Dephoure v. Dephoure, 2021 ONSC 1370

COURT FILE NO.: 09-31721-0009

DATE: 2021-02-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wayne Robert Dephoure, Applicant

AND:

Tracey-Lynn Dephoure, Respondent

BEFORE: Kurz J.

COUNSEL: Elizabeth Mourao, for the Applicant

Sean Heeley, for the Respondent

HEARD: January 14, 2021

ENDORSEMENT

Introduction

[1] This is a motion brought by the Applicant father (“the father”) for a finding that the Respondent mother (“the mother”) is in contempt of four court orders that deal with the parenting of the parties’ child (whom I refer to as “L” or “the child”), born January 30, 2006. The father’s notice of contempt motion, prepared when he was self-represented, sets out the alleged contempt as follows:

1. Have now terminated all access to [L] contrary to the order of Honourable Justice Gray, 24/01/2011, Coats 15/06/2011, Trimble 09/01/2015 and Gibson 19/03/2015.

2. Refused to disclose any address to myself (and eventually CAS Hamilton) that could confirm that [L] was babysitting overnight by herself in Hamilton and unavailable for access.

[2] Fuller details of the alleged contempt are set out in the father’s affidavits, whose contents are described in greater detail below.

[3] Under the order of Gray J. of January 14, 2011 (“the Gray order”), the parties are legal joint-custodial parents of L, who is in the primary care of the mother. The father is entitled to parent the child six out of every fourteen days and various holiday and special times. The other three orders cited by the father modify the Gray order but do not disturb the basic parenting regime set out in that original order.

[4] Yet the father has not seen L since July 19, 2019. There is no question that the parenting terms of the Gray order, as modified by three subsequent orders cited by the father, meet the first two parts of the three-test for contempt set out by the Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, as modified by the Court of Appeal for Ontario in Chong v. Donnelly, 2019 ONCA 799. There is no dispute that those orders state clearly and unequivocally what should and should not be done or that the mother had actual knowledge of those orders. Thus the key issues in this motion are:

1. Did the father adequately particularize the contempt that he alleges in this motion?

2. Has the father proven beyond a reasonable doubt that the mother meets the test for contempt in regard to each of his allegations against the mother? And if so:

3. How should the court exercise its discretion in determining whether to make a finding of contempt?

(Chong v. Donnelly, at paras. 5 and 8-9)

[5] If I make a finding of contempt, I will then have to decide on the remedy, as set out in r. 31(5) of the Family Law Rules (“FLR”). I would do so after considering whether the contempt had been purged.

[6] The father first brought this motion when L was still thirteen years old, after he had been unable to see the child for six months. It came up for hearing before Gibson J. on February 13, 2020. He granted one adjournment to the mother, peremptory on her, to March 12, 2020. It is not clear why the motion was not heard that day; the father says that it was administrative issues. The matter came before Chozik J. on April 16, 2020, who ordered that the matter proceed to a case conference before a hearing. She optimistically stated: “As long as an order remains in effect, it is expected to be followed”. It has not. Because of the pandemic, the matter would not return to court again until October 26, 2020, at which time this hearing was scheduled.

[7] The child is now fifteen and has not seen her father in about a year and a half. More than once, she has written vituperative and even expletive-laden correspondence to the father, telling him that she wants nothing to do with him.

[8] While the mother raises a procedural defence of lack of particulars to the contempt allegation, her primarily defence is that the child is justifiably angry with her father. The mother takes her argument a step further to assert that, as the father-child breakdown is all the father’s fault, the child should have her way in completely severing her relationship with him. The mother adds that she should have possession of the child’s passport and the right to relocate the child as she chooses without the father’s consent, despite orders to the contrary.

[9] Paradoxically, the mother has also filed an affidavit in which she concedes that it is, in her own words, in L’s “best interests to have a continuing relationship with her father”. She even offers to assist in reunification counselling. Yet when the father agreed and accepted her choice of counsellor, she balked. No such counselling has occurred.

[10] That being said, there is no motion before me to change the terms of any order dealing with L’s parenting. The terms of those orders remain in place, despite being honoured only in the breach.

This is an Extremely High Conflict Case

[11] As may be obvious from the brief narrative above, this is an extremely high conflict case. It has been litigated from the time that L was three years old, shortly after the parties separated in 2009. It has included numerous unsubstantiated allegations of abuse and neglect made by the mother against the father, two unsuccessful contempt motions against him and three prior findings of contempt against the mother. The father’s counsel informs the court, without contradiction, that the parties have made over thirty court appearances over eleven years of litigation.

[12] This is the sixth contempt motion brought in this proceeding. The first five were heard by Lemon J. Each of three findings of contempt against the mother involved some aspect of parenting L, including the withholding the child from the father and refusing to produce her passport to him, all contrary to the Gray order, as modified by the other orders cited above. Two such contempt findings were made in 2011 and a third was made in 2016.

[13] As set out below, the previous findings of contempt, like the history of this proceeding, is relevant to contextualize the issues before the court. Previous findings of fact between the parties in this proceeding are, as set out below, subject to issue estoppel. Nonetheless, a judge hearing a contempt motion must be careful not to rely on previous findings of contempt to find that the mother is in contempt in the motion before the court or that the mother has a propensity towards contempt.

The Parties Agreed that this Motion Would Proceed on Written Materials Only

[14] This motion was scheduled to be heard over two days, to allow the parties to both call viva voce evidence and cross-examine witnesses. At the commencement of the motion though, both counsel informed me that they have agreed to proceed exclusively on the written record only. They have done so, with over a day of argument.

Summary of my Findings Below

[15] For reasons set out below, I find that the father has provided adequate particulars of the contempt which he alleges against the mother. I further find that the mother meets the test of contempt in regard to the wilful disobedience of the orders of Gray J. of January 14, 2011, Coats J. of July 6, 2011, Trimble J. of January 9, 2015 (made final by the order of Lemon J. of March 30, 2015), and Gibson J. of March 9, 2015 (“the four orders”) regarding the father’s parenting time. Having done so, I exercise my discretion to find the mother in contempt of the parenting time terms of those orders. While she is in willful breach of the Gray order regarding disclosure to the father of the address at which L was babysitting, I exercise my discretion not to find her in contempt in regard to that allegation. I set out the next steps below.

Background and Litigation History

[16] The parties married on January 22, 2005 and separated on July 8, 2009. They have one daughter from the marriage, L. The mother has an older son from a previous relationship, who has no relationship with he father.

[17] After their separation, the mother made accusations of abuse against the father which resulted in his arrest. Lemon J. described those allegations in his endorsement of August 2, 2011 as "’dismissed, withdrawn or shown to be false against him”.

[18] Further, as Lemon J. described it:

6 For a period of time, the father had supervised access as a result of a letter from the mother's doctor. The doctor's opinion was based only on information received from the mother and without any contact with the father. The doctor submitted that the child had developed post traumatic stress disorder following visits with the father. In short order however, the doctor recanted that opinion.

The Gray Order

[19] On January 14, 2011 the parties consented to the Gray order, which includes the following general parenting terms:

1. The parties shall have joint custody of the child, [L].

2. The child shall reside primarily with the Respondent/Mother.

3. The Applicant/Father and the Respondent/Mother shall discuss and confer with each other with respect to all major issues concerning the child's welfare, including decisions about the child's:

(a) Education;

(b) Major non-emergency health care;

(c) Major recreational activities; and

(d) Religious activities.

5. Both parents shall have access to any and all third-party information regarding the child…

6. The Applicant/Father and the Respondent/mother may make inquiries and be given information by the children’s [sic] teachers, school officials, doctors, dentists, health care providers, summer camp counsellors and others involved with the child.

7. The parties shall not make disparaging remarks about the other parent in the presence of the child.

[20] The Gray order called for the father to have escalating parenting time with L. By June 2011, he was to parent L on alternate weekends and one overnight per week on the first week and two the next, on a two-week cycle. His parenting time was to total six out of fourteen overnights each two-week cycle. The Gray order also set out a holiday parenting schedule. The order left it to the parents to determine the manner in which the parenting days were to be divided. That was in part because the father is employed by Air Canada and has to bid for his days off. The parenting schedule was to accommodate both parents’ work schedules.

[21] Despite the fact that it was on consent, the Gray order’s term about parenting changeovers illustrated the level of animosity that existed, even at that time, between the parents. It mandated that at those changeovers:

The parties shall engage in minimal and polite conversation only. Neither party shall be permitted to operate any video and/or audio recording devices.

… the conversations between parties shall be polite, factual and child focussed.

[22] The point is further made in the order’s term that:

The parties may communicate by email as set herein. Any communication shall be factual, to the point, and child focussed. Neither party shall harass the other party by email or otherwise.

[23] The Gray order also has a limited mobility clause that requires both parents to reside in the Halton, Peel or Hamilton-Wentworth areas. Only if the father moves out of those three areas may the mother move outside them as well, and then only up to 100 kilometers away from one of those areas.

[24] Even after the parties agreed to the terms of the Gray order, their conflict continued. On June 15, 2011, the father brought his first contempt motion against the mother, alleging that she was withholding the child from him. On that date, Coats J. adjourned the father’s motion to July 6, 2011. But on consent, she varied the Gray order to base L’s parenting schedule solely on the father’s work calendar. She thus eliminated the reference to the mother’s work schedule.

[25] On July 6, 2011, Snowie J. had before her four different motions, including contempt motions brought by each parent. She adjourned them all to a long motion that was heard by Lemon J. on July 19, 2011. That motion presaged over nine years of litigation that was to follow.

First Lemon J. Contempt Finding

[26] In his endorsement of August 2, 2011, Lemon J. described the motions before him as follows:

1 Mr. Dephoure brings a motion for contempt against Ms. Dephoure in that she:

1. Failed to permit the Applicant his scheduled time with the child [L], on April 5, 2011, April 15, 2011, and April 19, 2011, pursuant to the order of Justice Gray dated January 14, 2006.

2. Failed to permit telephone access by the Applicant to the child pursuant to the Order of Justice Gray dated January 14, 2011.

2 In response, Ms. Dephoure has brought a notice of motion to find Mr. Dephoure in contempt in that:

(1) The Respondent has harassed me through text messages, phone conversations, and voice recordings.

(2) The Respondent has broken the final court order dated January 24th, 2011 with regards to pg 2 #3(c).

(3) The Respondent has broken the final court order dated January 24th, 2011 with regards to pg 2(d)5 and pg 2-10(ii).

3 Ms. Dephoure has also brought a motion for:

(1) Sole custody of the child named [L].

(2) A change to the current parenting schedule.

(3) An order that the respondent pay a fine to me based on his past and current attempts to destroy my reputation.

(4) All outstanding daycare costs incurred to me for the month of March. Totaling $502.00 plus interest.

(5) An order that both parties keep [L] out of non-committed relationships. (Eva B)

(6) An Order that the respondent not harass, lie about myself in order to destroy my reputation.

[27] On August 2, 2011, Lemon J. found the mother in contempt of the Gray order but dismissed the mother’s motions against the father (2011 ONSC 4645). Among his findings against the mother were the following:

a. The mother has sent “vile and disgusting” messages to the father about his new girlfriend [and current partner, Eva Bryan]. She objected to that relationship. Lemon J. offered examples and a conclusion as follows:

13 Two examples are particularly relevant to the issues in this matter. On April 5 at 3:59 p.m., the mother wrote to the father:

Just yelled at ur bitch she says u have a great life together. Just to let u know it will not include [L]. Game is on let's do it.

14 On April 7 at 1:36 p.m., the mother wrote:

I hope the two of you r very happy, I have just had to tell r daughter Mommy was going to jail because of Eva. Needless to say she is very upset about this. Also wants nothing to do with the two of you. Stay away.

15 When one reads all of the messages, they make it clear that the mother was not concerned about her child but rather wished to disparage the woman in question. There is no evidence before me to suggest any concern for the child's best interest in the presence of Ms. B. Rather, the messages show the mother's intent to thwart the father's access and the court order. From the material provided by the mother, if the child is behaving inappropriately as a result of any activity, it is more likely the stresses put upon her by the mother than any relationship that there might be between the father and Ms. B.

[Emphasis added]

b. The mother was in contempt for the breach of a term of the Gray order regarding the father’s parenting time. Lemon J. explained:

19 Again, the mother admits that this was a scheduled visit pursuant to the terms of the order and she had no confusion about that. She submits that her failure to comply with the order has not been proved. Her affidavit, however, shows that indeed she did not allow the child to be with the father. Regardless of what may or may not have occurred at the school, she confirms that the child was not with the father that weekend as a result of her own activities. That item has been proved to the extent required for a contempt finding.

