COURT FILE NO.: FS-16-004-000 DATE: 2020-06-02

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

A.K.A. (C) Self-represented Applicant

• and -

T.J.A. Samantha Filipovic, for the Respondent Respondent

HEARD: March 2, 2020 at Thunder Bay, Ontario Madam Justice T. J. Nieckarz

REASONS ON MOTION

Overview:

[1] The Applicant (“Mother”) and the Respondent (“Father”) are the parents of four children ages 6, 8, 9 and 11. In addition, the Mother has a 2-year old daughter from a subsequent marriage (“A”).

[2] The parties separated in December of 2015. After a lengthy and acrimonious separation, they resolved all issues pertaining to the parenting of their children and their finances by way of Minutes of Settlement. Those Minutes of Settlement were incorporated into the final order of the Honourable Mr. Justice J.S. Fregeau, dated March 28, 2019 (the “Order”).

[3] The Father claims that the Mother is not honouring the clear and unequivocal terms of the Order. He argues that her actions demonstrate she never intended to comply. He seeks to have her found in contempt of the Order. It was agreed at the hearing of the motion that any argument with respect to the sanctions sought by the Father would be deferred pending a determination by this Court as to whether or not the Mother had in fact committed contempt.

[4] The Father alleges that the Mother committed contempt as follows:

a) Paragraph 1 of the Order requires the Mother to ensure that the children are not in the presence of her spouse (“Bourque”), other than for special holiday occasions with A. The Father alleges that the children were unlawfully in the presence of Bourque during the week of March 18-25, 2019, April 27, 2019, the weekend of May 18, 2019, the weeks of August 5-12 and 19-26, the weekends of October 4, November 17 and December 1, 2019. The Father alleges that none of these occasions were special holiday occasions for A.

b) Paragraph 10 of the Order requires the parties to follow the recommendations of treating health care practitioners for the purpose of non-emergency health care decisions. There is also a process provided for if a party wishes to obtain a second opinion. If disputes remain, then the issue is to be submitted to Court for determination. The Father alleges that the Mother did not follow this procedure and violated the terms of the Order by bringing one of the children for assessment to Stride Orthopedics and then requiring him to use orthotics contrary to the recommendations of both his family physician and physiotherapist.

c) Paragraphs 11 and 13 of the Order provide for the exchange of health cards and passports for the children. The Father alleges that the Mother contravened the requirements of these paragraphs when she failed to exchange these documents on April 8, April 22, May 6 and May 21, 2019.

d) Paragraph 12 of the Order permits the Mother to retain the original birth certificates for the children but requires that she provide the Father with notarized copies of the same. The Father alleges that on June 3, 2019 the Mother refused to provide the notarized copies unless the Father shared the cost of the same pursuant to s. 7 of the Federal Child Support Guidelines.

e) Paragraph 16 of the Order provides for the children’s participation in organized hockey. It requires each party to ensure that the children attend all of their games, practices, tournaments, banquets, parties related to this activity. It also requires them to offer the other parent the option of transporting the children if they are unable to do so and unable to make alternate arrangements for the children to attend. The Father alleges that the children missed hockey practices on October 1, 3, 5, 14, 15, 17, 19, 28, 29, November 2, 11, 12, 14, 16, 25, 26, 28, 30, December 9, 10 and 12, 2019. One of the children missed a game on November 1, 2019 and another missed his team photograph on December 13, 2019 along with a game. The Father alleges that he was not offered to transport the children on these missed dates.

f) Paragraph 17 of the Order prohibits the parties from registering the children for an extra-curricular activity that takes place during the other party’s parenting time, unless they secure the other party’s consent. The Father alleges that the Mother registered the children for an activity during his parenting time on August 14, 2019 without his consent.

g) Paragraph 18 of the Order prohibits the parties from discussing adult issues in the presence of the children. The Father alleges that during the week of September 30, 2019 the Mother discussed adult issues related to parenting time and extra-curricular activities with the children.

