SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-20-629
DATE: 2021/03/23
RE: Courtney Willis, Applicant
AND
Coady Crabtree, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Deborah Bennett, Counsel for the Applicant
Respondent – self-represented
HEARD: Motion heard via Zoom – March 18, 2021
ENDORSEMENT
[1] The Applicant mother’s motion requests:
Appointment of the Office of the Children’s Lawyer’s Office (“OCL”) to complete a clinical report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“Courts of Justice Act”);
Access to the father via video link until certain conditions set out in the Notice of Motion are met or in the alternative, supervised access;
An order with respect to communication between the parties; and
Child support in accordance with the Child Support Guidelines, O. Reg. 391/97.
[2] In support of her motion the mother has filed the following:
Her Affidavit dated May 5, 2020;
Her Affidavit dated May 7, 2020;
Her Affidavit dated May 26, 2020;
Her Affidavit dated December 17, 2020;
Her Affidavit dated December 29, 2020;
Her Affidavit dated March 8, 2021;
The father’s Affidavit dated May 18, 2020;
Affidavit of Carol Morrison (maternal grandmother) dated March 10, 2021; and
Affidavit of Lewis Burpee (mother’s neighbour) dated March 9, 2021.
[3] The Respondent father brings a motion for contempt on the basis that the mother has denied access to the children since October 23, 2020 in violation of the Court order of Justice MacEachern dated May 18, 2020 (interim order).
[4] He also brings a motion for an Order:
That his parenting time with the children be reinstated as per the interim order; and
For the sale of the family residence.
[5] In support of his motion, the father has filed:
His Affidavit dated September 21, 2020;
His Affidavit dated January 13, 2021; and
His Affidavit dated March 9, 2021.
[6] The parties have agreed that the family residence should be sold but they cannot agree on the terms of sale.
Brief Background
[7] The parties cohabited from November 1, 2013 and separated on February 23, 2020.
[8] There are three children of the relationship: Mila born on November 3, 2013 and twins: Scarlett and Carter born September 26, 2016.
[9] After the separation, they lived under the same roof until matters were resolved at an urgent motion.
[10] At that motion, the parties consented to an interim order.
[11] The interim order provided for, among other things, the following:
Timelines for filing of documents;
The mother would have interim exclusive possession of the family residence located at 2908 Southmore Drive East, Ottawa;
The children’s primary residence would be with the mother;
Commencing June 5, 2020, the children’s parenting time with their father would be every second weekend from Friday at 3:00 p.m. to Sunday at 4:00 p.m. and such other times as agreed by the parties;
The father’s access was premised on him living at his parents’ home and that his parents would be there during the visits;
The father was to abstain from alcohol or non-prescribed medication when the children were in his care; and
The father was to provide his employment contract with OC Transpo and correspondence with his employer.
[12] The paternal grandparents are on title of the family residence for 2% so that the parties could become eligible for a mortgage.
[13] The father works for OC Transpo as a driver and his Line 150 income for 2019 was $62,796.
[14] The father has had addiction issues in the past and in January 2019, his employer arranged for him to participate in an alcohol and drug addiction program of 35 days through Homewood.
[15] His employer also requested random urine drug samples on a regular basis.
[16] At the end of October 2020, the mother did not permit the father to have any further parenting time with the children as the children were reluctant to visit with their father as they were afraid of him.
[17] This resulted in the father’s contempt motion. The mother believes that the interim order is no longer in the children’s best interests.
ISSUE #1: What are the terms of the sale of the family residence?
[18] The parties agree to the following:
The family residence should be sold “as is” as it is a sellers’ market;
The real estate agent will be John Creppin;
The mother will choose the neutral lawyer to complete the sale;
The monies will remain in trust pending a Court order or an agreement between the parties; and
The paternal grandparents who have a 2% interest in the home have consented to the sale.
Father’s Position
[19] The father requests a Court order that his parents be repaid the loan of $15,000 that they made to the parties.
[20] He wishes a closing date at the end of June when the children are finished school and then they can acclimatize themselves over the summer to their new home and neighbourhood.