20 On the material filed, there is no doubt that the mother was aware of the order and breached the terms of the order purely for her own motives. There is no doubt that she is in contempt of the order.

[28] In dismissing the mother’s motions, Lemon J. found:

26 Given the mother's admitted conduct, there is no basis to change the present joint custody regime to sole custody to the mother. From the mother's admitted behaviour, that would not be in the best interests of the child. Indeed, should the mother's behaviour continue, the court may well consider a change of custody to the father.

27 For the same reasons, there is no need to change the current parenting schedule other than as set out above.

29 As can be seen from the above, there is nothing in the evidence for me to grant an order that Ms. B be kept from the child. The mother's motion is dismissed.

30 The mother seeks an order that the father not "harass, lie about myself in order to destroy my reputation". The father denies this allegation. I cannot make a determination as to whether the father has behaved as alleged by the mother. As I said to the parties in court, any such behaviour will only reflect upon the person speaking, not upon the individual spoken of. For the benefit of both parties and in particular for [L], they would be both well advised to keep their private matters to themselves. I am not able to make the order requested by the mother; however, her request is only that both parties behave as civilized individuals. It is my hope that they will be able to adhere to that simple behaviour.

[29] Lemon J. offered the mother the opportunity to cure her contempt over the next three months before sentencing her. He set out terms regarding communications between the parties and make-up access for which he expected compliance. He wrote:

24 Having found an individual in contempt of court, the court should give the individual an opportunity to purge that contempt. I shall allow Ms. Dephoure to do so over the next three (3) months on the following terms:

1 All communication between Ms. Dephoure and father shall be by email. Ms. Dephoure has confirmed that she will obtain an appropriate email address for Mr. Dephoure so that he can contact Ms. Dephoure. All emails shall be saved by both parties. The only topic for email will be relating to the terms of access or the welfare of the child. The parties are reminded of paragraphs 9(iv), 10(iv) and 21 of the order of Gray J.

2 If there is difficulty relating to telephone access for the child, that shall be resolved by the parties by email within twenty-four hours of the difficulty arising. It is in the best interests of the child that she has regular access as set out in the order and it will be up to the parties to make sure that this occurs.

3 Mr. Dephoure will be allowed make-up visits for the three visits missed. Again, that shall be worked out between the parties purely through email.

4 Ms. Dephoure shall have no discussion with the child about any of the issues between the adults. The child's contact with Ms. B shall not be a reason to have any interruption of the access as set out in the present order.

5 I shall remain seized of this motion. I shall review the emails and hear from the parties by affidavit as to how the access went over the three months on a date to be arranged between the parties and my office.

6 I will consider any penalty and the issue of costs upon the return of this matter.

[30] Lemon J. also referred the parties to an erudite comment by Murray J. of this court in Jackson v. Jackson, 2008 CanLII 3222 (ON SC), 50 R.F.L. (6th) 149 (S.C.J.), citing research that points to the profound emotional harm to children of parental conflict.

[31] When the matter returned before him, Lemon J. found, in his December 29, 2011 endorsement (|2011 ONSC 7727) that he had no doubt that the mother had failed to purge her contempt. He wrote:

5 The affidavits are lengthy, detailed and contradictory. Ms. Dephoure's affidavit is made up almost entirely of new allegations against Mr. Dephoure. She finds him to be at fault for all that has occurred. She has failed to focus on the difficulties of her own behaviour. When asked for her financial information, she has taken the liberty of adding unsworn correspondence that seems to continue her battle against Mr. Dephoure.

6 In her reply affidavit, Ms. Dephoure does say:

(1) Since the receipt of your Endorsement dated August 2nd, 2011, I have to date done my absolute best to adhere to page 10 paragraphs 1 through 5 . In fact I have taken a much different approach to all matters relating to [L] and her well-being and her relationship with her father. I have studied for numerous hours on end the many articles available to me with respect to high conflict separation and divorce and the effects it has on the children involved. I have learned a great deal and adhere to the many lessons learned to keep the current situation respectful and calm, caring and loving for [L]. I make a point daily to promote her relationship with the Applicant, thus allowing [L] a positive approach from one household to another. This can clearly be seen not only with [L] herself but with the numerous awards she has obtained at school over the past three months.

(2) After your discussion with me on July 19th 2011, I clearly knew that changes needed to be made not only for [L] sake but for everyone involved.

7 Unfortunately, Ms. Dephoure's conduct and the balance of her affidavit show that to be entirely insincere. Indeed, it appears to be sarcasm.

[32] Lemon J. referred to an email the mother had sent to the father on November 11, 2011, while the parties were awaiting the sentencing hearing. In that communication, she repeatedly insulted the father, stating:

What I have learned in the last months is disturbing, insulting and a complete defamation of my character. You spew your mistruths to the point that you even believe yourself. You are pathetic. Even after court it is evident that you continue to run your mouth with your evil tounge [sic]. You are not a man, you are a child you are a liar. I will never again be publicly insulted, embarrassed and humiliated because of you and your mouth. You are a coward, you hide behind your lies and use them as a shield. You need help!!!

[Emphasis added]

[33] After reviewing further correspondence between the parties in which the mother continues in her vituperative vein, Lemon J. concluded:

16 Ms. Dephoure simply refuses to see that her conduct is inappropriate.

[34] Lemon J. also referred to an email from the mother’s son to the father that was “as vile as Ms. Dephoure’s”. Lemon J. stated that “I can only assume that the household is not a positive experience for the child in question.”

[35] Lemon J. found that the mother had ignored a number of provisions of the Gray order while awaiting the sentencing hearing. Her breaches included failing to respond to an email from the father regarding make-up access and failing to provide information about the child’s dentist. She wrote “to school officials about what she inaccurately described as Mr. Dephoure's failure to properly care for the child”. She also provided two sets of babysitting receipts for the same period of time, one of which Lemon J. found to have been “fabricated”. Lemon J. concluded:

22 Ms. Dephoure is clearly ignoring the court order to the detriment of the child. That deserves a significant penalty.

[36] In considering sentence, Lemon J. made clear that he was only sentencing the mother for the contempt that he had found on August 2, 2011, rather than her subsequent breaches. He stated that he would have considered a period of imprisonment had the father sought it. He saw no utility in a fine, payable to the province, particularly as the father advised the court that he did not wish to profit from any penalty. In any event, a fine or penalty would likely harm L while in the mother’s care. Thus, the only remedy that Lemon J. felt to be appropriate was further make-up access.

[37] Perhaps the strongest remedy that Lemon J. imposed was to grant the father his full indemnity costs of $18,834.97, payable at the rate of $500 per month. He also seized himself of the case, originally for a further twelve months. He would continue to remain seized of the case for a total of approximately five years.

Lemon J. Order that Mother Disclose her Address and not Move Child from the Halton, Peel or Hamilton-Wentworth Regions

[38] On April 20, 2012, Lemon J. found it necessary to order the mother to provide her current address to the father and again, as in the Gray order, that she may not move the child from the Halton, Peel or Hamilton-Wentworth Regions.

Second Lemon J. Contempt Finding

[39] On October 26, 2012, Lemon J. found the mother to be in contempt a second time for a denial of the father’s parenting time. When the matter returned on December 13, 2012, Lemon J, found that the mother had purged her contempt.

Trimble J. and Gibson J Orders

[40] On January 9, 2015, Trimble J. varied the Gray order regarding the father’s time with the child on Father’s Day and the mother’s time on Mother’s Day. He also granted the mother parenting time each Easter Weekend and the same for the father each Thanksgiving weekend, notwithstanding the regular parenting arrangements.

[41] On March 19, 2015, Gibson J. varied the Gray order to offer some minor changes to the parenting schedule. But his order also granted the father two consecutive weeks of summer parenting time if Air Canada grants him that time.

Lemon J. Dismisses Mother’s Second Contempt Motion

[42] On March 30, 2015, Lemon J. ordered that the Trimble J order is final. He also dismissed the mother’s second contempt motion against the father. She had alleged that the father:

1. Failed to inform her of an emergency medical appointment on February 3, 2012 pursuant to the Order of Justice Gray dated January 14, 2011.

2. Failed to compensate her $3,194.06 for a Canadian Revenue Agency refund pursuant to the same order.

3. Failed to adhere to the access schedule in February, March, September, November, and December 2013 pursuant to the order of Justice Coats dated June 15, 2011.

[43] In his reasons delivered April 8, 2015 (2015 ONSC 2170), Lemon J. noted:

8 Since [the Gray order], the parties have been in court a number of times. Mr. Dephoure tells me that it has totaled 22 times and 11 of those have been before me. In the past, I have made an order for contempt against Ms. Dephoure and I have dismissed an earlier motion for contempt against Mr. Dephoure. Both parties are well informed on the law and procedure of motions for contempt. They are aware of the law of costs if unsuccessful.

[44] Lemon J. found that:

1. the mother failed to prove the breach of the Gray order requiring the father to inform her of emergency medical appointments. Rather, Lemon J. accepted that the appointments in question were non-emergency.

2. The father properly accounted for CRA funds; and

3. He was unable to find that the father’s access was non-compliant with the court’s orders.

Lemon J.’s Third Contempt Finding

[45] On May 2, 2016, the father brought his third contempt motion. He alleged that the mother was withholding the child’s passport, despite his right to possess it for travel under the Gray order. He wished to take the child to the U.S. He also claimed that the mother was in contempt because she claimed that the child had an anaphylactic allergy to bee stings and peanuts but refused to provide him with evidence regarding allergy tests and medical consultations. Under the Gray order, she was required to share that information with the father. However, the mother took the position that she was not so obliged.

[46] Lemon J. adjourned the contempt motion to August 2, 2016 and further ordered that the mother shall:

1. provide the child’s passport to the father by May 10, 2016;

2. provide the father with the names, contact information and consent to contact all doctors that she had consulted by email with regard to L’s health or allergies;

3. advise the father of any future medical appointments within 24 hours of making them. If he cannot attend the appointments, the mother to provide him with full details and provide consents to allow the father to confer with the relevant doctors.

[47] On August 2, 2016, Lemon J. found the mother to be in contempt of the Gray order, with reasons to follow. He further ordered that the father may maintain possession of L’s passport and travel with her without the mother’s consent provided that he provides her with an itinerary of the trip.

[48] On November 1, 2016, Lemon J. released his reasons for his third contempt finding against the mother. His reasons centred on the mother’s duties to consult the father. Lemon J. found that the mother had asserted that L had allergies and that she had equipped the child with an epi-pen. She told the father that the child had life threatening allergies and that she had taken the child for an unsuccessful series of allergy tests. She claimed that she planned to take her for another round of testing. Yet she failed to follow up on those tests. Lemon J. was satisfied beyond a reasonable doubt of her contempt of the Gray order because of her failures to consult with the father (who wished to do so) with regard to this purportedly life-threatening condition respecting L’s health and welfare. The penalty phase of the motion was adjourned to December 16, 2016.

[49] Lemon’s J.’s endorsement stated:

[16] I am satisfied that a motion for contempt is the only appropriate response for Mr. Dephoure. Ms. Dephoure has been contemptuous of both the court and Mr. Dephoure. This has had an impact on their child. Ms. Dephoure has already been found in contempt for similar behaviour.

[23] I also find that Ms. Dephoure has lied to the court about her email contact with Mr. Dephoure. She denied that emails sent to him May 20, 2015 came from her. I can understand why see would attempt to do so. The emails contain the most despicable comments I have read in eight years on the bench. I find as a fact that she continued to use that email address and sent those vile comments. Again Ms. Dephoure is not found in contempt for such language. She is not being punished for using such language. Her evidence however is rejected for denying the obvious.

[27] Ms. Dephoure has been ordered twice to produce the passport. She has failed to do so. Only with the bringing of this motion was she able to produce the passport.

[29] There is no doubt the order is clear. Ms. Dephoure understood it and failed to comply with it. This shows disrespect for the court and its process.

[42] On Feb 12, 2015 Ms. Dephoure wrote to Mr. Dephoure making it clear that she was not satisfied with the first test [for anaphylaxis] and wanted another referral. She expresses her concerns the condition is life threatening. And yet she has done nothing.

[43] I find it beyond a reasonable doubt that Ms. Dephoure is in contempt of Justice Gray’s order for failing to discuss and confer with Mr. Dephoure on this important issue relating to the child’s welfare.

[Emphasis added]

[50] On December 16, 2016, Lemon J. described the mother’s conduct as “flagrantly contemptuous”. He found that the mother had effectively purged her contempt regarding the passport by finally providing it to the father, albeit only in the face of the contempt proceedings.

