COURT FILE NO.: FS-19-95754
DATE: 20211006
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shoeb AHMED v. Farah SHAIKH
BEFORE: McGEE J
COUNSEL: Melanie Battaglia for the Applicant
Farooq Anser for the Respondent
MOTION
HEARD: September 16, 2021 via videoconference
ENDORSEMENT
Issue
[1] When a party has breached a parenting Order, can the Court order a Children’s Law Reform Act Section 30 Assessment pursuant to Rule 1(8) of the Family Law Rules as an alternative to a contempt remedy?
Background
[2] This is Mr. Ahmed’s September 8, 2021 Motion for an Order finding Ms. Shaikh in breach of Minutes of Settlement incorporated into a final Order issued exactly one year ago on September 8, 2020. The balance of issues arising from the parents’ separation continue within the Application as a whole.
[3] On consent, Order to issue severing the claim for Divorce from the corollary issues.
[4] Mr. Ahmed asks that the breach be immediately rectified pursuant to Rule 1(8) of the Family Law Rules with an Order directing compliance with the terms of the Order and/or an Order for a section 30 assessment.
[5] The final Order incorporates a detailed, well drafted, and carefully constructed Parenting Plan that is anchored by a week about parenting schedule. The final Order also provides that the parents shall have joint custody – now responsibility for decision making – of their two children: I, born December 1, 2006 and S, born July 12, 2008.
[6] The parties separated in June 2019 when the father was removed from the home as a result of criminal charges based on historical allegations of abuse. The charges were later withdrawn by the Crown. A very difficult period followed.
[7] Between the date of separation and the execution of the Minutes of Settlement, there was child protection involvement; mutual allegations of significant mental illness and domestic violence, the overinvolvement of the maternal grandparents with whom the parents had been living at the time of separation, and reciprocated claims of inadequate parenting.
[8] The final Order of September 8, 2020 appeared to bring this difficult period to an end. But instead, its terms went into breach within a month. In October 2020, S refused to transition to her father’s care. The parties' son, I, continued in the agreed schedule until he stopped seeing his father in February of 2021. At the time of this motion in September 2021, S had not seen her father for almost a year, and I had not seen his father for 7 months.
[9] Mr. Ahmed wants the September 8, 2020 final Order to be enforced. His frustration with his former spouse’s conduct leaps off the pages of his factum. He asserts that she “laid in the weeds throughout their negotiations and that she never had any intention of following the Parenting Order.” He accuses her of bad faith.
[10] The immediacy of the failure is notable, but perhaps not entirely surprising. None of the relationship dysfunction underpinning the end of the marriage, or the difficult post separation period were addressed prior to the parties executing the Minutes of Settlement; despite the parents having agreed to a section 30 assessment at a January 2020 Case Conference.
[11] Mr. Ahmed’s counsel proposes that the most child-friendly solution to the current impasse is for the parents to take a step back in the litigation and now engage in a section 30 assessment.
[12] Ms. Shaikh’s counsel opposes any Order sought by the father. He agrees that his client is in breach of the final Order while offering no proposal to restart the father’s parenting time. He argues that the children are in counselling (closed counselling that does not involve the father) and that the CAS will continue to monitor the situation as needed.
[13] Ms. Shaikh’s extensive affidavit materials filed in response to this Motion go a step further. They set out her view that the children should not be forced to see their father and that they are doing better in school and at home without him. Her materials are replete with allegations that the father has poor parenting skills and that the current situation is entirely his fault. Her intention is to leave it to the children to decide what to do.
Jurisdiction to order a Section 30 Assessment on a Final Order
[14] Ms. Shaikh’s counsel forcefully argues that the January 2020 temporary Order incorporating the parties’ agreement for an assessment is no longer of any force or effect. I agree. If a section 30 Assessment is to be ordered, it must be justified on a fresh review of the record.