h) Paragraph 20 of the Order requires the parties to alternate the scheduling and attendance at health care and dental appointments for the children. The Father alleges that during the week of April 1, 2019 the Mother scheduling non-alternating appointments for two of the children. He further alleges that on September 23, 2019, during his parenting time, the Mother took one of the children to a medical appointment.

i) Paragraph 22 of the Order provides that if the Mother makes a false claim to either child welfare or police authorities about the Father, with respect to his conduct towards the children, then this shall constitute a material change in circumstances that will permit a review of the Mother’s custodial rights and care of the children.

j) Paragraph 29 of the Order provides that care arrangements shall only be altered if the parties agree in writing. The Father alleges that on October 8, 2019 the Mother unilaterally changed the location for the return of the children to her care.

[5] The Mother denies any acts of contempt. She takes the position that the Order is not clear with respect to many of the issues in dispute, and that she and the Father have simply interpreted various provisions of the Order differently. She has not engaged in any intentional breaches of the Order and therefore the motion must be dismissed.

The Law:

[6] Rule 31(1) of the Family Law Rules, O. Reg 114/99, as amended, provides that an order, other than for the payment of money, may be enforced by a contempt motion even though other remedies may be available.

[7] The test for contempt is set out in paras. 32-35 of Carey v. Laiken. Civil contempt has three elements which must be established by the party alleging contempt beyond a reasonable doubt. They are:

a) The order alleged to have been breached must state clearly and unequivocally what should and should not be done. Where an order is unclear, there should not be a finding of contempt;

b) The party alleged to have breached the order must have had actual knowledge of it; and

c) The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

[8] The “intent” aspect of the test does not require a specific intention to disobey the order, but rather that the alleged contemnor deliberately, wilfully or knowingly did some act which amounted to a breach of a court order. Proof of recklessness will satisfy the necessary intent. Wilful intent or malice is not necessary, although its presence may be relevant to penalty. It is sufficient that a party knew of the terms of the order and intended to do the acts that constituted the breach. See: Carey v. Laiken, at paras. 38 and 41, and Schikolenko v. McLellan, 2017 ONSC 111 at paras. 55-57.

[9] Once the three elements of civil contempt have been established, a motions judge has an obligation to make a further determination as to whether she should exercise her discretion to decline to make a finding of contempt. This is a crucial step. It would be an error in law not to make this determination. See: Chong v. Donnelly, 2019 ONCA 799 at para. 8.

[10] Despite the availability of contempt as an option for the enforcement of family law orders, the Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 at para. 36, noted that the contempt power should be used cautiously and with great restraint as “an enforcement power of last rather than first resort”. The Ontario Court of Appeal in Ruffalo v. David, 2019 ONCA 385 at para. 18 and Chong v. Donnelly at para. 9 has emphasized the importance of this exercise of discretion in family law matters.

[11] As the Court of Appeal further noted in Ruffalo v. David at paras. 8-9, when the main issues to be decided relates to the parenting of children, the best interests of the children should be the paramount consideration; more appropriate and constructive ways to resolving parenting disputes than a contempt proceeding should be considered.

[12] It is incumbent upon the Court to consider whether the finding of contempt is truly a last resort or whether there are alternatives such as an admonishment or encouraging professional assistance. See: Chong v. Donnelly at paras. 10-11.

Analysis:

[13] The Mother does not dispute that she has knowledge of the terms of the Order. The issue to be decided is whether she intentionally breached clear and unequivocal provisions of the Order and if so, whether I should exercise my discretion to make findings of contempt.

Paragraph 1 – prohibition against children being in the presence of Bourque other than for special holiday occasions with A:

[14] The Father alleges that the children were in the presence of the Mother’s former spouse (“Bourque”) on a number of occasions. The source of his information is hearsay evidence of the children.

[15] He alleges that the Mother’s actions contravene paragraph 1 of the Order, which states that the children may only be in the presence of Bourque for “special holidays occasions for A…”. His evidence is that this provision was necessary due to safety concerns pertaining to Bourque.