Mother’s Position
[21] The mother would like a closing date for the end of July to give her time to ready herself and the children for the move.
[22] She denies that she agreed to a loan from her in-laws and opposes a distribution to them from the sale proceeds.
Analysis
[23] Pursuant to s. 2 of the Partition Act, R.S.O. 1990, c. P.4, a joint owner has a prima facie right to partition and sale of a jointly held property.
[24] I agree that the mother should be given an opportunity to prepare to move from the home. However, I believe what is reasonable is that the closing date occur on July 15, 2021 or on an earlier date as agreed by the parties.
[25] I am not prepared to rule on the issue of the loan to the paternal grandparents. A more fulsome documentary record is needed, e.g. any promissory note and record of payments. In addition, the Court would benefit from viva voce evidence on this issue. This issue will be dealt with at trial unless the parties are able to resolve this issue.
ISSUE #2: Should the interim order be varied?
Mother’s Position
[26] The mother is very concerned regarding the children’s well-being.
[27] The father has shown a pattern of behaviour which includes verbal abuse and threatening behaviour that amounts to domestic violence.
[28] He has admitted to substance abuse issues in his May 2020 Affidavit which led to the interim order.
[29] He assured the Children’s Aid Society (“CAS”) he had addiction supports in place.
[30] Further, the mother indicates that:
The father has addiction issues to cocaine and alcohol;
The father is not compliant with the interim order which requires him to produce his employment contract and correspondence with his employer;
Further, the Court should draw a negative inference against the father as, despite numerous requests from her lawyer, he has refused to provide his random drug screening with OC Transpo;
He has been abusive to the mother in the presence of the children on numerous occasions; and
The children have emotionally suffered due to the father’s actions.
[31] She indicates that the three children are anxious and frightened about spending time with their father.
[32] The eldest, Mila has received counselling with Serenity Renewal for families- Addictions Support Ottawa to support her. Mila has told her counsellor that she is fearful of her father and is upset of how he yells at her mother.
[33] At the end of October, the children were too anxious to attend visits with their father.
[34] She immediately prepared her materials to bring a motion to change the interim order to restrict his time with the children.
[35] The father’s motion for the sale of the family residence originally scheduled on December 3, 2020 was adjourned on consent by the parties so that the two motions could be heard at the same time.
[36] The next date was January 21, 2021 but was adjourned due to Court documents in the Court office not being made available to the Justice scheduled to hear the motions.
Father’s Position
[37] In the meantime, the father has brought three separate motions for contempt.
[38] He wishes his parenting time set out in the interim order to be reinstated and also that the Court hold the mother in contempt for failure to comply with the interim order.
[39] He denies he has continuing substance abuse and confirms that the CAS were unable to confirm that he continues to abuse drugs.
[40] He intends to provide the employment information but objects to the production of the test results as this is a personal issue.
[41] He believes that the mother is on a campaign to destroy his relationship with the children
[42] From the end of October until last week he had not had contact with the children
[43] Last week, in anticipation of this Court hearing, she permitted him time with the children via Facetime.
[44] He has a loving relationship with all the three children and indicates that they miss him and love him and want to spend time with him.
[45] He denies that he attends at the home with his truck and squeals his tires and revs his engine. He is upset that the mother has denied him time with his children.
Analysis
Statutory Framework
[46] The parties did not address the issue of the variation of orders which requires that the Court will not make a change unless there has been a material change in circumstances. See the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (CLRA):
29 (1) A Court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order. 2020, c. 25, Sched. 1, s. 6.
[47] Parenting time must be determined in accordance with the children’s best interests. See CLRA, s. 24:
(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6. In addition, the CLRA has been amended recently and there are no transitional provisions.
[48] The CLRA mandates the Court consider certain factors in s. 24(2)(3):
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
[49] Further, the CLRA provides that the Court shall consider domestic violence which is defined in s. 18(2):
“Family violence”
(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property. 2020, c. 25, Sched. 1, s. 2.
