COURT FILE NO.: FC543/12
DATE: 2020/10/21
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tara Jean Teal
Miranda J. Belansky
Applicant
- and -
Jason Teal
Respondent
James Almas
for the Respondent
HEARD: October 16, 2020
The Honourable Justice N. Gregson
REASONS FOR DECISION ON CONTEMPT MOTION
[1] The Respondent father, Jason Teal, brought a notice of motion seeking an Order to find the mother, Tara Jean Teal in contempt of court for refusing to comply with paragraphs 3(a) and 3(b) of the final Order of Madam Justice T. Maddalena dated March 3, 2020 by failing to return the child of the marriage, namely, Kaila Jay Teal, born September 25, 2008 to the father.
[2] The notice of motion was deemed to be of an urgent nature and was set for a hearing to determine whether the mother should be found in contempt of court.
SUMMARY OF THE EVIDENCE
[3] The parties are the parents to three children namely, Jassie Lea Teal, born September 6, 2004, Chase James Teal, born January 23, 2007 and Kaila Jay Teal, born September 25, 2008.
[4] On June 9, 2015, The Honourable Madam Justice E. S. Martin made a final Order that the parents have joint and shared custody of their children and they were to continue to reside with each parent for an approximate equal amount of time over the course of each year and were to continue to reside with the parties on a week on, week off basis.
[5] In November 2016 Jassie began to live exclusively with her father and have no contact with her mother until December 2017. As a result, the Respondent father filed a motion to change in 2018 seeking sole custody and primary residence of Jassie with access for the mother to be in accordance with Jassie’s wishes.
[6] However, by July 2018 Jassie had returned to the exclusive care of her mother and had minimal contact with her father.
[7] The motion to change was resolved when the parties executed Minutes of Settlement which were incorporated into a final Order on March 3, 2020 by Justice T. Maddalena. The final order dealt with all three of the parties’ children.
[8] Pursuant to the final Order, Jassie is to reside primarily with her mother subject to access with her father in accordance with Jassie’s wishes.
[9] Paragraphs 3(a) and 3(b) of the March 3, 2020 final Order dealing with Chase and Kaila states the following:
(a) The children of the marriage, namely Chase James Teal, born January 23, 2007; and Kaila Jay Teal, born September 25, 2008 shall reside primarily with the Respondent effective March 1, 2020.
(b) The Applicant shall exercise access with Chase and Kaila as follows:
i. Alternating weekends from Friday after school (or 4:00 p.m. if not in school) until Sunday at 8:00 p.m. to be extended 24 hours if her access weekend includes either Family Day, Victoria Day, Canada Day, Civic Holiday or Labour Day; and,
ii. Tuesdays from after school (or 4:00 p.m. if not in school) until Wednesday at the commencement of school (or 9:00 a.m. if not in school and to be returned to the other party’s residence).
[10] During the course of the litigation, the Office of the Children’s Lawyer was involved, and the children were represented by legal counsel, Ms. A. Gibson. The affidavit evidence provided by the parties reflected that Ms. Gibson had interviewed the children numerous times and Kaila’s and Chase’s consistent wish was to live primarily with their father. Kaila would have been the age of 9 through to 11 years of age when she had legal counsel.
[11] The children Kaila and Chase attended a summer visit with their mother on August 13, 2020. On August 23, 2020 when the children were to be returned to their father’s care, only the child Chase was returned. Accordingly, the father has not seen Kaila since August 13, 2020.
[12] A text message authored by the mother was sent to the father on August 23, 2020 telling him Kaila had discussed wanting to live with her for quite some time. Kaila had expressed to her having a sick feeling when she has to leave her home. The mother noted she had requested Kaila meet and speak with her father about her feelings. These discussions had been ongoing between she and Kaila for months. According to the mother, Kaila had not wanted to tell her father her true feelings as she was worried about his reaction noting her father is scary and yells.
[13] The mother did provide a text exchange between the father and Kaila after Kaila’s refusal to be returned to her father’s care. It stated the following:
Father: Hey honey…your mother said you are scared of me and do not want to see me. What happened? I do not know why you feel this way. Can you please come home to at least talk to me. Your mother said you do not want to come home and want to live with her all the time. She said that I yell. I never yell or yell at you ever. I am so confused.
