Court File and Parties
Court File No.: FC-12-1055-02 Date: 20200220 Superior Court of Justice - Ontario
Re: Kyle Youngman, Applicant And: Lisa Dobney, Respondent
Before: Madam Justice R.S. Jain
Counsel: E. Osipov, Counsel for the Respondent
Heard: February 20, 2020
Endorsement
[1]
Background
Respondent Mother’s motion to find the Applicant Father in contempt of the access and other parenting orders of Charney J., September 4, 2015 and Sutherland J. dated July 20, 2017 regarding the parties’ children: Levi (8) and Finn (6) (per FLR 31).
2In this matter there is a long history of high conflict, litigation, alcohol abuse by the Respondent Mother (admitted), mental health issues of the Respondent Mother (also admitted) and the serious health issues of the parties’ youngest son Finn who required a kidney transplant at a very young age.
3The parties had the benefit of an OCL Report in 2015 which made recommendations regarding the Respondent Mother’s access being unsupervised “as long as her alcohol screening reports indicate the absence of alcohol in her system”. However, if there was documented proof that Respondent Mother had “consumed alcohol, that her access revert to being supervised until she has prove another straight six months of abstinence”.
4The parties entered into multiple Minutes of Settlement and court orders however the one in question regarding access is Sutherland J. of July 20, 2017 which requires the Respondent Mother to wear a SCRAM bracelet “until further court order” in para. 1. Then in para. 6, the court order states that “In the event of a failed screen report” the “unsupervised visits shall terminate and the access shall there after until further court order be varied to be alternate Saturdays from 10:00 am to 6:00 pm to be supervised “by 2 supervisors”.
5The parties disagree on the interpretation of this order. The Applicant Father says that it requires the Respondent Mother to wear the SCRAM bracelet and if there is a failed screen report she must have supervised visits and still wear the bracelet. The Respondent Mother says she is not required to wear the bracelet if she has the supervisors present.
6The Respondent Mother says the Applicant Father has denied her access unilaterally for 2 years and should be found in contempt.
7The Applicant Father opposes the contempt finding because he says she is the one who did not have a clean screen and/or tampered with the bracelet and then stopped wearing it altogether (so he was acting in accordance with the order and in the best interests of the children to terminate/suspend access). He says he has complied with the Order. Further, he says that now that 2 years have passed, it is not in the best interests of the children to simply re-start access.
8He asks that the Respondent Mother attend at reintegration therapy with the children and that access recommence on a graduated basis having regard for the need for supervision and other safeguards.
9Respondent Mother also says that Applicant Father is in contempt because he has not consulted with her regarding all major decisions affecting the children and he has not provided her with updates regarding their medical issues (per paras. 3 and 5 of Charney J.’s order of September 4, 2015.)
10Applicant Father denies these allegations and stated that the Respondent Mother has had full access to all health and education information and records since at least April 2017. He further says that he has requested she enrol in Our Family Wizard regarding communication and updates and yet she has refused.
11The Respondent Mother brought a Motion to Change regarding Custody and Access in 2016, however it has not moved these parties forward. It has not been resolved and has just languished.
12A Settlement Conference has been set for March 4, 2020. The Respondent Mother has also made efforts outside of court to negotiate recommencing access, however all efforts have failed as the parties are too far apart and do not accept or trust anything the other proposes to move the matter forward.
13It is unfortunate for the children that this matter began in high conflict and that the conflict continues to this day.
14The OCL Report is dated. However, it still has some relevance especially when it discussed the Respondent Mother’s history with alcoholism and relapses, and need for supervision and the mistrust the Applicant Father feels towards her (and that it will take him much longer to acknowledge or believe that the Respondent Mother’s sobriety and stability are lasting). This is still all true today despite the Respondent Mother’s progress (which is commended), the Applicant Father does not trust it and has difficulty moving forward.
[15]
Analysis
For the court; when faced with a Contempt Motion, I must first find that certain elements must be proven beyond a reasonable doubt. The order must be clear and unequivocal; the party disobeying the order must do so deliberately and wilfully; and the breach must be proven beyond a reasonable doubt. (because this is a quasi-criminal proceeding). (Vigneault v. Massey, 2014 ONCA 244). Additionally, the Ontario Court of Appeal has made it clear that motion judges should make findings of contempt cautiously and with great restraint especially where the main issues to be decided concern access to children because the best interest of the children should be the paramount consideration. (Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144).
16In this matter, both parties disagree on the interpretation of the order with respect to the requirement for supervision and the SCRAM bracelet. Further, the Applicant Father denied the access based on his interpretation that the Respondent Mother was not complying with the order.
17In these circumstances, with this kind of uncertainty, the court cannot make a finding of Contempt. Although the court finds the Applicant Father’s interpretation of the order to be rigid and it does not show any flexibility or an effort to support and encourage the access (so long as it is safe), it is not contempt. Further, with the amount of time that has passed since the access was suspended, the court finds it is not in the best interest of the children to simply revert back to the old orders without further investigation into the merits of the Respondent Mother’s Motion to Change and the Applicant Father’s request for reintegration therapy.
18The children have also gotten older and the court will need to consider their views and preferences on the questions of custody and access.
[19]
Conclusion
For all these reasons I am dismissing the Respondent Mother’s contempt motion.
20The parties will need to explore all the options with respect to the resumption of access, therapy and what supervision or other safeguards are required at the settlement conference.
21Both parties should be prepared to compromise and make realistic proposals on how to move forward at that time.
22The Respondent Mother’s Motion to Change shall return for Settlement Conference on March 4, 2020. Both parties must serve and file Settlement Conference Briefs and Confirmations in accordance with the Rules.
23No costs.
Madam Justice R.S. Jain Date: February 20, 2020