[50] The CLRA has expanded the section dealing with family violence and has mandated that the Court consider family violence when determining a parenting plan and what is in the children’s best interests
[51] Section 24(4) states:
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
Discussion
[52] The Court finds that there has been a material change of circumstances since the interim Order that requires the Court to determine whether the interim order should be varied.
[53] The children have been exposed to increasing aggression by their father in their presence especially directed at mother. This has impacted the children’s emotional well-being to a point where they have verbalized that they do not wish to visit with their father.
[54] The material change is corroborated by Mila’s counsellor who indicated that Mila was scared of her father and become very frightened when she heard her father’s truck outside in front of her home.
[55] One of the children is afraid their father will take them away.
[56] Next, I find that there is an abundance of evidence to indicate that a change of the father’s parenting time is necessary for the children’s best interests.
[57] For the reasons that follow, the interim order will be varied as it is no longer in the best interests. This matter calls for shorter periods of parenting time and boundaries imposed on the father regarding his contact with the mother.
Addiction issues
[58] I note that the father has had serious issues with non-prescription drugs and alcohol, and this has been long standing.
[59] I draw an adverse inference against the father from the fact that he did not provide the Court ordered documents between himself and his employer regarding the terms of his employment and correspondence. This correspondence included his employer’s requirement that he submit to random urine drug sample testing.
[60] Although his results were not a Court ordered, his reluctance to show that he is indeed abstaining from non-prescribed drugs or alcohol causes the Court to pause.
[61] He denies substance abuse. The interim order provided that he was to abstain from the use of alcohol and non-prescribed drugs while in the care of the children yet he is not prepared to be forthcoming with this evidence.
[62] He has a history of substance abuse and these test results would have been helpful to the Court in determining what is in the children’s best interests.
[63] He has the following history. Despite the rehab program in the summer of 2019, he relapsed in September 2019.
[64] At that time, he was abusing alcohol and drugs and not attending Narcotics Anonymous/Alcohol Anonymous meetings.
[65] In December 2019, the mother asked him to leave and at that time, he failed a drug test at work who placed him on a 2-week medical leave and then modified duties. He appeared to be sober for 10 weeks.
[66] The evidence in the mother’s affidavit indicates that in February 2020, he returned to work and was able to avoid the test request from his employer. Then, from February 2020 to May 2020, he spent spans of time outside the home, partying and attending drug get-togethers.
[67] The father admits his addiction in his Affidavit of May 18 2020 where he stated that he has struggled with alcohol addiction for some time, that Homewood had described him as a binge drinker, he relapsed when he attended a friend’s bachelor party and at a hockey game. At the time of this affidavit, he stated that he was seeking regular counselling.
[68] OC Transpo requires from him a random urine screen once every two weeks.
[69] He advised CAS in January 2021, that he was connected to “addictions supports to appease the CAS of their concerns.”
[70] I do note that in their letter to the parents, the CAS was not able to confirm that the father continues to abuse substances.
Father’s anger management issues
[71] The children have been exposed to the father’s anger. There is evidence that this has affected their emotional well-being.
[72] He is verbally abusive in the presence of the children which includes him yelling, spitting, and using vulgar language directed at their mother.
[73] The record is replete with this pattern of behaviour. The father has no insight on the effect that his behaviour has on these young children.
[74] At the time of the interim order in May 2020, the mother firmly believed that the father had accepted responsibility and demonstrated remorse.
[75] She was satisfied that there was evidence of continued sobriety. She believed that the interim order would protect the children as it provided for no negative talk with the children present, that his time with the children would occur with his parents being at home and in their presence and continued disclosure from OC Transpo.
[76] The mother vividly describes a number of incidents in her affidavit.
[77] On May 23, 2020, the father came into the home saying that her exclusive possession right did not start until May 31st and screamed at her. This was particularly frightening for Mila as she heard all of this. The mother indicates that he smelled of alcohol and was acting irrationally according to her. This occurred at 9:30 p.m. and he screamed at the mother saying she was sleeping with a neighbor and that he was going to beat up the neighbour.