[51] Lemon J. wryly noted the mother’s sudden ability to obtain that passport in the face of contempt proceedings, after two years of failing to do so, writing:

Ms. Dephoure sets out in in her affidavit many reasons why the passport was not obtained because of the deficiencies of Mr. Dephoure. I do not accept those allegations. If Mr. Dephoure was slow or failed to take steps that were required for the passport to be issued, there is no explanation of how these failures were so quickly remedied after our first court appearance. Ms. Dephoure's reply materials are dated June 23, 2016. There is no explanation of how the passport was obtained so quickly. (It was issued May 6 2016 - only 4 days after our first appearance on this matter) There is nothing in the affidavit about why it has taken 2 years to obtain the passport.

[52] Based on the records she reluctantly provided and the mother’s own admission, Lemon J. found that the child “does not have allergies as alleged by [the mother]”.

[53] Lemon J. went on to consider the imposition of a penalty despite the mother’s purging of her contempt. He admonished her for her contemptuous behaviour and its effect on L, stating:

Ms. Dephoure's continuous disregard for court orders has led to time and money wasted from Mr. Dephoure's household. As I set out in my contempt ruling, the issues related to this contempt have had a negative effect on this child. Ms. Dephoure's disregard of court orders, if allowed to continue, will lead to further upset for the child. It is not in the best interests of the child for Ms. Dephoure to continue this sort of conduct without paying for it.

[54] When asked what penalty would be appropriate, the mother offered that she could be ordered to take a course in high conflict parenting. Lemon J. was not persuaded of the good faith of that suggestion, commenting:

Given her purge of her contempt, I do not believe I have authority to make that order. Furthermore, if I did have information on such a course, I have no reason to believe Ms. Dephoure would go to it, which would lead to only more contempt proceedings

[55] There is no evidence that the mother has voluntarily taken such a course since she suggested that she be ordered to do so.

[56] Having made a number of credibility findings in previous hearing, Lemon J. felt that it was appropriate to no longer seize himself of this case.

[57] On February 1, 2018, Coats J. felt it necessary to order the mother to take the child to a certain dentist to have a cavity filled on a motion brought by the father. If the cavity were not filled the father was to be provided with a letter from the dentist explaining why that had not occurred. Clearly, there was a further issue regarding disclosure of information regarding the child by the mother to the father.

Telling Email Exchange of February 18, 2018

[58] The email exchange between the parties on February 18, 2018, following that hearing before Coats J. offered a preview of the further parenting time issues which led to this motion.

[59] The parties’ email chain began when the father wrote to the mother, offering a parenting schedule for the next month, based on his work schedule. He did so in accord with the Gray order, as amended by the Coats J. order of July 6, 2011, which called for him to do just that.

[60] The mother’s response was “Stop sending me schedules and wasting my time, or haven't you gotten that yet”.

[61] The father wrote back, asking: “[a]re you asking me not to comply with the order that says I am to forward you the schedule every month? Especially when there is a change? Please also provide me a copy of [L]‘s dental work that was recently done. Just for my records. Thanks.”

[62] The mother’s dismissive confirmation was curt: “Yup that’s what I’m doing stop wasting my time”.’

[63] The father responded, ironically stating:“[s]orry if knowing when you are with [L] is such a ‘waste of time’, and also some consideration to help you plan your schedule, then perhaps we can look at her being here from now on. Just a thought”.

[64] The mother’s scathing reply foreshadowed her approach to the issues now before the court. Equal parts gloating and dismissive, she wrote:

Yea considering she has told you that she doesn't want to be there anymore see how that works for ya! Now leave me alone!!!

Events of June and July 2019 that Resulted in the Termination of the Father’s Parenting Time

[65] While there was a long lead-up, the events that led to the rupture of the father’s relationship with L crystalized in June and July 2019. As the mother points out, the father exercised his regular six days out of 14 parenting time with L until the summer of 2019. He also exercised his two weeks of summer parenting time up to and including 2019. However, the exchanges between the parties remained fractious. Despite periodic expressions of contrition while facing sentencing in her contempt proceedings, the mother’s disdainful approach to the father remained untempered by the court’s findings.

[66] Without informing, let alone consulting with the father, the mother allowed L to begin a babysitting job with an unknown family in June 2019. That job entailed babysitting on many days that L was scheduled to be in the father’s care. Those facts and the father’s reaction to them became the ostensible cause of the unilateral termination of his parenting time. However, the actual cause of the breakdown was closely tied to the mother’s long-standing refusal to accept the father’s equal parenting role with the child.

[67] From the evidence before me, L’s babysitting arrangements appear to have primarily although not exclusively taken place at times when L was scheduled to be in the father’s care. There was some overlap with the mother’s time as well. The father first heard of the babysitting job when L informed him of it in a text on June 5, 2019. The mother later proved unwilling to consider any change in the parenting schedule despite its effect on the father’s parenting time.

[68] L’s June 5, 2019 text to the father was very friendly. She wrote “Hey dad I got a babysitting job every Wednesday and some weekends. You don’t need to pick me up today”. The father’s response was positive, despite the fact that he lost his parenting time that day. His response was positive and open-minded, writing: “Really. Congrats. Where is the job? Can you call me just to confirm everything around 3 pm”.

[69] On June 6, 2019, the father texted to L, asking “How was your first day babysitting?” He ended the text with a “smiley face” emoji.

[70] L then went on a three-day school trip to Niagara Falls over the weekend of June 11-13, 2019. That appears to have been the father’s weekend. The father says that the mother failed to inform him of the trip while the mother responds that he consented to the trip and should have known that it was taking place. It appears that the trip was long planned but that the actual arrangements were concluded at the last minute. When they fell into place, the mother failed to inform the father. In any event, he was not aware. He waited in vain to pick her up for the weekend.

[71] When father was unsuccessful in contacting the child, he attempted to contact the mother. The father says that, rather than letting him know where L could be found, she simply laughed, followed by an expletive. She does not deny this.

[72] L later told the father that she would be babysitting on the Father’s Day weekend, June 14–16, 2019. She sent him a text to that effect only on Friday, June 14, 2019. There is no evidence that the mother informed him beforehand. Rather than ask for permission, the child told the father that she had plans to babysit that night, overnight and a lot during the following day. She said that the father could pick her up that Sunday, June 16, Father’s Day, at 11:30.

[73] The father responded with texts objecting to the unilateral change and asking her to call him back, but he received no response. At some point he wrote an email to the mother, threatening to call the police if he did not hear from the child. He added “I hate that this is the latest stunt you are pulling with her.”

[74] If the father’s response of a threat to call the police was unhelpful, the mother’s angry and insulting reply ratcheted the conflict up by several degrees. Continuing her pattern of demeaning the father, the mother wrote:

I'm not sure why you are threatening myself with the police and court.

In your e mail dated June 5th you are quite happy that she is babysitting in fact you even brag at the fact you paid for her course.

I also understand that she informed you that some weekends would be impacted for the both of us.

So with this being said please refrain from threatening myself with such foolishness.

I will be more than glad to show the police and the court your e mail once again showing how unstable you really are and how you relish in threatening myself.

You are such a little little man, you need to grow up and watch who you threaten little boy.

[Emphasis added]

[75] A few minutes later, the mother decided to add a taunt and a further insult in a second email, declaiming:

Oh and btw I also have the original trip authorization form for Niagara Falls with your signature on it, it is not my fault that you dropped the ball on that one.

So again little man watch who you threaten.

[76] Later that day, the father emailed to the mother, stating:

I don't see how I could know the trip was approved when I was in Shanghai? I had asked for weeks about it with no answer so I hardly think I "dropped the ball".

Of course why would one expect even a courtesy email from you? And interesting the phone number you provided the school this year was again, completely different from the one you gave me for emergencies. Same old bs.

As for babysitting, no info has been provided, other than [L] is suddenly "not available " on access dates. Perhaps you can explain why you kept her out of school today because she was too "tired", but now clearly has recovered.

It is time to change the order. Even in supporting [L] babysitting, I know your real motivation will always be to keep her away from everybody including your own family. Nine years since she saw her grandmother- your mother. Shameful.

As [L] is not answering my texts (what a surprise) you can bring her here at your convenience on Sunday. I'll be here.

I'll bring her back to school on Monday. If that's too inconvenient, or you refuse, so be it. Not much I can do

I've driven back and forth for ten years and paid full child support. Maybe it's time you start sharing the driving.

I would have gladly picked her up after babysitting tonight , but naturally I know you will never forward me the address. That would have been a good example of cooperative joint custody.

[77] On June 16, 2020 (Father’s Day) the father texted L and emailed the mother regarding his parenting time that day. He originally asked that L be dropped off and then later stated that he would pick the child up. Although he texted L twice that day to get a confirmation that he could pick her up before driving to Hamilton to do so, he received no response.

[78] The father wrote to the mother that day:

I have texted [L] that I would come to Hamilton provided she calls me on her phone shortly. Otherwise there is no point discussing this further as you have not dropped her off at 1130 as I requested.

If she does not call I can only assume her phone has been taken from her or you have given her instructions not to answer.

[79] The mother’s email response later that day was equal parts abusive and belittling. She wrote:

Hahahahaha too funny hahahahaha

I'm at work asshole, so nice try.

You should really do your homework before you flap that mouth of yours little man. Again hahahaha

[80] L then saw the father on June 18, 2019. She informed her father that she babysat young children, sometimes overnight. The father became concerned by this information. L was thirteen years old at the time. While he had no say in the arrangement, he understood that it created a risk for both L and the infants she babysat.

[81] Also on June 18, 2019, the father wrote to the mother, requesting information in order to schedule his parenting time with the child. He wrote:

Bid for July must go in by 9 pm tonight. I am willing to adjust some access dates to Monday's or Thursday's provided you can confirm [L]'s planned babysitting along with baseball. This now gives you the chance to inform me in advance

Otherwise I intend to follow the regular access schedule that has been in place for almost 10 years, keeping in mind [L] is here for holidays from July 6-20 and with you for holidays in August.

[82] On Thursday, June 20, 2019 the father texted to L, simply asking how her babysitting had gone the previous night. The text string he attached to his affidavit shows no response.

[83] On June 24, 2019, the father wrote to the mother, asking for the address where L was babysitting and other information regarding the child’s activities. I have been provided with no evidence of a response.

[84] On June 26, 2019, the father wrote to the mother, suggesting that his Wednesday access time be switched to Mondays. He informed the mother that he had changed his work schedule to work on Wednesdays in order to accommodate L’s babysitting. The mother’s curt response was” [s]orry no Mondays until you get a court order the schedule stays the same.”

[85] On July 1, 2019, the father emailed to the mother to set out a pickup time for L later that day. He even suggested that he would pick the child up late, at 6:30, because he had previously dropped her off ten minutes late. He ended his email with the wish that she “[e]njoy the sunshine.” The mother’s response hardly reciprocated the father’s friendly tone. Refusing the budge, she wrote:

She won't be here so don't waste your time.

You will be receiving correspondence from my lawyer pertaining to your changing of the court ordered access.

Unfortunately for you because you said that YOU changed it because of [L]'s work schedule. Apparently because of this admittance and the fact that you did not receive permission from the court we see that there is no other alternative

[L] will be babysitting tonight as usual.

[86] Even after reading this email exchange a number of times, I am unable to say what admission or lack of judicial permission the mother was referring to or why she felt that they entitled her to move to change the long-standing parenting arrangements. From what I can tell, he did nothing to warrant so caustic a response. His previous correspondence to her was courteous and respectful.

[87] The father replied: “[p]lease inform your lawyer that I still intend to show up as per the access schedule sent to you. I look forward to hearing from him or her to resolve this issue going forward.” The mother wrote back to say, apparently sarcastically: “[w]ill do!!! Have a great day !!! ”

[88] No lawyer contacted the father at that time or for the following eight or so months, until Mr. Heeley placed himself on the record in this proceeding. The father says that there is no evidence that the mother even had a lawyer at the time. While he raised the issue as one of credibility, the mother did not respond to it.

[89] On July 2, 2019 the mother wrote to the father to confirm changeover times for that day. At first blush, the communication seems to less overtly confrontational and insulting than the previous day’s email. But implicit in the email is the mother’s pattern of denigration. She wrote:

On another note Mondays do not work so I would suggest that you place the schedule back to normal going forward.

[L] takes this job very seriously and is now because of you fearful that you will interfere and be let go.

Melissa is aware that [L] unavailable to babysit during your vacation obviously.

Seeing as I am the only adult about this you need to respect that she is working and making a bit of spending money, she has been babysitting on Monday nights since December and now with the summer here Wednesday has been added along with a few weekends here and there.

