Superior Court of Justice
BARRIE COURT FILE NO.: FC-18-1421-00 DATE: 2021-11-23
BETWEEN:
Elizabeth Galves Rodrigues Applicant
– and –
James Michael Vella Respondent
COUNSEL: S. Lozano, counsel for the Applicant A. Dror, counsel for the Respondent
HEARD: November 16, 2021
Decision on Contempt Motion
R.S. Jain J.
Introduction:
1The parties married on June 24, 2010, and separated in 2017. They have one child together, who shall be referred to by the initials JMG, born June 27, 2010. He is now eleven years old. Both parties have adult children from previous relationships.
2The parties have been engaged in litigation since March 2018. There are numerous orders, some on consent and some as a result of argued motions. The relevant orders for this motion are the: consent Order of Healey J. dated August 6, 2019; consent Order of Vallee J. dated February 13, 2020; and the Order of Christie J. dated February 26, 2021, as a result of an argued motion.
3The Order of Healey J. dated August 6, 2019, contains temporary orders regarding protecting the child from adult conflict and communications and an assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) in relation to the decision-making and parenting issues in this matter. It also contains temporary without prejudice orders regarding parenting time and support and disclosure. The Order of Vallee J. dated February 13, 2020, contains temporary orders regarding disclosure of medical records. The Order of Christie J. dated February 26, 2021, contains orders regarding the appointment of a s. 30 assessor and the Respondent completing the intake form, retainer agreement and paying the retainer for same.
4Both parties allege that the other has disobeyed, frustrated and/or breached the above orders. In August 2021 the Applicant brought a contempt motion under r. 31 of the Family Law Rules, Ont. Reg. 114/99 (FLR) seeking a finding of contempt against the Respondent. In October 2021 the Respondent served and filed a motion seeking a finding that the Applicant is in breach of rr. 1(8) and (8.1). Both parties seek substantive penalties and/or relief if the court makes any of the findings requested. Both parties also seek costs and such further and other orders as counsel may advise and this Honourable Court deems just.
Decision
5For the reasons set out below, the Respondent is not found to be in contempt of the Order of Healey J. dated August 6, 2019, or the Order of Vallee J. dated February 13, 2020. The Respondent is found to be in contempt of the Order of Christie J. dated February 26, 2021. The Applicant is found to be in breach of r. 1(8) by her non-compliance with the Order of Healey J. dated August 6, 2019. Pursuant to r. 31, r. 1(8) and (8.1), and r. 2(2)(3)(4) and (5) of the FLR and the best interests of the child, I have made orders regarding the assessment and regarding the Respondent’s parenting time.
Analysis
Preliminary Issue – Regarding an alleged deficiency in the Applicant’s Form 31
6Mr. Dror made submissions that the Applicant’s Form 31 Notice of Contempt Motion failed to set out the clear details of contempt and the exact terms in the three orders that the Applicant alleged the Respondent had breached. He made submissions that this deficiency should be fatal to the Applicant’s contempt motion because the Respondent and the court should not have to guess at the exact terms of the order that the Applicant seeks to find the Respondent in contempt of. Mr. Dror is correct in his submissions that the terms should have been included in the Form 31. I agree that the respondent to any contempt motion needs to know this so he or she can properly respond to the allegations made against them. However, I do not agree that this is fatal to this contempt motion. The first element for a finding of contempt is not that the Form 31 clearly and unequivocally state the terms of the orders alleged to have been breached. The first element is referring to the terms in the order itself being “clear and unequivocal.” I find that the Applicant set out the details of the Respondent’s contempt in her supporting affidavit and the Respondent was able to properly respond to the allegations. Therefore, this “deficiency” is simply an irregularity that is not fatal to the entire contempt motion.
Preliminary Issue – Regarding the Respondent’s “Cross-Motion”
7The Applicant’s contempt motion was originally returnable on August 12, 2021. The Respondent sought an adjournment. McDermot J. deemed the Applicant’s contempt motion to be a long motion that should be heard in the November trial sittings and made it peremptory on the Respondent. He further ordered that the parties participate in a case conference on September 28, 2021, to assess whether the s. 30 assessment was still required or whether the matter should proceed to trial.
