Court File and Parties
Court File No.: FC-09-1166-3 Date: 2021-12-16 Superior Court of Justice – Ontario
Re: Sara Dana Dunn, Applicant And: James David Shaw, Respondent
Before: Mackinnon J.
Counsel: Emma Dupuis, for the Applicant Stephen Pender, for the Respondent
Heard: December 2, 2021
Endorsement
Introduction
[1] The respondent father moves for a finding of contempt against the applicant mother in relation to two final orders: one order dated January 13, 2011 with respect to shared decision making, the other dated March 17, 2014 with respect to alternating weekly parenting time. The mother defends on three main grounds. First, that the joint decision making order is not clear and unequivocal as to her obligation to do what the father complains she has not done. Second, that the father has failed to prove beyond a reasonable doubt that she deliberately and willfully disobeyed the parenting time order. Third, that the father has not availed himself of other adequate remedies prior to moving for contempt.
Process
[2] Both parties have known of this return date since July 2021. On November 24 the applicant served her own motion also returnable today, seeking a temporary change to the parenting order to provide primary residential care to herself. A case conference is not required before a contempt motion may be brought: Family Law Rules, O.Reg. 114/99 as am, rule 14(4), but is required by r 14(6) before a motion on substantive issues, unless pursuant to r 14(4.2) the court decides there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice. Although the applicant suggested to the respondent more than once that a case conference should be scheduled to seek the court’s assistance on parenting issues, she did not obtain a case conference date or seek a determination of urgency before delivering her motion.
[3] The applicant’s position was that it was permissible to return a cross motion on the date scheduled by the respondent. I do not agree. The FLRs do not include any reference to or special provision for a “cross motion”. A motion on substantive issues is not exempt from the requirement to first complete a case conference simply because it is made returnable on a date already scheduled by the opposing party for a motion which, as is the case here, does not require a case conference.
[4] For this reason, I did not hear the applicant’s motion.
Brief background
[5] The first Final order provided for joint custody (decision making), primary residential care to the father and generous access to the mother. The second Final order provided for an alternating weekly residential schedule as between the parents. No change was made to the joint decision-making order.
[6] The parents have one son, A. He was four when the first order was made; almost seven when the second order was made. In May 2019, soon after turning 13, A. moved in with his father full time. He had very little personal contact with his mother until September 28, when, at age 14, he unexpectedly moved in with her. A. has resided with her ever since and has not seen his father at all. Phone and email contact between the two has also been very limited.
Legal test
[7] The Ontario Court of Appeal confirmed the three-pronged test to establish contempt of court in Prescott-Russell Services for Children and Adults v. G(N), 2006 81792 at para 27:
[27] The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order. (citations omitted).
[8] More recently, Jackson v Jackson, 2016 ONSC 3466 reviewed the development of the law where contempt is alleged in relation to terms of a parenting order:
[63] ... The courts have held that a custody and access order imposes a general obligation on the parties to the order to do all that they reasonably can to ensure that the order is complied with. … Having regard for this obligation, the courts have concluded that the contempt remedy may be available where the moving party establishes beyond a reasonable doubt that the other party has failed to take all reasonable steps to ensure compliance with the order … In this regard, the case-law has established the following principles respecting a party’s obligation to promote compliance with a custody and access order:
a) A party cannot simply leave the questions of custody and access up to the child. To do so amounts to an abdication of parental responsibility generally and a breach of the party’s positive obligations under the order. …
b) While it may become more difficult to compel a child to comply with a custody and access order as the child gets older, the obligation of a parent to actively promote compliance does not wane based on the child’s age.
c) In the case of access orders specifically, the custodial parent’s obligation in regard to access goes beyond simply accommodating it, making the child available for access and encouraging the child to comply. Rather, the parent must require that access occur and actively facilitate it.
d) Actively promoting and facilitating compliance with a custody and access order requires the parent to “take concrete measures to apply normal parental authority to have the child comply...” In determining whether appropriate measures were taken, the court should consider whether the custodial parent did the following:
I. Did they engage in a discussion with the child to determine why the child is refusing to go?
II. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?