It's not a big deal and you should be supportive of her not trying to make it more difficult

At the end of the day you should be happy that she is showing how good she is at responsibility not trying to dismantle it.

Funny I'm happy for her and really proud so having her babysit on a Monday since December was fine by me so I would think that for the summer you could be accepting of the Wednesday Just a thought

[90] Three things stand out from this email. First the mother could not resist insulting the father, referring to herself as the only adult, implicitly describing the father as a child. She had twice already referred to him as “little man” on June 16, 2019. Second, there is no hint of cooperation or enlisting of the father’s opinion, despite the legal joint custodial and near equal-shared parenting arrangement. It was simply left to him to accept that the babysitting was arranged on his parenting days and without his input. The fact that the mother accepted the arrangement and that it also overlapped with some of her parenting days should, in the mother’s expressed view, have been sufficient for the father. His exclusion from the decision-making process seems not to have been materials to her. Third, the mother refers to L’s fears but she offers to take no steps to allay those fears, other than insist on the father’s acquiescence to a unilaterally imposed arrangement.

[91] Implicit with all of this is that the father should, as the saying goes, get with the programme and not cause any problems. His role was to comply and not cause any problems.

[92] On July 22, 2019, L texted the father to say: “I’m babysitting tonight so you don’t have to come to hamilton [sic] to pick me up”. His response was “I’m on my way now”.

[93] The father did not see the child that day or since then. He last saw her on July 19, 2019.

[94] On July 23, 2019, the father wrote again to the mother in the face of her non-response regarding L’s babysitting. Apparently exasperated with the timing of the cancellation of his parenting time, he wrote:

This is my FINAL request to know where [L] was babysitting last night. I was told Wednesday's [sic], not Monday's.

I adjusted my work schedule to accommodate this and last night was another last minute cancellation.

Receiving a text from "you" at 520 pm as I am on the Skyway Bridge is not acceptable.

Baseball schedules and contact numbers have also not been sent.

There will not be another reminder.

[95] On July 25, 2019 L texted to the father, stating: “I’m babysitting on the weekend”. The following day, he responded: “I expected this”. On Saturday July 27 the father texted “How’s it going” to L. He received no response. On July 29, 2019, the child texted to the father: “You know I’m babysitting on Mondays so there is no point in coming to get me.”

[96] Never having received any response from the mother about L’s babysitting arrangements, the father contacted the Children’s Aid Society of Hamilton (“the Society”) on July 29, 2019. Alison Grice, the Society worker assigned to investigate the matter, was unsuccessful in her attempt to speak to the mother. The father, relying on the hearsay contents of Ms. Grice’s two letters to him (co-signed by her supervisor), says that the mother refused to consent or cooperate with the Society. The mother denies the non-cooperation.

[97] However, in her February 3, 2020 affidavit, the mother admits that she received two letters from the Society, which she attaches to her affidavit. One requested her assistance in their investigation and claimed that they attempted to contact her, without success. The other speaks to closing their file without speaking to her.

[98] The mother asserts that she actually invited the Society into her home to speak with them, but that her request was denied. Nonetheless, she admits that her alleged invitation was premised on her right to record any conversations involving her and L. She adds that she also offered the Society the opportunity to present its questions in writing. In other words, her own assertion was that her cooperation with the Society was premised on her ability to control the information given to it, not only by herself but L. Not surprisingly, the Society did not accept her terms. No child protection agency would allow a parent to so control its interview with a child.

[99] On August 26, 2019, Ms. Grice and her supervisor wrote to the father, indicating that, not having spoken to the mother, the Society was closing its file. They offered a narrative of the Society’s attempts to arrange an interview with the mother and L; one that does not match that of the mother. But of course, it is hearsay and I am not relying on it for the truth of its contents.

[100] However, in closing, the Society worker made clear that the father’s concerns were warranted in that thirteen year-old L should not have been be babysitting young children overnight. Ms. Grice and her supervisor wrote:

Although it would be a concern if [L] was alone with two children overnight there is not enough evidence to suggest this may actually be occurring. A letter has also been sent to Tracey advising her of the concerns as well as letting her know that [L] cannot be babysitting overnight and that if she is, it needs to discontinue.

[101] The mother has not denied receiving these instructions from the Society. In fact, as set out above, she attached a letter from the Society, saying much the same thing. Yet she does not say that L’s babysitting was in any way affected by the Society ’s admonition. That silence is apposite in light of the claim in her factum (and reflected in her evidence), that it was the father’s “attempting to weaponize the police and the Children’s Aid Society against her mother” that led to the child refusing to see him.

L’s Refusal to see the Father in September 2019

[102] On August 26, 2019, the father wrote to the mother to set out his proposal for a reduced parenting schedule with the child for September 2019. He explained that he was offering that abridged schedule in light of the “chaos” at that time. He had not seen the child in about five weeks and there was no indication that the mother was willing to do anything about that fact. While the father attempted to show flexibility, he also asserted his intention to continue parenting the child. He further pointed to the mother’s lack of cooperation and consultation with him. But he still sought her cooperation in telling the child of his intention to see her.

[103] He wrote:

Subject: September 2019 time with [L] (With significant reductions)

Tracey,

(without prejudice to our past court orders) Friday Sept 6 to Mon Sep 9

Friday Sep 20 to Mon Sep 23

I am suggesting we cancel midweek access for Tuesdays and Wednesdays for September only. Until this matter settles down, I see no point in September midweek access. There has been too much chaos.

I still intend to pick her up at school on both Fri Sep 6 and Fri Sep 23, and return her on the following Mondays.

Under no circumstance will I apologize for asking where [L] babysat this summer or apologize for asking whether she was babysitting young children overnight this past summer. A simple address would have solved a lot of issues.

Whether I attend baseball or not, it is clear you had not forwarded any baseball schedule, or coach's names. The opportunity to do so, is now gone.

Having reread all the emails, the first indication [L] was babysitting on Mondays (apparently since December) was July 2, well after I sent you a revised July adjusted access schedules. Telling me you have a lawyer is also nonsense. That one comment alone puts everything else you claim in serious doubt.

I strongly encourage you to tell [L] that I will be at her school Sept 6 and Sep 20, to help us have some time together.

If she chooses to babysit any day on either weekend, than I will gladly take her and pick her up - even if late at night.

[104] There is no evidence of a response from the mother. The father did attempt to see the child on her first day of school, September 6, 2019. But the child just walked away from him. The father wrote to the mother:

Tracey,

Was at [L]’s school in the afternoon Friday Sept 6.

Have spoken to school officials that I was there to pick up [L] for a visit this weekend. They know she walked away and did not visit.

It is very clear all communication from you concerning [L] has been deliberately cut off.

[105] There is no evidence of a response.

Father’s Thanksgiving Card to L and her Dismissive Response

[106] As Thanksgiving approached, not having been able to see the child in almost three months, the father attempted again to arrange to see L. He wrote on October 9, 2019 to tell the mother that he is inviting L for the Thanksgiving weekend. He told her that the weekend involved two dinners and plenty of L’s paternal family, including her cousins. The father proposed to pick up L on the Saturday of the long weekend and return her to school the following Tuesday. He referred to the order granting him Thanksgiving parenting time. Although he did not specify, that was the order of Trimble J., of January 9, 2015. The father requested a response, which he did not receive.

[107] The next day, October 10, 2019, father wrote a second time to the mother, stating:

This is my second email inviting [L] to Thanksgiving dinners on both Saturday and Sunday here. We all want to see her and have a wonderful Thanksgiving with her.

Please respond to the email with the time to pick up [L] on Saturday. I can bring her to school on Tuesday.

[108] Having again been denied the courtesy of a response, the father wrote a third time to the mother the following day, October 12, 2019, stating:

I have not heard back yet. We still wish to see [L]. It is important that she sees family at Thanksgiving.

[109] The father also mailed a card to L, inviting her to his home for Thanksgiving and summarizing his plans for the weekend. In his card, dated October 8, 2019, he told her that she was invited for Thanksgiving and was “welcome always”. He signed it “Love always Dad”. Below his signature, he added mock paw-prints with the names “Buddy” and “Stash”, which I presume to be the names of his dogs. The father’s partner, Eva Bryan, added a note, saying “FROM OUR HEARTS TO YOURS … SEE YOU SOON!”

[110] L’s response was direct. She wrote a letter to the father on lined, three-hole punched, loose-leaf paper; the type a thirteen year-old child would use for schoolwork:

Wayne:

Stop contacting me, it is extremely annoying. I meant what I said.

I want nothing to do with you.

You’ve had your chance and one too many of them.

Goodbye, please stay away from me and my school

[L] Trautmann

[111] Three points stand out in this letter. First, L refers to her father by his first name, a form of disrespect that the father says, without contradiction, was new.

[112] Second, L refers to herself by her mother’s surname rather than her own legal surname, which is that of the father. In her February 3, 2020 affidavit, the mother defended that informal name change, stating:

The child would like to change her name to Trautmann just like I wanted to change my name when I was a child. The child registers under the name of Dephoure for all events and has Trautmann on all of her jerseys. There is no harm with any of this.

[113] Third, L’s comment that she wants nothing to do with the father closely echoes some of the mother’s own statements to the father, set out above. Two earlier comments by the mother to the father are worth noting at this point. On April 9, 2011, she wrote to the father that his life with his girlfriend would not include L. Almost five years later, on March 6, 2016, the mother wrote an offensive email to the father in which she again demonstrates a desire to separate L from the father. Referring first to Ms. Bryan and using the term, “again” to denote repeated conduct, the mother wrote:

You and your cunt are not stable to properly look after MY DAUGHTER as your cunts actions clearly show.

I know the parent who told your cunt that school was closed and have the video. Anyways don't care you once again lied they believed you and now I'm taking you and your cunt down.

BTW my name has now been legally changed so I'm again just distancing [L] and my son and myself away from you.

[Emphasis added]

Father’s Christmas Cards and Attempts to see the Child Over Holidays

[114] On November 17, 2019, the father wrote to the mother, stating:

We are planning Christmas. Please confirm what dates [L] will be here. Appreciate an answer within a couple of days.

[115] Having received no response the father again wrote to the mother on November 21, 2019:

It is now 3 days later. I have invited [L] for Christmas. Is she coming?

A simple answer with dates and times will suffice.

[116] Once again, he received no response.

[117] On December 19, 2019, the father dropped off three Christmas cards for the child at the home of the mother. The cards came from the father, his partner and the maternal grandmother (from whom the mother is estranged). The cards were returned in a manila envelope from “[L] Trautmann”, again using the mother’s surname. On each of the cards, L wrote a series of notes with a level of venom that Lemon J. had earlier noted in correspondence from each of the mother and her son to the father.

[118] Among the child’s comments were:

Oooh! Maybe I should call the c.a.s and the cops on you this time!

Eva, I always hated you!!!!!

Last Warning DO NOT contact me again!

I wanted to burn these [cards] but a fire is too good for [unintelligible]

Fuck off and leave me alone!

You’ve never been a grandmother [word missing] me!

Way too little! Way too late!

Last Warning DO NOT CONTACT ME AGAIN!

[Unintelligible] you make me sick! You picked the wrong person to believe and stick up for!

[119] From the evidence before me, this represents the child’s last contact with the father.

The Law of Contempt in Family Law

[120] Motions for contempt are remedial in nature. The object of such motions is to compel obedience with a court order rather than punish the offender: Kopaniak v. MacLellan (2002), 2002 CanLII 44919 (ON CA), 27 R.F.L. (5th) 97, (Ont. C.A.), citing Professors Nigel Lowe and Brenda Sufrin in Borrie and Lowe on the Law of Contempt, 3rd ed. (1996) at pp. 655-56.

[121] In Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.), the Court of Appeal for Ontario described the following principles that apply to the use of contempt in family law cases:

• The civil contempt remedy is one of last resort.

• The “last resort” refers to circumstances where conferences to try to resolve access problems or motions for enforcement have failed.

• Contempt findings should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party.

• Great caution must be exercised when considering contempt motions in family law proceedings.

[122] Motions for contempt in family law matters are governed by r. 31 of the Family Law Rules, O. Reg. 114/99 (“FLR”). Under r. 31(1): “[a]n order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.”

[123] While motions for contempt in family law matters are brought in the context of civil matters, they are quasi-criminal in nature. The burden of proof in contempt motions, as in criminal proceedings, is beyond a reasonable doubt. The party alleging contempt carries the burden of proof: Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.).

[124] The test on a motion for contempt was set out by the Supreme Court of Canada in Carey v. Laiken, cited above. The moving party must prove beyond a reasonable doubt that:

(1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done;

(2) the party alleged to have breached the order must have actual knowledge of it; and

(3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

[125] At that point, the court has discretion in dealing with the contempt, particularly if it has been purged.

