Court File and Parties

Court File No.: 18-21 Date: 2021-02-12 Ontario Superior Court of Justice

Between: Christina Smart, Applicant And: Peter Belland, Respondent

Counsel: Jeffrey Langevin, for the Applicant Stephane Perreault, for the Respondent

Heard: January 21, 2021

Before: Lacelle J.

Reasons for Ruling (Motion for Contempt)

Introduction

[1] The parties have a child together, B., who was born in June of 2008 and is now 12 years old. The parties separated in 2009, when B. was just over a year old. They have been litigating issues related to her parenting for almost a decade.

[2] Various orders were obtained over the course of the litigation. On June 13, 2019, the parties agreed to the terms of a final order, which was approved by Justice Desormeau (“the final order of Justice Desormeau”). That order provided that the parties would have joint custody of B. and her primary residence would be with the Applicant. The order set out a schedule for parenting time, including alternate weekends with the Respondent, and for Facetime or telephone calls with the Respondent. The order was made police enforceable to the end of 2019.

[3] The Respondent alleges that the provisions for parenting time in this order were not respected by the Applicant. Accordingly, he brought the matter forward to an urgent case conference on July 2, 2020 where this issue was addressed. At that time, Justice Champagne confirmed in an endorsement (“the order of Justice Champagne”) that the parenting time for B. continued to be governed by the order of Justice Desormeau. The parties agreed during the case conference to a further term to Justice Champagne’s order which provided that the Respondent would resume his parenting time with B. on the week on/week off summer schedule set out in the final order of Justice Desormeau. They also agreed to reinstate the police enforcement clause.

[4] The Respondent now brings a motion for a finding that the Applicant is in contempt of court. The alleged contempt relates to:

1. The Applicant’s failure to ensure access was exercised pursuant to the final order of Justice Desormeau (para. 2) and the order of Justice Champagne (para. 1);
2. The Applicant’s failure to allow Facetime or telephone access pursuant to paragraph 4 of the final order of Justice Desormeau;
3. Making decisions without the Respondent’s consent or knowledge contrary to paragraph 1 of the final order of Justice Desormeau, including by registering the child with Nature’s Creative Healing and removing her from her class setting at school;
4. Failing to provide income disclosure as required by paragraph 15 of the final order of Justice Desormeau.

[5] The Applicant denies she has been in contempt of the court orders. In respect of the parenting terms, in the main, her position is that despite her best efforts to encourage her, B. does not wish to see her father. The Applicant suggests if the Respondent changed his presentation and improved his behaviour, this might change.

[6] With respect to making decisions for the child, the Applicant’s counsel acknowledges that information might have been shared by the Applicant with the Respondent on a more timely basis.

[7] Insofar as her income tax information is concerned, the Applicant says she doesn’t believe the Respondent has disclosed his 2019 information and complains that he has not shared in certain s. 7 expenses.

[8] The evidence for this motion consists of affidavits from the parties and others. Neither party, both of whom are assisted by counsel, has requested an opportunity to cross-examine any of the affiants. Accordingly, the court proceeds on the written record before it.

[9] Since the hearing of the motion, on consent of both counsel, the parties have filed additional affidavits which I have also reviewed and considered. The new affidavit from the Respondent also attaches as an exhibit a USB containing video evidence.

The legal principles

[10] In Gagnon v. Martyniuk, 2019 ONSC 1518, a case which was recently upheld by the Court of Appeal (see 2020 ONCA 708), the motion judge set out the legal principles that apply to contempt motions as follows (at paras. 28-32):

The authority to find a party in contempt and the consequences for contempt are outlined in r. 31 of the Family Law Rules, O.Reg 114/99.

The three-part test that must be met in order to find a party guilty of contempt of court was set out in G. (N.) c. Services aux enfants & adultes de Prescott-Russell, 2006 CarswellOnt 10335 (Ont. C.A.), at para. 27, as follows:

1. The order which has not been complied with must clearly and unequivocally set forth what must be done or not done;
2. the party who disobeys the order must have done so in a deliberate and voluntary manner; and
3. the evidence must establish contempt beyond a reasonable doubt. Any doubt must be resolved in favour of the person or entity alleged to have violated the order.

