Dostie v. Poapst, 2020 ONSC 139

Court File and Parties

Court File No.: FC-10-1258 Date: 2020-01-08 Ontario Superior Court of Justice

Between: SCOTT GREGORY DWIGHT DOSTIE, Applicant – and – SARAH LEAH POAPST, Respondent

Counsel: Wayne D. Young, for the Applicant Katherine A. Cooligan, for the Respondent

Heard: November 19, 2019

Reasons for Decision

Audet J.

1This motion is brought by the applicant father seeking a finding that the respondent mother is in contempt of the multi-directional parenting order (a final order) of Justice Minnema dated December 1, 2014 and the final order of Justice Warkentin dated February 19, 2014, in the following ways:

• for using Poapst as the parties’ child’s last name instead of “Dostie Poapst”;
• for failing to provide timely permission letters with respect to travel beyond Canada as requested in February 2019 and in March 2019;
• for interfering with a necessary incident of the child’s care and access, by removing from the child his school agenda and schoolwork before going on access with his father;
• for failing to consult with the father and seek his views before making any major decisions regarding the child by reason of; failing to notify the father that she had registered the child for French immersion before notifying him of the same, ending counselling sessions with Ottawa Centre For Resilience (“OCFR”) with no notice, and beginning counselling sessions with Crossroads with no notice;
• for requiring Crossroads to withhold information from the father and refusing permission to allow the father to meet with the counsellor;
• for not maintaining a reasonable boundary at sports activity and by insisting on participating in the activity to which the father has brought the child during the father’s access period;
• for intercepting the child at the end of the school day and the beginning of the next school day;
• for registering the child in competitive swimming without any prior consultation with the father which registration also interferes with his ability to provide appropriate care for the child during his access time;
• for refusing to pick up the telephone and facilitate a telephone or Skype conversation between the father and the child.

2The father further seeks a declaration that the mother’s use of location tracking on the child’s cell phone during access with the father is an infringement of the child’s access with his father.

3As a result of the mother’s contempt, the father seeks the following orders:

• that the mother refer to the child’s last name only as Dostie Poapst and correct all records to show the child’s last name solely as Dostie Poapst;
• that the child’s updated OHIP card will travel with him while on access with the father;
• that the mother provide timely travel letters and deliver the passport to the father when requested by him for travel purposes;
• that the mother shall not remove any notice, agenda, schoolwork which the child is to bring home at the end of the school day, and that the child’s school agenda, school circulars, notes and schoolwork shall accompany the child when he goes to and from access with his father;
• that the mother shall notify the father before starting or ending any therapy for the child and that, when requested, that the mother sign authorizations to allow full disclosure of information, notes etc. held by the therapist regarding any therapy or treatment and not object to the father speaking to the therapist;
• that the mother not participate or attend activities for the child during the father’s access time, or in the alternative, that she not register the child for activities during the father’s access time;
• that the child shall go directly from school to his father and be returned to school without being intercepted by the mother;
• that the mother not enroll the child in activities during the father’s access time which interferes with the father’s ability to provide care during his parenting time;
• that the mother not block the father’s telephone number on the child’s cell phone and that the child be allowed privacy to make a telephone call to his father or to receive same;
• that the mother discontinue the use of a location tracking on the child’s cell phone during his access with the father, and that the child’s cell phone shall not travel with him while on access with his father;
• that beginning in 2020, summer vacation will be for 14 consecutive days for each parent and will begin on Friday at 3:30 p.m.;
• that the father’s access in even years begin the second Friday in August and the mother’s vacation begin the second Friday in July, to alternate in odd years;
• that the parent caring for the child at the time make decisions about travel for access or school attendance due to illness or weather, and;
• that access lost through no fault of the father be made up at the next opportunity.

Background

4The parties are the biological parents of Aidan, a nine-year-old boy born on April 17, 2010 (he is 9 years old). The parties never lived together. They were involved in a brief and tumultuous on-and-off relationship that ended before Aidan was born. When Aidan was five weeks old, the father issued an application seeking joint custody and equal parenting time. The mother defended the application and sought sole custody of Aidan with reasonable access to his father.

5In the context of that court proceeding, the parties jointly retained Dr. Leonoff to conduct a custody and access assessment. Dr. Leonoff observed an intensely high conflict situation caused primarily by the father’s “infectious paranoia”. He concluded that the father lacked any insight into the “defensiveness and threat he creates in others, especially [the mother] with whom he shares a child, and he assumes that the others behaviour is occurring entirely on their own terms without his input or influence”. He further concluded that the “depth of the sense of threat” felt by the father represented a limiting factor in terms of what can be expected from [the parents] as a “parenting couple”, and the risk factor for Aidan in his development”. As a result, he recommended that the mother have final decision-making authority for all major decisions regarding Aidan.

