the motion for contempt was started.
Law
[23] The provisions of Rule 31(1), (5), (8) and (10) of the Family Law Rules (“FLR”) deal with contempt of court and are relevant.
- (1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.
(5) If the court finds a person in contempt of the court, it may order that the person,
(a) be imprisoned for any period and on any conditions that are just;
(b) pay a fine in any amount that is appropriate;
(c) pay an amount to a party as a penalty;
(d) do anything else that the court decides is appropriate;
(e) not do what the court forbids;
(f) pay costs in an amount decided by the court; and
(g) obey any other order.
(8) A contempt order for imprisonment or for the payment of a fine may be suspended on appropriate conditions.
(10) A contempt order for the payment of a fine shall require the person in contempt to pay the fine,
(a) in a single payment, immediately or before a date that the court chooses; or
(b) in instalments, over a period of time that the court considers appropriate.
[24] In Prescott-Russell Services for Children and Adults v. N.G.[^6], the Ontario Court of Appeal set out a three-pronged test for finding a litigant in contempt of a court Order:
(a) the Order that was breached must state clearly and unequivocally what should be done and should not be done;
(b) the party who disobeys the Order must do so deliberately and willfully;
(c) the evidence must show contempt beyond a reasonable doubt.[^7]
[25] The alleged contemnor must have actual knowledge of the Order. Any doubt about its’ alleged breach must be resolved in the contemnor’s favour.[^8]
[26] The father disclaimed that his conduct was deliberate and willful. In Peers v. Poupore[^9], a case upon which the mother relies, Curtis J. provided a useful summary of the law relating to conduct that would amount to deliberate and willful disobedience of a court Order,
Recklessness can provide the necessary intent to disobey a court order and for a finding of contempt to be made. Wilful intent or malice, i.e. a deliberate intent to defy an order, is not necessary to establish a civil contempt, though its existence may be relevant to penalty. It is enough that a party knew of the terms of the order and intended to do those things that constitute the breach…
A finding of contempt does not require that the defendant intended to disobey or flout an order of the court: “the offence consists of the intentional doing of an act which is in fact prohibited by the order. The absence of the contumacious intent is a mitigating but not an exculpatory circumstance”…
The standard of intention is knowledge of the reasons for the order and contravention of the order. Direct intention to disobey the order is not required. Wilful disregard is sufficient. “Wilful” is intended to exclude only casual, accidental or unintentional acts of disobedience…
An individual need not be found in breach of a specific term in a court order. It is sufficient if the actions are “designed to obstruct the course of justice by thwarting or attempting to thwart a court order…
[27] In Hefkey v. Hefkey[^10], the Court of Appeal observed that “[c]ontempt findings [in family law proceedings] should be made only sparingly and…as a last resort”.[^11] In Ricafort v. Ricafort[^12], a case in which a finding of contempt was being sought for non-compliance with an Order to produce financial information, Katarynych J. observed that contempt Orders were “serious business”.[^13]
[17] The contempt power is used with restraint and in exceptional circumstances – essentially to respond to circumstances where it appears to be the only reasonable means to send a message to a litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules as a whole to enable a court to deal with a case justly, with particular attention to subrule 2(3) and subrule 2(4) of the rules.[^14]
[28] The authorities are clear that motions for contempt should not be brought indiscriminately or where there are other options available to ensure Order compliance. The object is primarily remedial, not punishment.[^15]
Analysis
[29] Two observations are especially noteworthy.
[30] The first is that there is no Order that JR be in the primary care, or temporary custody, of his father. On October 22, 2015, Rogers J. ordered that the mother have primary care of the parties’ children. This Order was never appealed or varied. On November 2, 2015, Rogers J. ordered that the father have specified access with JR and another brother. Also ordered then was an assessment pursuant to s. 30 of the CLRA and that the parents mediate their parenting issues with a skilled therapist.[^16] Since late 2017, the father has been non-compliant with the terms of both Orders.[^17]
[31] The second observation is that almost the entirety of the delay in implementing third-party counselling, whether involving the parties, JR or any of the children, mediation, therapy, or the assessment process, rests with the father. The Record is a litany of Order enforcement efforts by the mother, delay occasioned by the frequent changes in the father’s representation, a legion of court endorsements, and the father’s not infrequent references to his pressing business commitments[^18] and when responding to the mother’s allegations for this motion, he did not “willfully or deliberately” intend to breach any Order.