Kaila: I want to live with mom.
Father: Can you talk with me so I understand why.
Kaila: I like it better with mom
Father: Your school is in ridgeway
Kaila: I can move schools to the falls
Father: The court order says you need to finish at St. George. What about your friends?
Kaila: I can still talk to my friends and I only have like 1 there’s only like 3 grade 7 girls in the school. I can make more friends too.
Father: Come home tonight for this week at least so we can talk.
Kaila: I don’t want to
Father: Okay. Can you please give Chase your phone to bring home tonight. That’s my property and I really want that back.
Also, I am having that party for you Saturday.
Kaila, do you want to go back to shared custody?
I will agree to shared Kaila but not with you living with your mother all the time. I love you so much and want to see you and then you can at least finish St. George. After St. George if you want to do what Jassie did then go ahead. Come home tonight so we can talk.
[14] The mother provided a text message dated August 12, 2020 between herself and Kaila. Kaila asked her mother to request she pick them up the following day for their summer vacation. The mother asked Kayla to ask her father herself, but Kaila refused. When the mother asked why she could not do so, Kayla responded with the following message:
Cause I don’t want to.
I just can’t wait longer cause I miss u jassie and billy and u know how I start feeling sick for no reason it started to happen today so I need to see u cause I can talk to u about stuff and it helps me let everything out and it makes me feel better.
And I don’t like doing it over call.
[15] The mother stated in her affidavit material that when Kaila arrived for her summer vacation on August 13, 2020, she arrived with a bag of her personal belongings with the intention of not returning to her father’s care. The mother stated she did not speak further with Kaila about this issue during their vacation as she believed Kayla was testing her. When it was time for Kaila to leave and return to her father’s care on August 23, 2020, Kaila was adamant she was not returning.
[16] The mother supplied further text messages between herself and Kaila to demonstrate Kaila had been struggling with her feelings and parenting arrangements shortly after she began to live full-time with her father. The messages demonstrated Kaila wanted to spend more time with her mother as of at least May 2020. A message dated June 24, 2020, in fact, suggested Kaila wanted to revert back to a 50/50 sharing of time with her parents. There was also evidence Kaila was feeling sad, lonely and depressed and missing her mother, the mother’s partner and her sister Jassie.
[17] In response to the above, the father provided a text from Kaila dated July 29, 2020 asking him if she could ask their mother not to pick them up that day. The father felt this text message contradicted the statements of a child who has stomach issues while in his care.
[18] According to the mother’s affidavit material, Kaila began having bouts of crying when having to return to her father’s care commencing in May 2020 and eventually expressing she did not want to return to live with her father. The mother stated she kept encouraging Kayla to return to her father’s care and to take the opportunity to speak with him about her feelings. Once Kaila outright refused to return to her father’s care on August 23, 2020, she, her partner Billy and Jassie encouraged Kaila to return to her father’s care.
[19] In the meantime, Chase continues to come for his scheduled visits with his mother. On September 2, 2020 at the conclusion of Chase’s visit, the mother told both children to get ready to return to their father’s house. Kaila refused despite Chase’s pleas. The mother suggested Kaila at least have a visit or contact her father and Kaila refused but did send her father a text message stating: “Hi”. The father felt that if Kaila was afraid of him she would not have reached out to him to say hello. In contrast, the mother indicated Kaila sent her father a text message only at her insistence. The father believes if Kaila was experiencing any fear of him, it was being perpetuated by the mother.
[20] The mother never commenced a motion to change and unilaterally decided to maintain the care and custody of Kaila. As a result, the father brought his notice of contempt motion which was personally served on the mother on September 8, 2020. The father argued the mother was abdicating her parental responsibilities by permitting their now 12-year-old daughter to decide where she wishes to reside.
[21] The father stated he has had no issues with his relationship with Kaila. He feels Kaila was being negatively influenced by her mother. It made no sense to him that a 12-year-old child would drastically change her mind within a five-month period.