[126] In Geremia v. Harb, 2007 CanLII 1893 (ON SC), [2007] O.J. No. 305 (S.C.J.), at paras. 23-25, Quinn J. offered some useful definitions. The offence of contempt "consists of the intentional doing of an act which is in fact prohibited by the order. The absence of the contumacious intent is a mitigating but not an exculpatory circumstance" (citing Re Sheppard and Sheppard (1976), 1976 CanLII 710 (ON CA), 12 O.R. (2d) 4 at 8 (Ont. C.A.)). Contempt also includes the intentional refusal to do an act that is required to be done by an order. "Intentional" means "wilful" or "deliberate."

[127] In two cases released following Carey, the Court of Appeal for Ontario has signalled that courts must be particularly circumspect about making a finding of contempt in family law cases, even if the three-part Carey test is met. That is because the exercise of the court’s discretion as to whether to make a finding of contempt, even when the Carey test is met, is now a fourth, added element of the test.

[128] In Ruffolo v. David, 2019 ONCA 385, at para. 18, the Court of Appeal for Ontario cited the following excerpt from Carey to state that “… contempt orders should not be so readily granted by motion judges”:

The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort.

[Citations omitted.]

[129] The court added at para. 19 that “where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration.” In other words, a court considering a family law contempt motion involving the parenting of children, which often involves access denial, must consider the children’s best interests and how a finding of contempt would affect them.

[130] In Chong v. Donnelly, 2019 ONCA 799, the Court of Appeal for Ontario explicitly stated that meeting the three-part Carey test is not sufficient to make a finding of contempt. The court must consider the added fourth part of the test: whether to exercise its discretion to decline to make a finding of contempt. That fourth part of the test is “the last crucial step” that must be present in the motion court’s analysis.

[131] The court in Chong pointed to the understanding, cited above, that a contempt finding is a last resort. Before making a contempt finding, the court should consider alternatives to such a finding. Although the Court of Appeal did not specifically refer to it, many of those alternatives are found in r. 1(8) of the Family Law Rules. That subrule sets out various remedies short of contempt for a failure to obey a court order

[132] Hearsay regarding a contentious issue is not admissible in a contempt motion. It is true that under r. 31(3), the supporting affidavit in a contempt motion “may contain statements of information that the person signing the affidavit learned from someone else, but only if the requirements of subrule 14 (19) are satisfied”. But under r. 14(19)(b), if the motion is a r. 31 contempt motion, the hearsay information is only admissible if it is “not likely to be disputed”.

[133] In considering the applications of those two sub-rules, Quinn J. stated in Geremia v Harb at para. 33:

33 Clause 14(19)(b) is consistent with the case law. "Contempt proceedings, however initiated, have traditionally been viewed as strictissimi juris. That issue cannot be resolved on the basis of hearsay evidence, and ... affidavit material in so far as being based on hearsay [is] not admissible": see Bee Chemical Co. v. Plastic Paint & Finish Specialties Ltd. et al. (1980), 1980 CanLII 4562 (ON CA), 15 C.P.C. 288 at 291 (C.A.).

[134] The Latin term, strictissimi juris has been defined to mean that all proper procedures must be strictly complied with: Bell ExpressVu Limited Partnership v Torroni, 2009 ONCA 85.

Analysis of Issues Raised in This Motion

Issue No. 1: Does the Father Adequately Particularize the Contempt that he Alleges in this Motion?

[135] The mother argues that the father’s contempt materials are deficient in that his notice of motion fails to adequately particularize the case that she has to meet. She points to the fact that the two paragraphs in the notice of motion that set out the alleged details of her contempt are very sparse. She cites the fact that contempt motions are quasi-criminal in nature, as set out below. She thus argues that the moving party’s notice of motion must be akin to a criminal Information, fully setting out particulars of the alleged breaches:

[136] The mother points to L.K. v. T.G., [2006] O.J. No. 2307 (S.C.J.). In that case, Wildman J. pointed to the criminal standard that applies in contempt motions and the need for particulars. At para. 57, she wrote:

The standard of proof is raised from the civil standard of "balance of probabilities" to "beyond a reasonable doubt" and he must provide specifics akin to an information for each breach. He must properly identify the order of which he is asking Ms. T.G. to be found in contempt. Having failed to do so, his motions for contempt fail.

[137] It is worthy of note that Wildman J. correctly spoke about the requirement for a moving party in a contempt proceeding to provide full details to the respondent of each alleged breach. But Wildman J. does not say that those details must be provided in the notice of motion.

[138] The point is clearly made in Geremia v Harb, above, where Quinn J. explicitly set out that the particulars of the alleged contempt need not be contained in the notice of contempt motion. The test for adequacy of particulars in a contempt motion is one of “fair notice”. That fair notice can be found in the affidavit of the moving party as well as the notice of motion. As Quinn J. wrote:

36 However, in Ontario the test is not whether the contempt is specified in the notice of motion but whether the responding party has been given fair notice of the alleged contempt. It was put this way in Follows v. Follows, 1998 CanLII 4629 (ON CA), [1998] O.J. No. 3652 (C.A.), at paragraph 3 (emphasis added):

... we recognize that contempt motions in civil proceedings have a criminal character. This is especially so in this case because the contempt motion seeks to punish past misconduct. Therefore the requirement that the ... [contemnor] be given reasonable particulars is important. Although it would have been preferable for the particulars of the breaches of [the order] to have been set out in the notice of motion, we are satisfied that the allegations in paragraph 16 of the respondent's affidavit ... gave the ... [contemnor] fair notice of the allegations against her.

[139] Here the father provides full details of the alleged contempt, which is essentially:

1. the withholding of the child from his parenting time from July 19, 2019 onward, contrary to the four orders (and cited in the father’s notice of motion), and

2. the failure to provide him with the address of L’s babysitting job in accord with the Gray order. He also raises the issue of providing that information to the Society. But as I find below, the mother does not have an obligation to do so under the Gray order.

[140] In essence, the mother’s argument is a technical one. It is narrowly directed to the contents of the father’s notice of contempt motion, analogizing it to a criminal information. But that analogy misses the mark. A notice of contempt motion need not resemble a criminal information. The test for notice of the allegations against her is that of “fair notice” of the alleged contempt.

[141] Here, the mother does not say that the father’s notice of contempt motion, combined with his affidavits, fail to give her the necessary particulars to respond to this motion. In fact, she has filed four separate affidavits in response to them. Her evidence offers various rationales for the breaches of the four orders cited by the father.

[142] I find that the father’s notice of contempt motion, combined with his affidavits, offer the mother with fair notice of the case she has to meet in this motion. Accordingly, I dismiss her objection.

Issue No. 2: Has the Father Proven Beyond a Reasonable Doubt that the Mother Meets the Test for Contempt?

[143] In answering whether the father has proven beyond a reasonable doubt that the mother meets the test for contempt, I will first confine myself to the three-part test of Carey v. Laiken. In doing so, I will begin by considering the relationship between questions of credibility reasonable doubt. I will then examine the relevant evidence before turning to the question of credibility. I will then turn to the analysis required by R. v. W.(D). [1991] S.C.R. 742. After completing that analysis, I will consider the application of my discretion, the fourth part of the test for contempt required by Chong v. Donnelly.

Credibility and Reasonable Doubt

[144] In Mason v. Mason, 2012 CarswellOnt 17442, Gordon J. set out the applicable principles regarding the relationship between the court’s findings of credibility and its analysis of reasonable doubt in civil contempt proceedings. Gordon J. cites the leading decision of the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.R. 742 and its familiar three-part jury instruction (which equally applies in judge only hearings: R. v. Minuskin, 2003 CanLII 11604 (ON CA), [2003] O.J. No. 5253 (Ont. C.A.), para. 22). That instruction delineates the role of credibility in the determination of reasonable doubt in a criminal case, and the fact that reasonable doubt is not a simple credibility contest. Gordon J. wrote:

Where the credibility of the parties is at issue, it is not sufficient to simply determine who is more credible. Rather, the court must follow the principles of R. v. W (D) and take the following approach: (1) If I believe Mr. Mason, I must find him not be in contempt; (2) If, considering all of the evidence, including the evidence of Mr. Mason, I am left in doubt as to where the truth of the matter lies, I must find him not to be in contempt; and (3) Even if I do not believe the evidence of Mr. Mason, the evidence which I do accept must satisfy me beyond a reasonable doubt that he is in contempt.

[145] The purpose of the W.(D.) instruction was set out in Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Fifth Ed., 2018, LexisNexis as follows at para. 5.98:

The purpose of a W.(D.) instruction is to reinforce the point that a criminal prosecution is not a simple credibility contest, to avoid shifting the burden of proof to the accused and to remind the trier of fact that the standard of proof is a high one - beyond a reasonable doubt. The instruction emphasises that after reviewing the totality of evidence presented, the prosecution must prove guilt beyond a reasonable doubt and that if a jury is in a state of doubt after consideration of all evidence, they must acquit the accused. Thus, the W.(D.) instruction was intended to convey to the jury that they may acquit the accused even if they do not believe her or him because of a lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt and because jurors may have reasonable doubt on the whole of the evidence they do accept.

The Mother’s Explanations for L’s Refusal to see the Father

[146] There is no dispute that L has not seen the father since July 19, 2019. The mother offers two explanations for that state of affairs. First, L is justifiably angry at the father. Second, the mother claims that the father chose to terminate his contact with the child, rather than vice versa.

Mother’s Claim of L’s Anger for the Loss of her Job

[147] When considering the mother’s explanation, L’s anger at her father, it is necessary to consider three points.

[148] First, the mother fails to prove that the loss of that job is the fault of the father. I say this for the following reasons:

1. The father’s concern that his thirteen-year-old daughter was allowed by the mother to babysit two very young children, overnight, was an appropriate one. However, when he attempted to raise the issue with the mother, she simply ignored or insulted him.

2. The mother fails to offer any direct evidence of the causation between the father’s concern with L’s babysitting, L’s alleged loss of that job, and the termination of his access. Instead, she offers only her own claims, which in the circumstances, could only arise from hearsay information.

3. The mother’s recitation of L’s alleged narrative regarding events leading up to the loss of her babysitting job are tendered for the proof of the truth of the contents of the child’s statements. However, absent evidence of necessity and reliability, they are all inadmissible hearsay. As statements of L’s state of mind, they certainly show that L feels angry at her father. However, they cannot prove that the father is responsible for L losing her babysitting job.

4. The father did not even know where L was babysitting or for whom. His requests for information in that regard were met by the mother’s loud silence. Without that information, he could not have provided sufficient details to Society to allow it to contact L’s employer(s).

5. Further, the timing of the end of the father’s parenting time does not fully coincide with the involvement of the Society. His parenting time ended on July 19, 2019. By then, he was already increasingly losing out on parenting time. He lost even more time between July 19 and July 29, 2019, when he contacted the Society. It took time for the Society to attempt to investigate his complaint, during which interval, the father’s parenting time continued to be withheld. The Society wrote to the mother on August 1, 2019 requesting a response. It clearly had very little information and no response at the time. It closed its file on August 26, 2019, claiming that it had not received a response from the mother.

6. There is no evidence that the Society knew whom L was babysitting for or where. There is nothing in the Society letters before the court that indicates that it had that knowledge of L’s employers or that it was even able to discuss the babysitting issue with either the mother or L. The mother does offer L’s hearsay statements that the Society twice attempted to contact her directly, each time leaving a telephone message. But even if that were the case, the mother’s sworn evidence is that she simply told L not to worry about it and to essentially ignore the calls. She offers no evidence that either she or L ever spoke to the Society.

7. Further, the mother has not provided any evidence to the court of when, exactly, L’s babysitting job ended.

8. While she is the only party to this proceeding who could identify L’s babysitters and hence offer their evidence of the circumstances of the alleged termination of L’s job, she fails to identify them, let alone proffer their direct evidence.

9. In other words, the only person who had access to independent evidence that could prove that the father’s actions cost L her babysitting job, the purported cause of L’s disaffection with the father, fails to it.

[149] Second, the mother’s claim that L refuses to see her father because of the loss of her babysitting job is contradicted by another of the mother’s claims. In her affidavit of December 14, 2020, the mother deposes: “The vast majority of [L]'s issues with her father is that he is constantly calling police and Children's Aid Society in attempts to have me punished” [emphasis added]. Then in her counsel’s factum, the mother argues that L “has grown angry with her father for constantly attempting to weaponize the police and the Children’s Aid Society against her mother” [emphasis added].