[78] At the daycare pick up on August 26, 2020, Mila did not want to leave with him. He was yelling as well as screaming and even his own mother told him to stop. When the Applicant mother came he screamed and yelled at her in the presence of the children.
[79] This incident has had a particular negative effect on Mila’s sense of well-being.
[80] On October 10, 2020 he approached the home with his truck and told the children that their mother is evil as she would not let them come for Thanksgiving and called her a “b----".
[81] There were other incidents of these types of outbursts on October 21, 27, and November 8, 2020.
[82] In her Affidavit of December 17, 2020 filed in support of her motion to vary the interim order, she indicates that the pattern of abuse had been “brewing” for months.
[83] She indicates that after the interim order, there continued to be numerous incidents of conflict in front of the children, which included aggressive conduct towards her in the presence of the children, threats to call the police to enforce the order in the presence of the children and negative messaging about her to the children.
[84] When he picked up the children, he would be abusive to the mother in the presence of the children. In addition, he uses the Our Family Wizard (“OFW”) to send her countless messages that are abusive.
[85] He has been inappropriate in general in the presence of the children where he would swear on Face time “F-ck this” and one time when Carter would not engage on facetime he stated “wow has your attitude ever changed toward me” and “it’s absolutely disgusting” and “f.ck this sh.t, I’m outta here”.
[86] On October 21, 2010, when the father attended the mother’s home to pick up the children, Mila told her father she did not want to go with him. Her father said she had no choice and if she did not come she would never come with again and from now on he would have the police enforce the order. He made negative remarks about the mother. He yelled at the mother causing the children to be very frightened.
[87] Since that time Mila has not wanted to return on visits. Carter is worried his mother is going to jail and Scarlett is worried that father will take them.
[88] On October 27, which was another one of the father’s scheduled visit, the mother advised him that the children did not want to attend visits. He became very belligerent and angry and swore in front of the children. She told him she would end the Tuesday visits as well although they were not Court ordered.
[89] On October 30, 2020 the father wrote and indicated that he did not want to force Facetime calls if the children did not want to do it.
[90] In early November, he messaged her through OFW, accusing her of withholding the children and she told him that the children did not want to attend.
[91] On his Facetime call on Mila’s birthday on November 4, 2020, he told her that she would not receive any gifts if she did not visit. The mother told him about the counsellor and encouraged the father to call her.
[92] On November 8, 2020, he banged on her door and scared the children.
[93] There is no question he loves the children but for them to witness constant verbal aggression towards their mother along with threatening attacks has affected them emotionally to the point where they have expressed fear of him. The father has little insight that his behaviour and outbursts in their presence, even if his anger is not directed at them, is affecting these young children. The effect of domestic violence impacts children especially if they are present for it.
[94] He also is verbally abusive with the mother during Facetime calls when the children were not interested in speaking to him at the time.
[95] The police have cautioned him. The CAS investigated and concluded that the children were at risk for emotional harm but could not verify that the father was abusing a substance.
[96] The mother also speaks of the father being verbally abusive and putting his fist through walls and breaking doors.
Mila’s Counselling
[97] In her email dated December 17, 2020, Lynda Donaldson, Mila’s counsellor confirms that she has been seeing Mila since June 2020. She has had eight sessions with her.
[98] Although this email is not properly before the Court as evidence as it is attached to an Affidavit and is not filed as a report or an Affidavit, I am prepared to give it weight.
[99] Ms. Donaldson reports that Mila is experiencing anxious feelings when scheduled visits with her father are approaching. Mila expressed her fear when her father has his outbursts and is afraid he would get “mad again and yell”.
[100] Mila told her counsellor that these angry outbursts are directed at her mother and she is fearful when she hears her father’s truck near the home and afraid that he might come to the door.
[101] The mother indicates that the father will stop in front of her residence and rev his engine and squeal his tires to let the children know he is there.
[102] The mother’s neighbour corroborates this type of behaviour that has been “ongoing for months”. He has reported it to the police.
Conclusion
[103] For all the above reasons, this Court varies the interim order so that the time with the children with their father will be reduced and at this time, pending further Court order, will only be during the day with no over nights.