6After a nine-day trial held before Justice Minnema, the mother was awarded sole custody of Aidan. In his lengthy Reasons for Judgment dated December 1, 2014, and in his Costs Endorsement released on March 6, 2015, Justice Minnema found the father to have tempered with evidence in a deliberate attempt to mislead the court and to have acted in bad faith throughout the trial. This resulted in the father being ordered to pay the mother costs in the amount of $122,000. In addition, Justice Minnema made a detailed multi-directional parenting order which I can only assume he hoped would provide a satisfactory framework within which these two parents would care for Aidan. This has not worked.

7On October 22, 2015, the father issued his first contempt motion which he promptly withdrew after the mother served her response. Pursuant to the order of Justice Shelston, made on April 12, 2016, the father was prohibited from bringing a motion to change before April 17, 2019.

8On July 17, 2018, I heard a motion brought on an emergency basis by the father seeking to establish his summer access to Aidan that was previously permitted by Justice Shelston. After considering all the evidence and hearing counsels’ submissions, I found that the mother had made numerous reasonable proposals to address the parties’ differences in opinion about summer vacation and in a way that would be sensitive to Aidan’s needs. I found that the father’s response to the mother’s reasonable proposal was less than adequate. In the end, I made a detailed order confirming when each of the parents would be able to spend time with Aidan during the summer of 2018. Despite this, further clarifications were sought by the parties as they could not agree on the interpretation of my order. Further clarifications were provided on July 23, 2018, and on August 27 I ordered the mother to pay costs of the father in the amount of $3,500 because I found that the father was partially successful on his motion and made offers to settle which almost mirrored the summer access that I had ultimately granted him.

9As stated above, the father was precluded by order of Shelston J. to bring a motion to vary before April 17, 2019. Regardless, on February 28, 2019, he brought a motion for the purpose of “settling the applicant’s summer vacation access with his son Aidan” and seeking “orders for additional terms and conditions as appear to be salutory to give fuller, clearer effect to the present custody and access orders and to assist in the enforcement of the current orders”. At the same time, he filed a notice of contempt motion alleging several breaches of the final order by the mother, as itemized above. Lastly, on March 27, 2019, the father filed a third motion seeking an order that he was entitled to directly obtain the full records and information concerning Aidan from any school or educational institution in which he was registered.

10I agree with the mother’s contention that the father served a contempt motion, along with his two other motions, instead of a motion to change in an effort to circumvent Justice Shelston’s order preventing him from bringing such a motion until April 2019. This is not only supported by the history of this case, but also by the fact that after the timeline set out in Justice Shelton’s order expired, the father advised that he was not pursuing an order for contempt.

11When the motion was first set to be heard before me on June 26, 2019, the mother sought an adjournment because she had just retained counsel and she was not available on that day. At that time, the mother raised the fact that the father’s motions were an attempt at relitigating issues that were fully determined at trial or to vary the terms of Justice Minnema’s final order, something that ought to have been brought before the court by way of a proper motion to change and not by way of a simple motion. I deferred the issue to the motion hearing itself but in the meanwhile ordered the father to file a fresh notice of motion setting out exactly the relief he was seeking, as this was not clear from the three notices of motion he had filed. In his amended notice of motion dated June 28, 2019, the father sought all the relief set out in paragraphs 2 to 4 above, which included a request that the mother be found in contempt of several provisions of the two final orders current in place.

12In the context of the motion hearing, the father again announced that he was not pursuing a finding of contempt against the mother. For reasons given orally, I made it clear that I was going to treat this motion as a contempt motion failing which I would dismiss it in its entirety on the basis that it was not brought properly before the court by way of motion to change. It is important to note that if the father had filed a proper motion to change, it was the mother’s firm intention to respond by seeking a variation of Justice Minnema’s final order herself. Based on the father’s amended notice of motion in which he clearly sought a finding of contempt against her, the mother proceeded to defend the motion addressing each allegations of contempt, in quite some details. After some thought, the father confirmed that the motion was to proceed as a contempt motion, and so it did.