8The parties attended a case conference on September 28, 2021, before Krause J. As there was no agreement on the issues at the conference, Krause J. made an order regarding page limits and filing deadlines for the Respondent’s responding affidavit and the Applicant’s reply affidavit. Krause J. did not grant leave to the Respondent to bring a cross-motion requesting any relief.
9Instead of only filing his responding affidavit, the Respondent served and filed a Notice of Motion dated October 22, 2021. The Respondent’s “cross motion” seeks an order dismissing the Applicant’s contempt motion and notice of motion dated August 4, 2021, and a finding that the Applicant is in breach of r. 1(8) and (8.1) of the FLR by her failure to comply with the above orders of Healey J. dated August 6, 2019, and Vallee J. dated February 13, 2020. He requests the following substantive relief: immediate reinstatement of the Respondent’s parenting time with the child pursuant to paragraph 9 of Justice Healey’s August 6, 2019 Order; delivery of all the Applicant’s outstanding disclosure under paragraph 1(a) of Justice Vallee’s February 13, 2020 Order within no later than 30 days; that the Applicant pay the Respondent’s costs in an amount to be determined by this Honourable Court; an order the Applicant not be entitled to any further order from the Court until the Applicant is in compliance with the orders referred to above; if the Applicant fails to rectify her breaches of the orders above, an order that the Respondent may move for a contempt order; and if the Applicant fails to rectify her breaches, an order that the Respondent may move for a contempt order; such other further and other relief this honourable court deems just to deal with the breaches; an order for the assessment ordered by Healey J. on August 6, 2019, pursuant to s. 30 of the CLRA be conducted by one of either Howard Hurwitz, Jared Norton, Michael Saini, or Dr. Raymond Morris; in the alternative, an order that one these candidates prepare a Voice of the Child Report.
10The Applicant opposes the Respondent’s motion proceeding. Ms. Lozano submits that the relief requested in the Respondent’s motion is not really “mirroring” the Applicant’s motion. She says the Respondent is seeking substantive relief that was never discussed at the case conference. Further, the Respondent gave no indication that he wished to serve and file a Notice of Motion when the matter was in front of McDermot J. or Krause J. She says the Applicant has not had time to respond properly to the Respondent’s motion.
11At the hearing, I found that the only issues properly before the court for this motion are those outlined in the Applicant’s contempt motion. At the same time, I agreed with the Respondent that the issue of parenting time between the Respondent and JMG and the commencement of the assessment are both important issues. I found the other relief requested in the balance of the Respondent’s Notice of Motion had not been conferenced. In addition, the Respondent was not granted leave to bring a motion prior to a conference; there is no urgency to justify the Respondent bringing a motion before a case conference on the other relief set out in his Notice of Motion; the other relief contained in the Respondent’s motion is not proper for a cross-motion; and the Applicant was unable to make a full response to the cross-motion. Lastly, the Applicant’s motion was already scheduled as a long motion and there was not time to have an additional motion argued on that day. For those reasons, the Respondent’s “cross motion” was not permitted to proceed regarding all issues except for the relief he requested in paragraphs 3(a), 4 and 5 of his Notice of Motion dated October 22, 2021. In my view, the relief requested in those paragraphs are directly on point and mirror the Applicant’s motion regarding the resumption of the Respondent’s parenting time and the order for an assessment.
The Applicant’s Contempt Motion
12The Applicant seeks a finding that the Respondent is in contempt of all three of the above named orders and requests the following substantive relief: a penalty be imposed against the Respondent in the form of a $20,000 fine paid to the Applicant; an order prohibiting the Respondent from bringing any further motions on this matter without prior written consent from this Court; an order granting the Applicant sole decision making responsibility for JMG; an order allowing the Applicant to proceed with a clinical assessment of JMG and that the Respondent shall forthwith pay her $12,000 to retain a clinical assessor for JMG; an order allowing the Applicant to pursue the recommendations of the clinical assessor (i.e. treatment or therapy) without the Respondent’s consent or signature, if necessary; an order allowing the Applicant to proceed with the clinical assessment and any recommended therapy for JMG without providing the name and/or contact information of the assessor to the Respondent; an order that the Respondent shall not communicate with, harass or by any means be obstructive with the clinical assessor retained by the Applicant to assess JMG; an order suspending the Respondent’s parenting time with JMG pending the completion and results of the clinical assessment.
