Court File and Parties

COURT FILE NO.: FC-21-588 DATE: 2021/11/15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARSHALL MacMULLIN WRIGHT Applicant

– and –

AVERY ELIZABETH FERGUSON Respondent

Counsel: Applicant is self-represented Sarah J.S. Stewart, for the Respondent

HEARD: September 9, 2021 by Zoom

RULING ON MOTION

CORTHORN J.

Introduction

[1] Marshall Wright and Avery Ferguson were in a relationship for two to three years. The exact nature of their relationship, at least for the first year or more of it, is unclear. For example, their respective evidence differs as to when they began to live together – before or after the birth of Ms. Ferguson’s son.

[2] Ms. Ferguson gave birth to a son, Kingston William Ferguson, on August 31, 2018. Mr. Wright is not Kingston’s biological father. That individual is someone with whom Ms. Ferguson was involved prior to meeting Mr. Wright. Kingston’s biological father has not been involved in any way in Kingston’s life.

[3] In his application, Mr. Wright alleges that he is a “parent” to Kingston, as defined in the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). Specifically, Mr. Wright alleges that, during his relationship with Ms. Ferguson, he “demonstrated a settled intention to treat [Kingston] as a child of his … family”: FLA, s. 1(1).

[4] Mr. Wright and Ms. Ferguson separated in early 2021. Since then, Mr. Wright has been pursuing parenting time with Kingston. As a result of what Mr. Wright alleges is Ms. Ferguson’s deliberate post-separation conduct to cut him out of Kingston’s life, Mr. Wright (a) commenced this application, and (b) brings this motion for interim relief.

[5] In response, Ms. Ferguson denies that Mr. Wright is a parent to Kingston as defined in the FLA. Ms. Ferguson asks the court to bring Mr. Wright’s contact with Kingston to an end – even on an interim basis. She wishes to continue to make autonomous decisions with respect to Kingston. Ms. Ferguson is in a new relationship; Kingston knows and is known to her new partner.

[6] Mr. Wright’s motion raises the issue of what contact order, if any, for Mr. Wright is in Kingston’s best interests pending a final determination of the issues raised in the pleadings. I use the term “contact order”, rather than “parenting order”, both as defined in s. 18(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). I do so because a determination has yet to be made as to whether Mr. Wright is a “parent” within the meaning of s. 1(1) of the FLA.

The Affidavit Evidence

[7] The evidence on this motion is limited to a single affidavit from each of Mr. Wright (62 paras.) and Ms. Ferguson (47 paras.). Neither party relies on affidavit evidence from a third party who might provide an objective view of the nature of Mr. Wright’s relationship with Kingston over time.

[8] Not surprisingly, the parties paint very different pictures of the role that Mr. Wright played in Kingston’s life from Kingston’s birth until the parties separated, approximately two and one-half years later.

[9] The court is required to render its decision on this motion (a) based on conflicting evidence, (b) without the benefit of cross-examination of either party, and (c) without the benefit of oral evidence from the parties. As a result, it is difficult to assess the credibility of each party and the reliability of the parties’ respective evidence.

[10] Taking the conflicting evidence into consideration, what follows is a chronology of the events in the parties’ relationship, the post-separation period, and the litigation to date. Unless identified otherwise, the entries in the chronology are based on uncontradicted evidence.

Nov. 2017 - Ms. Ferguson discovers she is pregnant. When she informs her then partner of the pregnancy, that relationship ends.

Early 2018 - Ms. Ferguson meets Mr. Wright on an online dating site. She is six months pregnant. She informs Mr. Wright that she is pregnant and will be giving birth to a mixed-race child. Uncertain about becoming involved with Ms. Ferguson in that setting, Mr. Wright chooses not to pursue the relationship.

Summer 2018 - Mr. Wright returns to Ms. Ferguson’s life shortly before she is due to deliver her baby.

Jul. 1, 2018 - According to Mr. Wright, the parties begin cohabitating on this date. He does not say where they were living at this time.

Aug. 31, 2018 - Kingston is born. Ms. Ferguson’s evidence is that she is continuing to live with her mother as of this date.