Legal Framework

13Rule 31(1) of the Family Law Rules, O. Reg. 114/99 states that 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. The legal principles applicable to the court’s power to find a party in contempt of court and to impose such penalty as it deems appropriate were recently summarized by Summers J. in Maan v. Poirier, 2017 ONSC 7678 as follows:

10 To determine whether a party is in contempt, the court must apply a three-part test: (i) the order that was breached must state clearly and unequivocally what should and should not be done; (ii) the party’s disobedience of the order must be deliberate and wilful; and (iii) the evidence must show contempt beyond a reasonable doubt. Any doubt must be resolved in favour of the alleged contemnor: Prescott-Russell Services for Children and Adults v. G. (N.), 2006 ONCA 81792.

11 For contempt to be a possible remedy, the alleged breach must relate to a live or operative order. Contempt is not available if the breach relates to an interim order that has been superseded by a final settlement or order: Fiorito v. Wiggins, 2015 ONCA 729.

12 It is not inevitable that an affirmative answer to each branch of the three-part test will result in a finding of contempt. A judge on a contempt motion generally retains some discretion to decline to make such a finding: Carey v. Laiken, 2015 SCC 17. Contempt is a remedy of last resort that is to be used with great restraint. Its use as a method of enforcing compliance with orders has been consistently discouraged: Hefkey v. Hefkey, 2014 ONCA 44. This is especially so in family law proceedings where contempt motions should be cautiously considered and granted only where other available enforcement options have failed: Hefkey, supra.

14The above principles were reiterated and confirmed even more recently by the Ontario Court of Appeal in Chong v. Donnelly, 2019 ONCA 799. Further, the court added that once a court finds that the three elements for civil contempt are established, the court must then consider whether it should exercise its discretion to decline to make a finding of contempt. Not doing so is an error of law.

Analysis

15I conclude that the father has not established beyond a reasonable doubt that the mother is wilfully in breach of any provision of the final orders in place between the parties. Even if I had concluded that she was, I would have used my discretion to decline making a finding of contempt against her.

16I find that the father’s contempt motion was brought as a means to circumvent Justice Shelston’s order preventing the father from bringing a motion to change until April 2019. The relief he seeks as a result of the mother’s alleged breaches of existing orders goes well beyond what is proportionate and of a nature directed to ensure future compliance. I find that his contempt motion is a disguised attempt to substantially change and/or add to several of the provisions of Justice Minnema’s final order, and to have this Court adopt many provisions which the father unsuccessfully advocated for during the course of the lengthy trial held between the parties. Simply stated, the father is trying to relitigate the same issues under the guise of a contempt motion.

17I am of the view, based on all the evidence before me as well as the history of this case, that this motion is a striking example of the father’s relentless litigious approach to resolving parenting issues between him and the mother and that by his conduct, he continues to perpetuate a climate of relentless accusations, suspicions, threats and paranoia. As far as I can see, this behaviour has a significant detrimental effect on Aidan’s mental health and overall well-being.

18As will be seen below, Aidan suffers from significant anxiety which requires ongoing intervention by various mental health professionals. I have absolutely no doubt that much of Aidan’s suffering results from the relentless litigation that his parents have caused him to endure since he was but five weeks old.

19Our Court of Appeal has made it clear in at least two recent cases, Chong and Ruffolo v. David, 2019 ONCA 385, that contempt proceedings should not be reduced to a mere means of enforcing judgment, particularly when the main issues to be decided concern parenting of children, and that they should be used cautiously and with great restraint. I find that the father’s complaints about the mother are frivolous, not based on facts, and are clear evidence of the father’s complete lack of insight into how his own behaviour is the main cause for this unyielding parental conflict. It must stop immediately.

20As I must, I will deal with the father’s allegations one by one.

The mother uses Poapst as the parties’ child’s last name instead of “Dostie Poapst”

21The order of Justice Warkentin provides as follows:

The mother shall change the child’s name to Aidan David Dostie Poapst and his birth records shall be amended to show Mr. Dostie as his biological father.

22It is to be noted that this order was obtained on consent of both parties on the eve of trial. The issue in contention to that point was the father’s request that Aidan’s last name be hyphenated whereas the mother preferred that it not be.

23The mother has produced a copy of Aidan’s birth certificate which confirms that his legal name has been changed and that the father is indicated therein as Aidan’s biological father. She has also produced a copy of Aidan’s school registration, report card and passport all of which identify him with both last names.

24While I appreciate that the mother’s use of “Aidan Poapst” in an informal manner on unimportant documents such as his registration in extracurricular activities is an irritant to the father, and frankly, should be avoided, there is no order requiring the mother to use “Dostie Poapst” in every possible document and under every circumstance.