[22] The mother noted the prior status quo for years was a 50/50 sharing of Kaila. However, as a result of Kaila’s wishes and preferences and in her best interests at that time, Kaila began living full-time with her father on March 1, 2020. According to the mother as of May 2020, Kaila began having difficulties with this new arrangement. The mother argued Kaila’s situation did resemble that of her older sister Jassie as Kaila, for various reasons, has had a change of heart. The mother argued she had been able to persuade Kaila to return to her father’s residence for months. Unfortunately, as of August 23, 2020, Kaila was ever more resistant to return. Both she and the father have not been able to convince Kaila to change her mind.
[23] According to the father, when Chase came back from his most recent overnight visit with his mother he stated his mother told everyone in the household his father was trying to put her in jail for keeping Kaila. Chase also stated he never heard their mother tell Kaila she should come back to his residence.
[24] Most recently, on September 27, 2020 the mother texted the father at 6:11 p.m. stating she was bringing Kaila to his home at 7:00 p.m. The mother indicated she was out with Kaila and did not tell her of her intention to stop at the father’s residence.
[25] The father never received the messages until 9:30 p.m. as his cellular was dead and was never previously informed by the mother of her intention to bring Kaila to his home. Once the mother arrived at the father’s residence she messaged the father to state they had arrived and Kaila was refusing to get out of the vehicle and suggested the father come out to the car to get her or speak with her. After waiting two minutes with no response, the mother stated she was leaving as she did not know what else to do.
[26] The father questioned the sincerity of the mother’s efforts as she could have, for example, knocked on his door. He felt it was simply a poor attempt to return Kayla in order to avoid being noted in contempt.
[27] The mother has suggested to the father he attend reconciliation counselling with Kaila. However, the father has declined this option stating this had been attempted with Jassie in the past and she refused to participate in the counselling.
[28] Although the notice of contempt motion brought by the father was precipitated by the events of August 23, 2020 the father has also taken the opportunity to identify potential breaches by the mother which he states occurred as of April 2020.
[29] According to the father’s affidavit dated September 6, 2020 he claimed the mother breached the terms of the final order on approximately 10 occasions when the mother extended her access times with the children.
[30] Text messages between the parties appeared to suggest that, save and except on one occasion, the mother’s access was extended on the basis the father conceded to the mother’s requests as he would mostly reply: “ya” or “ok”. The father noted he had done so in an effort to avoid conflict and unnecessary banter. I agree the mother’s request for extra time with the children puts the father in a tenuous position. If he denies the mother’s requests, he runs the risk of upsetting and disappointing the children.
[31] However, to now claim the mother should have abided by the strict adherence of the court order and be found in contempt for these breaches, in my view, is inappropriate. The communications between the parties confirmed negotiations of increased access. The mother simply acted upon the father’s acquiescence.
[32] There was only one incident when the mother advised the father she could not deliver the children until the next day as her vehicle was still at the garage for repairs. On this one occasion, the father indicated he expected the children to be delivered to him. The mother told the father he would need to come and retrieve the children despite the fact she had a rental. The mother’s actions on this date were inappropriate as it was her responsibility to make sure the children were returned to their father on time as per the terms of the court order. Especially since the father on this occasion, denied her request for more time.
[33] The father is requesting that if the mother is found to be in contempt of court she be sanctioned to a weekend in jail or a civil fine.
LAW AND ANALYSIS
[34] A review of the case law dealing with issues of contempt including the Ontario Court of Appeal decision of Prescott-Russell Services for Children and Adults v. N.G. (2002) 2006 81792 (ON CA), 82 O.R. (3d) 686 at page 27 suggests that three criteria must be met before a person can be found in contempt of court, including in family law proceedings, which are as follows:
(a) The order that was breached must state clearly and unequivocally what should and should not be done;
(b) The party who disobeys the order must do so deliberately and wilfully; and
(c) The evidence must show contempt beyond a reasonable doubt.
[35] Obviously, once a court order has been made by the court, it is expected that parties will abide by the order of the court, until such time as the order has been terminated or varied by further order of the court. Otherwise, it would undermine the administration of justice.
[36] In family law proceedings, Rule 31 of the Family Law Rules deals with contempt of court motions brought by a party. In the event the court finds that a party is in contempt, Rule 31(5) of the Family Law Rules states the court may order that person to:
(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.