[150] In other words, this allegation is that L’s pique with the father arises from protecting her mother from his unwarranted claims, not the loss of her babysitting job. There is a difference between a thirteen-year-old becoming angry at her father because of a matter related to her interests. It is another to be angry because of her mother’s interests. They are two different explanations for the same thing. I will have more to say about those duelling justifications below.

[151] Third, I add one final point in regard to proof of the allegation that the father’s conduct lost L her coveted babysitting job. Any involvement by the Society could have been avoided had the mother consulted with the father about L’s babysitting job and responded to his enquires. She was obliged to do just that under the Gray order. Further, as the Society pointed out in its closing letter of August 26, 2019, the father’s concern was valid and appropriate. I cannot say the same about the mother’s choice to ignore it. Her blame of the father ignores her own responsibility for any loss of that job.

Allegation that the Father “Abandoned” the Child

[152] With regard to the abandonment argument, the mother claimed in her February 3, 2020 affidavit that it was the father who abandoned the child rather than the child rejecting the father. The mother continued this line of attack in her Form 35.1 parenting affidavit of February 3, 2020. There, the mother swore, in regard to the issue of domestic violence and abuse:

Constant mental abuse towards the child named [L] involving but not limited to the Oakville [sic] Children’s Aid Society, the Hamilton Children’s Aid Society, the Hamilton Police, Mr. Wayne Dephoure and Ms. Eva Bryan.

[153] To this, the mother hand-wrote the added statement that the father:

ABANDONED ALL PARENTAL RESPONSIBILITIES SINCE JULY 19, 2019.

[note: where statements in Form 35.1 capitalized, originals are also capitalized]

[154] In a further hand-written document, attached to the Form 35.1 affidavit, the mother went on to write that the father “admitted” to abandoning the child since July 19, 2019. Since that alleged abandonment and the elimination of the CAS and police from her life, the mother contends that L:

HAS BLOSSOMED & IS CALMER AND MORE STABLE. SHE IS NOW CONFIDENT AND INVOLVED IN MENTORING AT HER SCHOOL.

[155] The mother adds that, unlike the father, she has “BEEN A CONSTANT STABLE PARENT IN THE CHILD’S LIFE SINCE BIRTH”. In further contrast to the father, she states that she will never “WALK AWAY FROM THE CHILD”. The mother than goes on to describe herself, as she has done in her correspondence with the father, as “THE ONLY STABLE PARENT THE CHILD HAS EVER KNOWN SINCE BIRTH.”

[156] The mother swore a third affidavit in this proceeding on March 5, 2020. Unlike her two February 3, 2020 affidavits, she was assisted in this one by her present counsel. In that affidavit, she continued to blame L’s refusal to see her father on his report to the Society (while saying nothing about his alleged contact with the police).

[157] Nonetheless, in her third affidavit, the mother affected a changed attitude towards the father. She asserted that:

I am committed to continue to foster a positive relationship between the Applicant and [L]. I have in no way encouraged [L]'s desire to distance contact with her father.

[158] Professing an understanding about the importance of the father in L’s life that was absent in her two previous affidavits, the mother asserted that:

I understand that it is in [L]’s best interests to have a continuing relationship with her father, the Applicant.

[159] What caused this paradoxical change of attitude is left unsaid. But the mother stated that she had “inquired into counselling options through her employment” and found that she had $3,000 available for those services. She declared herself “prepared to use my benefits for the purposes of counselling between the Applicant and [L]”. She added that she: “will use my best efforts to require and encourage [L]’ s attendance.” She then left the metaphorical ball in the father’s court, pointing to the need for his consent to counseling.

[160] Unsurprisingly, given the history of this proceeding, that counselling never came to pass. In her affidavit of December 14, 2020, the mother explains how she came to reject the reunification counselling and even the counsellor that she herself had proposed, even after the father accepted both.

[161] According to her narrative, the mother found a counsellor named Caitlyn Young in March 2020. Ms. Young practices in Hamilton, where the mother resides. The mother swore that she discussed Ms. Young with L, who “seemed comfortable with” the counsellor. Her lawyer, Mr. Heeley, proposed Ms. Young to the father in an email of March 18, 2020.

[162] For his part, the father recommended Andrea Barclay, a Halton counsellor well known to this court, with expertise in high conflict and parental alienation cases. Mr. Heeley rejected the choice of Ms. Barclay on the mother’s behalf. He explained that the mother insisted on Ms. Young and refused to agree to Ms. Barclay for two reasons. First, Ms. Barclay has expertise in parental alienation. But, as Mr. Heeley explained, the court has not made a finding of parental alienation. Second, the mother’s benefits would not cover Ms. Barclay. Why they would cover Ms. Young and not Ms. Barclay was not explained. Having no choice, the father accepted Ms. Young.

[163] But the father’s acquiescence to the mother’s choice of counsellor was not sufficient to allow the promised counselling to begin. Faced with the father’s agreement, the mother decided to reject her own counseling choice. According to the mother, Ms. Young’s sin was in speaking to the father. In the mother’s own words, from her December 14, 2020 affidavit:

In or about early June 2020, I was able to speak with Ms. Young. The intake was delayed because of COVID- 19. By the time [L] spoke with Ms. Young, the Applicant had already spoken with Ms. Young. It was clear to me that her understanding of the circumstances was based solely on the Applicant's version of events. [L] did not feel comfortable.

[Emphasis added]

[164] There are four problems with this narrative. The first is timing. Just a few paragraphs earlier in the same affidavit, the mother deposed that she had chosen Ms. Young in March 2020, before recommending the counsellor to the father. By that time, she and L were “comfortable” with the counsellor. Either she had spoken to the counsellor (as her affidavit implied) or she and L became “comfortable” with a counsellor to whom she had not spoken. How that occurred, she does not say. In any event, her ability to speak to Ms. Young did not first arise in early June 2020. She was “able” to speak to the counsellor as early as March 2020.

[165] Second, it is not clear what was wrong with the father speaking to Ms. Young. How was he, then a self-represented party, to know whether he agreed with utilizing her? She was not his first choice. The mother flatly rejected his choice, Ms. Barclay, and offered only one alternative. Further, how was Ms. Young to offer any form of counselling to both father and daughter without knowing the father’s perspective? Was she simply to accept the mother’s view that the conflict was all the father’s fault, despite the long history cited above?

[166] Third, the mother’s explanation seems to confuse and interpose her interests and views for those of the daughter. As set out above, that was not the first time she had done so. The mother says that when L was able to speak to Ms. Young, it was “clear” to her, i.e. the mother, that the counsellor’s view of events came from her discussion with the father. Yet it was L who is said to have developed discomfort with Ms. Young.

[167] The mother has already stated that she and L had both been comfortable with the therapist in March 2020. How did the level of L’s comfort change if not through the intercession of the mother, with her newfound clarity? No other explanation is offered. It is also well to recall that one of the mother’s explanations for L’s rejection of the father was his conduct towards her and not the loss of her job.

[168] Fourth, and most critically in light of the mother’s own narrative, the court must question the good faith of the mother’s professed willingness to support counselling between the father and L. It is challenging to accept the mother’s bona fides when she:

• ended up rejecting her own counsellor,

• offered a less than compelling justification for doing so,

• then, having assured the court of her dedication to using her “best efforts to require and encourage” father-daughter counselling, offered no further counselling alternative that involved the father.

[169] Rather than insisting on father-daughter counselling (even with yet another alternative counsellor) and without any input from the father, the mother provided L with a series of programmes. Those programmes had nothing to do with the father or L’s relationship with him. Again, in the mother’s own words:

Instead, [L] started counselling with the Hamilton Wentworth District School Board. She did a program which covered many topics including parent/child relationships, COVID19 isolation, anxiety and late return to school. [L] also enrolled in a program through the Canadian Armed Forces, which she does once per week. She is able to access this counselling as my son is a member.

[170] The mother adds that she also enrolled L in the "Big Let Go Course", which “helps teach the power of radical acceptance, changing her perspectives and setting boundaries.” The child further took the "Kids Have Stress Too" programme as well as "Communication with Care: Understanding your Conflict Management Style"

[171] The mother offers no evidence that these courses and programmes had anything to do with rebuilding the relationship between L and the father. Nor does she explain how those generic courses take the place of the counselling she so solemnly assured the court that she would support, stating:

I am hopeful that these tools will assist [L] in repairing her relationship with her father.

[172] Needless to say, that professed hope has yet to be fulfilled.

Why I Accept the Credibility of the Father Over that of the Mother

[173] Having considered all of the evidence cited above, I find that wherever their evidence is in conflict, I prefer that of the father to the mother. Further, I find that it is necessary to reject the evidence of the mother unless she is able to offer independent evidence to support it. I make these findings for the reasons set out below.

1. The Mother’s Professed Animus Towards the Father and his Partner

[174] The mother’s credibility is diminished by her obvious hostility to the father and his partner, Eva Bryan. Lemon J. described the mother’s earlier correspondence to the father as “vile”. Since then, she has continued to attack and demean the father with labels such as “little man” and statements to the effect that she is an adult while he is not.

[175] The mother has admitted in her February 3, 2020 affidavit to using the label “little man” to describe the father. However her justification blames him for her insult. She writes: “I do call the Applicant a ‘little man’ for the main reason that when something happens his anger and his accusations are always pointed towards myself”. Her own defence, justifying her insult by blaming it on its target, is as troubling as the insult itself.

[176] As early as April 2011, the mother made a point of disparaging Ms. Bryan and her relationship with the father. She not only objected to that relationship, she bragged of yelling at Ms. Bryan, whom she described to the father as “ur bitch”. She proclaimed that the father and Ms. Bryan’s life together “will not include [L]”. She then taunted the father, saying “[g]ame is on let's do it”. A few days later she informed the father that she told L “Mommy was going to jail because of Eva”. That claim was grossly untrue, as Lemon J. stated that the father was not seeking to jail the mother for contempt. Nonetheless the comment served to administer a first tincture of poison into the five-year-old child’s mind.

[177] The mother’s feelings about the father’s relationship with Ms. Bryan have apparently not cooled over the succeeding nine plus years. On March 2, 2016, she objected to Ms. Bryan transporting L back to her home at the end of the father’s parenting time. Using language that Lemon J. would later describe as “vile” to describe Ms. Bryan, she began her email by stating:

Toady your cunt has thought it her place to drop our daughter off at my home.

[note: the mother’s language and syntax are unchanged in emails reproduced here and below]

[178] The mother then went on to threaten and again insult Ms. Bryan, stating:

for her we!!- being I will suggest she (your cunt) stays very very far away from not only myself but my home, this will be in her best interest in the long run as I have notified the police and due to past history she is harassing myself and threatening my home by taking unwanted video.

Keep your cunt away from the school myself and my home it really will be in her best interest.

Keep you cunt away from myself the school and my home or I will charge her with harassment.

As for my son I fucking dare you cocksucker (LOL) you won't be able to do a thing they know all about the two of you bitches, plus I don't think you want a really really big lawsuit and air Canada to find out who you really are now do you so I think you had better back the fuck off and now.

Go waist you time jacking her dick off and leave me the fuck alone

[179] Later that day, she sent the father another email stating:

I threatened you what a fucking joke.

What I said is it is NOT in· your "CUNTS" best interest to be near either myself or my home not now or in the future Unfortunately the two of you have a long history of abuse towards myself and I can not ensure other people and their actions will be too kind.

As for the school drop off no where does it say your cunt is allowed to drop her off in fact it clearly states that you are to drop her off.

Also your cunt is so stupid that she dropped our daughter off to an empty school with no supervision she is so fucking dumb to not check the news or the radio however I expect nothing less from a stupid bitch who has never and will never have children of her own.

Wife my ass I bet she still has her dick

[180] As recently as her February 3, 2020 affidavit, the mother made a point of describing the father’s relationship with Ms. Bryan as “not married in any legal sense of the word”. She accuses the father of “trying to sway this Honourable Court to believe that he has a legal and binding relationship with Eva Bryan”. She describes this as” just another deception towards this Honourable Court”. Why this is relevant, she does not say.

[181] Despite the mother’s condemnation, Lemon J.’s endorsements show both that the father’s relationship with Ms. Bryan has been ongoing on for almost a decade. Yet that the mother has attempted to disparage Ms. Bryan numerous times during that period.

[182] During the course of this hearing, the mother has displayed both a resentment for the rights granted to the father and a desire to expand the child’s power to reject the father. As she writes in her February 3, 2020 Affidavit:

Justice Lemon has made it perfectly clear that I have absolutely no rights as a parent.