In a comprehensive decision in which she reviewed the law relating to civil contempt, Chappell, J. in Jackson v. Jackson, 2016 ONSC 3466 (Ont. S.C.J.), at para. 63, set out the following principles relating to a party's obligation to promote compliance with a custody and access order:

(a) A custody and access order imposes a general obligation on the parties to the order to do all that they reasonably can to ensure that the order is complied with;

(b) A party cannot simply leave the questions of custody and access up to the child. To do so amounts to an abdication of parental responsibility generally and a breach of the party's positive obligations under the order.

(c) While it may become more difficult to compel a child to comply with the custody and access order as the child gets older, the obligation of a parent to actively promote compliance does not wane based on the child's age.

(d) In the case of an access order specifically, the custodial parent's obligation in regard to access goes beyond simply accommodating it, making the child available for access and encouraging the child to comply. Rather, the parent must require that access occur and actively facilitate it.

(e) Actively promoting and facilitating compliance with a custody and access order requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following:

(i) Did they engage in a discussion with the child to determine why the child is refusing to go?

(ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?

(iii) Did they offer the child an incentive to comply with the order?

(iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?

(f) The determination as to whether the alleged contemnor has taken reasonable steps to require the child to attend visits will ultimately depend on the unique facts of every case. The analysis must take into consideration the child's age, their growing opinions and the evidence regarding their emotional status.

(g) The contempt remedy may also be available where the alleged contemnor has engaged in a history of conduct that has had the effect of generally sabotaging the custody and access order.

Once the court has determined that access is in the child's best interests and has made such an order, a parent cannot leave the decision to comply with the access order up to the child. A parent has a positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order: Godard v. Godard, 2015 ONCA 568 (Ont. C.A.), at para. 28. In Godard, the Court of Appeal endorsed that parents are required to do all that they reasonably can to ensure the access occurs in order to avoid a contempt finding, although they are not required to do the impossible: para. 29.

Contempt findings in family law cases should be the remedy of last resort and must only be made sparingly: Godard, at para. 17; Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.), at para. 3.

[11] As noted in Godard at para. 29, “[p]arents 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.”. Deliberate and wilful disobedience of a court order may be inferred from a party’s failure to do all that they reasonably can, and to “take concrete measure to apply normal parental authority to have the child comply with the access order”.

[12] Indeed, courts have held that “[e]ven passively permitting the court order to be undermined without taking all reasonable steps to cause the children to comply is contempt under [certain] circumstances”: Karar v. Abo-El Ella, 2016 ONSC 7926 at para. 18.

[13] With respect to the contempt remedy being a last resort, the Court of Appeal has also directed not only that such a finding should be made sparingly, but also that they are a last resort “where conferences to try to resolve access problems or motions for enforcement have failed”: Godard at para. 17.

The evidence on the motion

The evidence of the Respondent

The history

[14] Prior to the agreement which led to the final order of Justice Desormeau on June 13, 2019, the Respondent alleges the Applicant had a history of acting contrary to the terms of the existing court orders. For instance, he says that:

a. The Applicant mother moved to Ingleside in November 2017, contrary to a condition that she not relocate B., without his consent. This resulted in disruption to his parenting time, including a period between March 2018 and May 2018 when he did not see B. Access was resumed only with the intervention of the OCL and the court; b. The Applicant continued to interfere with his access in other ways after that. The allegation is that she would pick B. up at school or let her miss school altogether on the Friday they were to do access exchanges at school; c. The Applicant unilaterally ended B.’s therapy with a counsellor (Ms. Rivette) who had been making progress in assisting B. with her anxiety, notwithstanding that Justice Desormeau had in an endorsement on March 18, 2018, directed that the child was to return for counselling with Ms. Rivette and that the parties were to follow her directions (the Respondent attaches to his affidavit a letter from Ms. Rivette dated March 5, 2010 describing her work with B. and stating that the Applicant requested the file be closed on March 4, 2019); d. The Applicant contacted the police complaining he was not entitled to have care of B. on the civic holiday in August, and again at the end of his vacation time with B. on August 30, 2019, contrary to the terms of the order of Justice Desormeau on March 18, 2019, which prohibited her from contacting the police regarding access unless directed by the CAS.