Jan. 2019 - Ms. Ferguson’s evidence is that her mother asks her to leave the mother’s home. Ms. Ferguson finds it difficult living in her mother’s home with a newborn. In addition, the maternal grandmother is said by Ms. Ferguson to be uncomfortable with Mr. Wright staying overnight at the maternal grandmother’s home.

Jan. 2019 - Ms. Ferguson’s evidence is that she and Kingston move into a home on Rushforth Private that Mr. Wright is sharing with roommates. Ms. Ferguson contributes to the rent for the home.

Sept. 13, 2020 - Mr. Wright and Ms. Ferguson move with Kingston to their own rental home on Leitrim Road.

Jan. 2021 - Ms. Ferguson ends the relationship with Mr. Wright.

Feb. 21, 2021 - Ms. Ferguson and Kingston move out of the Leitrim Road home.

Apr. 2021 - Mr. Wright commences this application; Ms. Ferguson is served.

May 2, 2021 - The deadline by which Ms. Ferguson is to serve her Answer passes without that document being delivered (served and filed).

May 5, 2021 - At the first appearance, Ms. Ferguson is granted an extension to May 19, 2021 within which to deliver her Answer.

May 19, 2021 - The deadline for Ms. Ferguson to deliver her Answer passes without the document being delivered.

Jun. 10, 2021 - On the return of Mr. Wright’s procedural motion to have Ms. Ferguson noted in default, she is granted a second extension – to June 14, 2021 at 4:00 p.m. – to deliver her Answer. Mr. Wright’s motion is adjourned to June 17, 2021.

Jun. 14, 2021 - At 6:46 p.m., Mr. Wright is served with Ms. Ferguson’s Answer.

Jun. 17, 2021 - On the return of Mr. Wright’s motion to note Ms. Ferguson in default, Ms. Ferguson is granted an extension to permit the documents, including her Answer, served on June 14, 2021 to be filed with the court.

Jun. 28, 2021 - At a case conference, an order is made (“the Order”) for a) the involvement of the Office of the Children’s Lawyer (“OCL”), b) Mr. Wright to have, on a temporary and without prejudice basis, “parenting time” with Kingston for one hour every Saturday and supervised by the maternal grandmother, and c) a motion to determine the substantive issue, of whether Mr. Wright is a “parent” within the meaning of the FLA, to be heard after the OCL advises whether it will accept the referral made and, if so, after the assessment by the OCL.

Jul. 3, 2021 - Mr. Wright has contact[^1] with Kingston at the home of the maternal grandmother and supervised by her. Ms. Ferguson is also present for the visit.

Jul. 10, 2021 - Mr. Wright has contact with Kingston at a park near the home of Ms. Ferguson’s current partner. The maternal grandmother is not present; the supervision is by Ms. Ferguson.

Jul. 16, 2021 - Ms. Ferguson informs Mr. Wright by email that Kingston is sick and she cancels Mr. Wright’s contact with Kingston scheduled for July 17, 2021.

Jul. 24, 2021 - In the morning and by email, Ms. Ferguson advises Mr. Wright that Kingston is still sick. She cancels Mr. Wright’s contact with Kingston scheduled for that day.

Aug. 24, 2021 - As a result of Ms. Ferguson’s failure to respond to Mr. Wright’s emails sent on July 30 and 31, and August 2, 4, and 5, 2021 – all of which relate to the Saturday contact – Mr. Wright proceeds to an urgent case conference. Mr. Wright is granted leave to bring this urgent motion.

Sept. 9, 2021 - Mr. Wright’s urgent motion for interim relief is heard.

[11] As of the date of return of the motion, Mr. Wright had seen Kingston twice since February 2021 – on July 3 and 10, 2021. Ms. Ferguson admits that she was in breach of the Order not only on July 3 and 10, 2021, but thereafter in failing to facilitate Mr. Wright’s contact with Kingston on Saturdays.

The Law

[12] On an interim motion for parenting time, the analysis typically requires the court to consider the following issues:

• The status quo prior to separation: see Batsinda v. Batsinda, 2013 ONSC 7869, at pp. 19-20.

• Whether there is material evidence that the best interests of the child require that a change to the pre-separation status quo be ordered: see Madill v. Madill, 2014 ONSC 7227, at para. 31.