[15] Ms. Shaikh’s counsel also argues that there is no record upon which to make such an Order. He submits that Mr. Ahmed must first issue a Motion to Change if he wants further parenting Orders. I reject this argument. Mr. Ahmed does not ask to vary the final Order pursuant to Section 17 of the Divorce Act; he asks to give effect to it.
[16] There are at least two options for a party who wishes to enforce the terms of a parenting Order that is in breach. A third option – not yet at issue here – is to seek to vary the Order so that the children are placed with the parent who better meets their best interests in accordance with the factors in section 16 of the Divorce Act, particularly section 16(3)(c).
[17] The option that is too commonly seized upon as an immediate response is a Notice of Contempt Motion pursuant to Rule 31 of the Family Law Rules:
- WHEN CONTEMPT MOTION AVAILABLE
(1) An 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.
[18] For a party to be found in contempt for breaching a court Order, three elements must be proved beyond a reasonable doubt: (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 had 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: Carey v. Laiken, 2015 SCC 17, at paras. 32–35.
[19] A series of Ontario Court of Appeal decisions since 2015 such as Greenberg v. Nowack, 2016 ONCA 949, and Ruffolo v. David, 2019 ONCA 385 have emphasized that the contempt power should be exercised cautiously and with great restraint as an enforcement tool of last, rather than first, resort. A judge should first consider other options, such as issuing a declaration that the party breached the order or encourage professional assistance, see Carey, at paras. 36-37 and Chong v. Donnelly, 2019 ONCA 799, at paras. 9-12 and Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41.
[20] Such other options have their basis in Rule 1(8) and 1 (8.1) of the Family Law Rules which read:
1(8) FAILURE TO OBEY ORDER
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order. O. Reg. 322/13, s. 1.
FAILURE TO FOLLOW RULES
(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g). O. Reg. 322/13, s. 1.
[21] The application of Rule 1(8) is not limited to temporary Orders and it offers many advantages in a parenting dispute over that of a contempt motion. Foremost, it is a more child-focussed approach. It is better in keeping with the directive in Rule 2 of the Family Law Rules. Rule 1(8) does not require the Court to find that the breach has been intentionally committed by a parent; only that there is a breach. The burden of proof remains the civil test of a balance of probabilities.
[22] In my view, Rule 1(8) is the preferred approach to a breach of a parenting Order. Thrusting parents into a stressful, contentious, expensive, two-step quasi criminal contempt proceeding in which incarceration is a potential outcome rarely ends well. In contrast, Rule 1(8) has a broader application that allows the Court to make any Order that it considers necessary for a just determination of the matter which, in parenting disputes, usually involve complex and interrelated therapeutic issues.
[23] As recently set out in Moncur v. Plante, 2021 ONCA 462, it is especially important for courts to consider options other than findings of contempt in high-conflict family disputes. As Justice Jamal presciently observes, “[o]therwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children".
Section 30 Assessment is Necessary
[24] Section 30 of the Children’s Law Reform Act states that:
Assessment of needs of child
30 (1) The court before which an application is brought for a parenting order or contact order with respect to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (1); 2020, c. 25, Sched. 1, s. 8 (1).
When order may be made
(2) An order may be made under subsection (1) on or before the hearing of the application and with or without a request by a party to the application. R.S.O. 1990, c. C.12, s. 30 (2); 2020, c. 25, Sched. 1, s. 8 (2).
Agreement by parties
(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person. R.S.O. 1990, c. C.12, s. 30 (3).
Consent to act
(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. R.S.O. 1990, c. C.12, s. 30 (4).
[25] Ms. Shaikh does not agree to an assessment, arguing that the children have a counsellor and the CAS is involved. She does consent to a Voice of the Child Report through the Office of the Children’s Lawyer.
[26] I am persuaded to make an Order for an assessment because the children’s counsellor is not an assessor and cannot take on that role. Her retainer to provide confidential counselling services to the children does not permit her to give evidence, and her qualifications are outside what would be required for an assessment. Neither is the CAS an assessor. The Society can take no role in this civil proceeding outside of its statutory mandate.