The parenting time breaches alleged between 2019 and 2020

[15] The Respondent states in his Affidavit that his parenting time with B. pursuant to the terms of the final order of Justice Desormeau was relatively without issue until the police enforcement clause expired on December 31, 2019. Thereafter, he alleges that his parenting time with B. was disrupted on a variety of dates, including: January 17, 2020, March 13, 2020, March 27, 2020, April 9, 2020, April 24, 2020, May 8, 2020, May 22, 2020, June 5, 2020 and June 19, 2020. Facetime or telephone access were also routinely denied between September 5, 2019 and June 18, 2020.

[16] Following a letter sent on April 3, 2020 by the Respondent’s counsel to the Applicant’s, there was some improvement. Consequently, the Respondent decided not to proceed with an emergency motion.

[17] Approximately June 10th, 2020, the Respondent was charged with distributing images of the Applicant without her consent. He states that the charges related to events from 2017 which had been the subject of other charges that were “dropped”. The Respondent thereafter was bound by release conditions that allowed for communication between the parties through “Family Wizard”, or for contact for access at a pre-arranged location for access. The Respondent believes that the charges were laid in order to interfere with his access. He believes this occurred in the past when the Applicant was the complainant in the case that led to the charges that were ultimately “dropped”.

[18] Further efforts to address the issues between counsel proved unsuccessful. Accordingly, an emergency case conference was scheduled. At that conference before Justice Champagne on July 2, 2020, the police enforcement clause was reinstituted. The Respondent was also given additional parenting time with B., and the court confirmed that the summer schedule set out in Justice Desormeau’s final order should resume.

[19] Following the case conference, the first access period between July 3-5, 2020, went well. The Respondent says that he and B. enjoyed a great weekend. They made plans for their upcoming week of access, including enrolling B. in guitar lessons and volleyball.

[20] The following access date, on July 10, 2020, the Respondent was to commence the week-about summer schedule with B. The Applicant texted him that she was trying to get B. to attend, which came as a shock to the Respondent since B. had been excited to spend the week with him. Feeling he did not have a choice, the Respondent called the police. While they attended at the Applicant’s home, they did not want to force B. to leave. Consequently, the Respondent did not have his week of parenting time with B.

[21] The parties met on July 12, 2020 at a Tim Horton’s parking lot to again attempt the access exchange. The Applicant attended with B. in her car. The car was locked and the window was lowered a little. B. refused to get out of the vehicle. The Respondent says the Applicant did nothing to make her get out. While the Applicant alleges that the Respondent was banging on the window, the Respondent says nothing of the sort occurred, and that he was very calm through the whole incident. The Applicant then called the police, who arrived and charged the Respondent with breaching his release conditions. Before leaving, the Respondent says that the Applicant accused him of abusing B.

[22] The Respondent states that for a long period after that, he would attend the exchange location and no one attended. He has not contacted the police again because he does not want to inflict any more trauma on B. He has not seen B. since their time together between July 3-5, 2020.

[23] The last Facetime/telephone access was on August 11, 2020, during a call that lasted 5 minutes before it was disconnected.

[24] The Respondent says that once B. is at his home, there are never any issues. While he realizes that B. is suffering from anxiety, he believes it is caused by the Applicant. The Applicant has not proposed any suggestions or solutions for moving past B.’s resistance to attending access.