[13] I pause to note that if, post-separation, the parties agreed to a change from the pre-separation status quo, then that newly-created status quo is the starting point in the analysis.

[14] The principles outlined above apply to disputes between the biological parents of a child and to disputes involving a step-parent and a parent. Mr. Wright is neither a biological parent of nor a step-parent to Kingston. The central issue to Mr. Wright’s application is whether he is a “parent” to Kingston within the meaning of the FLA.

[15] The approach to be taken on this interim motion therefore requires something other than a strict application of the principles set out above.

[16] The principles to be applied on an interim motion for a contact order where the moving party’s status as a “parent” is in issue were summarized by Labrosse J. at para. 21 of his decision in Villeneuve v. Bell, 2018 ONSC 4518. Those principles include the following:

• An individual who does not fall within the definition of “parent” does not have a presumptive right to either (a) contact,[^2] or (b) maintaining a relationship with the child;

• The individual whose status as a parent is in issue bears the onus of establishing that it is in the child’s best interests that a relationship between the individual and the child be maintained; and

• The court will not usually grant a contact order to a non-parent where (a) the parent with decision-making responsibility objects, and (b) there is no obvious benefit to the child from ongoing contact with the non-parent.[^3]

[17] Justice Labrosse also noted that the court must consider the position of the parent with decision-making responsibility: Villeneuve, at para. 21. Labrosse J. emphasized that the court is reluctant to permit a relationship to develop between the child and a “legal stranger”, meaning the potential non-parent. The court seeks to avoid placing stress on the decision-making parent. Such stress includes, for example, interference with the decision-making parent’s day-to-day life and ability to meet the child’s needs: see Villeneuve, at para. 21, citing Gibson v. Emmons, 2015 ONSC 4458, at para. 24.

[18] In Chapman v. Chapman (2001), 2001 CanLII 24015 (ON CA), 201 D.L.R. (4th) 443 (Ont. C.A.), the Court of Appeal for Ontario dealt with a dispute between the parents and the paternal grandmother (“PGM”) of two children. The parents wanted full discretion as to when their children spent time with the PGM. The PGM sought an order providing for a specific regime for her time with her grandchildren. The PGM was not a “parent” within the meaning of the FLA. The court concluded that the parents would have the full discretion they requested.

[19] The court’s decision was written by Abella J.A. (as she then was). At para. 21, she said the following when discussing the importance of parental autonomy:

In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.

[20] In addition to all of the above, the court must consider the best interests of the child in accordance with s. 24 of the CLRA. That section is discussed immediately below.

Analysis

[21] Subsection 24(1) of the CLRA mandates that, when “making a parenting order or a contact order, the court shall only take into account the best interests of the child in accordance with this section.” The court is required to consider factors related to the circumstances of the child, with the primary consideration being “the child’s physical, emotional and psychological safety, security and well-being”: s. 24(2). Specific factors related to the circumstances of the child are delineated in ss. 24(3)(a)-(k).

[22] The court must also consider the role, if any, of family violence in the child’s life (s. 24(5)) and, where applicable, a party’s past conduct (s. 24(6)).

[23] Before considering Kingston’s best interests, I first consider the role which Mr. Wright played in Kingston’s life prior to the date of separation.

Mr. Wright’s Role in Kingston’s Life

[24] In his affidavit, Mr. Wright provides many examples of activities in which he engaged with Kingston prior to the date of separation. Those examples include going to parks, spending time with Kingston while he rode his tricycle, doing arts and crafts, spending time at the Lansdowne Farmer’s Market, and spending time with Kingston at Mr. Wright’s parents’ farm. Mr. Wright also describes the extent to which Kingston engaged with Mr. Wright’s two siblings and grandmother.

[25] Mr. Wright’s evidence addresses the manner in which he portrayed his relationship with Kingston to others. For example, Mr. Wright points to the inclusion of Kingston’s name on the parties’ application to rent the Leitrim Road home. Ms. Ferguson is listed on that application as “spouse” and Kingston as “son”.

[26] Mr. Wright also provides an example of communication with work colleagues about Kingston. In a February 2020 email (i.e. one year prior to separation), Mr. Wright informed a colleague that he would be going home from work because Kingston had an infection in both eyes. Mr. Wright informed the colleague that “we”, which I infer means Ms. Ferguson and Mr. Wright, would be taking Kingston to the doctor.