[27] Having reviewed the parties’ extensive materials filed on this motion, I am satisfied that the relationship dysfunction between the parents, and between the children and their parents (and possibly maternal grandparents) is significant, and that the determination of the children’s best interests requires evidence well in excess of what would be available in a Voice of the Child Report.
[28] Moreover, I agree with Mr. Ahmed’s counsel that there is a genuine prospect that the children’s independence of views and preferences has been compromised over the past year.
[29] Courts have a broad discretion to order an Assessment. Counsels each referenced Glick v. Cale, 2013 ONSC 893 in their submissions as providing a non-exhaustive list of criteria to consider in ordering an assessment. I have reviewed that list and the more generalized approach applied in cases such as Morton v. Morton, 2015 ONSC 4633, and Rea v. Rea, 2018 ONSC 3723. Ultimately, an assessor is the Court’s witness and an Assessment can be ordered when there is a need for an in-depth assessment and a road map of recommendations to assist the Court at a level of engagement that exceeds the capacity of other tools to assist; provided that the parties have adequate financial means to afford an Assessment.
[30] This is such a case. The situation before me is most unusual. The mother consented to terms of an Order that she no longer supports and possibly may not have supported at the time that she executed the Minutes of Settlement. She has no plan whatsoever to support the father’s parenting and invites further litigation rather than therapeutic assistance. The parties have ample means to afford an Assessment as a result of the holding of the net sale proceeds of their condominium.
[31] I find that, on this record, an Assessment is necessary for a just determination of this parenting dispute. An Assessment will provide independent evidence of the children’s best interests, specifically, what is preventing them from having as much time with each parent as is consistent with their best interests per section 16(6) of the Divorce Act.
[32] If the parenting dispute is not resolved within the course of the Assessment, I grant either party leave for a motion to convert the September 8, 2020 final Order to a temporary Order, to amend pleadings as necessary and to return the parenting issues to the balance of issues to be determined within the Application.
Order
[33] Order to issue that an assessor to be named by me shall conduct a Section 30 Assessment on the parenting issues as soon as possible. The assessment shall report to the Court on how to make operative the terms for decision making, primary residency and the parenting schedule as set out in the final Order and/or the barriers to those terms operating in the best interests of the children.
[34] The fees of the Assessor shall be paid from the joint condominium sale proceeds held in trust for the parties by Diamond & Diamond and will be subject to reapportionment by the Court.
[35] If the parents agree on an assessor, and the assessor confirms his or her consent to act per section 30(4) of the CLRA, Mr. Ahmed’s counsel is to forward a draft Order approved as to form and content as well as a clean word copy of the proposed Order to my assistant, Ms. Bunbury at Karen.Bunbury@ontario.ca.
[36] If the parents cannot agree on an assessor, Mr. Ahmed is to provide by 14B Motion to my attention on seven days’ notice, two preferred assessors with their CVs and consent to act. Ms. Shaikh may respond within seven days of service with her two preferred assessors with their CVs. I will then choose an assessor and award costs should a parent have been unreasonable or non-responsive.
Costs
[37] Mr. Ahmed has been the successful party and pursuant to Rule 24(1) of the Family Law Rules is presumptively entitled to his costs.
[38] If the parties cannot agree on costs, brief submissions not exceeding three (3) pages, exclusive of any Bill of Costs or Offer(s) to Settle are to be filed, with a copy sent to my assistant. Mr. Ahmed's submissions are due by October 20, 2021, with Ms. Shaikh's response due by November 3, 2021 and Mr. Ahmed's reply due by November 10, 2021.
McGEE J
DATE: October 6, 2021
COURT FILE NO.: FS-19-95754
DATE: 20211006
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shoeb AHMED
- and -
Farah SHAIKH
ENDORSEMENT
McGEE J
DATE: October 6, 2021