Napanee Court File No.: 113/15
Date: 2020-08-05
Superior Court of Justice - Ontario
Re: Ashley Lynn Chevrier, Applicant And Brock Pierre Chevrier, Respondent
Before: Mr. Justice Timothy Minnema
Counsel: Lucienne MacLauchlan, for the Applicant S. Daniel Baldwin, for the Respondent
Heard: July 27, 2020 by Zoom
Endorsement on Motion for Contempt
MINNEMA J.
[1] This is the respondent father’s motion requesting that the court find the applicant mother in contempt of the Final Order of Justice Robertson dated June 18, 2018. The parties have agreed that upon such a finding, or indeed even without it on consent, they want the court to adjust the access in that Final Order on a temporary basis from now until Christmas. As that includes summer access, this decision was expedited.
Law
[2] There is no dispute about the law of civil contempt, which is comprehensively set out by Justice Chappel in Jackson v. Jackson, 2016 ONSC 3466. For a summary I adopt the following comments by Justice Charney in Kokaliaris v. Palantza, 2016 ONSC 198 (paragraphs 24 to 26 combined, citations omitted):
Contempt is a serious remedy and is not to be granted lightly. It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. … [T]he civil contempt remedy is one of last resort and that great caution must be exercised when considering contempt motions in family law proceedings. Contempt remedies should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order. … [T]o make a finding of contempt, the court must be satisfied as to three elements of the alleged contempt: (a) the order must be clear and not subject to different interpretations; (b) the acts [or failures to act] stated to constitute the contempt must be wilful [also referred to as “intentional” or “deliberate” in the caselaw] rather than accidental; and, (c) the events of contempt must be proven beyond a reasonable doubt. Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed. Notwithstanding the court’s reluctance to exercise it[s] contempt powers, it is important that such powers be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip.
[3] It has been emphasized that even where the three elements of contempt are established, a finding is still discretionary and the judge may decline to impose it where doing so would work an injustice in the circumstances of the case: Carey v. Laiken, 2015 SCC 17 at paragraphs 36 and 37; McKinnon v. McKinnon, 2018 ONCA 596 at paragraph 36. Indeed, failure to consider discretionary factors before making a finding of contempt is an error of law: Chong v. Donnelly, 2019 ONCA 799 at paragraph 8. Discretionary factors could include whether the remedy is one of last resort (as noted above), the best interests of children (Chong at paragraphs 11 and 12), whether the contemptor took reasonable steps in good faith to comply with the order (McKinnon at paragraph 36), exigent or extenuating circumstances (Newstead v. Hachey, 2019 ONSC 5213; see paragraphs 12 and 30), and whether the defiant conduct is serious or significant (Jackson at paragraph 56).
Facts Including Procedural History and Urgency Finding
[4] The parties married in 2009, separated in 2014, and have two boys Finley age 11 and Henson age 8.
[5] In 2014 they entered into a Separation Agreement for joint custody and shared parenting.
[6] In 2017 the mother applied to the court for an Order permitting her to move with the children to British Columbia. The father contested the proceeding and eventually they went to trial. A Settlement Conference was conducted mid-trial before Justice Robertson, and with her help the parties came to an agreement.
[7] Justice Robertson’s Final Order made on consent is dated June 18, 2018, and provides for joint custody, the children residing primarily with the father in Kingston, and specified access to the mother per the schedule below. Although paragraph 3d is the operative paragraph for the contempt charge, the other provisions of paragraph 3 referring to the May Access, Summer Access, and October/November Access are all relevant given that the parties have asked the court to adjust the access up until Christmas:
[8] There is no dispute that the children were to fly out to B.C. on March 15, 2020, just days after the World Health Organization declared the COVID-19 outbreak a global pandemic. The father had reservations about letting them go given the risks. He cited Henson’s pre-existing respiratory problems (there is no dispute he has asthma) and the country’s COVID-19 hot-spot being B.C. at the time. However, the mother insisted, and he therefore followed the order despite his legitimate concern. The children flew out as required. They were to be returned on March 28, 2020, two weeks later.