[32] In my Ruling of June 18, 2018, reference was made to the father’s “alarming history of Order non-compliance” which demonstrated “a win-at-all costs attitude”.[^19] As noted elsewhere too, the father is a sophisticated, successful businessman[^20] whom the mother claims, and the record discloses, is very wealthy and who will do as he pleases. The mother’s view in this regard is prescient.
[33] The terms of my Order and the FTIA were clear and unequivocal. There is no evidence that the father did not understand any of the terms of either.
[34] The father has disobeyed, and is found in contempt of paragraphs 4 and 9 of the June 18, 2018 Order. I am persuaded that that the father’s breaches of those terms of the Order were intentional and, when viewed individually, collectively, and in the context of the parenting dispute between the parties, prove contempt beyond a reasonable doubt.
[35] I am unable to conclude that the father is in contempt of paragraph 17 of the Order. The FLR preclude a finding of contempt with respect to paragraph 18 of the Order dealing with the father’s payment of Dr. Butkowsky’s retainer.
[36] Specifically,
(a) with respect to paragraphs 4 and 9 of the Order, the father knew, or ought reasonably to have known or suspected that prompt, timely co-ordination with Mr. Hurwitz was important to the work for which Mr. Hurwitz was engaged. The father, through counsel, on October 25, 2018, even undertook to the court that he would take JR to Mr. Hurwitz. He delayed (mostly for business reasons) to make himself available after early August 2018 until October 1st to meet with Mr. Hurwitz and, since December 6, 2018, declared his refusal to have any further contact with Mr. Hurwitz. These breaches were deliberate and willful. This contempt has not been purged;
(b) with respect to paragraph 17, the mother alleged that the father took Ms. Gobbatto with him to what must have been the initial meeting between the father and Mr. Hurwitz. There is no information as to when that meeting took place and no confirming evidence from Mr. Hurwitz that Ms. Gobbatto attended apart from what the mother reports that she was told by Mr. Hurwitz. There is evidence from Mr. Hurwitz’ August 27, 2018 report, that the father was having Ms. Gobbatto act as his intermediary, which practice Mr. Hurwitz declined to follow. The father has since said that he brought himself into compliance with that term of the Order, although it is clear that he has resorted to using two of his older children as his proxies. While the behaviour of the father is most concerning, I am not prepared to find that the father has breached this term of the Order given its detailed wording;
(c) with respect to paragraph 18, the father very clearly breached the term requiring payment of Dr. Butkowsky’s retainer by June 29, 2018. The practical effect of the two and a half month delay in the father providing his share of the retainer was that the assessor’s earlier availability was frustrated, the outcome likely desired by the father. The assessment has still not started. Mr. Hurwitz expressed his concern that the father’s conduct would delay the start of the assessment process, a concern which is inferentially clear from Dr. Butkowsky’s December 18, 2018 report to the court to the effect that while the mother was prompt in replying to his request for an assessment interview, the father advised that he was unavailable until the week of February 25, 2019, over two months later.
Rule 31(1) refers to “[a]n order, other than a payment order, may be enforced by a contempt motion…” Rule 2(1) of the FLR defines a “payment order” as meaning,
“…a temporary or final order… requiring a person to pay money to another person, including,
(h) an order requiring a party to pay the fees and expenses of,
(i) an assessor, mediator or other expert named by the court…
Paragraph 18 of the Order clearly required the father to pay his share of Dr. Butkowsky’s retainer. The father cannot be sanctioned for contempt for his breach of that term.
Summary and disposition
[37] Family law litigants must not misinterpret a court’s measured, or balanced, approach to their conflict as a reluctance to sanction litigation misconduct, or treat an Order as a suggestion. There are consequences to Order non-compliance.
[38] The court has a wide discretion in fashioning a penalty that is proportional, remedial and reflects the court’s view of the seriousness of the contempt in the particular circumstances of the family involved and more generally, society. The sanctions listed in Rule 31(1) are neither exhaustive nor exclusive. Where, as in this case, the best interests of a child are involved, the court must be especially vigilant in fostering and safeguarding those interests.
[39] Mr. Hurwitz’ involvement must continue. Dr. Polak should be involved. The assessment process (first ordered on consent in 2015) must proceed expeditiously. Since the father is unable or unwilling to ensure JR’s participation with any professional (except, possibly those of his choosing), the mother shall be invested with that authority. The father must not be permitted to delay and frustrate any longer, the clear and unambiguous Orders of the court, and to pick and choose what, when, and under what circumstances, he will obey court Orders.