Other alleged breaches

[25] Insofar as other breaches of the court order are concerned, the Respondent alleges that:

a. The Applicant neglected to inform him when B. injured her elbow. He wanted to attend the hospital with B. but did not get a reply to his query of the Applicant about which hospital B. was at. The Applicant told the Respondent that B. had two fractures in her elbow and might need surgery. The Respondent’s request for an update on B.’s condition went two weeks without an answer from the Applicant. The Respondent now believes that B. never did have a fracture in her elbow, and that this was offered as a reason to cancel his plans to go to a cottage with B.; b. The Applicant has unilaterally ended B.’s therapy with another counsellor, Ms. Gilchrist; c. The Applicant enrolled B. in counselling at an organization called “Nature’s Creative Healing” on or about September 27, 2020. The Respondent was never consulted about this and has not provided his consent; d. The Applicant does not advise the Respondent about school activities, medical appointments, or ongoing matters relating to B. When he inquires over Family Wizard, on most occasions, the Applicant does not respond. The Respondent states that B. has now been taken out of school by the Applicant and is doing homeschooling. The Applicant never advised the Respondent about this; e. While he concedes it is a minor point given the other issues, the Respondent says that the Applicant has not provided her income tax returns as required by the final order of Justice Desormeau.

Additional allegations of interference by the Applicant

[26] The Respondent says he has been told by B.’s counselor, Ms. Gilchrist, that B. has said she is afraid that he would take B. away from her mother. The Respondent denies having said anything of the sort and suggests the only person who might is the Applicant. The Respondent believes the Applicant told this to B. to escalate B.’s anxiety about her father and to interfere with his access.

[27] The Respondent says that Ms. Gilchrist offered suggestions to make the parenting time transitions easier for B., including moving the pick-up location which was currently at B.’s school, and having someone other than the Applicant bring B. to the exchanges. Neither of these suggestions has been put into practice, despite a letter to counsel and a message through Family Wizard. Another suggestion from Ms. Gilchrist that the Respondent and B. meet in a park was intended to go ahead. However, the Applicant changed the agreed upon date and then told him that B. was not ready to see him.

[28] The Respondent also alleges that the Applicant is keeping B., out of school to thwart his access. As of September 25, 2020, B. had missed 9 days of school. The Applicant says the reason school was missed relates to Covid symptoms that B. was experiencing. B. is reported to have had two Covid tests. The Respondent says that despite his repeated requests, he has not been informed of the results. Letters from his counsel about this issue have gone unanswered.

The Applicant’s evidence

The history

[29] The Applicant says that while she does not know what happened with the charges, she was sexually assaulted by the Respondent and harassed by him when at her former workplace. She says her theory is that when she stood up to him in 2017 and refused to capitulate to his aggressive and abusive behaviour, he decided to pursue family litigation.

[30] The Applicant believes that B. is afraid of her father. Her belief is based on things B. tells her and her older sister S.

[31] After the Applicant started resisting the Respondent’s allegedly abusive behaviour, the Applicant says that he sent a text to her sister saying that he was going to spend everything he had to take B. away from her.

[32] The Applicant states that she has read the allegations made by the Respondent about the events that pre-date the urgent case conference in July 2020. She says she does not want to go through every allegation in detail, and notes the matters were addressed in previous litigation. Nevertheless, she provides examples (via an Exhibit) of the Respondent’s inappropriate and harassing behaviour towards her pertaining to his frustration with not being able to communicate with B.

[33] The Applicant says she is now engaged in her own counselling to assist her with the emotional distress that has resulted from her dealings with the Respondent and how to assist B. in dealing with him.

The Applicant’s response to the allegations of breach

[34] The Applicant states that she is very aware of her obligation as a parent to do everything possible to nurture the relationship between B. and her father. She says she encourages B. constantly to see the Respondent. Despite her efforts, B. has taken the position that she does not want to see her father. She states: “I know that this is not in B.’s best interest in the long term. It would be preferable if Mr. Belland saw fit to get some anger management for himself so as to improve his relationship with B. This behaviour dates back years.”

[35] With respect to events since the urgent case conference on July 2, 2020, the Applicant says she has tried to adhere to the exchange regime outlined by the court. She says B. refuses to cooperate with her, or with the intervention of the police. She believes that the police involvement further traumatized B.