[37] It should be noted the contempt power is to be used with restraint and in exceptional circumstances only. Essentially, to respond to circumstances where it appears to be the only reasonable means to send a message to the litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules as a whole to enable a court to deal with a case justly, with particular attention to subrule 2(3) and 2(4) of the Rules. See Ricafort 2006 ONCJ 520, 2006 O.J. No. 5332 (OCJ). The nature of family law requires restraint – children are better off if their parents are not in jail or paying fines. See Genuya 1979 3622 (ON CJ), 1979 12 R.F.L. 2d 85 (SCJ).
[38] I concur the mother had a positive obligation to ensure Kaila be returned to the care of her father. However, parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can (my emphasis).
[39] In Supple v. Cashman 2014 ONSC 3581, [2014] O.J. No. 2800 (Ont. S.C.J.), A.D. Sheffield, J. dealt with among other things, a notice of motion by a father seeking to find the mother in contempt of prior orders as she was not facilitating his access.
[40] The parties’ teenage children did not wish to see their father. The father argued his estrangement was as a result of parental alienation by the mother and she was in contempt of court for not facilitating his access. The evidence however failed to establish the mother intentionally breached the access order. The mother had made attempts to facilitate access in the face of resistant teenagers.
[41] At paragraph 17, J. Sheffield noted the following:
In making my order, I am also aware that the children in this case are entering adolescence. They are forming and voicing their own opinions and they are gaining the ability to enforce their opinions, as evidence by their adamant refusal to see their father despite the efforts of several adult relatives. It is a simple reality that, despite a court order, teenagers are likely to seekout residency as it suits their desires and to “let their feet do the talking”.
[42] J. Sheffield discussed the elements for a finding of civil contempt at paragraphs 31-34 as follows:
With respect to the third requirement, the court in Brookes v. Vander Muelen (1999), 1999 14292 (MB KB), 141 Man. R. (2d) 25 (Q.B.) noted that the “standard of intention is knowledge of the reasons for the order and contravention of the other”. Wilful disregard will count as intention, but casual, accidental or unintentional acts of disobedience are insufficient for a finding of contempt.
Evidence of contempt in family matters should be “clear and unequivocal”. The courts are reluctant to make findings of contempt where a parent can show that she acted in the best interests of the child and not with the intention of disobeying the court’s order out of self-interest: Brookes, supra.
In Geremia v. Harb (2007), 2007 1893 (ON SC), 73 W.C.B. (2d) 395) (Ont. S.C.J.), Quinn J. discussed the efforts which a custodial parent must exert to honestly attempt to comply with a court order that children attend access visits with the non-custodial parent. He stated, at paragraph 44:
Where a child should be physically forced by the custodial parent to go on an access visit depends on the facts of the case. Certainly, the force used should not be such as to cause physical harm to the child. And, although the specter of emotional harm is more problematic, a custodial parent would be advised to ensure that the evidence supports such a risk before declining to physically force the child to abide by an access order for that reason. Undoubtedly, there are many tasks that a child, when asked may find unpleasant to perform. But ask we must and perform they must. A child who refused to go on an access visit should be treated by the custodial parent the same as a child who refused to go to school or otherwise misbehaves. The job of a parent is to parent.
In Sickinger, supra, the court noted that a parent does not have to force a child to go with the other parent but should “require” the child to do so. Failure to require the child to attend access visits is considered contempt.
[43] In Godard v. Godard 2015 ONCA 568, the Appellant mother appealed an order of the motion judge, finding her in contempt of court as she was not facilitating access to the father. In particular, the mother felt there had been insufficient proof to satisfy the judge beyond a reasonable doubt that she willfully disobeyed the access order as the judge agreed the appellant had made some efforts to encourage their 12-year old daughter to see their father.
[44] The court rejected this argument and stated at paragraphs 28 and 29:
Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathrust, (2008), O.J. No. 4734 (Ont. S.C.J.) at para. 8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup. Ct.).