25The father’s paranoia about the mother’s use of “Poapst” as Aidan’s last name is made evident by his allegation in his affidavit sworn May 30, 2019 to the effect that Aidan’s school record “is also offensive since it lists the stepfather as legal guardian”. A close look at that record reveals that the form is separated into two main boxes; (1) the student’s residence, which is the mother’s residence and therefore lists the two adults who act as Aidan’s guardians at that residence, and (2) the student’s other residence, which lists the father as the parent/guardian at that residence.

26The mother has fully complied with this provision of Justice Warkentin’s order.

The mother failed to provide timely permission letters with respect to travel beyond Canada as requested in February 2019 and in March 2019

27Paragraph 30 of Justice Minnema’s order provides as follows:

Both parties shall provide the other with timely permission letters with respect to travel beyond Canada. They shall ensure some way of reaching Aidan during the absence and provide a general itinerary.

28The father requested travel letters from the mother for a day trip to Syracuse, New York, on February 1, 2019 and in March 6, 2019. I have reviewed the parties’ emails on this subject and conclude that the mother did not refuse the father’s request. Rather, she asked to defer the discussion until the parties were able to resolve several other matters, including the summer vacation schedule, which remained outstanding. She subsequently asked for particulars about the trip.

29Although the two requests were unrelated and perhaps ought to have been dealt with separately by the mother, I find that the father could also have dealt with the mother’s response differently and more productively. Instead of addressing the issues raised by the mother satisfactorily, and reiterate his request for consent to travel, the father ignored the mother’s request altogether, did not follow up, and elected to file a contempt motion instead.

30In those circumstances, and even if I had concluded that the mother had wilfully breached paragraph 30 of Justice Minnema’s order, I would have declined finding her in contempt based on the circumstances described above.

The mother interferes with a necessary incident of the child’s care and access by removing from the child his school agenda and schoolwork before going on access with his father

31There are no provisions in either final order dealing with this specific issue. As a result, I fail to see how I could find the mother in contempt on that basis.

The mother failed to consult with the father and seek his views before making any major decisions regarding the child by reason of; failing to notify the father that she had registered the child for French immersion before notifying him of the same; ending counselling sessions with the Ottawa Centre For Resilience (“OCFR”) with no notice, and; beginning counselling sessions with Crossroads with no notice

32Paragraph 9 of Justice Minnema’s order states that the mother “shall consult with the applicant and seek his views before making any major decisions regarding Aidan.”

33Aidan had been getting services from the OCFR for some time, with the father’s full knowledge. It is the mother’s evidence that the OCFR discontinued Aidan’s counselling in August 2018 because the father involved Aidan’s counsellor in his summer access motion heard before me last year. Her evidence to the effect that they were extremely reluctant to continue to provide services to Aidan afterwards is confirmed by their request that the parents sign a “Safe Harbour Agreement” before continuing to see Aidan.

34The father alleges that it is the mother’s multiple appeals to the OCFR in the context of the 2018 motion to support her request for shorter summer vacation between Aidan and his father that led to the Centre’s estrangement with the family. Further, the father states that the Centre felt Aidan was well adjusted and that there was no further purpose served by counselling.

35The father’s evidence in that regard lacks credibility. The Safe Harbour Agreement, a copy of which was produced by the mother, clearly commits both parents to not implicating Aidan’s therapy/therapist in future litigation in exchange of which the Centre was prepared to resume counselling sessions with Aidan. The evidence before me is that during the months that followed the summer 2018 motion before me, the mother had extensive contact with all the professionals at the centre in an attempt to rehabilitate the relationship between their family and that organization. The evidence also confirms that the father refused to sign this Agreement, which led to Aidan being deprived of an opportunity to continue to obtain ongoing services with the Center. The mother’s allegation that the father ignored her request for him to sign the Safe Harbour Agreement is supported by the father’s own statement to the effect that “I do not see a safe harbour agreement as valuable to my ability to help my son if I am kept from knowing what concerns are being put forward by the mother”.

36Further, to reduce the number of contentious and abusive communications she allegedly receives from the father, in November 2017, she decided to start sending him one single monthly update email with information containing all of Aidan’s scheduling details and pertinent information. These monthly update emails have been produced by the mother in the context of this motion. I have read these updates and find that they are thorough, detailed and that they provide the father with all the information he can possibly need in order to follow-up himself with the various professionals involved in Aidan’s life should he choose to do so. These updates make it clear that Aidan was no longer attending counselling sessions at the OCFR after the summer of 2018.