[9] The father indicates that “within the first week” of the children being in B.C. the mother indicated that she would be withholding the children. Indeed, on March 23, 2020, the mother’s counsel wrote to father’s counsel indicating “I understand that our former clients have a dispute about the return of the children and the parenting plan.” The mother’s counsel cited “the risks to the children’s health by travel especially by plane” and proposed that the mother would keep the children for April and forfeit her May access in paragraph 3d of the Final Order which was to be exercised in Ontario. There is no evidence before me of public health directives limiting travel for access at the time, or of their changing between the day the children went out and the day they were to be returned. In other words, the mother dismissed the risks noted by the father when the children were to fly out, and then advanced those same risks herself a week later with no new information.
[10] The father did not agree to the wife’s proposal. He indicated that if the mother was concerned about the children flying back, he would accommodate her by traveling by vehicle to retrieve them. The mother’s counsel in response said she was awaiting instructions but noted there were still health risks if travelling by vehicle. The father’s counsel said the father would practice social distancing.
[11] The next day, March 24, 2020, the father’s counsel emailed the mother’s counsel asking for confirmation that once he arrived in B.C. the father would be able to take the children. He indicated that the father would practice social distancing. The mother’s counsel then emailed the father’s counsel indicating that the mother would not be returning the children and purported to dictate the terms of the access:
[12] The following is the letter referred to above from Henson’s family doctor, Dr. Joanna McDonald, dated March 24, 2020:
[13] There was considerable argument about the admissibility of this report and its weight. The participation versus litigation expert distinction was referred to although, surprisingly, section 52 of the Evidence Act was not. I have no problem with the opinion that Henson has asthma. It adds nothing; the condition long pre-dated the child flying out to B.C. and the parents were well aware of it. The letter also adds little if anything to the discussion about travel. The parents already knew that there was an increased risk when the children flew out. The mother in particular was satisfied that the risk did not warrant her forgoing her access. There is no new information in the letter to explain why the level of risk might have changed. The doctor did not address essential versus non-essential travel for access or how safety measures could reduce the risk. The evidence is that Dr. McDonald is a family physician and not, for example, a respirologist. There is no evidence of what instructions were provided to her in relation to the case; indeed, the mother indicates that she did not even speak to Dr. McDonald, only to her assistant. Further, Dr. McDonald had not seen Henson in over two years. It is also important to note the timing of the letter. It was obtained by the mother after, rather than before, she voiced her resistance to returning the children. It was not the basis for her decision but used to support it after the fact.
[14] The father’s lawyer responded with a long email on the same date setting out in some detail the safety measures that would be taken during ground travel. He noted that the children were flown out to the mother after the warnings and travel advisories were already in place. He addressed limitations of Dr. McDonald’s opinion and made other arguments related to the pandemic. He indicated that he would be bringing a Motion to Change on behalf of his client to seek a police endorsement clause and to change the mother’s future access to be in the father’s discretion. He further sought confirmation that safety measures were being exercised in the mother’s home and that the father would have daily unrestricted telephone and/or Facetime access. Subsequent emails between counsel were exchanged that day regarding the above noted issue of medical evidence and the family doctor’s letter.
[15] At this point the mother’s counsel indicated that she was no longer retained.
[16] The following day March 25, 2020 the father’s lawyer sent a letter by email to the mother indicating that she would be in contempt of the Final Order if the children were not returned on March 28, 2020. He referenced COVID-19 case law attaching a copy of Ribeiro v. Wright (2020 ONSC 1829) and repeated the protective measures the father would take to keep the children and himself safe when travelling by vehicle. The mother replied directly that day thanking the father’s lawyer’s office for their email and indicating that she is parenting competently and that the father is in contact with the children daily and is well informed.
[17] The return date of March 28, 2020 passed, and the children remained with their mother in B.C.
[18] The father’s lawyer then sent another letter by email to the mother directly on April 7, 2020 reminding her that she was in contempt of the Final Order and included a proposal or offer that was redacted from the court materials.
[19] A further email was sent by the father’s counsel on April 21, 2020 seeking a response to the previous letter and confirmation that the children would be returned on April 30, 2020.