[36] On July 10, 2020, the Applicant says B. refused to go to the exchange point. Police attended at her residence. B. was hysterical and the police would not force her to go.

[37] On July 12, 2020, the Applicant took B. to the parking lot for the exchange. B. refused to get out of the car to go with her father. The Applicant says that the Respondent lost his temper and started banging on the windows of the car and grabbing at B., who resisted. The Applicant was terrified and called the police. She says she believes that B. is terrified “as a result of the violence perpetrated at the Tim Horton’s drop off”.

[38] Insofar as B.’s missed school days are concerned, the Applicant says B. missed because of Covid and no other reason. She attached a negative Covid test results dated September 18, 2020, to her affidavit.

[39] The Applicant says that while she was not present, she understands that B. fell and broke her elbow after suffering an anxiety attack because she was supposed to speak with her father with the assistance of her counsellor. The Applicant was contacted and took B. to the hospital. She says: “Mr. Belland knows all this. I sent him a message on Family Wizard describing that event”.

[40] In her affidavit dated January 18, 2021, at para. 11, the Applicant states: “It is true that [B.] sees another counsellor now. This is Karen Cotnam-Fournier at Nature’s Creative Healing. She continued to see Rosalind Gilchrist for a period of time while she was seeing Ms. Cotnam-Fournier. The counselling has evolved into sessions only with Ms. Cotnam-Fournier.” She says that the Respondent knows this because she sent him a message on Family Wizard.

[41] Three days later, in an affidavit dated January 21, 2021 filed after the motion was heard, the Applicant states that B. “is still being counseled by Rosalind Gilchrist. I never dismissed her. She is still active with [B.]. I did add Karen Cotnam-Fournier as a counsellor”.

[42] The Applicant also states that B. also has a file with the Children’s Aid Society because the police have been involved recently. B. is seeing Sascha Spinner for counselling. Both of her counselors are working on plans to encourage B. to see her father, although she understands B. is refusing at the moment.

[43] The Applicant confirms that she has received confirmation that B. may also move forward with counselling at the Children’s Treatment Centre with a registered psychotherapist. She attached a letter from September 16, 2020, to her affidavit, confirming this. The Applicant says that because of the progress B. is making with Ms. Cotnam-Fournier, she has not enrolled her for psychotherapy, although that option remains available to her.

[44] With respect to disclosure of her income tax assessment, the Applicant states: “I am unsure as to why the Respondent needs my Income Tax Assessment. He refuses to pay s. 7 expenses … I do not believe that I have received Mr. Belland’s 2019 Assessment. Just by background, Mr. Belland never paid for any daycare for B. … He never paid his share of either of those activities.”

[45] The Applicant denies that she does not communicate with the Respondent when he sends messages through Family Wizard and attaches examples of their communication to her affidavit.

[46] The Applicant attaches to her affidavit copies of text messages she says are messages from B.’s phone telling her father to stop texting her. The Applicant says she has no part in this. She says she expressly tells B. to explain to her father why she is having difficulty with him, but B. refuses at this time. The Applicant says this is why she is in counselling. She says she hopes an objective third party can assist in this.

The affidavit of S. S.-L.

[47] S. is the older sister to B. They share the same mother but have different fathers.

[48] In S.’s affidavit, she outlines the concerns she had with the Respondent when she lived with him and her mother, including abusive conduct directed towards her, her brothers, and a family pet. Her mother, the Applicant, separated from the Respondent when she was about 14. She does not indicate what year that was.

[49] S. recalls that the Respondent degraded and sexualized women. She says she always believed his actions were toxic for a young woman to be exposed to.

[50] S. says she has spoken to B. about her relationship with her father and about B. seeing him. She says B. tells her she does not want to go. She is uncomfortable about sharing a bedroom with the Respondent’s spouse’s daughter. S. says that B. reports that the Respondent’s behaviour has not changed since S. was a teen-ager. S. says B. tells her that the Respondent yells and screams and causes her to be very uncomfortable when he is in her presence. S. goes on to say, “[t]hat said, I know she loves her father and does want to have a relationship with him, however, currently, she is in a phase in her life where she does not feel comfortable being at his residence in the company of him and his new family”.