[16] The Mother’s evidence is that she separated from Bourque in January 2017, but they maintain a friendly relationship for the sake of their young daughter. Despite their estrangement, Bourque frequently attends family events and vacations in their effort to joint parent A. He also occasionally stays overnight at her home to exercise his parenting time to A when he is not working out of town, but this is scheduled during the week that the children are not present.

[17] The Father does not believe that the Mother and Bourque are estranged, as she claims. He alleges that she has taken measures to avoid detention of the fact that Bourque is at her home when she has the children, such as insisting that the pick-up of the children, by the Father, not be at her home. She has gone so far as to serve trespass notices on the Father and his extended family to prevent them from attending at her home. The Father also points to the April 17, 2019 report of the clinical investigator appointed previously by the Office of the Children’s Lawyer, along with text messages between one of the children and Bourque, which suggest that the Mother is not forthcoming as to the true nature of her relationship with Bourque and his involvement with the children.

[18] The Mother argues that paragraph 1 of the Order is not clear. Specifically, it does not say what are “special holiday occasions for A”; it does not specify that it must be exclusively for A. The Mother has interpreted this provision broadly to include occasions that are special for the entire family, including A. These have included holidays such as Christmas, but also special occasions such as family reunions, birthday celebrations for other family members and events for the Mother’s entre family in which A is present and participating. She argues that the Father’s interpretation that the event must be a special occasion exclusively for A is far too restrictive.

[19] The specifics of the allegation of contempt of paragraph 1 of the Order, and the Mother’s responses are as follows:

a) March 18 – 25, 2019 Father: Bourque was present in the home while the children were there. Mother: While Minutes of Settlement had been signed, the Order had not been made. I agree. The Mother cannot be found to be in contempt of an order not yet made.

b) April 27, 2019 Father: Children advised him that Bourque was present with them at the children’s maternal great-grandfather’s home. Mother: This event was the children’s great-grandfather’s 75th birthday celebration. They also celebrated one of the children’s birthdays at the same time. This took place during the Father’s care of the children. The Father did not advise the Mother in advance that the children were attending, but instead made arrangements with the Mother’s sister to bring them approximately 45 minutes prior to the event. Bourque was present.

c) May 18, 2019 Father: Children advised Bourque was present during the weekend. Mother: Acknowledges that he was present. States it was an annual family reunion weekend that A participated in.

d) August 5 – 12, 2019 Father: Children advised him that Bourque was present on a camping trip. Mother: Acknowledges a camping trip from August 6, 2019 – August 10, 2019 in Sault Ste. Marie, but denies Bourque was present at any time.

e) August 19 – 26, 2019 Father: Children advised him that Bourque was present during a trip to Manitoba. Mother: Acknowledges a trip to Manitoba on August 24 and 25, 2019. Acknowledges that Bourque joined them on an amusement park outing on August 24, as he was also in Manitoba.

f) October 4, 2019 Father: Children advised him that Bourque was present for a hunting trip. Mother: Acknowledges travel to Manitoba from October 4, 2019 to October 6, 2019 to visit her sister for her birthday. Bourque was not present and was in fact, in Gatineau, Quebec for a family funeral.

g) November 8, 2019 Father: One of the children alleged that Bourque is present overnight for most nights. Mother: Denies this to be the case.

h) November 17, 2019 Father: Bourque brought a birthday cake for the Mother to her home and had a birthday party for her. Mother: Bourque surprised her and the children with a cake. He remained at her home for a short celebration and left.

i) December 1, 2019 Father: The children rode the CP Holiday Train with the Mother and Bourque. Mother: Acknowledges this occurred. This is an annual tradition and special event for the Mother, the Mother’s grandfather, and the children.

j) Father: Children regularly spend time alone with Bourque in the Mother’s home. Mother: Denies that the children have been alone with Bourque subsequent to the Order being made.

