Court File and Parties

COURT FILE NO.: FS-14-14792 DATE: 20200507

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Daniel W. Snively Applicant – and – Shauna L. Gaudette Respondent

Counsel: Daniel W. Snively, acting in person J. Joel Wright, for the Respondent

HEARD BY TELECONFERENCE: May 7, 2020

Endorsement

BONDY J.

A. Introduction

[1] The applicant, Daniel W Snively ("Mr. Snively"), and the respondent, Shauna L. Gaudette ("Ms. Gaudette"), separated in January 2014 after a nine-year relationship. They have two children, Daniel Snively ("Daniel") born November 15, 2007, and Carter Snively ("Carter") born April 27, 2009. Accordingly, the children are 12 and 11 years of age respectively.

[2] This was a contempt motion brought by the respondent mother for the failure of the applicant father to return children after an access visit.

[3] According to the applicant, custody was hotly disputed and, as a result, took approximately five years to resolve. Both the Windsor Essex Children’s Aid Society (“CAS”) and the Office of the Children’s Lawyer (“OCL”) were involved with the parties.

[4] Ultimately, a consent order was signed by Hebner J. on June 6, 2019. As a result of that order, the parties have joint custody of the two children with primary residence being with the respondent mother. The applicant father has specified access. The applicant mother maintains that the children are thriving in that arrangement. There was no evidence to suggest that assertion was either wrong or exaggerated.

[5] Consistent with the terms of that order, the children spent March break with the applicant father this year. Once March break was finished, the respondent mother requested that the children continue to stay with their father until the issue of three possible cases and one confirmed case of COVID-19 at the respondent mother’s place of employment had been resolved. Those messages were dated March 16 and March 24, 2020. As is more fully considered below, this turned out to be somewhat of a false alarm.

[6] Of interest, as of March 16 the applicant father requested the respondent mother sign the documents necessary for him to begin receiving the Child Tax Credit. He observed as a result of the respondent mother’s request for assistance with the children, the children would reside with him for more than 50 percent of the month of March and, therefore, would be entitled to the Child Tax Credit.

[7] On March 26 the respondent mother messaged the applicant father and asked him to have the children ready for pickup at 6:00 p.m. that day. The respondent father refused to deliver the children unless the applicant mother could produce proof that she is not infected with the COVID-19 virus. The respondent mother inquired whether the applicant father had proof that he is not infected with the COVID-19 virus after having visited London, Ontario on March 25.

[8] In any event, the applicant father then refused, and continues to refuse, to return the children in accordance with the terms of the order of Hebner J.

[9] As a result, the respondent mother brought this motion for contempt.

B. Analysis

a) The positions of the parties

1) The Applicant’s Position

[10] In summary, the applicant maintains that the respondent mother who works in administration at the Southwest Detention Centre, and her spouse who is a corrections officer at that same facility, are in high-risk occupations. He maintains that it follows that the children should not return to the respondent mother's home.

[11] The applicant father maintains that that position is consistent with the recommendations of the CAS and the children’s family physician. According to the applicant, both have advised that for the children’s health and safety they should remain in his care until the COVID-19 restrictions have been lifted. Unfortunately, there was no documentation to support that bald assertion. I considered those assertions in the context of my findings below as to the quality of the applicant’s evidence.

[12] The applicant father also deposes that he has involved the 11 and 12-year-old children in the decision-making process, and through that involvement they have expressed a desire to stay with him “until the virus is figured out”.

2) The Respondent’s Position

[13] In summary, the respondent maintains that there have been no reported cases of the COVID-19 virus with staff or prisoners at the Southwest Detention Centre, and that the facility has implemented very strict protocols protect against the COVID-19 virus.

[14] She explained that the one confirmed case referred to above was not an inmate or staff at the Southwest Detention Centre but a private contractor. The infected individual has not worked at the Southwest Detention Centre for a significant period of time. There is no evidence to suggest that anyone was infected while that individual was working at the facility.

[15] The respondent argues that, as a result, there is no unusual danger of infection if the children returned to her home as the primary residence parent.

[16] The respondent also states that the applicant father takes the children out of his home regularly to visit friends and families, and that the lack of social distancing puts the children at risk while in the care of the respondent father. In other words, the respondent mother maintains that the applicant father is putting the children at unnecessary risk of infection.