The Law
13In order for the court to make the quasi-criminal finding of contempt, it must first find that certain elements of contempt have been proven beyond a reasonable doubt. The moving party has a high onus. The three elements that must be proved beyond a reasonable doubt are: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have actual knowledge of it and done so deliberately and wilfully; 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. All of these elements must be proven beyond a reasonable doubt. In addition, there are other criteria that in my view are especially important and applicable to family law cases. The Supreme Court of Canada and the Ontario Court of Appeal have made it clear that the motions judge must use great restraint before making a finding of contempt. Further, the contempt finding must be sought as a “last resort”, especially where the main issues to be decided concern access to children because the best interests of the children should be the paramount consideration. See: Chong v. Donnelly, 2019 ONCA 799, [2019] O.J. No. 5048; Ruffolo v. David, 2019 ONCA 385, [2019] O.J. No. 2427.
Regarding the February 12, 2020 Order
14For the purposes of this motion, the relevant terms in the consent Order of Vallee J. dated February 12, 2020, regarding medical records are as follows:
- Each party shall forthwith provide their medical records to the other party on the following terms: …
(c) Such medical records shall be provided to the party’s solicitor of record who shall not release such medical records outside of a dementia assessment and any other health related assessment agreed to by the parties or ordered by a court of competent jurisdiction, the social worker Section 30 investigation or the court;
(d) Each party shall be entitled to examine the other side’s medical records but only within their solicitor’s office and shall not be permitted to copy, record, or share the content of any of the other side’s medical records, such that there are no transmissions of such records to third parties outside of the parties listed in section 1 (c) above or by written agreement between counsel or by an order of a court of competent jurisdiction;
15On February 24, 2020, the Respondent’s former lawyer confirmed via email that some of the Applicant’s medical records were inadvertently released to the Respondent. The lawyer has admitted that a mistake was made and that his office released the medical records directly to the Respondent. Upon discovery of the mistake, counsel for both the Applicant and Respondent negotiated some measures be taken to remedy the breach. The remedies included: no other medical disclosures would be sent to the Respondent’s counsel until the Respondent confirmed he had destroyed the records incorrectly released to him. Counsel for the Respondent said he asked the Respondent not to disperse any part of the medical records and confirmed that an affidavit would be produced and sworn by the Respondent confirming that the Respondent would destroy the medical clinic files.
16The Applicant says that the Respondent has never provided the Affidavit and that he has refused to destroy the medical records accidentally released to him. Therefore, the Applicant claims that the Respondent should be found in breach of the February 13, 2020 Order.
17The Respondent accurately points out that the paragraph 1(c) of the Order bound his lawyer not to release the records (not the Respondent). The Respondent is correct that it is his former lawyer’s office that breached that particular part of the Order. However, it is abundantly clear to the court (and to everyone involved) that the entire intent and purpose of the Order was to protect both parties from obtaining copies of the other’s medical records and to ensure they were not disseminated to any third parties other than those listed in paragraph 1(c).
18The court is not impressed with what I can only characterize as a “power game” that the Respondent is playing by claiming that he was not “obligated” by the Order to destroy the records he received and that he was not “obligated by the order not to disseminate the records.” Considering the level of conflict and distrust between these parties, I find it completely understandable that the Applicant is “mortified at what the Respondent may be doing with these records.” In my view, the only decent and correct thing to do was for the Respondent to immediately destroy the records and swear the affidavit as requested by his lawyer. Instead, the Respondent confirms by way of his own affidavit dated October 22, 2021, that he kept the records that were not supposed to be in his possession in the first place, and that in “an abundance of caution and in the face of this motion” he confirmed that “on October 19, 2021 at 5:55 a.m.” he “deleted and destroyed the email and attachments.”1 I note that this was done well over one and a half years after he had received the records in error.
19The Respondent’s behaviour on this issue gives the court some insight into his lack of respect for the Applicant, the court, and for his own lawyer’s advice if they do not accord with his own view. In my view, the Respondent lacks insight into how his own behaviour is contributing to the level of conflict and lack of progress in this matter.