[20] I agree with the Mother that paragraph 1 of the Order is not clear and unequivocal as to what does or does not constitute “special holiday occasions for A”. For this reason, I decline to make a finding of contempt with respect to those occasions.

[21] This should not be taken to mean that I agree with the Mother’s overly broad interpretation of this provision. The Mother’s attempt to portray activities such as an amusement park outing as “special holiday occasions for A” is an obvious attempt to subvert any real intended meaning of this provision of the Order. However, this does not mean that I agree with the Father’s overly restrictive approach either. This is clearly an issue that needs further discussion and clarification between the parties, preferably with professional assistance. Failing this, it may be that a determination of the Court on this point is required.

[22] The ambiguity of that part of the order pertaining to “special holiday occasions” does not end the Father’s contempt argument with respect to paragraph 1. He argues that Bourque is frequently in the presence of the children and he questions whether Bourque lives with the Mother when he is not out of town working. He states that the children volunteer information that leads him to believe Bourque is in their presence frequently. The Mother denies this. The Father points to the clinical investigator report for the Office of the Children’s Lawyer and one of the children’s statements to her that Bourque visits them and stays with them at their mother’s home. The difficulty is that I am uncertain as to when this disclosure took place; it was likely before the Order was made. While I suspect the Mother is downplaying Bourque’s level of involvement with the children, this has not been proven by the Father beyond a reasonable doubt.

[23] What has been proven beyond a reasonable doubt is that Bourque is in the presence of the children occasionally for access exchanges for A, during which he enters the home and occasionally participates in her bedtime routine. The Mother acknowledged this in email correspondence dated June 3, 2019. This is a clear violation of paragraph 1 of the Order. There is no ambiguity that this contact with the children is prohibited even if the Mother does not leave the children unattended with Bourque.

[24] The question becomes whether I should exercise my discretion in favour of a finding of contempt or not. The Father’s counsel argues that this motion is a last resort; that the Father has sent approximately four letters through counsel, in addition to his own emails trying to get the Mother to comply with the Order.

[25] I decline to make a finding of contempt on this occasion. This is one of those occasions for which an admonishment is appropriate. A is a young child. It is understandable that Bourque enters the home to collect and return her for his parenting time. It is commendable that the Mother and Bourque can cooperate to permit him to participate in A’s bedtime routine. If in fact the Mother and Bourque are separated, this is the type of behaviour between separated parents that should be encouraged. It is in the best interests of all of the children to see this cooperation. Despite this, court orders should be obeyed. There were specific concerns that must have led the parties to agree that paragraph 1 of the Order was in the best interests of the children. If, as the Mother claims, those concerns have been alleviated, then it is incumbent upon her to bring a Motion to Change if the parties are otherwise unable to agree upon a change either through counsel or with the assistance of other professionals. The Mother is cautioned to ensure that Bourque is not in the presence of the children unless otherwise permitted by the Order; there is no exception for access exchanges for A in the Order. These findings are without prejudice to the right of the Father to bring a further motion for contempt should the issue not resolve.

Paragraph 10 – follow the recommendations of treating health care practitioners:

[26] One of the children suffers from a ¼ inch discrepancy in length between his two legs. It appears he may have complained of pain in his legs in the past. The parties’ handling of his medical care with respect to this issue is indicative of their level of dysfunction as co-parents and their inability to put the interests of the child first.

[27] Paragraph 10 of the Order provides that with respect to non-urgent health care decisions, the parties shall follow the recommendations of the treating health care provider. If either party disagrees, they shall obtain a second opinion. If, after the second opinion they still disagree, the issue shall be submitted to court for determination.

[28] The child was scheduled for an appointment with his physician on April 12, 2019 to discuss this and other medical concerns. The Father claims that the Mother did not provide him with the reasons for the appointment and so he rescheduled the appointment to June 3, 2019 (a parenting exchange day); he alleges that the physician then changed it to June 4, 2019, while the Mother claims that the Father changed the date so that there would be no issue that he would accompany the child.