[17] Finally, the respondent provided a significant body of evidence contradicting any of the assertions made by the applicant about his parenting ability. That evidence is more fully considered below in the context of the quality of the applicant’s evidence.

b) Legal framework for a contempt analysis

[18] In Prescott-Russell Services for Children and Adults v. G. (N.), 2006 ONCA 81792, [2006] O.J. No. 2488, the Ontario Court of Appeal confirms that a three-pronged test is required in order for the applicant to prove contempt. The requirement for proof of actual knowledge was confirmed in Pintea v. Johns, 2017 SCC 23. The test can now be expressed as follows:

1. The order that was breached must state clearly and unequivocally what should and should not be done;

2. The respondent must prove beyond a reasonable doubt that the party who disobeys the order had actual knowledge of it;

3. The party who disobeys the order must do so deliberately and wilfully;

4. The evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person alleged to breach the order, in this case the respondent.

See also: Pintea v. Johns; Vigneault v. Massey, 2014 ONCA 244, [2014] O.J. No. 1535, at para. 11.

[19] The onus is on the person alleging contempt to prove it beyond a reasonable doubt: see Szyngiel v. Rintoul, 2014 ONSC 3298, [2014] O.J. No. 2590, at para. 19; Fisher v. Fisher, 2003 ONSC 2119, [2003] O.J. No. 976; and Einstoss v. Starkman, 2003 ONCA 20593, [2003] O.J. No. 3297 (S.C.J.). Hearsay evidence is not admissible: see Szyngiel, at para. 19; and Stupple v. Quinn, 1990 BCCA 1217, [1991] 30 R.F.L. (3d) 197 (B.C.C.A.).

[20] The object of a prosecution for civil contempt is always compliance and not punishment: see Starzycka v. Wronski, [2005] O.J. No. 2306.

[21] Contempt of court is the big stick of civil litigation. It should be used sparingly and only in the clearest cut of cases: see Fisher. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party: see Hefkey v. Hefkey, 2013 ONCA 44, at para. 3. Contempt findings in such cases should be made only sparingly and as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed”: see Hefkey, at para. 3; and K.(L). v. G.(T), [2006] W.D.F.L. 2571 (Ont. S.C.).

[22] Unfortunately, as observed by Blair J. in Surgeoner v. Surgeoner, (1991) 6 C.P.C. (3d) 318, there is an undertow of bitterness and a sense of betrayal that often threatens to drown the process and the parties themselves in a sea of anger and "self-righteousness". As he said, in this environment it is all too easy for a spouse to believe that he or she "knows what is right" even after a matter has been determined by the court and, as a result, decide to ignore, disobey or defy that judicial determination.

[23] For the reasons which follow, I find this to be such a case.

c) Is the applicant father in contempt?

i. Was an order breached?

[24] I reiterate that by order of Hebner J. dated June 6, 2019, the parties have joint custody of the two children with primary residence being with the mother. I find that the father's failure to return the children was a breach of that order.

ii. Did the order clearly and unequivocally state what should and should not be done?

[25] I also find that the order clearly and unequivocally stated that the primary residence of the children would be with the respondent mother, and that the applicant father's access would be at specified times.

iii. Did the applicant father have actual knowledge of the order?

[26] I have no doubt the applicant father had actual knowledge of the order. His affidavit acknowledges the order. Consistent with that acknowledgement, he had complied with the terms of that order for nine months prior to the breach.

iv. Did the applicant father disobey the order deliberately and wilfully?

[27] I also have no doubt that the applicant father deliberately and wilfully disobeyed that clear court order. He told the respondent that he would not return the children after a children's access visit with him had ended.

v. Am I satisfied beyond a reasonable doubt of contempt of a court order?

[28] For all of the reasons above, I am satisfied that this is a very clear case of contempt of a court order by self-help.

[29] I reiterate, the applicant father simply refused to return the children pursuant to a clear court order. The decision as to whether or not the children would be in danger did not belong to him in the face of that court order. If he felt the children are in danger, he ought to have returned the matter to the courts for consideration.

[30] It follows that the question is what the court should do as a result of the father's contempt. That question is best answered in two parts. The first relates to the safety of the children, and whether or not the applicant father had a legitimate reason to disobey the court order. The second relates to the appropriate remedy for the father's wilful failure to follow a court order.

d) Did the applicant father have a legitimate reason to disobey the court order?

i. Introduction

[31] I am aware that there may be situations where there is a reasonably held belief that there is a good reason to disobey a particular court order. That is particularly true when the best interests of a child or children are involved. That belief must, however, be both sincere and have some objective basis in fact: see Kokaliaris v. Palantzas, 2016 ONSC 198, [2016] O.J. No. 239, at para. 30; Szyngiel, at para. 24. I do not find this to be such a case.

[32] Presuming the applicant had such a belief, I reiterate it was incumbent upon him to immediately bring a motion to the courts in order to have the matter judicially considered. Instead, he engaged in self-help. Self-help can never be tolerated by the courts. A court order is, as the name suggests, an order, and not a suggestion.