[104] It is in the children’s best interests that their time with their father be reduced and it must be exercised at his parents’ home. The grandparents are there to ensure that the father abstains from substance abuse and that he does not speak negatively about the mother.
[105] I note that after months of no contact the father has Facetime with the children recently and they have expressed a wish to see him.
[106] Shorter periods of time will allow the children to feel secure knowing that they will be returning to their mother after their short visit with their father.
[107] I have considered the provisions in s. 24 of the CLRA, and specifically the family violence. With this resumption of access and shorter periods of time, the father will be given the opportunity to care for and meet the needs of the child. By the father not having contact with the mother, the children will not be exposed to his verbal aggression.
[108] This Order will also ensure that boundaries will be set so that the father will not attend the home to pick up the children and the parties are expected to co-operate on issues affecting the children.
[109] With respect to supervision, I am satisfied that the parenting time at the father’s parents’ home and in their presence, will allow the children to be safe.
[110] The conditions of the interim order that father is to abstain from substance abuse during parenting time and not maligning the mother to the children will continue.
[111] The father’s anger has mostly been directed at the mother and provided that the parents minimize their contact, the children’s risk of exposure to family violence will be reduced.
[112] The CLRA provides the following:
Supervision of parenting orders and contact orders
34 (1) A court may give such directions as it considers appropriate for the supervision, by a person, a children’s aid society or other body, of decision-making responsibility, parenting time or contact with respect to a child under a parenting order or contact order. 2020, c. 25, Sched. 1, s. 11.
Consent to act
(2) A court shall not direct a person, a children’s aid society or other body to supervise the exercise of decision-making responsibility, parenting time or contact under subsection (1) unless the person, society or body has consented to act as supervisor. 2020, c. 25, Sched. 1, s. 11.
[113] Since I am continuing the provision in the interim order that the paternal grandparents be present at the father’s residence during parenting time, I assume that they are consenting.
[114] If this is not the case any longer, then the parties may return to Court to request another supervisor. I am not seized of this matter.
[115] Accordingly, the interim order is varied to read: Commencing March 27, 2021 and every second Saturday and Sunday, parenting time will be from 10:00 a.m. to 3:00 p.m. at his parents’ home. The paternal grandparents will pick up the children. The father is not to attend the mother’s home.
[116] In addition, the father should be advised of the development of the children and the mother will provide the father with regular updates through OFW. The OFW should be used only for respectful communication regarding the children.
[117] CLRA s. 20(5) reads:
Parenting time
(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. 2020, c. 25, Sched. 1, s. 2.
[118] The parties have not submitted a parenting plan for my consideration and hence a parenting plan will not be attached to this parenting time order. (see s.28(7) of the CLRA )
Disclosure
[119] Outstanding disclosure as per the interim order must be complied within 30 days failing which the mother is entitled to bring a motion for contempt
[120] Within 30 days, the father is to provide all urine screen results taken through his employer and confirmation of the following:
When the father was on leave;
Whether he is pursuing treatment,
Whether he is pursuing individual counselling; and
Whether he is attending anger management.
ISSUE # 3: should the mother be held in Contempt?
Legal Framework
[121] Rule 31 of the Family Law Rules, O. Reg. 114/99, provides the Court jurisdiction to deal with contempt. The purpose is primarily remedial, that is to coerce the offender in obeying the Court order. See: Kopaniak v. MacLellan (2002), 2002 44919 (ON CA), 27 R.F.L. (5th) 97 (Ont. C.A.).
[122] In L.(A.G.) v. D.(K.B.), 2009 14788 (ON SC), [2009] O.J. No. 1342 (S.C.), the Court stated that it must make the following findings:
That the relevant order was clear and unambiguous;
The fact of the order's existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
That the respondent was given proper notice of the terms of the order.
[123] In addition, the Court retains an overriding discretion to decline to make a contempt finding where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant Court order. See: McKinnon v. McKinnon, 2018 ONCA 596.