No doubt, it may be difficult to comply with an access order, especially aschildren get older. Parents are not required to do the impossible to avoid a contempt finding. They are however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and willful disobedience of the order from the appellant’s failure to do all that she reasonably could; she failed to “take concrete measures to apply normal authority to have the child comply with the access order”.
[45] I do note that in Godard the Ontario Court of Appeal noted the motion judge had previously advised the appellant in prior proceedings that more than mere encouragement was required if the child did not wish to attend for access. Despite their previous warning, the mother did not go beyond mere encouragement and attempt stronger forms of persuasion.
[46] Although the mother may have breached the term of the final order when she did not return Kaila to her father’s care, I have determined the mother did all that she could reasonably do to convince Kaila to return. The evidence suggested Kaila had been resistant for months and the mother consistently encouraged Kaila to return to her father’s custody and to speak with him about her feelings. Unfortunately, Kaila never did so and by August 23, 2020 there was no convincing Kaila to return.
[47] I would have preferred the mother reaching out to the father to discuss these issues prior to them coming to a head but I understand the parties have been in litigation for years and have no parenting relationship. Perhaps this would not have solved anything and placed Kaila under further pressure. However, having parents on a united front usually solves disputes.
[48] In my view, the mother had a sincere and reasonably held belief there was a good reason to disobey the order. After many weeks of resistence and crying, Kaila was adamant she was not going anywhere. The father also tried to reach out to Kaila in an effort to discuss the situation but she flat out denied his request.
[49] There is no evidence of a prior contempt finding against the mother. There is no evidence the mother took active steps to intentionally frustrate/alienate Kaila’s relationship with her father or imposed her self-interests and convinced Kaila not to return to her father’s care and custody.
[50] There is evidence the mother used her best efforts to convince Kaila to return to her father’s care and at the very least to have communication with him.
[51] Although I agree the mother is in breach of the final order as she has not returned Kaila to her father’s care and custody, I cannot deem it to be willful conduct beyond a reasonable doubt.
[52] In regard to the one incident when the mother did not return the children at the end of her access when a rental car may have been available to her, I am not prepared to find the mother in contempt of court. I will however use the opportunity to admonish the mother for her actions on that day and remind her of her obligation to adhere to the terms of the final Order unless she obtains the consent of the father to do so otherwise. Considering the parents are probably all the more polarized as a result of the current situation, I suggest the mother simply follow the terms of the Order. Any further similar breaches will likely lead to a contempt finding against her.
[53] For the above-noted reasons I am dismissing the father’s notice of contempt motion.
[54] I would recommend the mother’s counsel immediately issue a motion to change the final Order which will permit the court to determine Kaila’s continued best interests.
[55] I also suggest counsel contemplate a basket motion seeking a Voice of the Child Report to be conducted by the Office of the Children’s Lawyer. This basket motion can be directed to my attention to ensure it is granted on an expeditious basis. Although the wishes and preferences of children is but one factor in determining the best interests of children, they are an important factor to consider. There was a suggestion by Kaila at least in June 2020 she wanted to revert back to the 50/50 sharing. She had also told her mother she did not wish to visit with her father as she was worried he would not permit her to return to her mother’s custody. Perhaps some of these issues could be flushed out by a Voice of the Child Report without the necessity of further protracted litigation.
[56] In my view, a concerted attempt at reconciliation counselling should indeed take place between father and daughter if Kaila continues to resist contact with her father. Clearly, it is in the best interests of children to have a relationship with both of their parents with maximum contact.
ORDER
[57] The father’s notice of contempt motion is hereby dismissed.
COSTS
[58] Although I dismissed the father’s motion, I agree the request for a contempt order was contentious and required judicial intervention. My inclination is to award no costs. However, since I heard no submissions on the issue of costs, if mother’s counsel is seeking costs she shall serve and file her submissions no later than 14 days from the date of this Order and the responding party’s submissions are to be served and filed no later than 14 days thereafter. Otherwise, there shall be no costs.
“Justice N. Gregson”
Gregson J.
Date: October 21, 2020
COURT FILE NO.: FC543/12
DATE: 2020/10/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tara Jean Teal
Applicant
- and -
Jason Teal
Respondent
reasons for DECISION ON CONTEMPT MOTION
Gregson, J.
Released: October 21, 2020