I ask this Honourable Court to grant myself the Respondent the same permissions as the Applicant as follows but not limited to, the child’s passport be retained by myself, be permitted to travel anywhere outside of Ontario without the Applicants permission and legal consent. Permission to move residence outside of the court parameters without the Applicant’s permission. Allow the child to decide when and if she would like to see the Applicant. Full custody of the child named [L] born January 20^th, 2006. The child named [L] be permitted to speak on her behalf with respect to her feelings and where she would like to live and go to school along with anything else this court seems fair and just.

2. The Father does not Reciprocate the Mother’s Level of Animus

[183] The same cannot be said of the father’s descriptions of the mother in either his materials or in his correspondence with her. When the father complains about the mother, it is primarily about her behaviour; events in which she allegedly excludes him from the life of the child. I have not been offered any evidence that the father insults or belittles the mother. Put plainly, despite being sorely tested, he fails to display the animus that the mother has demonstrated towards him and Ms. Bryan since 2011.

3. Manifest Misrepresentations in Mother’s Narrative

[184] Many elements of the mother’s narrative, both in her correspondence with the father and in her evidence before the court, manifestly misrepresent events. The greatest example is when she alleges that the father abandoned the child. No reasonable person considering the evidence in this motion and the previous endorsements and orders of this court can accept that claim. They show the father constantly straining to remain an active part of the child’s life. That evidence further shows that the mother’s response has consistently involved some combination of vituperation, resentment, or simply a refusal to acknowledge the father’s correspondence.

[185] Even when the father proposed to unilaterally reduce his parenting time in September 2019, he did not remotely abandon the child. To the contrary, he was demonstrating both sensitivity to the child’s anger and flexibility in attempting to work through it. His three unanswered emails about Thanksgiving, his Christmas card, and this very motion put lie to the notion that he ever abandoned the child.

[186] The mother further swore, in her February 3, 2020 affidavit, that the father not only abandoned the child, he “admitted” to doing so. Nothing that he did, said or wrote that is before the court supports that claim.

[187] The mother goes on to say in her February 3, 2020 affidavit that the father “terminated” contact with L. That is untrue, as demonstrated by the emails and texts exhibited in the father’s first affidavit in this motion.

[188] The mother says that the child “never” babysat overnight. The child’s own text and oral statement to the father said otherwise. As stated above, the mother could have produced evidence to support her non-overnight assertion to both the Society and the court. Had she done so at the time, that evidence would have resolved the issue. It is well to recall the mother’s purported concern with the father’s “abusive” contacts with the Society and police. If one were to accept her narrative, she should have been eager to put the issue to rest for the benefit of the child. But she chose not to do so. Further, if the child was not babysitting overnight, why was she not with her father those evenings after work when she was scheduled to be in his care? The mother’s claim is not credible.

[189] One further area in which the mother deposed to something that was manifestly untrue relates to the parties’ email exchange of February 18, 2018. The father attempted to provide the mother with his work schedule for the following month, as required by the Coats J. order. The mother’s response was “[s]top sending me schedules and wasting my time, or haven't you gotten that yet”. The father then asked her: “[a]re you asking me not to comply with the order that says I am to forward you the schedule every month? Especially when there is a change?” The mother’s reply could not have been clearer and more direct: “[y]up that’s what I’m doing stop wasting my time”.’

[190] Yet in her February 3, 2020 affidavit, the mother claims that her dismissive reply was actually a benign and constructive one, aimed at saving everyone time. She wrote: “I also did ask the Applicant to ignore the court order but not in the way he has presented. I just wanted the Applicant to e mail myself of any changes as I felt that would be appropriate and less time consuming as the schedule had not changed in over eight (8) years.”

[191] That claim would be fine of that is what she said. But it is clearly divorced from her actual written reply, which must be read within the context of her other rude email insults to the father. It is also not supported by any other evidence. Her sworn explanation is clearly untrue.

4. The Mother’s Exaggeration and Hyperbole

[192] A number of the mother’s descriptions of the father’s conduct, both in her correspondence with him and in her sworn materials before the court are if not manifestly untrue, exaggerated, and even hyperbolic.

[193] The following quotes from the mother’s materials demonstrate this pattern of exaggeration if not outright dissemblance:

a. The mother swears in her February 3, 2020 affidavit that: "I the Respondent have successfully been able to promote the relationship between the Applicant and the child since May 2017 despite the Applicants continuing behaviour” I say that this claim is exaggerated for the following reasons:

i. First, the mother does not explain why she chose May 2017 as her starting point when this litigation commenced in 2011. In doing so, she implies that she has not promoted the child’s relationship with the father prior to that time. That implication may be appropriate because Lemon J.’s penalty decision on his third contempt finding against her was released just four months earlier, on January 9, 2017. Further, as set out above, on March 6, 2016, the mother wrote to the father that as she had changed her surname, “I'm again just distancing [L] and my son and myself away from you.”

ii. Second, there is simply no independent evidence that the mother has done anything to encourage the relationship between the child and the father, even since May 2017. Admittedly, from the time of the second contempt finding and July 19, 2019, the father has generally exercised his parenting time with the child in accordance with the four orders. But, even post-May 2017 the father has had to take the mother to court over the child’s passport so that he could travel with L in 2016-17, and again in 2018, over both taking L to the dentist and disclosing the result of that dentistry.

iii. Third, as set out above, on February 18, 2018, the mother taunted the father that L “has told you that she doesn't want to be there anymore see how that works for ya! Now leave me alone!!!” Those are hardly the words of someone who has encouraged the father-daughter relationship.

iv. Fourth, in her February 3, 2020 affidavit the mother deposes that: “[t]he child over the last two years has asked what she needs to do to stop seeing the Applicant, I have never given her the answer…” Put another way, by her own words, the mother does not encourage the child to maintain a relationship with the father when the child speaks of terminating it. Instead, she is silent in the face of the child’s purported aversion for her father. The mother continues, stating in the face of her failure to encourage access: “however it is time for the child to have her voice be heard for once and for all, for her to express her fears with respect to the Applicant to this Honorable court.”

v. Fifth, even in the mother’s own narrative, she cancelled the father-daughter counselling with the counselor of her own choice before it could even get started. She did so after undertaking to the court on March 5, 2020 to “use my best efforts to require and encourage [L]’ s attendance” for such counselling.

b. In her February 3, 2020 affidavit, the mother also states that the father, “other than two cards [i.e. Thanksgiving and Christmas, 2019 cards] has made absolutely no effort to explain or apologize for his threatening actions towards the child”. There is no evidence that he ever threatened the child. Contacting the Society about a thirteen-year-old child inappropriately babysitting young children overnight is hardly “threatening” her. That is particularly the case when his numerous attempts to discuss the issue with the mother were met with ridicule, a condescending lecture, or stony silence. Further, those cards were expressions of his desire to remain a part of the child’s love and express his love for her. They were not efforts or attempts to explain any improper behaviour to the child.

c. The mother adds that “the child does not feel safe with the Applicant and to date the Applicant has done nothing to subside her fears”. Again, whatever negative emotions the child presently feels for the father, there is no evidence of her fear of him but the mother’s bald claims. Further, as the mother certainly knows, the father has had little the opportunity since July 19, 2019 to “subside [L]’s fears”.

d. The mother swears in her February 3, 2020 Form 35.1 affidavit that she is “THE ONLY STABLE PARENT THE CHILD HAS EVER KNOWN SINCE BIRTH”. This claim echoes the one in her July 14, 2019 email to the father, in which she describes him as “unstable”. There is simply no evidence before me that shows either assertion to be remotely true. I am unaware of any finding in the proceedings between the parties which confirms that allegation. The claim rises beyond exaggeration to the level of hyperbole.

e. The mother further swears in her February 3, 2020 Form 35.1 affidavit that she is “aware of the following violence or abuse” by the father and Eva Bryan. That alleged violence or abuse is calling the police and CAS on the mother and “abandoning” the child. The mother describes this behaviour as emotional abuse of the child. The allegation of abandonment, as set out above, is factually untrue. It inverts cause and effect. The description of contacting the police and CAS as a form of emotional abuse of the child, based on the evidence before the court, is simply not tenable. Even at its highest, it cannot be seen as anything but rank hyperbole.

f. In her February 3, 2020 affidavit, the mother asserts: “Justice Lemon has made it perfectly clear that I have absolutely no rights as a parent.” Any superficial review of the endorsements of Lemon J. in this matter show that to be untrue and at best, a gross exaggeration.

5. The Mother’s Failure to Offer Particulars of her Claims to have Encouraged Obedience with the Orders Regarding the father’s parenting time

[194] The mother defends her breaches of the four court orders with broad and conclusory assertions regarding her attempts to require L’s obedience. She does so without offering meaningful details of those steps. In particular, she swears that she:

1. “made multiple attempts to get [L] to see her father”. However, the mother offers no detail as to what she claims to have done and when she did so, let alone objective proof of those attempts.

2. “relatedly stress[es] to [L] how important it is that she go to her access visits and have a relationship with her father”: Again, no particulars of when and what.

3. has “implemented punishments, which remain in place until she reaches out to her father. For example, I cancelled the internet and cable”. The mother fails to say when she did so and for how long.

4. “refused to let [L] participate in her baseball tournaments after September of 2019. [L] lives for baseball”. She fails to say which tournaments L was forbidden to participate in or offer any further details.

5. The Father’s Narrative is Consistent and Supported by Direct Evidence

[195] On the other hand, the father’s narrative has been consistent throughout these proceedings. His historical narrative of the events that preceded the July 19, 2019 termination of his access are supported by the emails and texts cited above, as well as this court’s the findings of fact as expressed in the endorsements of Lemon J. cited above.

[196] Those findings of fact are subject to issue estoppel as:

(1) the same question has been decided;

(2) the judicial decision which is said to create the estoppel was final; and,

(3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies...

(Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para 25.)

7. The Mother’s Failure to offer a Consistent Narrative

[197] The mother’s narrative of the events that led to this motion is inconsistent.

[198] First, as set out above, there is a clear contradiction between two of the mother’s statements. On the one hand, she expresses the desire to allow L to terminate her relationship with the father. Yet on the other hand, she asserts her view that the father/daughter relationship is so much in L’s best interests that she, the mother, supports counselling to repair the relationship. It is hard to square the two positions. Yet the mother fails to acknowledge, let alone explain the tension between those two positions. Further, if the father is as emotionally abusive of L and has abandoned the child as the mother alleges, why does she say that it in the child’s best interests to repair their relationship?

[199] Second, as set out above, the mother’s explanations for L’s disaffection with the father are equally inconsistent. She alleges on the one hand that it is because of the loss of the child’s babysitting job. But on the other hand, it is the father’s alleged campaign, utilizing the Society and police against the mother (and not L). Yet the mother also claims that the father’s alleged threats regarding the police and CAS are against the child. Of course, the mother previously told the father that L did not want to see him in February 2018, well before any of the babysitting events of the summer of 2019.

8. The Mother’s Failure to Offer Direct Evidence when Available

[200] In a contempt motion, the responding party has no obligation to provide any evidence at all. It is for the moving party to prove their case beyond a reasonable doubt. The responding party has the right to silence and to insist that the moving party prove their case to the criminal standard.

[201] But in this motion, the mother has chosen to proffer four affidavits in the course of her defence. In them, the mother has made a number of factual assertions that are either hearsay, based on hearsay, or are not direct evidence. Having made those assertions, it was open to her to offer the court the direct evidence that would prove them. But for numerous claims, she failed to do so. In considering her credibility, the court is entitled to consider the nature of the evidence offered as well as the evidence that could have been offered to prove the mother’s assertions.

[202] It is arguable that a self-represented litigant, even one as experienced as the mother, could err in regard to the rules of evidence in her two February 3, 2020 affidavits. But her last two affidavits were prepared with the assistance of a lawyer. Among the assertions that she could have buttressed with direct evidence from the original source, but failed to do so are claims that:

1. L never babysat overnight: the mother could have sought the employer’s evidence or explained its absence;

2. L lost her babysitting job because of the father’s interference: same;

3. the father has a history of false allegations against the mother to child protection agencies or the police: the mother could have provided CAS and police records;

4. these purportedly false allegations harmed L: the mother could have provided school or medical records;

5. the father indicated or admitted to an intention to abandon L: despite the extensive correspondence between the parties, the mother produces no correspondence from the father evincing an intention to abandon L;

6. L has “expressed concern for her safety and her well being to numerous individuals including but not limited to her teacher, her baseball coaches, her friends, her brother, and also to the Applicant herself”: the mother fails to offer the evidence of any of those persons;

7. the father somehow poisoned her own counsellor nominee, Ms. Young, rendering her unsuitable: the mother fails to offer any evidence from Ms. Young to show that her conversation with the father has biased her against L or the mother;

8. Having rejected Ms. Young after proposing her, the next step was programmes that had nothing to do with the father: she provides no evidence of considering any alternative counselling involving the father;

Has the Father Proven Beyond a Reasonable Doubt that the Mother has Wilfully Terminated all of his access to L, Contrary to the Four Orders?