[124] In Jackson v. Jackson 2016 ONSC 3466,, Justice Chappel provided an excellent summary in which she states it ultimately remains a matter for the Court’s discretion. She set out the following considerations:
a. Because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;
b. It cannot be reduced merely to a mechanism for enforcing judgments;
c. It should be used sparingly and as a measure of last resort where there are no other adequate remedies available;
d. It is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that Court orders cannot be flaunted; and
e. The complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.
Discussion
[125] In this case, I find that technically the mother has breached the interim order. I make the following findings:
The interim order is clear and unambiguous as the father’s parenting time is spelled out;
The mother was aware of the interim order’s existence. She was represented by counsel who advised her in the parties’ consent which terms were incorporated into the interim order;
That the mother intentionally did not comply with the interim order; and
That the mother was given proper notice of the terms of the order.
[126] However, I am not prepared to exercise my discretion to hold the mother in contempt.
[127] I refer to the Ontario Court of Appeal set out the following principles in Hefkey v. Hefkey, 2013 ONCA 44 .
The civil contempt remedy is one of last resort
A contempt order should not be granted where other adequate remedies are available to the aggrieved party i.e. in relation to an alleged access denial, a variation or enforcement of the access order;
Great caution should be exercised when considering contempt motions in family law cases;
Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.
[128] The contempt power is to be used with restraint and in exceptional circumstances-essentially to respond to circumstances where it appears to be the only reasonable means to send a message to the litigant that Court orders are not to be flaunted.
[129] I am especially guided by Ruffolo v. David, 2019 ONCA 385, which refers to Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36:
[36] 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.]
[130] In Chong v. Donnelly, 2019 ONCA 799, the Court added:
[12] In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for Courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.
[131] In Szyngiel v. Rintoul, 2014 ONSC 3298, 2014 ONSC 3298, the Court stated, at para. 24, that: “There are situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order.” A reasonably held belief is one that is both sincere and has some objective basis in fact.
[132] I also consider that the mother through counsel took steps to bring this matter to Court to vary the interim order but for a number of reasons this matter was not heard until 4 months later.
[133] In my view, young children are not old enough to determine contact with the other parent. However in the circumstances of this case, the father’s constant aggressive behavior which includes name calling, vulgar language and threatening behavior in the presence of the children has led them to fear their father. One of the children worries that the mother will go to prison.
[134] He is bad mouthing the mother is contrary to the interim order.
[135] These young children do not understand the father’s behavior and his aggression to their main caregiver destabilizes their sense of security and well-being.
[136] The mother is not condoned for breaching the Court order and in my view this matter should have been brought to the Court earlier. However, we are in unique times with the pandemic and this has led to some delays.
[137] A refusal to permit access out of a legitimate concern for the children, rather than a desire to frustrate access or deny contact, does not amount to contempt. Johannesson v. Johannesson, 2003 2013 (ON SC), [2003] O.J. No. 2649.
[138] There are also situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defense, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order. Thus, there is both a subjective and objective component. See: Wright v. Tolchard, 2020 ONSC 7139.
[139] For the above reasons, the Court declines to hold the mother in contempt because:
The father was not complying with the conditions regarding disclosure;
Given the above findings set out above regarding the parenting, it clear that the father’s behaviour with angry outbursts against the mother and others in the presence of the children is emotionally damaging to the children; and
The Court has drawn an adverse inference in the father’s failure to provide his drug screening results.
[140] Finally, the family violence findings in this case have seriously jeopardized the children’s emotional well-being and sense of safety and security. I find that the mother was attempting to protect these young children from their father’s intense anger management issues.
ISUUE #4: Should the father pay child support?
[141] The father agreed to pay the mortgage instead of child support. He sought the mortgage deferral to December 2020. The mortgage is now in default and the mother has not received any child support. The father says he has been paying the mortgage and making up the deferred payments. There is no evidence of this before the Court.
[142] He should be paying child support in accordance with the Child Support Guidelines and he did not articulate an objection.
[143] Retroactive issues can be dealt with at trial and there will have to be some accounting with respect to any mortgage payments that have been made.