[29] Days before the appointment, on May 29, 2019, the Mother took the child to a walk-in clinic at a local orthotics store without the Father’s knowledge, for a biomechanical assessment conducted by a pedorthist. She alleges the child was complaining of shin pain and had been doing so for approximately one-year. There is nothing suggesting the situation was urgent and that the child could not have waited for his medical appointment at the beginning of June.

[30] The Mother’s evidence is that the outcome of this appointment was a recommendation for physiotherapy and orthotics. On June 3, 2019 the Mother notified the Father that she had taken the child for the appointment and asked him to obtain a prescription for orthotics from the treating physician, at the medical appointment the following day.

[31] The Father took the child to the doctor’s appointment on June 4. He states that the doctor recommended physiotherapy but not orthotics. He made a physiotherapy appointment for June 21, 2019 to occur during his parenting time. When he did so he learned that the Mother had made one for June 11, 2019 during her parenting time.

[32] The Mother took the child to the appointment on June 11. Her position is that a recommendation was made for orthotics. The assessment report filed in evidence recommends a “heel lift”. She advised the Father that she wished to proceed with obtaining orthotics for the child; the Father disagreed based on his discussions with the child’s physician and the physiotherapy appointment he then took the child to on June 21, 2019.

[33] On July 16, 2019 the Mother communicated to the Father that she was scheduling an appointment with a nurse practitioner led clinic to obtain a further opinion with respect to orthotics. The Father took the position that the second opinion was obtained from the physiotherapist, who did not recommend orthotics, but rather a gel heel cup, which is not the same as an orthotic. He asked the Mother to cancel the nurse practitioner appointment.

[34] The Mother took the child to the nurse practitioner. The letter from the nurse practitioner recommends orthotics in ‘accordance with the recommendation of the physiotherapist and pedorthist’. The letter notes that orthotics are not, however, mandatory.

[35] The Mother proceeded to have orthotics made for the child and used by him, despite the Father’s disagreement. The Father alleges she did so contrary to the recommendations of two health care professionals. He further alleges that in doing so, she breached the Order.

[36] Knowing there were conflicting opinions from health care providers, and knowing of the Father’s disagreement with orthotics, the Order is clear that the Mother’s obligation was to submit the issue to Court rather than proceed unilaterally with the opinion that most favored her own views. The most common sensical approach would have been for the parties to meet jointly with the physiotherapist to reconcile their different interpretations of his recommendation. Neither happened.

[37] While I find that the Mother’s actions in proceeding with orthotics and not submitting the issue to Court once she became aware of the dispute satisfies the three elements of contempt, I am exercising my discretion against finding contempt. Again, I find that an admonishment is more appropriate in the circumstances.

Paragraphs 11 and 13 – exchange of health cards and passports for the children:

[38] The Father alleges that the Mother contravened the requirements of these paragraphs when she failed to exchange these documents on April 8, April 22, May 6 and May 21, 2019. Thereafter the documents have been exchanged without incident.

[39] The Mother acknowledges that she forgot to send the documents on April 8th. She states that thereafter she sent the documents in the children’s backpacks. When the Father continued to complain that he did not have the documents, she purchased a neon folder to put them in so that they would not be missed; she has not received any complaints from him since.

[40] The parties communicate regularly through the Our Family Wizard program. The Mother did not respond in any fashion to the Father’s ongoing complaints that he did not have the health cards or one of the child’s passport. Had she in fact sent the documents, she should have responded to the Father’s inquiries by advising him where to find them in the backpacks. I do not find her explanation credible.

[41] I am prepared to accept that the Mother’s initial failure to provide the documents on April 8th was mere inadvertence and not an intentional breach of the Order. However, I find that the Father has proven beyond a reasonable doubt that the Mother breached the Order with respect to her subsequent failures to provide the documents. While the Mother’s actions unnecessarily caused further conflict between the parties, given that she has been exchanging the children’s documents as required by the Order on an ongoing basis since June 2019, I do not see how it would further the best interests of the children to perpetuate this conflict by a contempt finding with respect to this issue. Any contempt has been purged.