[40] The mother does not seek an Order imprisoning the father but, in my view, the father’s behaviour is so egregious that a message must be sent to him and those, who by choice or simply by their fortunate position in society, choose to disregard court Orders, that such conduct will not be tolerated. The administration of justice is brought into disrepute otherwise.
[41] The following is ordered:
(a) the father is found to be in contempt of paragraphs 4 and 9 of the Order dated June 18, 2018;
(b) the mother’s request to have the father found in contempt of paragraphs 17 and 18 of the Order is dismissed;
(c) the father shall pay to the mother $25,000 for his contempt, such payment to be made by February 28, 2019;
(d) JR shall be returned to the primary residence of his mother by no later than 7:00pm on January 27, 2019;
(e) the father shall deliver to the mother JR’s health card and Passport when JR is returned to his mother’s residence;
(f) for every day after January 27, 2019 that the father does not return JR to his mother’s care, he shall pay to her the sum of $1,000. To be perfectly clear, it is the father’s responsibility to ensure that JR resides with his mother at all times until further Order of this court;
(g) the York Regional Police are authorized and directed to provide such assistance as may be required to ensure that JR is returned to his mother’s residence in the event of the father’s non-compliance with subparagraph (d) above, and to enter any place of dwelling or other structure where JR may be located and deliver him to the mother’s residence;
(h) the child shall not reside with the father except as may be permitted by the mother who shall be guided by the recommendations of Mr. Hurwitz and Dr. Butkowsky. The father shall comply with any terms of contact between him and JR, such as pickup and return times;
(i) as far as may be practicable, the mother shall continue with the services of Mr. Hurwitz and shall be responsible for transporting JR to and from any appointments with Mr. Hurwitz, Dr. Polak, and Dr. Butkowsky;
(j) the father shall not delegate to any third party his obligation to interact with Mr. Hurwitz or Dr. Butkowsky in scheduling appointments. He shall attend promptly any such appointments as shall have been arranged and he shall promptly provide such releases as may be required by Mr. Hurwitz and Dr. Butkowsky to obtain the information needed by them for their engagements. In the event that Dr. Polak should require any consent from either parent or require release of information relating to JR from any third party, the father shall be given 48 hours from the time of Dr. Polak’s request to return to her, signed and unamended (except as may be agreed with Dr. Polak) the consent or release required, failing which the father’s consent is dispensed with and the mother may sign the necessary document(s);
(k) if the father does not pay the his share of any retainer or other fees and related expenses as may be required by Mr. Hurwitz, Dr. Polak and Dr. Butkowsky within seven days of their request being made, the mother may pay that share and recover them from the father. In that event the mother may bring a Form 14B motion to my attention on 10 days’ notice to the father for an Order. Consideration may be given to the unpaid fees and related expenses being deemed to be a support Order.
[42] In addition to the foregoing, the father shall be imprisoned for a period of thirty days. He may earn a reduction in time as follows:
(a) if the father returns JR to his mother’s primary care by no later than January 27, 2019 (7:00pm), then the term of imprisonment shall be reduced by 10 days;
(b) the father shall provide to Mr. Hurwitz dates acceptable to Mr. Hurwitz and the mother for the months of February, March and April 2019 to continue with the services contemplated by the FTIA. This shall be done by January 31, 2019. Mr. Hurwitz shall report to the court whether the father has complied with this term by February 7, 2019. Subject to Mr. Hurwitz’ schedule, all appointments with him shall be scheduled to take place during the above-referenced three months of February, March and April regardless of the father’s other claimed priorities. If the father complies with this term, he attends all appointments as may be scheduled for February 2019 and provided that Mr. Hurwitz confirms the father’s compliance in writing by March 1, 2019, then the term of imprisonment shall be reduced by 5 days;
(c) if the father provides to Dr. Butkowsky by January 31, 2019, and Dr. Butkowsky confirms, a date for an assessment interview, and other dates as required by Dr. Butkowsky, to be held during the months of February, March, and April 2019, the father shall be entitled to a further reduction of the term of his imprisonment of 5 days. Dr. Butkowsky is directed to report to the court whether the father has complied with his scheduling obligations and appointment attendances by March 1, 2019;
(d) provided that the father complies with (a) to (c) above, the balance of the term of the father’s imprisonment shall be suspended pending further Order to ensure and monitor his compliance with the terms of the FTIA dealing with his appointments with Mr. Hurwitz and his appointments with Dr. Butkowsky;
(e) the parties shall appear before me on March 6, 2019 (3:00 pm). This date is peremptory to the father to determine the father’s compliance with the foregoing. Failure to appear may result in a warrant for his arrest being issued.