37The father states that “out of nowhere, I now find my son is enrolled in counselling with Crossroads. I do not know why my son is going there or who referred him there. When I contacted Crossroads, I was told that at the mother’s insistence, I was not to be provided with any information that she gave them nor could I speak to the counsellor”.

38The mother states that on August 22, 2018, she sent an email to the father to notify him that Aidan had begun self harming and that she had brought him to CHEO as a result. CHEO recommended that the parents reach out to Crossroads Family Services for counselling and the mother’s email to the father clearly advised him that she would do so. The mother states that Crossroads has a very long waiting list since their services are covered by OHIP. On May 3, 2019, the mother notified the father in her monthly update that Aidan’s turn had come up on the Crossroads waiting list and that he would begin attending sessions on April 26, 2019 through June 1, 2019 to work on anger management, self-regulation, self-confidence and transitions between homes.

39On May 7, 2019, the mother received a call from Crossroads to tell her that the father had contacted them and told them that they were not authorized to provide services to Aidan without his written consent and that the father had cancelled Aidan’s appointment and told them to cancel all future appointments. Crossroads advised the mother that they would not provide any further services until she provided a copy of Justice Minnema’s order. The mother provided this on May 8, 2019, at which time all of Aidan’s appointments were reinstated and confirmed.

40Based on the above evidence, I conclude that the mother is not in breach of Justice Minnema’s order for having failed to consult and keep the father aware of Aidan’s involvement in therapy.

41Aidan is in grade 3. French immersion does not begin until grade 4. On February 1, 2019, and again on February 25, 2019, Aidan’s school sent information directly to all parents by email informing them that there would be a French second language presentation on February 27. A letter was also sent on February 14, 2019 describing the program. The father received all these documents directly from the school but did not attend the session on February 27.

42In her monthly update of March 8, 2019, the mother explained to the father the different pathways offered by the school beginning in grade 4 and expressed her preference to register Aidan in the French immersion program. When the father expressed his objections one month later, the mother provided a fulsome response to all his concerns and reiterated that in her view, French immersion was the best course.

43I fail to see how it can possibly be alleged by the father that the mother failed to notify him of her decision to register Aidan in French immersion.

The mother required Crossroads to withhold information from the father and refused permission to allow the father to meet with Aidan’s counsellor

44There is no credible evidence that would lead me to conclude that the mother required Crossroads to withhold information from the father or refused permission to allow the father to meet with Aidan’s counsellor. However, given all the above, I would not have faulted the mother from doing so in order to preserve the therapeutic relationship between Aidan and Crossroads, given this family’s history with the OCFR.

The mother does not maintain reasonable boundaries at sports activities and insists on participating in the activity to which the father has brought the child during the father’s access period

45Paragraph 26 of Justice Minnema’s order states:

Both parties shall be able to attend sports and leisure activities involving Aidan as long as there is sufficient room for reasonable boundary to be maintained. They shall be permitted to volunteer and participate as required, but not at the same activity. If the parties are in the same physical space at an event in which Aidan is involved, he shall be allowed to greet the non residential parent in as natural a manner as possible.

46The father complained that the mother and her husband actively followed him around the pool while attending one of Aidan’s swimming practices. He complains that they actively interfere with his interactions with Aidan by making him go see his mother to give her his swimsuit and to receive candy before leaving with his father.

47The mother denies actively following the father around the pool and adds that she and her husband sit in the same location every week. She further explains that the first time the father took Aidan to his swim lesson, he did not remove Aidan’s towel and swimsuit from his bag to let it dry (on the Thursday night) and returned them to the mother on Monday morning still wet. As a result, the mother suggested to Aidan that he bring them to her after showering at the pool, which he has done for months thereafter. During this brief interaction, the mother gives him a hug and sometimes a yogurt drink. These particular interactions between Aidan and his mother after his swimming practices is what the father complains about.

48I do not find the mother in contempt of paragraph 26 of Justice Minnema’s order.

The mother intercepts the child at the end of the school day and the beginning of the next school day

49Even if I were to find the father’s allegation to this effect to be true, which I do not, there is nothing in Justice Minnema’s order or in any other order that would warrant a finding of contempt on that basis.

50Further, the mother explains that Aidan’s younger brother, Caleb, currently attends the same school as Aidan. As a result, she is at school at the end of the day to pick him up regardless of the parenting schedule between the parties. Naturally, it is to be expected that if Aidan sees his mother after school when she picks Caleb up, he will go to her to give her a hug and to speak to her. In my view, the father’s suggestion that this constitutes interference or “interception of the child” is a complete distortion of the facts. The evidence before me makes it clear that the mother is taking significant measures to try to avoid the father at all costs, and in most circumstances including at Aidan’s school.