The affidavit of Parker Hubley

[51] Parker Hubley is a friend of S. S.-L. and was in the Tim Horton’s parking lot during the attempted exchange on July 12, 2020. This witness indicates that on that date, B.’s father came over to the car and spoke with the Applicant. When the Respondent wanted to talk to B., she locked the back door and rolled down the window. The witness could not hear what was being said. The witness noticed that the Respondent tried to open the back passenger door to get B. out of the car, but couldn’t “due to B. having locked the door.” The witness then moved locations. The witness doesn’t know what transpired between “them” as he was too far away.

Findings of fact

[52] For the purposes of this motion, it is not necessary to resolve all the contested facts in the evidence. The evidence is uncontradicted between the parties on a number of points. Accordingly, I make the following findings of fact (additional findings will be referenced as required in my analysis).

a. Both parenting time and Facetime/telephone calls were regularly interrupted or did not take place between January 17, 2020 and June 18, 2020. The Respondent accordingly scheduled an emergency case conference which occurred on July 2, 2020. b. After one successful visit following the case conference, the parenting schedule confirmed in the final order of Justice Desormeau and the order of Justice Champagne has been completely abandoned. c. The Respondent has not had any parenting time with B. since July 5, 2020. d. The Respondent has not had any Facetime or telephone calls with B. since August 11, 2020. e. There is no evidence that the Applicant has taken any steps, other than enrolling B. in counselling, to ensure that parenting time between B. and the Respondent takes place. She has not implemented suggestions by one of B.’s counsellors (Ms. Gilchrist) to help ease the transition on exchanges for B. f. The Applicant has on a number of other occasions acted unilaterally in regards to important decision-making for B., including removing her from in-class learning, and changing her counselling provider from Ms. Rivette to Ms. Gilchrist. g. There is a history of the Applicant acting unilaterally on important matters and frustrating the Respondent’s parenting time with B., for instance the Applicant’s move to a new community (to Ingleside in 2017) contrary to the terms of the existing court order. h. The Applicant has not shared information with the Respondent about B. in a timely manner, including not disclosing the status of B.’s Covid tests and providing the Respondent with information relating to the injury of B.’s elbow. i. The Applicant has not provided the Respondent with the financial information required by the final order of Justice Desormeau.

Analysis and Decision

Is the contempt motion premature or unwarranted?

[53] As the case law makes clear, a finding of contempt in the context of family law proceedings is a remedy of last resort. It should be used sparingly. Other steps should be taken to address the issues alleged to constitute contempt before a motion for contempt is brought.

[54] I find in this case that the Respondent has attempted to address the Applicant’s resistance to adhering to the parenting plan in a number of different ways, all without success. He has enlisted the assistance of counsel, who attempted to address the issues out of court. He has scheduled and attended an emergency case conference, where the terms of the final order were reinforced, and a police enforcement clause was added. He has attempted to enlist the police to assist, which proved ineffective. None of these interventions has improved the adherence to the parenting plan set out in the final order of Justice Desormeau and confirmed in the order of Justice Champagne.

[55] I am satisfied that the motion for contempt is not premature insofar as it relates to the adherence to the terms outlining parenting time in the orders at issue. These terms are set out in paras. 1 and 4 of the final order of Justice Desormeau and para. 1 of the order of Justice Champagne.

[56] I arrive at this conclusion because I find that the Applicant had been put on notice in prior proceedings that “more than mere encouragement was required”: Godard at para. 30. The confirmation in Justice Champagne’s endorsement that the final order of Justice Desormeau’s order was to be followed sent that message. Further, the history of this case “belies the adequacy of alternate approaches. The [Applicant] has a history of trying to limit or terminate” parenting time: see for instance Godard at para. 20. I am satisfied that a finding of contempt is the only adequate remedy in the circumstances.

Has the Respondent proved that the Applicant is in contempt of a court order?