20Having said that, I agree with Mr. Dror’s submissions that the terms of this Order bound the lawyers not to release the records. The Respondent inadvertently received the records. The Respondent says that he received the records in an email, and there is no proof otherwise. The Respondent says that he has not copied or disbursed the records and there is no proof otherwise. The Respondent stated in his affidavit at para. 21, that he “deleted the email and attachments.” Even if the obligation not to release or disburse the records extended to the parties, (which I believe it clearly did) there is no proof that the respondent has dispersed any of the records and therefore there is no proof that the respondent has disobeyed the Order.
21I cannot make a finding of contempt against the Respondent because he did not “do the right thing” sooner. For these reasons, the court will not make a finding of contempt against the Respondent in regard to the February 12, 2020 Order.
Regarding the August 6, 2019 Order and the February 26, 2021 Order with respect to the assessment
22The August 6, 2019 Order states the following:
- The parties agree to a section 30 assessment in relation to the custody and access issues in this matter. The terms of the assessment are as follows:
(a) The parties must mutually agree on the assessor. The parties shall exchange their respective choice of assessor by August 16, 2019. If the parties are unable to agree on a mutually agreeable assessor, the issue shall be resolved by way of Motion on an agreeable date, or may be settled by 14B Motion, if the parties agree.
(b) The parties shall split the cost of the assessment equally, to a maximum of $6,000.00 each. Any cost beyond the $6,000.00 shall be paid as the parties agree, failing agreement as per further Court Order.
23The assessment was to be conducted by someone mutually agreeable. For various reasons, (all of which are disputed) the first assessor Ms. Goldhar withdrew her services and refused to do the assessment. Additionally, Mr. Musselman withdrew his interest in conducting an assessment. When the parties could not agree to the appointment of another assessor, the Applicant brought a motion to settle this issue and to appoint an assessor. This motion was heard on February 25, 2021, by Christie J. She released her endorsement and Order on February 26, 2021.
24It is unfortunate that there was so much delay in appointing the assessor. However, in my view, even if the court could make a clear finding that one of the parties was acting unreasonably in their inability to agree on an assessor as required by the August 6, 2019 Order, this does not support a finding of contempt against either of them. None of the elements of contempt can be found in this situation. Therefore, there shall be no finding that the respondent is in contempt of the Order of Healey J. dated August 6, 2019, regarding the appointment of an assessor.
25The February 26, 2021 Order states the following:
Ms. Diana Polak is hereby appointed as the parties section 30 assessor.
The Respondent shall forthwith complete his intake form, retainer agreement and pay his retainer.
26The Applicant says that the Respondent is in contempt of the February 26, 2021 Order because he did not sign the retainer agreement, he obstructed and sabotaged Ms. Polak’s retainer by demanding changes to the retainer agreement, and he insisted on speaking to Ms. Polak about substantive issues before cooperating with the execution of the retainer agreement or paying retainer monies.
27The Respondent says that he complied with every term of the February 26, 2021 Order. He has provided evidence that he completed the intake form on March 11, 2021, and that he paid the retainer on March 4 and 5, 2021. However, the Respondent also says that he made “minor” amendments to the retainer agreement and that he signed it twice.
28More than one judge has warned and cautioned the parties about interfering with the assessment. On February 27, 2020, the court heard the Respondent’s motion seeking an order requiring the Applicant to undergo a “dementia assessment.” Casullo J. dismissed the Respondent’s motion. In her endorsement of February 27, 2020, Casullo J. discussed the withdrawal of Ms. Goldhar’s services and said the following: “While I make no finding as to whether the Respondent Father’s actions were behind the assessor’s decision to resile from the referral, I would ask the Respondent Father to ensure this behaviour does not repeat itself.” She went on to say that the “parties are close to agreeing” on the next assessor and hoped the assessment would “take place between late March and early May 2020.”
29In paragraph 41 of her endorsement of February 26, 2021, Christie J. said the following about the appointment of Ms. Polak as the assessor: “I would strongly encourage the parties to focus their discussions with Ms. Polak as directed by her. Neither party should send unnecessary or voluminous correspondence to Ms. Polak unless directed to do so by her. Ms. Polak must be free to do her work as she sees fit.” [emphasis in original].
