Court File and Parties

Barker v. Barker, CITATION: 2020 ONSC 5117

COURT FILE NO.: 9644/14

DATE: 2020-08-28

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Gregory William Francis Barker

AND: Carrie Ann Barker

BEFORE: Mr Justice Ramsay

COUNSEL: Alexandra Cohan for Applicant; William Melnychuk for Respondent

HEARD: August 28, 2020

ENDORSEMENT

[1] The Applicant moves to cite the Respondent for contempt of the order of June 22, 2018 in which I ordered, pursuant to minutes of settlement, that the Applicant have access to the children of the marriage on a set schedule including some weekends and three weeks in the summer. The Applicant has not had access to the children since last December.

[2] A term of the order, and one which I would not likely have imposed if it had not been on consent, was that the Applicant had to take the children to their extracurricular activities during his access time. This was difficult for him because he lives in Milton while they live in the Niagara Region and he did not often do it. The children did not like this and became reluctant to go and see him. It is not a direct factor in the present motion because, of course, there are no extracurricular activities going on at the moment.

[3] The Respondent did not send the children for access from December on because of the pandemic. That was not a valid reason, but the Applicant did not press.

[4] At the beginning of summer, the Applicant tried to schedule summer access. The Respondent put him off by telling him that her mother had just died. By August the Applicant thought that it was time, so he brought the present motion.

[5] I ordered the motion to proceed and, in the interim, ordered the mother to deliver the children for a one-week access visit on August 20. The mother took the children to the father’s residence. They did not have a bag packed. The children spoke to their father. The 12- year-old son said nothing. The 14-year-old daughter said that she is old enough to decide for herself, they did not want to stay because their grandmother had died and they were not ready, and because the Applicant had declined their invitation to come down to Niagara for a day in July. No one forced them to stay, and they drove home.

[6] In July when the Respondent refused the Applicant his week’s access, she offered him a day visit in Niagara. He declined. That was a tactical error on his part.

[7] The Applicant argues that there has not been any sincere attempt to comply with the access provisions of my order of September 18, 2018. He is not in a good position to complain of events before July 2020 because of his own disregard of the terms of the order and his acquiescence in the temporary suspension of access due to the pandemic.

[8] The Applicant argues that the attempted visit of August 20 was a sham, as evidenced by the lack of any packed bags, the child’s contrived-sounding reasons and the presence of the Respondent’s boyfriend, who was chatting and laughing with the Respondent the whole time.

[9] I think that the preponderance of the evidence supports this, but I am not sure to the extent required by the criminal standard of proof. That is enough to dispose of the motion favourably to the Respondent.

[10] There is still, however, a motion to change outstanding. It seems to me that there are serious issues that will need to be addressed in that context. For the guidance of the parties, I set out the following points that I hope they will seriously consider:

a. The Applicant should be able to telephone his children. If the Respondent does not want to give him her address and telephone number, they should at least have their own telephone. The Applicant has in fact bought one, but he has not seen them to give it to them. The telephone could easily be delivered through the lawyers. If the Respondent resists this, she could fairly be criticized in the motion to change proceedings.

b. In the short term, day visits in Niagara would be a good way to re-introduce access.

c. The daughter is right: she is old enough to make her own decisions. It is also important to remember that the son may not be quite old enough and the daughter’s and the son’s preferences may not be the same in any event.

d. Once curricular activities recommence, the Applicant will have to decide whether he is going to take the children to their activities on his own time, or arrange access that will be less frequent, but will not involve extra-curricular activities.

e. The Respondent’s boyfriend should not be involved in access exchanges.

[11] The motion is dismissed. I make no order as to costs because of the Respondent’s conduct, which was unreasonable, although not proven beyond reasonable doubt to be contemptuous.

J.A. Ramsay J.

Date: 2020-08-28