[57] I find that the Applicant has wilfully breached the terms setting out the Respondent’s parenting time in the final order of Justice Desormeau and the order of Justice Champagne. Again, to be clear, these are the terms found at paras. 1 and 4 of the final order of Justice Desormeau and para. 1 of the order of Justice Champagne.

[58] In so finding, I consider that the standard of proof is proof beyond a reasonable doubt, and that there is a three-part test that must be met in order to find a party guilty of contempt of court was set out in G. (N.) c. Services aux enfants & adultes de Prescott-Russell, 2006 CarswellOnt 10335 (Ont. C.A.), at para. 27, as follows:

1. The order which has not been complied with must clearly and unequivocally set forth what must be done or not done;
2. The party who disobeys the order must have done so in a deliberate and voluntary manner; and
3. The evidence must establish contempt beyond a reasonable doubt. Any doubt must be resolved in favour of the person or entity alleged to have violated the order.

[59] I find beyond a reasonable doubt that the orders clearly and unequivocally set out what parenting time between B. and the Respondent was to take place, including in-person parenting time and by Facetime or telephone calls.

[60] As indicated above, the evidence is unequivocal that there has been no parenting time at all in over 6 months. That this is contrary to the terms of the orders is self-evident. The only real issue on the motion is whether the Applicant may be found to have deliberately and voluntarily disobeyed those terms, given her evidence that B. does not want to attend visits with her father.

[61] To be clear, in finding beyond a reasonable doubt that the Applicant has deliberately and voluntarily breached the parenting terms of the final order of Justice Desormeau and the order of Justice Champagne, I have considered the Applicant’s evidence that even though B. does not wish to see her father she has encouraged B. to do so.

[62] The totality of the evidence satisfied me that the Applicant is not genuinely encouraging her daughter to attend parenting time with her father. Whatever she is saying to B., the Applicant’s conduct makes clear that she views the Respondent’s role in B.’s life in a contemptuous fashion. The sheer number of important decisions the Applicant has made without consulting the Respondent demonstrates how little she values his role as B.’s father, or the term of the final court order that stipulates that the parties have joint custody. While I prefer to rely on this evidence in support of my finding that the Applicant is in contempt of the parenting provisions of the court orders, I do find that the Applicant has been contemptuous in her approach to the court’s order that join custody applies here, and with it, joint-decision making for the benefit of B. The clear message that is being sent to B. by the Applicant is that the Respondent has no valued role to play in B.’s life.

[63] I also consider that the evidence shows that B. was making some progress with her counselor Ms. Gilchrist before she was sent to yet another counselor (for instance, with Ms. Gilchrist, B. had agreed to see her father in a park). I also find that Ms. Gilchrist made very sensible recommendations about how the parties might reduce the anxiety for B. during transitions by making some changes, such as having someone other than the Applicant escort B. to the exchange location. Not only were these recommendations not put into place, the Applicant has moved B. to yet another counselor.

[64] At a minimum, the Applicant’s failure to try any of Ms. Gilchrist’s recommendations demonstrates beyond a reasonable doubt that she was not making good faith efforts to have B. return for parenting time with the Respondent. On the record before me, I also find that the continued move of B. from one counselor to another belies any real commitment to counseling for B. that will actually improve her anxiety about seeing her father. In this regard, I prefer the evidence of Mr. Belland about the history of the counselling provided to B., particularly given that his latest affidavit provides documentary evidence confirming that the last session with Ms. Gilchrist was October 13, 2020, and because the Applicant’s evidence about Ms. Gilchrist’s involvement is contradictory. In her first affidavit, the Applicant says B. is only seeing Ms. Cotnam-Fournier. In her second, sworn only 3 days later, she says that Ms. Gilchrist continues to see B. Her evidence on this point is neither credible or reliable.

[65] There is no evidence that the Applicant has proposed any other way to get past this impasse. There is no evidence that she has imposed any consequences for B.’s refusal to see her father or offered her any incentives to see him. I find that there are avenues available to the Applicant short of physical force to encourage B. to see her father and the Applicant has not used them.