[203] To recap, the Gray order set out the details of the parties’ parenting arrangements, including the father’s joint custody of the child, right to consultation and information, as well as non-holiday parenting time on six of fourteen days. The order of Coats J. made the father’s schedule the prime determining factor in arranging his parenting time. The order of Trimble J. gave the father parenting time each Father’s Day and Thanksgiving weekend. The order of Gibson J. granted the father parenting time for two weeks each summer.

[204] There is no dispute that the father has not seen L since July 19, 2019. Thus, all four court orders have been in breach since then.

[205] As set out above, no dispute has been raised that the four orders alleged to have been breached state clearly and unequivocally what should and should not be done. Nor is there a dispute that the mother lacked actual knowledge of those orders.

[206] Thus, the issue comes down to whether the mother wilfully failed to obey those orders.

[207] As set out above, the mother’s answer to that allegation is that the child refuses to see the father. She adds that the child’s estrangement from her father is justified by his conduct. She further asserts that on some occasions, she was not present when the child refused to come into the father’s care. She ends by saying that the father no longer attempts to pick the child up, arguing in her affidavits that he has abandoned her.

Duty of a Parent to Comply with a Court Order

[208] In considering this defence, I will first look to a parent’s obligation to ensure that a child exercises access or parenting time as ordered, even if against their will.

[209] A number of authorities have set out a parent’s obligation to ensure that a parenting order is obeyed. In Geremia v Harb, Quinn J. was forceful in stating:

44 Mr. Wilson argues that our law does not require a parent, who wishes to avoid a contempt citation, to physically force a child to go on an access visit. I respectfully disagree with that argument as a general legal principle. Whether a child should be physically forced by the custodial parent to go on an access visit depends upon 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 far 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 refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

[210] In V. (S.) v. I. (T.), 2009 CanLII 9396 (ON SC), 2009 CarswellOnt 1023 (S.C.J.), a contempt motion was brought against a parent who passively allowed an 8 and 13-year-old child to refuse attend to access, leaving it to the other parent to negotiate with the children. Reilly J. wrote at para. 32:

Mother’s constant theme in her many affidavits was that while she may have, on occasion, “encouraged” the children to go with their father, she could not “force” them to go. Regrettably, mother’s choice of verb is inappropriate. Rather than “force” a child to go, a parent in these circumstances should “require” a child to go. Children of the age of T.V. and B.V. (particularly during the first few years of separation) will, put quite simply, do what their parents tell them to do. On occasion, a parent “requires” a child to go to the dentist or “requires” a child to go to school or “requires” a child to do homework or to go to bed on time. That is quite simply the role of a parent. If a proper parent/child relationship exists, the child will, however grudgingly, comply with such a “requirement” or direction.

[211] In Goddard v. Goddard, 2015 ONCA 568, the Court of Appeal for Ontario considered the appeal of a mother who left it up to her 13 and 15-year-old children to decide whether to attend access with their father. In finding the mother in contempt for failing to obey an access order regarding the 13-year-old child, the motion judge found that the mother had abdicated her responsibilities. In upholding the contempt finding, the Court of Appeal for Ontario rejected her argument that the child’s refusal to see her father negated the notion that she wilfully disobeyed the order. It was not sufficient that she offered some evidence of some encouragement to attend access. The court stated:

28 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. Bathurst, [2008] O.J. No. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 CanLII 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup.Ct.).

29 No doubt, it may be difficult to comply with an access order, especially as children get older. 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. In this case, the motion judge inferred deliberate and wilful 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 parental authority to have the child comply with the access order".

33 It is possible that nothing short of physical force could have brought S. to the access visits. However, this does not excuse the appellant given the motion judge's finding that she has not done all that she could to attempt to comply with the access order. The motion judge found that despite being on notice that attempts at stronger forms of persuasion may be required, the appellant did not go beyond mere encouragement. In these circumstances, the motion judge properly concluded that deliberate and wilful disobedience was established beyond a reasonable doubt.

Analysis Regarding Allegation of Willfully Disobeying the Four Orders by Withholding the Father’s Parenting Time

[212] In determining whether I find that the mother willfully disobeyed the four orders by withholding the father’s parenting time, I start with a principle set out above. I cannot rely on the previous findings of contempt against the mother to find that she has a propensity towards contempt. The fact that she was previously found in contempt is not a relevant factor in the W.(D.) analysis regarding the three-part Carey v. Laiken test. The father has the onus of proving each of the two contempt allegations against the mother, based solely on the evidence related to those allegations properly before the court.

[213] Looking to the first element of the W.(D.) analysis, for the reasons set out above, I do not believe the evidence of the mother.

[214] In considering all of the evidence set out above, including that of the mother, I am left in no doubt as to where the truth of the matter lies with regard to the allegations that the father has made against her.

[215] Disbelieving the mother’s evidence, the evidence which I do accept satisfies me beyond a reasonable doubt that the mother:

1. made no attempt to require L to attend at the father’s parenting times set out in the four orders;

2. failed to meet her positive obligation to ensure that the father’s court ordered parenting time took place;

3. willfully disobeyed the four orders and thus meets the third part of the Carey v. Laiken test.

[216] The case law already described is clear that the mother is obliged to “do all that [she] reasonably can” to require the child to visit the father on his court ordered parenting time. By her own admission in her February 3, 2020 affidavit, the mother has said nothing when the child has spoken “for the past two years” about not wanting to see her father.

[217] The mother’s refusal to require L to see her father began when the child was thirteen years old. Through the mother’s failure to act and the delays in this motion, that refusal has been allowed to fester until the child is now fifteen.

Analysis of Allegation of Failing to Provide Address of L’s Babysitting Job to the Father and Society

[218] The allegation of failing to provide the child’s babysitting address to the father and the Society was not as strongly argued by either party as the issue of the termination of the father’s parenting time with L.

[219] There was no court order requiring the mother to provide details of the babysitting to the Society, so I will not consider that issue any further.

[220] However, the mother had the obligation under the Gray order to discuss and confer with the father with respect to all major issues concerning the child's welfare. While that court mandated duty specifically applied to education, major non-emergency health care, major recreational activities, and religious activities, it was not limited to that. The father was also entitled to access to all third-party information regarding the child. He was further entitled to make inquiries and be given information by L’s various health, education and recreational providers “and others involved with the child”. Details of the child’s babysitting arrangements, especially in light of the child’s statement to the father that she was babysitting young children overnight, comes within the Gray order’s wide disclosure rubric.

[221] In light of the analysis set out above, I find beyond a reasonable doubt that the mother breached the father’s rights as a joint custodial parent to consultation and disclosure of relevant information regarding L’s babysitting under the Gray order and in particular, the address of her babysitting job.

[222] Disbelieving the mother’s evidence, the evidence which I do accept satisfies me beyond a reasonable doubt that the mother wilfully disobeyed the terms of the Gray order above regarding her obligation to disclose the address of L’s babysitting job.

Should I Find the Mother in Contempt?

[223] The authorities that I have cited make clear that a finding of contempt, even when the three-part Carey test is met, is a last resort. It is one to be avoided whenever possible, and to be used only to enforce an order rather than to punish for a breach.

[224] Here, I find it appropriate to find the mother in contempt for the breach of the four orders regarding the father’s parenting time but not for failing to provide he address (or any other details) of the babysitting job. I explain my reasons below.

Why it is Appropriate to Exercise my Discretion to Find the Mother in Contempt of the Four Orders Regarding Parenting Time

[225] I have found beyond a reasonable doubt that the mother’s failure to obey the four court orders was willful. It arose from her long-term antipathy and condescension towards the father and his partner. At many points over the years, she has manifested a desire to eliminate the father from the child’s life, both through word and deed. Despite her protestations to the contrary, she did not accept that the father’s relationship with L was in the child’s best interests or that she was required to take any positive steps to encourage it.

[226] The mother has continued to argue that the child was justified in terminating her relationship with the father. She wishes to allow that termination to be made permanent by allowing the child to determine her contact with the father, knowing that termination is L’s present desire. She wishes to use the present estrangement to seek full custody, possession of the child’s passport (the subject of a previous contempt proceeding) and to move wherever she wishes with the child, notwithstanding its effect on the father’s relationship with the child.

[227] The clearest manifestation of the mother’s motivations came after her protestations of her desire to support counselling, financially and otherwise. When the father acquiesced to her terms, she withdrew them and sent the child instead to programmes that had nothing to do with repairing her relationship with the father.

[228] In exercising my discretion regarding a finding of contempt, I must focus on L’s best interests. It cannot be in her best interests to have no relationship with her father now, in a manner that portends a permanent termination of that relationship. I have seen nothing in the evidence to justify such a result and much to oppose it on a best interests basis. First of all, the order granting the father joint parenting and close to equal parenting time is presumptively correct. Lemon J. confirmed that it remains in the child’s best interests. Second, and simply put, the father has much to offer his daughter and she has much to gain from him. He has always been an interested father who has been willing to fight to be part of her life, but not to impose himself on her. L also has much to gain from a form of counselling that assists her to understand that the father is not the villain of this piece. That understanding will be helpful for her future understanding of relationships.

[229] The question that I must ask myself in light of these circumstances is what alternatives in the child’s best interests exist to a finding of contempt. None of the remedies specifically set out in r. 1(8) would assist in any manner. The mother’s counsel has offered no alternatives.

[230] While I cannot consider the findings of contempt as proof of propensity in regard to the Carey v. Laiken test, I can appropriately consider those findings when I am called upon to broadly exercise my discretion, as mandated in Chong v. Donnelly. In doing so, I cannot ignore the fact that three previous findings of contempt against the mother and two unsuccessful attempts to have the father found in contempt have not prevented her from continuing to engage in conduct that leads to my findings above.

[231] In his sentencing decision following his first finding of contempt, Lemon J. referred to the mother’s newfound assertion of an understanding of the importance of a father-child relationship for L. He then turned to the mother’s subsequent abusive email to the father that put lie to her claim.

[232] In his sentencing decision for the mother’s third contempt finding, Lemon J. found that a contempt motion was “the only appropriate response” for the mother, who “has been contemptuous of both the court and Mr. Dephoure. This has had an impact on their child.” Those facts remain true.

[233] The previous findings of contempt appear to have had only a temporary ameliorative effect on the mother. Letting things go appears to have had the opposite effect.

[234] Put another way, only the broad powers available following a finding of contempt are sufficient to offer even a glimmer of hope of restoring any semblance of the father–daughter relationship damaged by the mother’s pattern of disobedience of court orders. For that reason, I exercise my discretion to find the mother in contempt for her willful disobedience of the parenting time provisions of the four orders.

Why I Exercise my Discretion not to Find the Mother in Contempt of the Gray Order Regarding the Address for L’s Babysitting Job

[235] While I have found that the mother wilfully disobeyed the Gray order’s terms regarding consultation and disclosure, I exercise my discretion not to find her in contempt of those terms of that order. I do so simply because the contempt power is intended to enforce compliance, not to administer punishment.

[236] Simply put, the metaphorical train has already left the station regarding the mother’s obligation to provide information to the father regarding L’s babysitting job. It is too late to enforce that term. Finding the mother further in contempt in regard to that obligation will neither offer any practical value nor promote L’s best interests. If the goal is to encourage compliance with the consultation and disclosure terms of the Gray order, a finding of contempt will not assist. I have already found the mother in contempt regarding the father’s parenting time. In doing so, I have already signalled the court’s unwillingness to ignore a deliberate breach of its parenting orders regarding L. Nothing would be gained with a second contempt finding with regard to a breach that passed too long ago to be enforced.

Conclusion

[237] I find that the mother is in contempt of the four orders by wilfully withholding the child from the parenting time with the father set out in those orders.

[238] The parties shall arrange a timely hearing before me to determine the appropriate remedy or remedies for the contempt under r. 31(5). At that hearing, I will consider whether the mother has taken any effective steps to purge her contempt. Such a step would include enrolling, sharing the cost of, and insisting on L’s attendance with the father in meaningful counselling to repair the child’s relationship with the father. An appropriate counsellor in those circumstances may be Ms. Barclay.

[239] The parties are at liberty to provide further evidence either in writing or viva voce, for that remedies hearing.

[240] If there are any issues with a litigation schedule leading to that hearing, counsel may arrange a Zoom scheduling hearing before me.

[241] Costs of this contempt motion thus far are reserved to the remedies hearing.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Date: February 22, 2021