[20] The mother responded with a long email the next day indicating that she did not receive the April 7, 2020 correspondence. She said that the children’s relationship with their father was being maintained through technology, that the children were safe and well cared for, and she indicated that while she does not intend to keep the children, she was not willing to commit to a return date without more information. She also referred to past co-parenting difficulties. This was in response to a statement by the father that he wanted to strip her of her parental rights. That statement by him was in correspondence that was not intended for the mother, and the father later apologized for it indicating that he made it out of frustration.
[21] On April 29, 2020 the husband’s lawyer responded to most of the mother’s statements and assertions with little agreement. He enclosed a copy of the allegedly missing April 7, 2020 letter, indicated a disagreement about the level of communication the father had been allowed with the children, and asked for an immediate response leading to an agreement failing which court action would be the next step.
[22] The mother responded quickly as requested and referred to an announcement she alleged was from the Ontario Premier “limiting” travel to Ontario. I note that there was no evidence at the hearing of any travel restrictions. She asserted Henson’s asthma is a continuing issue and indicated that Henson would stay where he was for now.
[23] There was a further exchange of texts from the father and an email from the mother to his counsel. In the latter dated May 16, 2020 the mother sought an agreement to return the children but with a number of conditions, some of which went beyond the issue of parenting time. For example, she wanted the father to take a parenting class or counselling and pay extra money for flight prices. With the children physically with her, she seemed to take the approach that she was bargaining from a position of strength. On the parenting time itself, she suggested that the children could return to Ontario on June 2, 2020 but sought a condition that they would then return to her in B.C. on July 2, 2020 for her summer access. She asked for a response by May 18, 2020 indicating that if there was no agreement by May 20, 2020, she will be unlikely to “be able to fit in all the required flights there and back by July 2 so this agreement will not work.”
[24] The father’s Notice of Contempt Motion is dated May 19, 2020, and the Affidavit of Service indicates that it was served on the mother by email that day.
[25] In addition to summarizing the above, the father’s supporting affidavit purports to provide evidence about COVID-19 risks and sets out two plans for his retrieving the children, either he flies out to get them or the mother flies with them to bring them here. He indicated that he would take all reasonable steps to mitigate COVID-19 risk, including self-isolation on return for 14 days with the children.
[26] The matter came before Justice Swartz as the triage judge who dealt with it in chambers. On May 20, 2020 she found the matter was urgent and imposed certain conditions for the hearing including personal service on the mother and that the hearing proceed by Zoom.
[27] The children were returned by the mother on June 3, 2020.
[28] In her responding affidavit dated June 30, 2020, the mother essentially agreed with the timeline set out above. As evidence that she did not purposely breach the Final Order, the mother indicated that she had purchased March 28, 2020 return tickets for the children well in advance. She said that prior to the return date the B.C. government imposed “stay-at-home restrictions and a travel advisory”, however there is no evidence of these or that they precluded travel for access or were different than what existed when the children went out. From her account, and indeed the father’s as well, the parents struggle at times with co-parenting communication. She noted Henson’s long history of asthma confirming that she was well aware of it long before he flew out to B.C. She noted that the B.C. Minister of Health was advising that non-essential travel be avoided. Again, there is no evidence that this was different from when the children flew out. The mother indicated that because the children’s schools in Ontario were physically closed, she ensured they did the on-line education programs offered by the school. She said the children told her they missed her upon their return to Ontario. She asserted that the children communicated with their father using Facetime 2 or 3 times a week when they were in B.C, as well as text messaging.
