Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lisa Mathieu and Jean Mathieu, Applicants
AND:
Sabrina Brunette, Kenneth Moore and Cedric Lacroix, Respondents
BEFORE: Justice M. Fraser
COUNSEL: David Howard, Counsel for the Applicants Sabrina Brunette, self-represented
HEARD: June 17, 2021
ENDORSEMENT
[1]
Background
The Applicants, Lisa Mathieu and Jean Mathieu (the “Applicants”) bring a motion to cite the Respondent, Sabrina Brunette (the “Respondent”) in contempt on the basis that she has not complied with the Order of Justice MacLeod dated January 24, 2017 (the “Order”). More specifically, the Applicants claim that this Respondent has not complied with the terms of access stipulated in paragraph 1 of the Order.
2The Respondent does not deny that no access has taken place as ordered between the Applicants and the children, Hazeleigh Brunette, born March 24, 2012 and Aeson Brunette, born August 16, 2013 (collectively referred to as the “children”) since June 2, 2019.
3The Respondent has not permitted access because she requires certain conditions to be adhered to by the Applicants, including a condition that two of her sisters not be present during access visits.
4The conditions the Respondent requires are not specified in the Order of Justice MacLeod. Neither were such terms set out in the Order of Justice MacEachern dated June 13, 2019 (when a contempt motion was brought by the Applicants).
5The Respondent has not commenced a Motion to Change the Order of Justice MacLeod to request that the conditions she wishes be incorporated into the Order. This is notwithstanding her awareness that the Applicants dispute her right to withhold the children from access on the basis of the conditions she seeks to impose and notwithstanding the fact that she acknowledges that those terms are not required by the Order.
6The Respondent states that she has not brought a Motion to Change as she does not qualify for Legal Aid and she cannot afford to retain legal services. I acknowledge that the court system is challenging for persons without representation. Nonetheless, she is not alone in her inability to afford legal representation and many individuals successfully navigate the legal system on their own as a result. A lack of representation, however, is not an excuse for not complying with the terms of an Order.
7I presume that the terms of access in the Order are based on the children’s best interests. Unless and until the terms are varied to require additional conditions to access, it must occur unhindered by such additional terms.
[8]
Analysis
To find the Respondent in contempt, however, I must conclude that the Respondent intentionally failed to do what the order compels her to do. Given her understanding that there had been an “agreement” in place setting conditions which were to be complied with prior to such access occurring, I do not conclude that her actions are deserving of a finding of contempt, even though I conclude her understanding of the terms were wrongly held.
9In this respect, I am exercising my discretion to decline to make a finding of contempt in these circumstances. As stated in Chong v. Donnelly [2019] O.J. No. 5048, 2019 ONCA 799 (Ont.C.A.): “The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. This power should be exercised cautiously and with great restraint as an enforcement power of last rather than first resort.”
10That stated, I consider it necessary as part of my disposition to ensure that parties comply with an Order as part of the court’s objective to deal with cases justly as stated in Rule 2 of the Family Law Rules. In this instance I conclude that compliance with the terms of the Order will be easier to enforce if the Order is more specific as to when the Applicants’ access is to occur. I also conclude that a police enforcement clause is necessary, at least over the short term.
11The Applicants request additional “make-up” access visits. I do not find this to be in the best interests of the children. My objective at this juncture is to ensure there is compliance with the terms of an order. This should not become an exercise in quantifying what time was missed. I do not see imposing additional visits at this time to benefit the children. The best interests of the children remains my primary consideration. Providing the Applicants with additional “make-up” visits would deprive the children of weekend time spent with the Respondent and I do not consider this to be in their best interests or conducive to fostering an ongoing relationship with the Applicants.
[12]
Order
I therefore order that access between the Applicants and the children shall resume as follows:
For June 2021, the applicants shall on June 26, 2021, have a virtual make-up visit with the children. The Respondent shall facilitate a virtual visit between the Applicants and the children using Zoom, Skype, or FaceTime up to two hours in length, commencing at 3:30 p.m. unless the parties agree upon an alternate time. This visit shall be deemed to be the Applicants’ monthly visit for June 2021 under the Order of Justice MacLeod, dated January 24, 2017.
For July 2021, the Applicants shall have the children in their care during a visit in the community, such as a park, in Ottawa. The location shall be in the discretion of the Applicants. This visit may be up to four hours in length and shall occur on July 24, 2021. This visit shall be deemed to be the Applicants’ monthly visit for July 2021 under the Order of Justice MacLeod dated January 24, 2017.
Commencing August 21, 2021, the Applicant shall have access with the children as provided by the terms of the Order of Justice MacLeod dated January 24, 2017 in paragraphs 1 and 2 thereof. The Applicants shall thereafter resume such access visits one weekend per month. Unless an alternate weekend is agreed upon in writing by the parties, the access weekend shall occur on the third week of the month unless that weekend is a weekend when one of the children is to have access with their father. In that event, the access weekend with the Applicants shall occur on the fourth weekend of that month.
The terms of this Order and this Order in conjunction with the terms of the Order of Justice MacLeod dated January 24, 2017 shall be subject to enforcement by the Ottawa Police Service, Ontario Provincial Police, RCMP, sheriff’s officers, and/or any other law enforcement agencies having jurisdiction to enforce the provisions of this Order, and to locate, apprehend, and deliver the children as required pursuant to section 36 of the Children’s Law Reform Act. This clause shall remain in effect and not expire for one year from the date of this Order.
The children may contact the Applicants by telephone in accordance with their wishes. The Applicants may contact the children by telephone on Wednesday evenings between 6:00 p.m. and 7:00 p.m. (unless an alternate time is agreed upon in writing by the Applicants and the Respondent in writing). The Applicants and the Respondent shall ensure that they have each other’s current telephone number and they shall provide updated contact information to the other if their respective telephone numbers change.
[13]
Costs
If the parties cannot agree on costs, the Applicants may make written submissions as to costs within 10 days of the release of this endorsement. The Respondent shall then have 10 days from receipt of the Applicants’ submissions to respond. All such written submissions are to be forwarded to my attention by email to Pembroke.SCJ.Courts@ontario.ca. If no submissions are received within this timeframe, the parties shall be deemed to have settled the issue of costs as between themselves and there will be no order as to costs.
M. Fraser J.
Date: June 22, 2021