COURT FILE NO.: D26674/18
DATE: 2020/08/17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Domenico Santini
John Hopkins, for the Applicant
Applicant
- and -
Renee Marion (formerly Santini)
Patricia Lucas, for the Respondent
Respondent
HEARD at Welland, Ontario: August 13, 2020
The Honourable Justice T. Maddalena
ENDORSEMENT ON CONTEMPT MOTION
[1] This is a contempt motion brought by the respondent mother against the applicant father. The mother states the father is in contempt of the court order of February 12, 2020 by not permitting the mother to have parenting time with the children commencing on or about May 18, 2020 and onward.
[2] The father submits he has been acting in the children’s best interest and is being protective of them. He believes the mother has relapsed into a serious illness of alcoholism and, therefore, he is justified in not following the parenting times as set out in the order of February 12, 2020.
[3] He has offered face-to-face access with the mother and the children, but she has refused, requesting the reinstatement of the parenting times as set out in the order of February 12, 2020.
[4] The legal test for contempt has been long established by the courts. The three-part test must be proven beyond a reasonable doubt. The test is as follows:
The order that was breached must state clearly and unequivocally what should and should not be done.
The party who disobeys the order must do so deliberately and willfully.
The breach must be proven beyond a reasonable doubt.
[5] For reasons that follow, the contempt motion is dismissed.
[6] Part one of the test has been satisfied in that the order is clear on its terms. Part two and part three have not been proven beyond a reasonable doubt.
[7] Firstly, some context and background are important in this case. The respondent mother has a long history of serious alcohol addiction. She has been convicted twice of impaired driving. The first conviction occurred in October 2010 and the second conviction occurred in May 2014. She was without a driver’s license for a three-year period of time following the 2014 conviction. Her license was reinstated in May of 2017. When her license was reinstated, she was required to have an interlock device installed in her vehicle.
[8] In 2016 she enrolled in the Ontario Addition Treatment Centre (OATC). The father indicates that after a short period of time attending, she stated she was “cured” and left the program. She then attended again for another short period of time. The mother states she attended the OATC as part of her probation terms and she was released from the program. Subsequently, she attended again on her own.
[9] Unfortunately, the above treatment was not successful. The respondent mother next attended the Bellwood Clinic Treatment Centre from December 28, 2016 to February 18, 2017 to combat the disease of alcoholism.
[10] The parties separated on or about February 2017. The parties entered into minutes of settlement which resulted in the final court order of February 12, 2020.
[11] On May 18, 2020 the applicant father delivered the children at 11:00 am to the residence of the mother in accordance with an agreement that had been made earlier between them. (The mother disagrees and states she was not aware the children were coming that day.)
[12] I accept as a fact that the applicant father was contacted late in the afternoon on May 18, 2020 by the children who were very distressed and anxious. The parties’ daughter, Amelia, stated that her mother was “half asleep” and “she did not know what to do”. Amelia further indicated to her father that she had tried to wake up her mom “ya like a hundred times”.
[13] Amelia further recited, “Mommy is in a deep sleep and is not waking up. I don’t know what to do.”
[14] The child Amedeo, also distressed, told his father that his mom “was sleeping most of the day and isn’t waking up”.
[15] I accept the evidence that the applicant therefore appropriately went to pick up the children. The children let him into the residence. The applicant went to the bedroom of the respondent, as that is where the children told him that she was sleeping. The applicant deposed in his affidavit, and I accept his evidence therein: “I observed Renee lying in her bed. Beside her were two empty vodka bottles as well as a bag of snacks. I photographed what I saw …”
[16] I further accept the evidence of the applicant that he confirmed the respondent was “unresponsive”. As a result, he proceeded to call the respondent’s father. I accept the evidence that he called the respondent’s father, who also came upstairs to the bedroom and found the respondent “incoherent”. He left the home leaving the respondent’s father with her.
[17] When the applicant arrived at his home with the children, he telephoned 911 as the children were worried about the state of their mother. The 911 dispatcher advised the applicant that they would send police as well as an ambulance.
[18] The respondent states in her evidence that the photograph with her sound asleep in the bed and empty vodka bottles near her pillow was staged and photoshopped by the applicant father. The respondent mother states in her affidavit that she had last consumed alcohol with friends on May 9, 2020 and that the father had removed those empty bottles from the recycling bin and staged the photograph. She deposed that she fell asleep as a result of use of Excedrin for a migraine headache.
[19] I do not find her version of events credible. There is no evidence to support an elaborate scheme by the applicant father to stage and photoshop the photograph in question. (Quaere: Given the respondent’s severe alcohol issue, what is she even doing with empty vodka bottles anywhere near her home in the recycle bin?)
[20] I find the evidence of the applicant credible. The evidence of the applicant is consistent with what the children told the father and told police, that “mommy isn’t awake and won’t play with us”. I accept the evidence of the applicant father who states that when he found the respondent unresponsive and he proceeded to, therefore, call her father. When her father was called, he came upstairs to the bedroom and “found the applicant incoherent”.
[21] The applicant father was justified in his concerns for the children. The mother’s behaviour raised many red flags for him, given her history of alcoholism. The father believed at this point the mother suffered a relapse. From what he observed, this was a logical conclusion.
[22] At best, the incident on May 18th is negligent and derelict parenting. At worst, the respondent suffered a huge relapse of alcoholism. Given her history, the concerns of the father were legitimate and justified. If the father had not been there for the children, child protective services likely would have been called.
[23] The court finds it significant that as early as May 28, 2020 the applicant father offered to deliver the children to the mother for face-to-face access for a two-and-a-half-hour time period, provided she abstain from the use of alcohol. The mother refused this access. It is puzzling to the court why the mother would refuse any opportunity to see the children given that now she laments that she has not seen them for a period of time.
[24] I find the mother’s actions on May 18th put the children at great risk. The father was correct to be concerned and worried that she may have relapsed into alcoholism. I find the father’s actions justified. The father’s actions do not fit the legal definition or test for contempt.
[25] I find no contempt which is willful and deliberate in accordance with parts two and three of the legal test. I am satisfied that the applicant father acted in the children’s best interest and is being protective of them. He has been prepared to offer face-to-face access to the mother and, therefore, I do not find any element of willful or deliberate contravention of any order.
[26] The mother placed the children at risk. The mother conceded at the hearing that the father’s actions were justified on May 18th in removing the children, but not ongoing. I disagree. Given the mother’s history of alcoholism, and given what the father witnessed on that day, his concerns for the children were legitimate and continue to be legitimate.
[27] The court encourages the mother to seek medical assistance for alcoholism to ensure she does not continue to put the children at risk.
COSTS
[28] I asked both counsel to provide to me costs submissions. Rule 24(1) of the FLA rules applies, and the applicant father is entitled to costs. I have considered the submissions of both counsel, as well as the factors enumerated in Rule 24(12) of the Family Law Rules. I am satisfied on the submissions regarding the time spent and the hourly rate of counsel. I set costs at $4,500 all-inclusive payable by the respondent mother to the applicant father and payable within 60 days.
SUMMARY OF ORDERS
[29] The following orders are made:
The contempt motion is dismissed.
The father shall commence a motion to change within 30 days.
Costs are fixed at $4,500 all-inclusive, payable by the mother to the father within 60 days.
Maddalena J
Released: August 17, 2020