30Lastly, on June 28, 2021, Douglas J. concluded that the Respondent’s “controlling and unreasonable behaviour” was the primary reason for the withdrawal of the three assessors. In his endorsement of June 2021, Douglas J. indicated that he was satisfied that the Respondent’s behaviour had been the “root cause of the failure to have the assessment underway almost 2 years after having been ordered.”
31Shortly after the February 26, 2021 Order was made, Ms. Polak found that she could not continue with the assessment and she had to withdraw. She resigned on April 13, 2021. Both counsel at the time asked her to reconsider. In her letter of June 14, 2021, Ms. Polak enumerated the reasons why she withdrew her services and provided some opinions about the Respondent.2
32The Respondent objects to the court relying upon Ms. Polak’s letter. The letter is not attached to an affidavit sworn by Ms. Polak. He says that the letter should be struck. He says that she has expressed opinions that cannot be relied upon. Mr. Dror submits that the court cannot accept this as evidence pursuant to r. 31(3) of the FLR which states:
AFFIDAVIT FOR CONTEMPT MOTION – The supporting affidavit may contain statement of information that the person signing the affidavit learned from someone else, but only if the requirements of subrule 14 (19) are satisfied.
33Rule 14(19) states the following:
AFFIDAVIT BASED ON OTHER INFORMATION – The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) In addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.
34The Respondent argues that Ms. Polak’s June 14,2021, letter is inadmissible, however, in his own materials he refers to the same letter and discusses how he disagrees with what she stated in the letter.3 The Respondent disagrees with the majority of the contents of the letter, but, by his own admission, he does not dispute that he “suggested some changes” be made to the contract and that “Ms. Polak did not agree to any of the changes” he sought.4 In his materials, the Respondent refers to the suggested changes as “minor.”
35I agree that I cannot rely on some of the contents of the letter that are in dispute, nor the opinions Ms. Polak expressed in it. In my view, Ms. Polak went beyond explaining why she withdrew as the assessor and I am not relying upon any of her opinions about the Respondent. However, I can and will rely upon some portions of the letter on the first and second page that are not in dispute because they are confirmed by the Respondent in his own affidavit. Specifically, I can rely on the portion of the letter which says the Respondent “took it upon himself to make changes” to Ms. Polak’s service agreement and he requested that either a “third party” or “a male” interview his son. Additionally, on the second page, the letter outlines some of the changes and requests the Respondent made. I note that some of these same changes and requests are confirmed in the Respondent’s own affidavit dated October 22, 2021, at Exhibit F and G. Ms. Polak’s letter says the following:
On February 26th, 2021, I was ordered to conduct the s30 assessment. As part of the informed consent process for providing service, Mr. Vella was required to sign the s.30 service agreement. Mr. Vella continued to direct and manipulate the process by making several changes and irrational requests in the Service Agreement including but not limited to:
“in regards to Justice Casullo’s Endorsement: Diana Polak will confirm whether the dementia category stated in the Endorsement….”
“the assessor agrees to request copies from all shelters and government subsidized housing of 100% of their documents and records related to Elizabeth Galves and James Michael Vella.”
“The assessor will identify the person(s) or institution that referred Elizabeth Galves to the abused women group whose conspiracy caused harm to the child by denying the child his inalienable rights to access his father for 47 days.”
“Diana Polak will review the entire emails and other communication between the unhired s30 assessor Marcie Goldhar and both lawyers and Mr. Vella that resulted in Marcie Goldhar’s stated misconduct that Mr. Vella did not announce he was going to appear at her office. The emails evidence that he did.”
“The assessor will ask Elizabeth Galves Rodrigues to name those persons that provided her advice reserved for lawyers, tax and other experts on how to engineer depriving the father of any access….”
36I find the Respondent’s submission that he signed the retainer agreement after making “minor amendments” is not an acceptable excuse. I do not find that the behaviour or requests were “minor.” I do not accept the Respondent’s argument that “There is no Order stating that I had to accept the terms of Ms. Polak’s contract without seeking any modifications, at all.”5 It is especially unacceptable since this was a court ordered assessor and the Respondent had been previously warned and cautioned by the court to discontinue this type of conduct.
37I find that the Order of Christie J. dated February 26, 2021, was clear and unequivocal. I find the Respondent had full knowledge of the Order and that he disobeyed the court Order knowingly and with wilful intent to obstruct. I find that the Respondent failed to do what the Order obligated him to do. I find that after two years of trying to get the assessment underway, the Applicant’s contempt motion was brought as a last resort. Therefore, I find the Respondent in contempt of the Order of Christie J. dated February 26, 2021.