[33] Further, as was observed by Pazaratz J., at para. 13 of the decision in Ribeiro v. Wright, 2020 ONSC 1829, "[i]n troubling and disorienting times, children need the love, guidance and emotional support of both parents"(emphasis in original). "None of us knows how long this crisis is going to last."

[34] In cases such as this where there is an existing court order there is a presumption that order should be respected and complied with. There is also a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child: see Ribeiro, at para. 7.

[35] It follows that the central issue in this case is whether the respondent mother or applicant father will expose the children to any unnecessary risks in the future: see Ribeiro, at para. 10. Said another way, does the employment of the applicant mother and/or her spouse create personal risk factors which direct that parent-child contact ought to be reconsidered: see Ribeiro, at para. 13. Similarly, does the applicant father’s lifestyle create an unnecessary risk for the children.

ii. The quality of the applicant father’s evidence

[36] The applicant father’s affidavit made many assertions in support of his decision to withhold the children’s access to their mother which I concluded were not true. In other words, I find that the applicant father deliberately misled the court. The following are a partial list of examples.

[37] The first is that the applicant father’s affidavit states that the CAS file was closed stating there were no findings of abuse or protection issues by the CAS worker, Ms. Quarty. That assertion lacks harmony with the transcript of Ms. Quarty’s evidence given at her questioning on May 23, 2017. There, she testified that one of the children reported that the applicant father “yells, threatens, and swears and spanks them and that the child is afraid of the threats”. Ms. Quarty also testified that she had observed bruising on one of the children which had been attributed to the applicant father. One of the children made a similar disclosure to the OCL investigator. The same child also disclosed that their father does not want them talking to their mother while they are with him.

[38] The second is that the respondent deposed that the CAS did not have any problem with either parent having custody of the children as long as the applicant completed the Triple P Parenting Program which he maintains he has completed. Again, that lacks harmony with this transcript of Ms. Quarty’s evidence. She testified “I would be more leaning toward the children residing with mom and John at this time.” Similarly, the OCL recommends “sole custody to Ms. Gaudette”.

[39] The third is that the applicant father deposed that the only place he takes the children is to a 150-acre private property owned by his parents, and to the grocery store. That evidence, however, lacks harmony with the GPS tracking application that the respondent mother installed on her son Daniel’s cell phone so she can determine where he is at all times. That application disclosed that Daniel was at a McDonald’s restaurant on April 15, 2020, took a trip to West Lorne near London on March 25, 2020, and also attended the applicant’s sister’s home, all while in the custody of his father.

[40] As a result, I approached all of the applicant father’s evidence with a great deal of caution.

iii. The quality of the respondent mother’s evidence

[41] To the contrary, I found the evidence of the applicant mother to be internally consistent and consistent with the preponderance of evidence that I believed. I gave her evidence corresponding weight.

iv. The applicant father’s involvement of the children in the decision-making process

[42] I reiterate the applicant father candidly acknowledged having involved his 11 and 12-year-old son in the decision-making process. I make the following observations about that decision.

[43] The first observation is that, as said above, if the applicant father disagreed with the existing court order or felt there had been a material change in circumstances, his remedy was to come to the courts seeking variation and not to engage in self-help.

[44] The second observation is that a great deal of caution must be exercised in deciding how much children of such tender ages should know about the COVID-19 crisis. The applicant father’s decision to involve the children in this matter demonstrates a clear lack of insight into the obligations of the parent to protect their children from unnecessary fear and trauma.

[45] The third is that the respondent father, like all parents, has a positive obligation to ensure that children attend with the other parent in accordance with existing court orders. That is even when that child resists: see Hatcher v. Hatcher, 2009 ONSC 14789, [2009] O.J. No. 1343, 68 R.F.L. (6th) 179, at para. 17; Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.J.), at para. 8. Importantly, the decision is not to be left with the child: see Hatcher, at para. 28; B.K. v. A.P., [2005] O.J. No. 3334 (S.C.J.), at para. 24.

[46] When a child refuses to attend with the other parent in accordance with the terms of a court order, the parent with whom the child is then staying should treat the child the same as a child who, for example, refuses to go to school or otherwise misbehaves: see Hatcher, at para. 28; Geremia v. Harb, 2007 ONSC 1893, [2007] O.J. No. 305, 154 A.C.W.S. (3d) 1128, 73 W.C.B. (2b) 395, at para 44. At a minimum, that parent ought to do the following:

a. have a discussion with the child to determine why he does not want to go; b. have a communication with the other parent to advise of the difficulty and discuss how it might be resolved; c. offer the child an incentive to go, or some form of discipline should he or she continue to refuse.