[27] Mr. Wright also addresses financial matters. He maintained and continues to maintain Kingston as a beneficiary for medical and other benefits available through Mr. Wright’s work. Mr. Wright included copies of receipts for daycare expenses that he covered as an exhibit to his affidavit.

[28] To the extent that Mr. Wright provided financial assistance – whether in the form of an outright payment (Mr. Wright’s evidence) or a loan which was always repaid (Ms. Ferguson’s evidence) – that financial assistance is not sufficient to support a finding that Mr. Wright had a settled intention to treat Kingston as a child of his family.

[29] There is conflicting evidence from the parties with respect to decision-making for Kingston prior to their separation. Mr. Wright addresses decision-making in two paragraphs of his affidavit. At para. 5, he makes the bold assertion that he and Ms. Ferguson made joint decisions for Kingston since his birth. Mr. Wright addresses decision-making again at para. 58 of his affidavit. He therein says,

Lastly, I was responsible for jointly making decisions on important issues related to Kingston such as vaccinations, discipline, diet, health care, circumcision, etc. It was decided that Kingston would be circumcised, in part because I was circumcised as a Child. This was in hopes of preventing any body confidence issues from developing in Kingston.

[30] Ms. Ferguson’s affidavit evidence paints a much more limited picture of Mr. Wright’s involvement in decision-making for Kingston. At paras. 29-32, Ms. Ferguson describes that involvement as follows:

29. I am the caregiver for the child. I clothe him, feed him and bathe him. I ensure his needs are met and that he is meeting his developmental milestones. I discipline him and have established structure and routine. I have done so since his birth. I provide him with love and stability. I schedule and take the child to all of his appointments.

30. The Applicant has never participated in decision-making for the child. The Applicant suggested chiropractic appointments for the three of us as he regularly attends same and scheduled the appointments where we all attended to receive care. The Applicant otherwise never participated in making appointments for the child and did not attend any appointments with the child. The Applicant has never been listed as an emergency contact for the child. Any decision related to treatment for the child such as his circumcision, was made by me.

31. The Applicant did not discipline the child as a parent. The Applicant allowed the child to have everything he wanted (sweets, treats, activities) regardless of the child’s best interest or structure and routine. His interactions were that of a friend[ ].

32. There were a few occasions when the Applicant would babysit Kingston for me if I was working a late shift at work and/or out with friends. These instances were rare, and the child was most often cared for by my mother or sister if I was unable to care for him.

[31] I prefer Ms. Ferguson’s evidence to Mr. Wright’s with respect to which of the parties was responsible for decision-making. I do so because I find that Ms. Ferguson’s evidence is more detailed than is Mr. Wright’s evidence with respect to the timing of the parties’ relationship, the parties’ living arrangements, and the nature of the parties’ relationship.

[32] I also find that Ms. Ferguson’s evidence considers decision-making in more specific ways and in more numerous ways than does Mr. Wright’s evidence. I find Ms. Ferguson’s more detailed evidence to be more reliable than Mr. Wright’s general evidence on the subject of decision-making.

[33] Lastly, Mr. Wright’s evidence as to how tasks were shared does not contradict Ms. Ferguson’s evidence that she was the one who established Kingston’s overall routine and provided the structure within which that routine was carried out.

[34] I turn next to consider Kingston’s best interests.

Kingston’s Best Interests

[35] The analysis that follows addresses each of the factors listed in s. 24(3)-(5) of the CLRA.

a) Kingston’s needs, given his age and stage of development, including Kingston’s need for stability – s. 24(3)(a)

[36] Kingston is now three years old. He has resided with Ms. Ferguson since his birth. At times, Ms. Ferguson has resided with others – including her mother, Mr. Wright and, it appears, roommates at 170 Rushforth Private. Mr. Wright was part of Kingston’s home environment for approximately two years. The evidence of both parties supports a finding that Kingston was exposed to adult conflict when the parties resided together.

[37] Ms. Ferguson acknowledges that Mr. Wright’s parents were gracious with Kingston and that he enjoyed his time with them and at their home.