Regarding Contempt Orders and Purging the Contempt
38Regarding the opinions expressed in the June 14, 2021, letter, I agree with Mr. Dror’s submission that it is now impossible for the Respondent to purge his contempt by re-signing the retainer agreement with Ms. Polak. In any event, Ms. Polak will not perform the assessment as she has declined counsel’s requests to reconsider her withdrawal. Both parties seek to secure a replacement assessor and the Respondent alleges that it is the Applicant who has refused to propose a replacement assessor and is now causing delay. In paragraph 4 and 5 of his Notice of Motion, the Respondent requests the appointment of a male assessor to do either a s. 30 assessment or a Voice of the Child Report. He also provided four names of potential assessors.
39The parties have already argued the issue of which assessor would be appointed. On February 26, 2021, the Respondent put forward these same persons that he puts forward now. Christie J. already made the decision. I agree with Ms. Lozano that by requesting the appointment of another assessor, the Respondent is attempting to relitigate the issue. In my view, when the Respondent did not get his way in February 2021, he sabotaged the appointment of Ms. Polak by his actions alone. As I have now found the Respondent in contempt of an order regarding retaining an assessor, he is in no position to be suggesting another assessor. In my view, the Respondent needs to be sent a strong message that he must obey court orders and stop his obstructive behaviour. I cannot reward him for his behaviour by permitting him to pick the next assessor or, for that matter, letting him have any input on the choice of assessor.
40I find that the Respondent has obstructed and interfered with the assessment for long enough. The Applicant asks for the ability to retain the assessor of her sole choosing and that the Respondent have nothing to do with the assessment. I agree with the first part of this request; however, I do not agree with the second part.
41It is difficult to see how an assessor could do a comprehensive report and make recommendations regarding decision making, parenting terms and the best interests of a child without involving the Respondent. If I were to make an order as requested by the Applicant, the assessment would be very one sided. In order to make decisions regarding decision making responsibility and parenting time in the best interests of the children, the court needs all the information necessary. In short, the participation of both parties is necessary: King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466, at para. 31. Therefore, I will grant the Applicant’s request to choose the assessor, but I will make additional orders to enable the Respondent to participate in the assessment and to manage the Respondent’s behaviour in dealing with the assessor.
42I have contemplated ordering the Respondent to pay the Applicant a monetary penalty as requested by the Applicant. However, I decline to make that order as I find it would be inappropriate.
43In my view, the Respondent has been obstructing the progress of this matter and continued delay is not in the best interests of the child. There is obviously a high level of conflict in this matter. The order for the assessment was made over two years ago and here we are today with nothing. As McDermot J. put it in his endorsement of August 12, 2021, this matter has “gone off the rails.” I find that a message must be sent to the Respondent that his conduct will not be tolerated any further. I find that the court needs to make orders to move this matter forward in the best interests of the child. I agree with the Applicant that there are decisions that need to be made for the benefit of the child’s health and education. Recently the Applicant tried to enroll the child in a New Path mental health program. The Respondent did not consent.
44For these reasons, I will make an order that the Respondent pay the Applicant the requested sum of $12,000 for the retainer of the clinical assessor. I will also make an order giving the Applicant temporary sole decision-making responsibility for the child so that she can make health and education decisions and pursue any treatment or therapies as recommended by the assessor or other professionals involved in the child’s life. Lastly, I will make an order that the Respondent shall not bring any further motions on this matter without prior written consent from this Court.
Regarding the Suspension or Resumption of the Respondent’s Parenting Time
45The consent Order of August 6, 2019, sets out the following regarding the Respondent’s parenting time on a temporary (without prejudice) basis:
- The Respondent shall have the following access to the child:
a. Every Sunday from 10:30 AM until 6:30 PM, with drop off and pick up by the Applicant at the Respondent’s residence;
b. At least one of the Respondent’s weekend visits shall be an overnight visit as the parties agree, with the access drop off by the Respondent at the intersection of Essa Rod and Hwy 400. The visit will be from Saturday at 7:30PM until Sunday at 7:30PM;
c. Such other access as the parties agree to.