See Funnell v. Jackscha, 2012 ONSC 4234, [2012] O.J. No. 3955, at para. 17.

[47] The record before me supports the conclusion that the applicant father has failed to appropriately exercise his duties as a parent.

v. The potential motives of the applicant father

[48] I find it likely that the applicant father is taking advantage of the COVID-19 crisis to gain a litigation advantage with respect to the issue of the children’s primary residency.

[49] That possibility finds support in the very real possibility that the applicant father may be driven by money. For example, it is very clear from the messages that the applicant father from the beginning of the withholding of access harboured a very strong desire to become a recipient of the Child Tax Benefit. I am aware that his affidavit states that he already qualifies for that benefit based upon the time that the children spend with him pursuant to the order of Hebner J. That assertion, however, lacks harmony with the message that he sent to the respondent where he states “the boys have been with me for over half the month” in support of a request for the respondent mother to sign the necessary papers for him to receive the Child Tax Benefit. It defies common sense that the length of time the boys had then been with him would make a difference to the Child Tax Benefit if he already qualifies.

[50] Given the tenacity with which the applicant father approached the issue of the Child Tax Benefit, I have very little doubt that the respondent father is also aware that he would be entitled to child support if the children were residing primarily with him.

vi. The risks of infection posed by the applicant father's lifestyle

[51] The respondent mother deposes that the applicant father attended a social gathering at his sister’s home on Partington Avenue in Windsor on or about April 15, 2020. The respondent father took Daniel and Carter there with him. There were seven adults and two other children also present. That was clearly an unnecessary risk. There is also a reference in the messages to the applicant father having visited a McDonald’s restaurant and also an unknown location in West Lorne, Ontario although the details of that visit are less than clear.

[52] There is nothing in the respondent’s father’s materials to dispute any of those assertions.

[53] The applicant father acknowledges taking the children grocery shopping. His affidavit describes a very fastidious process of wearing masks, several layers of clothes, and disinfecting his clothes. I found all of that admirable.

[54] I, however, have a great deal of difficulty with the fact that the applicant father did not seem to understand that it is problematic to leave and 11 and 12-year-old alone and unattended in a vehicle in a public parking lot while shopping.

vii. The risks of infection posed by the respondent mother's lifestyle

[55] I begin with the observation that the respondent mother is working and, as a result, faces the possibility of bringing the infection home.

[56] Notwithstanding, the respondent mother has, in the past, demonstrated a high degree of responsibility with respect to the potential for infecting the children. I say that because at a point in time where there was a suspicion that one person was infected and three others possibly infected with the COVID-19 virus at her place of employment, it was she who raised the issue of the children staying on with their father until better information was available.

[57] It is now clear that there are not, nor were there ever, any known cases of COVID-19 with any of the staffs or inmates at the Southwest Detention Centre.

[58] I reiterate an employee of a private contractor who at one point worked at the Southwest Detention Centre had tested positive. There are, however, no known infections from him of any staff or inmates.

[59] Accordingly, the applicant maintains that there are currently no known cases of the COVID-19 virus among staff or inmates at the Southwest Detention Centre. That assertion finds support in an article which appeared in the Windsor Star on April 21, 2020, which states “no inmates or staff have tested positive for the virus”.

[60] I find as a fact that there are no known cases of the COVID-19 virus at the Southwest Detention Centre at this point in time. I gave that finding of fact considerable weight.

[61] In summary, as soon as the respondent mother suspected there may be COVID-19 at her place of employment, she took immediate steps to ensure that she did not have contact with the children. In other words, I find that she is a very responsible parent who in the past has put the needs of her children ahead of her own. Unfortunately, the applicant chose to take advantage of the mother’s caution in an effort to attempt to change the primary residence status quo.

viii. Conclusions as to contempt

[62] In summary, the applicant father resorted to self-help rather than coming to court to seek relief. Although his stated purpose was to protect the children, the record before me supports the conclusion that his motives are most likely related to taking advantage of the COVID-19 crisis to change the status quo.

[63] The applicant father has on more than one occasion put his own needs ahead of those of the children. For example, he engages the 11 and 12-year-old children in this court process. In doing so, he likely exposed the children to unnecessary fear and trauma with respect to the COVID-19 crisis. He also failed in his duty as a father to protect them from parental conflict. In addition, he put the 11 and 12-year-old children in danger by electing to leave them alone in the vehicle while that vehicle was parked in a public parking lot. Finally, he has a history of physical abuse with the children which required the intervention of the CAS.