The mother registers the child in competitive swimming without any prior consultation with the father which registration also interferes with his ability to provide appropriate care for the child during his access time

51Paragraph 25 of Justice Minnema’s order provides as follows:

As the custodial parent, the Respondent shall register Aidan in activities upon consultation with the Applicant, weighing both objectives of trying to make the location geographically situated to be accessible for both parents and Aidan’s need to be with friends from his school neighbourhood etc. As residential parent, the Respondent’s address shall be used for registration purposes. She shall restrict major extracurricular activities such as team sports to two per season. Both parties shall support and ensure attendance at extracurricular activities, no matter who is providing care.

52In her affidavit, the mother provided an extensive summary of all the activities that she has registered Aidan in since 2015 and of all her efforts to consult with the father and obtain his cooperation and consent to these activities. The evidence before me shows that the father basically disagrees with any of the extracurricular activities the mother suggests at Aidan’s request. Furthermore, the father has often refused to attend scheduled activities with Aidan on his parenting time.

53More specifically, as it relates to swimming, the evidence before me clearly confirms that Aidan has been actively engaged in swimming before. In September 2018, Aidan expressed the wish to engage in swimming again as his physical activity for the year. The mother researched options for a good swim program for Aidan and she found a couple of options. She specifically chose a location equidistant to both parents’ homes, at the expense of Aidan participating in another program with some of his friends but which would have required a longer drive for the father.

54On September 14, 2018, before registering Aidan in the program but after he had participated in and passed the assessment for the club, the mother emailed the father to let him know that Aidan wished to participate in swimming that year, that he had passed the assessment and that he was offered a spot on the Academy black team. There were two schedule options which the mother offered the father to choose from. As he did for every other activity in the past, the father expressed his disapproval of this activity and “reluctantly” chose one option. Unfortunately for Aidan, his father has refused to attend three swim meets available to him, which not only caused Aidan great disappointment but also forced him to miss the club’s 2018-2019 team photo in November 2018.

55I find that the mother has fully met her obligations under paragraph 25 of Justice Minnema’s order.

The mother refuses to pick up the telephone and facilitate a telephone or Skype conversation between the father and the child while the child is in her care.

56Paragraph 28 of Justice Minnema’s order provides as follows:

Telephone or other form of technological access, such as Skype, shall be restricted to one communication per day unless initiated by Aidan when he is old enough to accomplish this task. Calls shall be limited to 10 minutes and made during a 30-minute window agreed upon by the parties beforehand.

57The mother acknowledges that telephone calls between Aidan and his parents have been an issue for many years. She explains that since 2015, when Aidan was five years old, she has actively encouraged him to answer the phone whenever his father calls. However, she states that Aidan does not enjoy talking on the phone and that he reacts poorly to being “pressured” to speak with his father. She explains that when Aidan refused to answer the phone, the mother or her husband have often answered it themselves and handed the phone over to Aidan. On those occasions, Aidan has often hung up the phone or run away to his room. Given the high conflict that Aidan has been exposed to between his parents since he was born, his reaction to one parent’s calls while he is in the care of the other parent is wholly predictable and understandable.

58The mother also states that the father has regularly refused to allow her to speak with Aidan while in his care. To try to alleviate the conflict surrounding the telephone access between Aidan and each of his parents, in the summer of 2017, the mother purchased a cell phone for him. She felt that this would give Aidan some privacy, more autonomy in initiating contact with his parents and would allow him to communicate by text messages instead of talking on the phone, if he preferred. Although Aidan does not speak to his father every day, the evidence before me confirms that they text extensively. Aidan still has the use of this phone which I understand is paid for by his mother. According to the mother, during most visits between Aidan and his father, his cell phone is either confiscated or he is required to turn it off, precluding communication between Aidan and his mother through that means.

59I find absolutely no basis to find the mother in contempt of paragraph 28 of Justice Minnema’s order.

Conclusion

60This motion for a finding that the mother is in contempt of court is dismissed in its entirety.

61If the parties are unable to agree on costs, I will accept written submissions limited to five pages (excluding Offers to Settle – Bills of Costs having been provided already) in accordance with the following timetable:

• The mother shall provide her submissions by January 31, 2020;
• The father shall provide his submissions by February 14, 2020;
• The mother shall provide her reply, if any, by February 21, 2020.