[66] In these circumstances, I find that this case is like Godard, in that the Applicant has “effectively abdicated her parental authority on the issue of access” and has essentially left the decision concerning compliance with the order up to B.: Godard at paras. 13 and 32.

[67] I find that B.’s refusal to see the Respondent dovetails with the Applicant’s clear view, as demonstrated by her actions, that the Respondent’s role as B.’s father is not worthy of respect. B.’s refusal to see her father aligns with steps the Applicant has taken to marginalize the Respondent as a parent to B. I am satisfied beyond a reasonable doubt that the Applicant is not genuinely invested in taking steps to promote B.’s compliance with the terms of the court order and that she has voluntarily and deliberately failed to comply with the parenting terms of the orders of Justice Desormeau and Champagne.

[68] Before concluding my reasons, I want to make clear that I have considered the affidavits from B.’s sister S. and Parker Hubley. Neither goes to the heart of the issues on this motion. S.’s affidavit is laden with hearsay. It also sets out a very negative opinion of the Respondent. I agree with the Respondent that the allegations of abusive conduct in both the Applicant and S.’s affidavits relate to a time period before the final order and OCL involvement. The merits of those allegations has presumably been assessed in prior litigation. These allegations do not invalidate the terms arrived at in the court orders at issue here. A judge was satisfied that this parenting schedule was in B.’s best interests and it must be adhered to unless it is changed because there is evidence that it is no longer in B’s best interests.

[69] The tenor of the evidence filed by the Applicant on the motion is that the parenting time with the Respondent is not in B.’s best interests until such time as he “changes his presentation and improves his behaviour”. There is no admissible evidence that B. is being harmed while in the care of the Respondent because of his behaviour. The Applicant’s affidavit references a new investigation by the Children’s Aid Society and police involvement but does not provide details of the nature of these investigations. It is troubling to me that counsel for the Respondent indicates that his client has effectively received notice of these investigations in the documents filed for this motion. Again here, far from making out a case against parenting time for the Respondent, this aspect of the Applicant’s evidence causes me concern that she is acting unilaterally in respect of important decisions involving B.

[70] Insofar as the affidavit of Parker Hubley is concerned, far from supporting the Applicant in her claim about how the events in the Tim Horton’s parking lot unfolded, this affidavit tends to undermine it, since there is no suggestion that the Respondent did anything other than speak to the Applicant and B. and try to open the car door. In all the circumstances, based on the information filed for this motion, I do not find that the Respondent acted inappropriately or unduly aggressively at that exchange. The affidavit of Parker Hubley provides support for the conclusion that the Applicant has exaggerated what happened on that occasion, which tends to undermine her credibility on that and other issues.

[71] I confirm that in regards to the events in the Tim Horton’s parking lot, I have not been able to review the USB key provided by the Respondent. It appears to require software not available to me and could not be played. My conclusions are based solely on the evidence previously filed on the motion.

Conclusion

[72] In the result, I find the Applicant is in contempt of paras. 1 and 4 of the final order of Justice Desormeau and para. 1 of the order of Justice Champagne.

[73] Given that contempt is a remedy of last resort, I am limiting my finding to the breach of the parenting time terms. With respect to the remaining alleged breaches, the Applicant should consider herself on notice that she is expected to comply with all terms of any binding court orders, and in particular, that decision-making for B. is to be made jointly. If there is any doubt about what that means, or what it requires from the parties, counsel may wish to add additional terms to the court order to clarify what is expected of each party when a decision needs to be made on behalf of B.

[74] The contempt finding is made. The question of what sanction is appropriate will be addressed in a subsequent appearance to be scheduled by counsel with the trial co-ordinator.

[75] In the meantime, the Applicant should be aware that she will be in the strongest position to purge her contempt if parenting time resumes. I encourage counsel to have discussions about how parenting time might resume on terms that will lessen the stress involved for B, including exploring the option of re-unification counselling.

The Honourable Justice Laurie Lacelle Released: February 12, 2021