Paragraph 12 – Mother’s refusal to provide notarized copies of birth certificates:

[42] Paragraph 12 of the Order requires the Mother to provide the Father with notarized copies of the children’s birth certificates.

[43] The Mother acknowledges she refused to provide the Father with the notarized copies unless he contributed to the cost of the notary. He refused to do so. She further acknowledges that upon receipt of legal advice she realized that she was in breach of the Order in taking this position and she immediately rectified the situation by providing the documents. This was after this motion was served.

[44] The three elements of civil contempt have been satisfied. However, this issue will not arise again as the Mother has delivered to the Father the notarized copies contemplated by the Order. I would have made a finding of contempt if the Mother continued to stubbornly insert her own terms for compliance into an otherwise clear provision of the Order. Such actions only serve to increase the level of chaos and instability in an acrimonious post-separation parenting relationship. It would not be in the best interests of the children to perpetuate that chaos and instability with a contempt finding and sanction hearing over an issue that has been resolved.

Paragraph 16 – failing to take the children to extra-curricular activities:

[45] Paragraph 16 of the Order requires the parties to ensure that the children attend their extra-curricular activities. If they are unable to transport the children themselves or make other arrangements with other parents or family members, they are to offer the other parent the opportunity to take the children. They must ensure that the children do not miss more than twenty-five percent of their activities.

[46] The Father alleges that the Mother did not take certain children to certain hockey practices, games and related events. The Mother claims that certain dates were missed due to out-of-town vacations and cancellations by the teams due to weather or holidays. The Mother acknowledges that she has been unable to take the children to all their activities due to the significant increase in the number of hockey practices and tournaments since the Order was made. She also alleges financial constraints.

[47] The Mother states that due to her living in Thunder Bay and the children playing in Nipigon, Ontario, the increased number of events for the children makes it unaffordable for her to comply with the Order, despite her best intentions. On December 4, 2019 the Mother filed a Motion to Change, seeking to amend this provision of the Order to alleviate the burden.

[48] The Father denies that there has been a significant increase in the children’s hockey activity. He states that while there is approximately two hours a week more of hockey in the 2019/2020 season as compared to the 2018/2019 season (when the Order was made), the number of days has been reduced from five days a week to four.

[49] The Mother acknowledges that when the issue was raised with the Father, he offered to take the children to those practices or events that the Mother is unable to attend. Sometimes that would have required that a child remain with him overnight due to the distance between the location of the event and the Mother’s home. The Mother was agreeable, provided she receive make-up time. Otherwise, the Mother candidly admits that she was not content with this arrangement because she viewed it as an infringement of her parenting time, particularly given that between the four children they play on five different hockey teams.

[50] The Mother has also offered other solutions such as extending the Father’s parenting time to Tuesday morning so that the Father can transport the children each Monday night. She has also suggested mediation, but the Father has declined. The Father takes the position that he has an Order, he does not need mediation.

[51] There were some legitimate reasons offered by the Mother that demonstrate she did not intentionally breach the Order. However, on other occasions, I have sympathy for the Father’s position as it strikes me that the Mother has simply found the children’s schedule too onerous to comply with. Having said this, her actions do not constitute contempt. The Order requires the Mother to offer the Father the option to take the children to their event. The Father is correct in that it does not require make-up time to be provided as demanded by the Mother, but it also does not require the Mother to give up an entire night with the children from after-school onwards. The issue has boiled down to the terms associated with the option for the other parent to drive, which is not addressed by the Order. This issue is made more complicated by the fact that the Mother lives in Thunder Bay, the Father in Dorion and often the children’s activities are in Nipigon or elsewhere along the north shore of Lake Superior. This is an issue that is best left to determination and clarification on the motion to change. For the time being, with the Covid-19 pandemic, it is unknown when hockey activities will recommence. If the parties are otherwise unable to resolve the issue, they should have that motion determined before activities resume so as to minimize the disruption to the children.