[38] Mr. Wright appears to have returned to Rushforth Private. It is not known whether he lives in that home alone or with housemates. There is no evidence as to where Ms. Ferguson currently resides, including whether she resides with her new partner.

[39] Ms. Ferguson moved with Kingston at least three times in the first two or three years of his life. Regardless of the number of moves and the number of different people with whom Kingston has shared accommodation over time, the place of stability for Kingston is with Ms. Ferguson.

[40] This factor favours Ms. Ferguson’s autonomy over maintaining a relationship between Kingston and Mr. Wright.

b) The nature and strength of the relationship between Kingston and Mr. Wright – s. 24(3)(b))

[41] It is difficult to measure the nature and strength of the relationship between Mr. Wright and Kingston. I have no doubt that Mr. Wright developed affection towards Kingston. There is, however, conflicting evidence as to Kingston’s relationship with Mr. Wright.

[42] For example, the parties disagree as to whether Kingston has, since the date of separation, voluntarily referred to Mr. Wright as “Daddy” or has only done so after repeated prompting by Mr. Wright. Regardless, a three-year old’s use of the name “Daddy”, alone, would not be sufficient to contribute to a finding that it is in the child’s best interests to maintain a relationship with the individual to whom the child refers by that name.

c) Mutual promotion of relationship – s. 24(3)(c)

[43] Clearly, Ms. Ferguson does not wish to see a relationship between Kingston and Mr. Wright promoted. She admits that her efforts to date run counter to the promotion of such a relationship. Her conduct in that regard is not condoned.

[44] I find that Ms. Ferguson attempts to deflect to others the responsibility for her conduct to date. For example, she alleges that she only agreed to “parenting time” because she was under pressure from her former counsel to consent to the terms of the Order. I find that Ms. Ferguson’s explanations for her conduct demonstrate a lack of insight, on her part, as to her role in the events to date.

[45] I am uncertain that Ms. Ferguson will abide by court orders, if made, which require her to promote a relationship between Mr. Wright and Kingston. I am not convinced, however, that Ms. Ferguson’s conduct to date tips the scales in favour of granting Mr. Wright contact with Kingston. It would be inappropriate to impose an interim contact order as a sanction on Ms. Ferguson, if such an order is otherwise in disregard of Kingston’s best interests.

d) The history of care of the child – s. 24(3)(d)

[46] For the reasons set out in the preceding section of this analysis, I find that Ms. Ferguson has historically been the primary caregiver and decision-maker for Kingston. This factor favours Ms. Ferguson’s autonomy over Mr. Wright’s request for contact with Kingston.

e) The child’s views and preferences – s. 24(3)(e)

[47] Kingston’s views and preferences are not ascertainable at this time. The matter has been referred to the OCL. That referral may lead to evidence on this point being available to the trial judge.

f) Cultural, linguistic, religious and spiritual upbringing and heritage – s. 24(3)(f)

[48] Nothing with respect to this factor favours one party’s position over the other.

g) Plans for Kingston’s care – s. 24(3)(g)

[49] Nothing with respect to this factor favours one party’s position over the other.

h) Ability to care for Kingston and meet his needs – s. 24(3)(h)

[50] There is no evidence to suggest that either party is unable to meet Kingston’s needs.

[51] Ms. Ferguson is critical of what she perceives to be Mr. Wright’s unwillingness or inability to be firm with Kingston when required. That evidence, even if accepted, is not sufficient, on its own, to deny Mr. Wright contact with Kingston.

i) Communication and co-operation between the parties – s. 24(3)(i)

[52] The same concerns arise in relation to this factor as in relation to s. 24(3)(c) above. Ms. Ferguson’s conduct to date makes it clear that she is more than capable of failing to co-operate with Mr. Wright in the event he is granted contact on an interim basis.

[53] Ms. Ferguson’s communication style is civil. She does not always communicate in a timely manner.

[54] Once again, however, I am not convinced that Ms. Ferguson’s conduct to date tips the scales in favour of granting Mr. Wright contact with Kingston. Again, it would be inappropriate to impose an interim contact order as a sanction on Ms. Ferguson if such an order is otherwise in disregard of Kingston’s best interests.

j) Family violence – ss. 24(3)(j), (4)

[55] The parties both describe an incident which occurred in their home and resulted in Ms. Ferguson slapping Mr. Wright in front of Kingston. Not surprisingly, they paint different pictures of how the incident transpired.