[29] Still in her June 30, 2020 affidavit, the mother indicated that as there was currently no indication of government travel restrictions, she expected the Final Order would again be followed. She said that she would be content for the children to return to her for the summer on July 9, 2020, as opposed to July 2 as the order requires, and that she bought airplane tickets for that date. Again, there is no evidence of actual restrictions and when they were allegedly relaxed or rescinded. The mother noted that she was getting married at the end of August in B.C. and that the children were expected to be involved in the ceremony. She acknowledged that the father had missed a number of days when the children should have been in his care, but suggested that the net effect was minimal. She subtracted the access she was supposed to have in Ontario this May and October, indicating that because of her job she would be unable to exercise any of October access this year except for a planned celebration of her wedding with friends and family in Ontario one weekend. She suggested that those two periods should be considered as “make-up” parenting time. She denied intentionally breaching the Final Order. I note that she provided a letter from her employer which indicated that she obtained a job as a teaching assistant in January of 2020. This led the father to argue that her withholding of the children was essentially a calculated move on her part, because she would not have been able to travel to Ontario for either her May or October access. The mother did not disclose this new employment until May 28, 2020, which the father argues is further evidence that her motive was to essentially move the Ontario access to B.C. on her timing without a court order.
[30] The father’s reply affidavit is dated July 10, 2020, which I note is after the mother’s proposed return date for her summer access. He indicated that he took the risk of sending the children to B.C. during the pandemic for the mother’s access, thereby honouring the Final Order, but she in turn used that very same risk as the reason for her not returning them. He said that as she could not exercise her Ontario access because of her new job, her motivation for keeping the children was a “self-help remedy” to increase her parenting time, and a calculated breach of the Final Order. He acknowledged poor communication issues between the parties and his use of inappropriate language, ascribing it the frustration of being unable to reason with the mother. He denied that his communication with the children in B.C. was as frequent as the mother had stated. The father then engaged, as the mother had, in a calculation of his parenting time lost as a result of the children staying in B.C.
Analysis – The Required Elements for a Finding of Contempt
[31] I am satisfied that the elements for a contempt finding have been proved beyond a reasonable doubt for the following reasons.
Alleged Breach
[32] The onus is on the party seeking a finding of contempt to spell out precisely what act or omission constitutes the charge. The father charges that the mother refused to return the children following her March Break access. He also charges that she continued to refuse to return them. There is no doubt that she overheld them over nine weeks from when they were to be returned, including a further two weeks after the contempt motion was brought. She made those decisions unilaterally, contrary to the Final Order, without agreement, and without seeking to change the Final Order.
Clear Order
[33] There is no dispute that the Final Order was clear and not subject to different interpretations. Indeed, the mother indicates that she had purchased tickets in advance to return the children on March 28, 2020 before she decided not to. She knew what the Final Order required of her.
Analysis - Discretion
[34] I find beyond a reasonable doubt that the mother intentionally breached the clear court order. The question then becomes whether the finding of contempt would work an injustice in the circumstances of the case such that I should exercise my discretion and decline to make it. I am not persuaded.
[35] I am not swayed by the argument that the COVID-19 recommendations around travel were a moving goal-post in this case. There is no evidence substantiating that defence. Specifically, there is no evidence that essential travel was ever restricted or that flights were unavailable. Parenting is an essential service: Matus v. Gruszczynska, 2020 ONSC 2353 at para. 15. There is a presumption that all court orders should be respected and complied with, and a parent is not permitted to interpret health directives to manipulate parenting time: Matus at para. 3. Both parents in this case took the position on March 15, 2020 that travel for parenting time was permitted, and the mother then unilaterally resiled from that understanding a week later.
[36] I am unable to find that the mother took reasonable steps in good faith to comply with the order or that extenuating circumstances prevented compliance. There is no evidence of cancelled flights. Per the Rebeiro decision at paragraph 20, the onus was on her to bring an emergency motion if she had evidence that the Final Order was not in the children’s best interests. Interestingly, given the anticipatory breach, the father provided her with a copy of that same case days before the breach occurred. She made her own decision to keep the children. The father through his counsel made many attempts to get her to comply, and his motion was brought as a last resort.
[37] The mother has suggested that she should not be found in contempt because the father is also in contempt in that the children were not returned to her in early July. While that may be technically true, the father takes great exception to this charge and indicates that there was an understanding from their negotiations – which are settlement discussions that he wanted the court to see but the mother refused to waive privilege – that the children remain with him while they waited for this hearing. There is no motion for contempt brought against the father.