Paragraph 17 - registering the children for an extra-curricular activity that takes place during the other party’s parenting time without consent:

[52] Paragraph 17 prohibits the scheduling of the children for extra-curricular activities during the other parent’s parenting time without their written consent.

[53] The Father alleges that the Mother registered the children for an activity during his parenting time on August 14, 2019 without his consent.

[54] The Mother acknowledges that she did register the children for a one-day activity, which occurred during the Father’s week. She states that it was the only available date for an activity that the children wanted. She booked the date to hold it. When she communicated this to the Father, she stated quite clearly that she would cancel if he did not agree. Once he signalled his disagreement she cancelled immediately. In these circumstances I am not prepared to find the Mother in contempt.

Paragraph 18 – prohibition against involvement of the children in adult issues:

[55] Paragraph 18 of the Order states that the parties shall not discuss adult issues in the presence of the children or communicate any adult information through the children.

[56] The Mother states that she spoke to the children about their hockey schedule to attempt to ascertain their wishes; whether they were content to miss some practices or not. She explained to them some of the options with respect to the changes to their schedules if they did not want to miss. Based on the evidence, it appears that the Father has had the same conversations, although he denies having initiated them.

[57] Conversations with children, free from suggestion or pressure to adopt a certain position, and that are designed to simply assist in informing the parents’ decisions on issues such as extra-curricular activities by ascertaining the children’s views and preferences do not necessarily constitute involving the children in adult issues. In this case, it strikes me that these children felt pressure from each of their parents to adopt a position consistent with what they thought the parent wanted to hear. The evidence leads me to conclude that each is equally guilty of placing the children in this loyalty bind, whether intentionally or not.

[58] I am concerned with the Mother’s conduct with respect to the letters written by the children. I do not accept her explanation that she had simply encouraged the children to write down their feelings about the issue as a way of communicating them to their father. If that were the case, the letters would have been written by the children and delivered to their father by the children, if, and when they felt is appropriate to do so. Not all the children may have chosen to do this. This was not the case. There is a letter with a similar message from each of the children. They were delivered by the Mother as part of her email that sought to attempt to convince the Father of her position with respect to extra-curricular activities. I find that these letters constituted communicating adult information through the children. The Mother’s actions were in direct violation of paragraph 18 of the Order, which is clear and unequivocal that this conduct is prohibited.

[59] The question again becomes whether I should exercise my discretion to decline to make a finding of contempt. Involving children in disputes between their parents is contrary to their best interests; it is harmful to their emotional well-being. It should not happen. It should actively be discouraged by the courts. Having said this and, being mindful of the direction from the Ontario Court of Appeal and Supreme Court of Canada that contempt should be a finding of last resort, I decline to make that finding at this time.

Paragraph 20 - alternate the scheduling and attendance at dental appointments:

[60] This issue, combined with the issue pertaining to medical care, highlights the level of dysfunction between the parties and my concern that they may have lost sight of the bigger picture when it comes to the health care of their children.

[61] The Order requires the parties to alternate non-urgent dental and healthcare appointments for the children so that each party may take the children to appointments equally on an alternating basis without a requirement that the other attend.

[62] The Father complains that the Mother breached the Order as follows:

a) On April 8, 2019 she took two of the children for an appointment with their pediatrician. A follow-up appointment was required, which the Mother booked for her parenting time on May 15, 2019. The Father insisted that the appointment be changed to his parenting time. The Mother refused and took the children on May 15, 2019, in contravention of the requirement to alternate appointments.

b) On September 23, 2019 the Mother took a child for a medical appointment during the Father’s parenting time without his knowledge. It was not her turn to do so.

Otherwise, the Father acknowledges that the parties have been alternating appointments.