[56] Mr. Wright denies any aggression – verbally or otherwise – on his part. Ms. Ferguson’s evidence is that, at the time, Mr. Wright was verbally aggressive and physically intimidating. Ms. Ferguson acknowledges that she slapped Mr. Wright; she maintains that she did so to bring the incident to a conclusion for Kingston’s benefit.

[57] There is contradictory evidence as to the extent, if any at all, to which Mr. Wright engaged more generally in a pattern of coercive and controlling behaviour.

[58] This factor does not weigh in favour of either party. The evidence with respect to this factor, although contradictory, indicates that Kingston has been exposed to adult conflict on at least one occasion. Both parties must be mindful not to expose Kingston to such conflict in the future.

k) Civil or criminal proceedings relevant to Kingston’s safety, security and well-being – s. 24(3)(k)

[59] There is no evidence to suggest that this factor or the parties’ respective past conduct (s. 24(5)) are relevant at this time.

Summary

[60] I find that there is no pressing reason to make a contact order so as to maintain the relationship between Mr. Wright and Kingston. I find that it is in Kingston’s best interests that Ms. Ferguson’s autonomy be maintained as to the people with whom Kingston shall have contact. Put another way, and keeping in mind that Mr. Wright bears the onus on this motion, he has not established that it is in Kingston’s best interests to maintain a relationship with him on an interim basis.

[61] Before setting out the terms of the order made on this urgent motion, I must first address the terms of the interim interim order made in the days following the hearing of the motion.

The Interim Interim Order

[62] On September 13, 2021, I made an interim interim order setting out the terms upon which Mr. Wright was to continue to have contact with Kingston pending this ruling. In keeping with the Order, in the interim interim order, I used the term “parenting time” as opposed to “contact”.

[63] Specifically, Mr. Wright was to have “parenting time” with Kingston on each of September 18, 2021 and October 9, 2021 for two hours. Commencing on October 30, 2021, Mr. Wright was to have “parenting time” with Kingston every third Saturday for three hours. Based on that schedule, Mr. Wright’s next scheduled contact with Kingston would be Saturday, November 20, 2021 for three hours.

[64] On the return of the motion, through her counsel, Ms. Ferguson proposed that Mr. Wright have contact with Kingston one Saturday per month for three hours. Ms. Ferguson also proposed that contact be gradually reduced to nil by the end of the calendar year and pending a final determination of Mr. Wright’s application. By that proposal, Ms. Ferguson demonstrated that she understands that it is in Kingston’s best interests that contact with Mr. Wright not come to an abrupt end.

[65] I agree with Ms. Ferguson in that regard. I therefore order that Mr. Wright shall have contact with Kingston as follows:

a) On Saturday, November 20, 2021, for two hours, with the two-hour block of time to be agreed upon by the parties based on Kingston’s best interests in terms of his daily routine;

b) On Saturday, December 18, 2021 for one and one-half hours, with the one-and-one-half-hour block of time to be agreed upon by the parties based on Kingston’s best interests in terms of his daily routine;

c) The applicant’s contact with Kingston as set out in sub-paragraphs (a) and (b), above, shall be supervised by an individual agreed upon by the parties. Consent with respect to the selection of an individual to provide supervision shall not be unreasonably withheld by either party; and

d) Pending a further order of this court, including on the final determination of Mr. Wright’s application, there shall be no further contact between Mr. Wright and Kingston.

[66] Pursuant to the Order, Mr. Wright’s parenting time with Kingston was to be supervised. My interim interim order made no mention of supervision. To ensure that Mr. Wright’s final two periods of contact with Kingston, pending a determination of this application, are not disruptive to Kingston in any way, it is reasonable to require that the contact be supervised.

[67] With respect to who might provide supervision, Ms. Ferguson had only favourable things to say about Mr. Wright’s parents and Kingston’s time with them at their farm. The parties could, for example, identify one of Mr. Wright’s parents to provide the supervision. The maternal grandmother was identified in the Order as the individual to provide supervision. Over time her schedule became problematic. It may be possible for her to arrange her schedule to be available on at least one of the two remaining periods of contact.