[43] It is not expected that the services pursuant to the FTIA, to be provided by Dr. Polak or the assessment by Dr. Butkowsky, will be concluded by April 30, 2019, but there should be material progress made by then, and reported to the court. Further directions may be sought, if and when, as required.
[44] The mother’s request to strike the father’s pleadings is dismissed on a without prejudice basis. The extent to which the father may be allowed to participate in these proceedings in future will depend on the father’s compliance with the Orders of the court and his demonstrable respect for the administration of justice. Directions with respect to the balance of the mother’s broader motion will be considered on March 6, 2019.
[45] In addition, pursuant to FLR 1(8) (e) the father is not entitled to any further Order from this court without leave of the court until he has fully complied with the Order made June 18, 2018 and this Order. Any motion for leave shall be accompanied by an affidavit from the father proving compliance with all of the terms of those Orders. Accordingly, the court will not deal with the father’s motion dealing with JR’s participation in reunification therapy.
[46] The mother shall forthwith provide a copy of this Ruling to Mr. Hurwitz, Dr. Butkowsky, and Dr. Polak.
[47] The draft Order may be sent to the judicial assistant (Meghan.Billings@ontario.ca) for timely issuance purposes.
[48] The following provisions shall apply to the costs of the mother’s motion:
(a) the mother shall deliver her submissions by February 8, 2019;
(b) the father shall deliver his submissions by February 19, 2019;
(c) reply (if any) by the mother, by February 22, 2019.
[49] Submissions with respect to (a) and (b) shall be limited to five double-spaced pages, reply to two pages, and filed in the Continuing Record. Offers to Settle, Bills of Costs, and any authorities upon which a party may wish to rely shall be filed by the above deadlines but not form part of the Record. Counsel are to notify the judicial assistant when they have filed their material.
Justice David A. Jarvis
Date: January 22, 2019
[^1]: R.S.O. 1990, c. C.12 as am.
[^2]: Rea v. Rea, 2018 ONSC 3723.
[^3]: Paragraph 14 of affidavit sworn September 21, 2018.
[^4]: Ibid at para. 24.
[^5]: Paragraph 21 of Ruling on Motions heard May 28, 2018.
[^6]: (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686. 2006 81792 (Ont. C.A.).
[^7]: Ibid at para. 27.
[^8]: Ibid para. 27.
[^9]: 2012 ONCJ 606, 2012 CarswellOnt 6289 at para. 28.
[^10]: 2013 CarswellOnt 2986, 2013 ONCA 44, [2013] O.J. No. 1697, 228 A.C.W.S. (3d) 98, 30 R.F.L. (7th) 65.
[^11]: Ibid at para. 3.
[^12]: 2006 CarswellOnt 8554, 2006 ONCJ 520, [2006] O.J. No. 5332, 171 A.C.W.S. (3d) 592, 35 R.F.L. (6th) 210.
[^13]: Ibid at para. 16.
[^14]: Ibid at para. 17.
[^15]: Kopianiak v. MacLellan, 2002 44919 (ON CA), 2002 CarswellOnt 1309, [2002] W.D.F.L. 229, [2002] O.J. No. 1642, [2002] O.T.C. 489, 113 A.C.W.S. (3d) 559, 159 O.A.C. 37, 212 D.L.R. (4th) 309, 21 C.P.C. (5th) 20, 27 R.F.L. (5th) 97 at para. 28.
[^16]: Rea, supra note 2, at para. 7.
[^17]: On December 19, 2017 Kaufman J. made an Order, on consent of the parties, dealing with Christmas times that JR would spend with each parent. The parties’ Separation Agreement dated April 20, 2018 acknowledged that the issue of JR’s living arrangements remained unresolved (paragraph 1.5) and set out a framework for the parties’ respective child support obligations (paragraph 5).
[^18]: As if the father’s business commitments are a priority to the child’s best interests!
[^19]: Rea, supra note 2, at para. 18.
[^20]: Rea v. Rea, 2018 ONSC 5883, at para. 10.