[63] The Mother’s evidence is that on April 8, 2019 the pediatrician asked her to schedule a follow-up appointment. Email correspondence between the parties suggests that medication had been prescribed for a child and the doctor wanted to follow-up as to the effectiveness of the treatment. The Mother states that she was unaware of the Father’s schedule and scheduled the appointment during her care of the children. She then communicated this information to the Father and gave him the option of scheduling his own appointment during his care to ensure alternating appointments or attend the May 15th appointment with her. He declined to do either, but rather insisted that the Mother change the appointment. While ideally the Mother would have called the Father to determine his availability, sadly these parties do not have that type of relationship. As such, I find the Mother’s actions appropriate on this occasion. The evidence does not support that she routinely fails to schedule alternating appointments.

[64] With respect to September 23, 2019, the Mother’s evidence is that the medical appointment had originally been scheduled with the pediatrician for November 27, 2019. The Father had an appointment for November 19, 2019 and so this would have followed the requirement of alternating appointments. The pediatrician’s office contacted the Mother to advise that November 27th was no longer available, and the appointment was rescheduled to September 23, 2019. This cannot be said to be a deliberate breach by the Mother of the Order. The pediatrician changed the appointment so that the alternating schedule was affected. The Mother should have, however, notified the Father of the appointment change as soon as it happened.

These children have varying special medical needs. While compliance with the Order is important and flagrant breaches will not be tolerated by the Court, the focus of the parties should be on ensuring that the children’s needs are attended to more so than who takes them for an appointment.

Paragraph 22 - false claim to child welfare authorities about the Father:

[65] Paragraph 22 of the Order provides that if the Mother is found to make a false claim about the Father to child welfare or police authorities, this may constitute a material change in circumstances warranting a review of the Mother’s parenting rights.

[66] The Father complains that the Mother breached this provision of the Order when she complained to the Children’s Aid worker about the children not being fed properly while at the Father’s home.

[67] While I find the Mother’s comments about this issue in her email correspondence to the Father distasteful and unnecessarily antagonistic, she did not breach the Order in discussing her concerns with the worker. The Order does not prevent her from doing so. It merely provides the Father with a remedy if this occurs, which is not contempt.

Paragraph 29 - Care arrangements shall only be altered if the parties agree in writing:

[68] The Father alleges that the Mother was in violation of paragraph 29 of the Order when she unilaterally determined that exchanges of the children on non-school days should take place at a neutral location as opposed to a home.

[69] While I do not agree with the Mother’s conduct with respect to the trespass notices and unilaterally changing the location of the exchange, I do not find that paragraph 29 is clear and unequivocal that “care arrangements” apply to transportation arrangements.

Conclusion:

[70] I agree with the submissions of counsel for the Father that the Mother has adopted an unnecessarily conflictual approach to the joint parenting of the children. At times, her approach has been in violation of the court order and is deserving of condemnation. The Father in turn has adopted some unnecessarily inflexible positions. However, I do not agree that the parties are at a point yet at which contempt may be said to be a last resort or indeed, that it is in the best interests of the children.

[71] The parties are involved with child welfare authorities specifically because of a concern about the impact on the children of the level of parental conflict. I have expressed concerns throughout this decision as to the conduct of both parties. At times, both parties have been guilty of being more focused on “their rights” as opposed to the best interests of their children. They need to change their focus. I have no doubt that this conflict is negatively impacting their children in irreparable ways.

[72] I have declined to make findings of contempt at this time for the simple reason that the conflict between the parties needs to de-escalate; they need to focus on their children as opposed to this ongoing war with each other. They are strongly encouraged to seek the assistance of a parenting co-ordinator or other professional to assist them in working out the details of those parts of the Order that are not clear, but also with changing their focus and constructively managing future issues with each other.

[73] This decision should be taken by the parties as both a stern warning and plea for a truce in the war they have with each other; their children will be the casualties of that war if they fail. If this warning fails, and if breaches of the Order persist, it may be that contempt findings become necessary as a true “last resort” in an attempt to bring some peace to the lives of these children.

[74] This is not an appropriate case for costs.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

DATE: June 2, 2020