[68] As indicated in the Analysis section of this ruling, I remain uncertain about Ms. Ferguson abiding by the terms of a court order. The contents of Ms. Ferguson’s affidavit make it clear that the concept of contempt of court has been explained to Ms. Ferguson by her counsel. The potential for a finding of contempt being made against Ms. Ferguson exists on the basis of (a) her admitted contempt, and (b) what appears to be evidence that supports a finding of contempt for conduct subsequent to July 10, 2021.

[69] The court can do nothing more than emphasize to Ms. Ferguson the importance of abiding by the terms of a court order – including the order made at the conclusion of this ruling. Leaving aside the potential consequences to Ms. Ferguson of a finding of contempt – if a motion for such a finding is pursued by Mr. Wright – she needs to consider, with respect to a final determination on the application, the potential for continued failure to abide by a court order to have a negative impact on her credibility as a witness.

[70] Above all, if Ms. Ferguson genuinely has Kingston’s best interests at heart, then she will recognize the court’s findings in that regard and abide by the order made at the conclusion of this ruling.

Costs

[71] Subrule 24(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), establishes a presumption that the successful party on a motion is entitled to their costs. Ms. Ferguson acknowledges that she was in breach of the Order by being present at or supervising Mr. Wright’s contact with Kingston on July 3 and 10, 2021, respectively.

[72] Mr. Wright’s uncontradicted evidence is that Ms. Ferguson failed to respond to his emails dated July 30 and 31, and August 2, 4, and 5, 2021 – all regarding the Saturday contact with Kingston. Ms. Ferguson’s explanation for her failure to make Kingston available for “parenting time” on the Saturdays from July 31, 2021 to the date of return of this motion is her preference that a relationship is not maintained between Mr. Wright and Kingston.

[73] I find that Ms. Ferguson’s admitted breaches of the Order and her conduct with respect to the Saturday “parenting time” scheduled from July 31, 2021 to the date of return of Mr. Wright’s urgent motion are such that she is not entitled to her costs of the motion. I find that her behaviour is “unreasonable” within the meaning of r. 24(4) of the FLR. Pursuant to that subrule, the court has the discretion to deprive a party, who has behaved unreasonably, of any or all of their costs.

[74] In summary, I order that there shall be no costs on this motion.

[75] I wish to point out that my reliance on Ms. Ferguson’s conduct is with respect only to the issue of costs of this motion. I make no specific findings with respect to contempt of court orders and the sanctions that may be warranted in the event of a finding of contempt.

Order Made

[76] In summary, I order as follows:

1. The applicant shall have contact with Kingston William Ferguson (DOB: August 31, 2018 and hereinafter “the Child”) on Saturday, November 20, 2021, for two hours, with the two-hour block of time to be agreed upon by the parties based on the Child’s best interests in terms of his daily routine.

2. The applicant shall have contact with the Child on Saturday, December 18, 2021 for one and one-half hours, with the one-and-one-half-hour block of time to be agreed upon by the parties based on the Child’s best interests in terms of his daily routine.

3. The applicant’s contact with the Child, as set out in paragraphs 1 and 2, above, shall be supervised by an individual agreed upon by the parties. Consent with respect to the selection of an individual to provide supervision shall not be unreasonably withheld by either party.

4. Pending a further order of this court, including on the final determination of the application, there shall be no further contact between the applicant and the Child.

5. There shall be no costs of this motion.

Madam Justice Sylvia Corthorn

Released: November 15, 2021

[^1]: Once again, I use the term “contact” rather than “parenting time” because a finding has yet to be made as to whether Mr. Wright is a “parent” within the meaning of s. 1(1) of the FLA.

[^2]: The decision in Villeneuve pre-dates the recent amendments to the CLRA. I substitute “contact” for parenting time, with the latter being the term used by Labrosse J. based on the language of the legislation at the time of his decision.

[^3]: Justice Labrosse cited Farber v. Robitaille, 2004 Carswell Ont. 5674 (S.C.) for each of these three principles. I substitute “contact order” for “parenting time”, once again because of the recent amendments to the legislation.