[64] On the other hand, the respondent mother has demonstrated a willingness to put the children’s safety ahead of her own needs in the past. I have no reason to believe that she will not continue to do so in the future. In other words, I find that she is likely to again request the applicant’s assistance in ensuring the safety of the children should there be a change in circumstances at her place of employment. If she does so, I would expect that the applicant would not again attempt to take advantage of the situation.

[65] Said another way, I am far more comfortable trusting the children’s safety to the mother than I am to the father in the circumstances.

[66] In conclusion, I find the best interests of the children favour maintaining the terms of the order of Hebner J. It follows that I find the father did not have any reasonable excuse for his contempt.

e) The next steps

[67] Now that a finding of contempt has been made, the hearing will be adjourned to a date to be set by trial coordination for submissions as to the issues of the appropriate sanction for the applicant’s contempt and also the issue of costs.

i. The available sanction Introduction

[68] In order to assist the parties in preparing for that hearing, I would like to make them aware that Rule 31(5) of the Family Law Rules, O. Reg. 114/99 provides as follows:

31(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.

[69] I will hear submissions on the date to be set by trial coordination as to which, if any, remedy is appropriate in the circumstances of this case. As was indicated to the parties, I will consider any interim conduct of the applicant to purge his contempt by the immediate return of the children without the need for police enforcement.

ii. The issue of costs

[70] In addition to the foregoing, I find an order for costs likely appropriate. I will make that decision after giving each party an opportunity to make further submissions at the future date to be set by trial coordination.

iii. The return of the children

[71] The applicant father, Daniel W Snively, shall return the children, Daniel Snively born November 15, 2007, and Carter Snively born April 27, 2009, to the respondent Shauna L. Gaudette forthwith in accordance with the terms of the order of Hebner J. dated June 6, 2019.

iv. Police enforcement

[72] Sadly, if the applicant father continues to resist court orders regarding the children’s residency, resort to a police enforcement clause may be necessary. Police enforcement will no doubt significantly traumatize the children. It is for that reason police enforcement orders are seldom used.

[73] That said, they are necessary in cases such as this where the deleterious effects of the failure of a parent to follow clear court orders outweigh the potential trauma to the children from police enforcement. If the applicant father truly cares for the children, he will understand that, and protect the child from that potential trauma by ensuring compliance with court orders in the future.

[74] I find it important to stress to the applicant father that if his conduct makes police enforcement necessary now or at any time in the future, it may impact the issue of whether he is to have future access with the children. I say that because the trauma of police enforcement on multiple occasions may well outweigh any benefits the children derive from access visits with their father.

C. Order

1) Disposition

[75] I find the applicant, Daniel W. Snively, in contempt of the very clear provisions of the order of Hebner J. dated June 6, 2019, related to the residency of the children, Daniel Snively born November 15, 2007, and Carter Snively born April 27, 2009.

2) Return the children

[76] The applicant father, Daniel W. Snively, shall return the children, Daniel Snively born November 15, 2007, and Carter Snively born April 27, 2009, to the respondent Shauna L. Gaudette forthwith.

3) Police Enforcement

[77] I make the following orders with respect to police enforcement of this order and the order of Hebner J. dated June 6, 2019:

a) An order pursuant to section 36(2) and 36(6) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, that the police force having jurisdiction where they may be found, is hereby directed to locate, apprehend and deliver the subject children namely, Daniel Snively born November 15, 2007, and Carter Snively born April 27, 2009, to the respondent Shauna L. Gaudette forthwith; b) An order pursuant to section 36(5) of the Children’s Law Reform Act that for the purpose of locating and apprehending the said child in accordance with the order, the sheriff or police officer(s) may enter and search any place where he or she has reasonable and probable grounds for believing the said children may be with such assistance and such force as are reasonable in the circumstances, and that such search and entry may be made at any time; c) An order pursuant to section 36(4) of the Children’s Law Reform Act that the sheriff or police officer shall do all things reasonably able to be done to locate, apprehend, and deliver the said children in accordance with the order; d) An order that pursuant to section 36(7) of the Children’s Law Reform Act that the order made under section 36(2) of the Children’s Law Reform Act shall expire six (6) months after being made.

4) Adjournment for submissions as to sanction for the applicant’s intent and costs for the hearing

[78] This matter is adjourned to a date to be set by trial coordination for submissions as to the appropriate disposition of sanction for the applicant’s contempt, and costs for this motion. Further written submissions as to the issue of costs will be considered, providing they do not exceed three pages (not including any bills of costs).

Christopher M. Bondy “Electronically signed and released by Bondy J. ” Justice

Released: May 7, 2020