[144] Therefore, child support in the amount of $1,254.00 per month will be paid to the mother commencing April 1, 2021.
ISSUE #5: Should there be an appointment of the Office of the Children’s Lawyer’s Office to complete a clinical report pursuant to s. 112 of the Courts of Justice Act?
[145] Section 112 of the Courts of Justice Act reads:
(1)In a proceeding under the Divorce Act (Canada) or the Children's Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children's Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child's support and education. R.S.O. 1990, c. C.43, s. 112 (1); 1994, c. 27, s. 43 (2).
(2) The Children's Lawyer may act under subsection (1) on his or her own initiative, at the request of a court or at the request of any person. R.S.O. 1990, c. C.43, s. 112 (2); 1994, c. 27, s. 43 (2).
[146] The OCL has an investigative, fact finding role and makes recommendations to the court after the investigation has been completed. It is not necessary for the court to determine that there are clinical issues for a referral under s. 112 of the Courts of Justice Act.
[147] The children’s emotional and psychological well-being is vulnerable. They are young children involved in a family with domestic violence. The Court would benefit from the involvement of the OCL specifically from a social worker assessment that will investigate the family and provide some recommendations to the Court.
[148] When dealing with the children’s best interests, the Court should have the benefit of this independent neutral third party evaluation, if the OCL is prepared to become involved.
Conclusion
[149] In conclusion, the Court orders:
[150] The family residence will be listed for sale with real estate agent, John Creppin:
On consent the mother will choose the neutral real estate lawyer;
The parties will co-operate with the sale including executing all documents necessary to facilitate the sale;
The proceeds from the sale of the family residence will remain in the real estate lawyer’s trust account pending an agreement by the parties or Court order; and
The closing date will be July 15, 2021 or earlier as agreed by the parties.
[151] The Court notes that the parties have indicated that the father’s parents have indicated that they consent to the sale.
[152] The father’ s motion for contempt is dismissed.
[153] The parenting time set out in the interim order is amended as follows:
Commencing March 27, 2021, the father will have parenting time with the children at his parents’ residence every second Saturday and Sunday from 10:00 a.m. to 3:00 p.m. at this parents’ home in their presence;
In addition, the father will be permitted a minimum of two Facetime/skype or other video-link time with the children every Tuesday and Thursday evening;
The father will speak to the children and not the mother on these video contact time;
The father’s parents will pick up and deliver the children for the parenting time;
The father will not attend at the mother’s home;
All communication through OFW must be respectful and only deal with the children;
In addition, the father will be advised of the development of the children and the mother will provide the father with regular updates through OFW; and
All other terms of the interim order will remain in full force and effect.
[154] Within 30 days of the date of this Endorsement, the father will provide the mother with his employment contract, correspondence with his employer regarding requirements to take random drug screening tests, documentation confirming his new position with OC Transpo which he says is in the mechanics department and all copies of the drug screening results that were obtained with his employer.
[155] The OCL is requested to be involved and the Court requests that a clinical assessment be completed pursuant to s. 112 of the Courts of Justice Act.
[156] Commencing April 1, 2021, the father will pay child support to the mother in the amount of $1,254 per month based on the Line 150 income of his 2019 Notice of Assessment of $62,796. This is without prejudice to the mother claiming retroactive support and the father receiving any credit with respect to any mortgage payments.
[157] Given the divided success, I am not inclined to order costs.
[158] However, if the parties cannot agree on the issue of costs, the mother will provide her two page costs submissions along with any offers to settle and Bill of Costs by April 6, 2021. The father will provide his two page costs submissions with any offers to settle and Bill of Costs by April 20, 2021. The mother may file a one page reply by April 27, 2021.
Justice A. Doyle
Date: March 23, 2021
COURT FILE NO.: FC-20-629
DATE: 2021/03/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Courtney Willis, Applicant
AND
Coady Crabtree, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Deborah Bennett, Counsel for the Applicant
Respondent – self-represented
ENDORSEMENT
Doyle J.
Released: March 23, 2021