46The Applicant says that JMG returns from his parenting time with the Respondent stressed, angry, frustrated, and agitated. The Applicant says that when JMG is in the Respondent’s care, he is exposed to the Respondent’s negative views of the Applicant and the parent’s conflict (because he either shares elements of the litigation with the child or leaves the court documents out so he can see them). She says that JMG does not like the existing parenting time schedule and that he is resisting spending any parenting time with the Respondent. The Applicant says that since the Respondent is unable to regulate himself and it is not in the best interests of the child to be around him.
47The Respondent has been exercising his parenting time as set out above for over two years. This schedule has been in place for quite some time (since the August 2019 consent Order). In June 2021 the Respondent brought a motion to increase his parenting time. He was unsuccessful in this motion and the reasons why are well laid out in the endorsement of Douglas J. dated June 24, 2021. I am not going to repeat everything said in Douglas J.’s detailed endorsement except to say that “It is not the norm to change temporary orders pending trial.”
48Shortly after this motion was argued, the Applicant unilaterally suspended the Respondent’s parenting time. The Respondent was notified of the Applicant’s decision in an email dated July 2, 2021, from Ms. Lozano to the Respondent. In the email, the child is described as, “coming back even more unsettled after the most recent visits with you, he is acting more aggressive, angry and irritable and this is not his best interests.” She further stated that the child does not want to spend time with the Respondent and that the Simcoe Muskoka Child Youth and Family Services (SMCYFS) has been contacted.
49It is important to note that despite the Applicant’s report to the SMCYFS, they have not verified any protection concerns or made any recommendations at this time. It is also important to note that except for a short visit in September, the Respondent has not seen the child in accordance with the Order since early July 2021.
50While JMG may very well be resisting the parenting time as scheduled in the Order of August 2019, there are many reasons why this may be occurring. In the face of conflicting affidavit evidence and no independent evidence, it would be inappropriate for the court to drastically alter the parenting time that was agreed to on consent (and until now, was proceeding without any serious incident). Hopefully, there will be an explanation for JMG’s position and feelings and some context provided through the assessment. The court is obligated to consider the child’s wishes and preferences when making any parenting orders. This is not an appropriate matter where a Voice of the Child Report would suffice.
51Although the order is “without prejudice” I am not satisfied that the Applicant has provided sufficient evidence of any compelling circumstances that would warrant a complete suspension of the child’s limited time with his father. Even in the Applicant’s affidavit, she says that “My position was and remains that any increase to the respondent’s parenting orders need to take a protective dynamic, based on the recommendation in any assessment. I remain of the view that the respondent’s issues remain unaddressed and must be addressed before there is any change to the current access regime.”6 I find that it is in the best interests of the child to continue the parenting arrangement that is the least disruptive and most familiar.
52The court has often said that orders are not suggestions. Judges make orders and expect them to be obeyed. We are supposed to discourage parents from engaging in self-help. For self-help to be justified, they must show there is a danger to the child. If there is no danger, the parents are obligated to facilitate and encourage parenting time. The Applicant provided no evidence regarding how she has been fulfilling those responsibilities. All she said was that the child is eleven years old and that he cannot be forced to go. The Applicant offered no evidence as to how she has spoken to the child or whether she has offered him incentives to comply with the order or consequences if he does not.
53The Respondent says there is no real evidence to support a complete suspension of parenting time. I agree. Even if all of the Applicant’s generalizations about how JMG behaves when he returns from spending time with the Respondent were true, none of those allegations rise to a level of risk of harm to the child. I further find that the Applicant’s contempt motion is an inappropriate process to ask for an order that suspends the Respondent’s parenting time. As Mr. Dror put it, this would be like using the contempt motion process “like a sword” instead of a “shield.”
54Both parties have made serious allegations about the other’s mental health. The Respondent alleges the Applicant is suffering from dementia. The Applicant alleges that the Respondent suffers from sociopathic tendencies and mental and behavioural issues. The Applicant has also made serious allegations based on historical allegations from the 1980’s regarding the Respondent’s now adult children. I found that all reference to these allegations are historic and irrelevant. I gave no weight to any of these allegations. None of this evidence was relevant to the issues before me today.