Sanction Phase
[38] As noted above, the mother partially purged her contempt by eventually returning the children, although it was only after she had effected a unilateral change to the Final Order for the months in question. Regardless, purging does not negate the contempt but goes to penalty: Van De Mierden v. Van De Mierden, [2009] O.J. No. 2865 (Ont. S.C.J.).
[39] The father does not seek a fine or imprisonment as a penalty, and indeed all he wants is an equitable re-jigging of the parenting time from now to Christmas, which is what the mother seeks as well. He refers to Rule 31(5)(d) which allows the court to order that the contemptor do anything that the court decides is appropriate, although I note that does not open the door for the court to vary the terms of the Final Order under Rule 35(1)(d): Hefkey v. Hefkey, 2013 ONCA 44 at paragraph 5. However, again, both parties were very clear that they wanted me to modify the schedule on an interim basis and address appropriate make-up time. In some respects, this is consistent with the court’s civil contempt jurisdiction being primarily remedial. I must emphasize that adjusting the parenting plan on consent as requested means that the task at hand is not a sentencing exercise. In deciding access and parenting the only consideration must always be what is in the children’s best interests.
[40] While both parties have done elaborate calculations of the time missed by the father under the Final Order, the solution here is a more practical one. The father, to his credit, agrees to accommodate both the mother’s wedding in August and her planned October marriage celebration weekend in Ontario. In looking at their draft orders prepared by counsel, there are therefore only three significant areas of contention. The first is when the mother’s summer access to the children in B.C. should start. The father wanted it to start on August 8, 2020 and the mother wanted it to start immediately, which optimally for her would have been the date of the hearing. However, I was unable for various reasons to complete this decision before today. There is therefore little choice other than to start the access in B.C. on August 8, 2020 as the father proposed, which is now only three days away. So ordered.
[41] The second dispute was the return date from B.C. to Ontario. The father proposed August 29, 2020 and the mother proposed September 3, 2020. My understanding is that most schools in Ontario are scheduled to open for students on September 8, 2020 (per the Government of Ontario’s ‘Guide to Reopening Ontario’s Schools’ updated August 2, 2020). In looking at the Final Order, the parties who know their own children best had themselves agreed that after summer access they would be returned to Ontario ten days before the start of school. This makes some sense, as it would allow these particular children time to transition back to their regular routines. I order that the children shall be returned on August 29, 2020 as the father proposed, being ten days before the currently scheduled start of the new school year.
[42] Per the parties’ agreement, the mother shall have access in Ontario from October 16, 2020 at 3:00 p.m. until October 19, 2020 at 9:00 a.m. and the children shall remain in the father’s care thereafter until the access schedule in the Final Order resumes on December 27, 2020.
[43] The last issue was that the father wanted to impose a police enforcement clause essentially for the duration of the revised schedule. The mother was opposed, and cited the case of Patterson v. Powell, 2014 ONSC 1419 regarding the risks. In my view this case has not yet descended into a situation where such an order is necessary, and I sincerely hope that it will not get there. However, I would caution the mother that failure to obey this order would lead to serious questions about her suitability as a joint custodial parent.
Decision
[44] For the above reasons, I find the mother in contempt of paragraph 3d of the order of Justice Robertson dated June 18, 2018. Orders to go as set out above regarding short-term changes to the existing access schedule. The arrangements for travel and exchanges shall be as before and there is no substantive difference along these lines between the parties’ draft orders. The wording in paragraph 2 of the father’s draft shall be used.
[45] As the parties indicated that they wished to address me on costs I will accept written submissions as follows:
- From the father served and filed within fifteen days from the release date of this decision of no more than four pages, double spaced, in addition to any relevant offers and draft bills of costs.
- From the mother served and filed within fifteen days after she is served with the father’s submissions of no more than six pages, double spaced, in addition to any relevant offers and draft bills of costs.
- If required, a reply from the father of no more than two pages double spaced served and filed within five days after he is served with the mother’s submissions.
- If no submissions are received within the contemplated timeframe, the parties shall be deemed to have settled the issue of costs between themselves.
Mr. Justice Timothy Minnema
Date: August 5, 2020