55The Applicant says that the Respondent’s continued obstruction of the assessment may be because the results of the report will indicate that the Respondent has some behaviour or mental health issues. However, there is nothing before me today to satisfy me that the allegations are serious enough to change the current Order.
56What is clear to the court is that JMG is in the middle of high conflict, protracted litigation. Both parties need to focus on encouraging and supporting respectful, mature communication and protecting JMG from any further exposure to conflict. I find that there is insufficient evidence to warrant a complete suspension of the Respondent’s parenting time. The parties must follow the August 6, 2019 Order and I will make an order that the Respondent’s parenting time recommence immediately.
57For the reasons set out above, Temporary Order to go as follows:
The Respondent is found in contempt of court under r. 31 and in breach of r. 1(8) by failing to comply with the Order of Christie J. dated February 26, 2021.
The Respondent shall not bring any further motions on this matter without prior written consent from this Court.
The Respondent’s parenting time with the child shall immediately recommence pursuant to the Consent Order of Healey J. dated August 6, 2019.
The Applicant shall have sole decision-making responsibility of the parties’ child.
The Applicant may proceed with treatment or therapy for the child (without the Respondent’s consent or signature if necessary) as recommended by the Simcoe Muskoka Child Youth and Family Services and/or the clinical assessor and/or another professional involved in the life of the child.
The Orders of Healey J. dated August 6, 2019 and Christie J. dated February 26, 2021 are varied as follows:
(a) The Applicant shall proceed to choose and retain an assessor of her sole choosing to conduct an assessment pursuant to s. 30 of the Children’s Law Reform Act, to assess and report to the court on the needs of the child, JMG, born June 27, 2010, and the ability and willingness of both parents to satisfy those needs, and to opine on decision-making and the parenting schedule arrangements that would best meet the child’s needs.
(b) The Applicant shall proceed with the clinical assessment with or without the Respondent’s consent or signature (if necessary).
(c) The Respondent shall forthwith pay $12,000.00 to the Applicant for the retainer of the clinical assessor that the Applicant will choose.
(d) The Applicant and Respondent shall sign any documents and consents required by the assessor.
(e) The Applicant and Respondent shall cooperate with and participate in the assessment in accordance with the directions of the assessor. Cooperation and participation in the assessment shall include (but is not limited to) attending meetings; permitting home observation visits.
(f) The Applicant and Respondent shall not initiate any unsolicited contact with the assessor and shall refrain from communicating directly or indirectly with the assessor unless it is requested by the assessor or it is to confirm, reschedule or attend a scheduled meeting or appointment; or to respond to a direct question or enquiry from the assessor.
Both parties shall sign any consents required by the assessor for disclosure of records from the police, the Simcoe Muskoka Child Youth and Family Services, and the parties and child’s doctors regarding both of the party’s and the child.
The Simcoe Muskoka Child Youth and Family Services is requested to provide the court with a report summarizing their involvement with both of the parties and the child and advise as to the status of their investigation (if any) and their recommendations (if any).
The Respondent shall immediately delete and destroy any and all of the Applicant’s medical records that he has in his possession (whether they are in a physical paper form or digital form). The Respondent shall swear an affidavit confirming he has done so on or by December 3, 2021.
This matter is adjourned to a settlement conference on a date to be scheduled through the Trial Coordinator.
58There has been mixed success on this motion. Both parties have received some of the relief sought in their motions. If counsel cannot agree on costs, I will receive written submissions commencing with the Applicant on or by December 1, 2021, followed by responding submissions on or by December 8, 2021, then reply submissions, if any, on or by December 15, 2021. Cost submissions shall be no more than 2 pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my judicial assistant at barriejudsec@ontario.ca. If no submissions are received within 30 days from the date of this endorsement, the issue of costs will be deemed to have been settled between the parties.
The Honourable Justice Jain
Date: November 23, 2021
Footnotes
- Affidavit of Respondent dated October 22, 2021, para. 21.
- Affidavit of Applicant dated August 4, 2021, Ex. N.
- Affidavit of Respondent dated October 22, 2021, para. 32.
- Affidavit of Respondent dated October 22, 2021, para. 15 and 32.
- Affidavit of Respondent dated October 22, 2021, para. 15.
- Affidavit of the Applicant dated August 4, 2021, para. 73(b).