III. Did they offer the child an incentive to comply with the order?
IV. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?
e) The determination as to whether the alleged contemnor has taken reasonable steps to require the child to attend visits will ultimately depend on the unique facts of every case. The analysis must take into consideration the child’s age, their growing opinions and the evidence regarding their emotional status .
f) The contempt remedy may also be available where the alleged contemnor has engaged in a history of conduct that has had the effect of generally sabotaging the custody and access order. For example, evidence that a parent has a history of intentionally frustrating or inappropriately suspending access, or negatively influencing a child against the other parent to the point that the child is refusing to comply with the custody and access order may lead the court to conclude that the party thwarted the order and may support a contempt finding ….The challenge in these cases is to determine whether it is a true case of parental alienation or a situation of justified estrangement between the child and the parent.
(citations omitted)
[8] Other considerations arise due to the discretionary nature of the contempt power. It is to be used sparingly, invoked only when other adequate remedies are not available. When a child is involved, the court must have regard to the best interests of the child. The Ontario Court of Appeal stated as follows in Ruffalo v David, 2019 ONCA 385:
[18] We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:
The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]
[19] Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.
[9] Hefkey v. Hefkey, 2013 ONCA 44 provides an example of an inappropriate contempt motion. The moving party had an alternate remedy available, namely applying to vary the order in dispute. The court was critical of the choice of contempt, noting at para 4 that by seeking the relief he did, the father “sought to obtain indirectly what he chose not to seek directly: a variation of the disputed access order without the necessity of complying with s. 17(5) of the Divorce Act and meeting the evidentiary burden that applies on a variation application.”
[10] Cinapri v. Fleck, 2016 ONSC 1297 held that a motion under FLRs r 1(8) may provide an alternate remedy:
[27] The preamble of Family Law Rule 1(8) permits the court to make any order that “it considers necessary for a just determination of the matter,” and then provides a non-exhaustive number of possible remedies. The term “a just determination of the matter” I take to include the failure of a person to obey an order in a case. … In my view, orders made under Family Law Rule 1(8) should facilitate compliance rather than end in irretrievable censure. After all, even contempt orders can be purged.
[11] That said a litigant need not pursue an alternative to contempt to enforce compliance where there is no reasonable prospect that the alternative will succeed. It is an inherent requirement of any order that a party bound by that order shall comply fully with its terms: Cinapri at para 78. Seeking a fresh order to order compliance with an existing order is not an adequate alternate remedy.
[12] These statements of law are not in issue between the parties. Neither is the fact that the mother had actual knowledge of both orders.
Conclusion
[13] The first Final order is not clear and unequivocal as to the mother’s obligation to do what the father complains she has not done. The contempt motion in relation to that order is dismissed. I have concluded that the applicant mother has deliberately and wilfully disobeyed the second Final order with respect to the father’s parenting time. That order is clear and unequivocal, and she has not gone beyond mere encouragement of the child to require have in person contact with his father. Despite this finding I have declined to exercise my discretionary power of contempt. The father did have alternate adequate remedies available to him that he ought to have pursued before bringing a motion for contempt. A declaration of contempt will not advance the child’s best interests or assist in restoring the father’s relationship with his son. Taken together these considerations I concluded that granting the contempt motion would not be in the interests of the administration of justice.
[14] The motion for contempt of the second Final order is also dismissed.
The first Final order
[15] The alleged contempt of the first Final order is made in the context of the child’s declining academic performance since beginning to live exclusively with his mother. The school has communicated with both parents about late and incomplete assignments, lack of preparation for evaluations, absences, and late arrivals. The father alleges that the mother breached the order by failing to communicate with or to involve him in a co-operative effort to help their son do better at school. He submits that in this way she breached an implied term of any joint custody (decision-making) order.
[16] The relevant provision of the first order states that, “The parties are to have joint custody of their son [A]. As such they shall jointly make important decisions involving their son and if they cannot agree shall resort to court.”
[17] There is no allegation that the applicant unilaterally made an important decision for the child. The order does not clearly and unequivocally impose the obligation that the respondent father alleges was breached. The first prong of the legal test for contempt has not been met.
The second Final order
[18] The alleged contempt of the second Final order is primarily that the mother has not complied with the alternating weekly schedule or provided the additional vacation and special date in person contact required by the second Final order. The respondent has particularized the specific subparagraphs of the order he alleges were breached. For the purpose of this endorsement it will suffice to set out the primary provision of the order:
2 (a). Commencing immediately, [A] shall spend time equally with his parents on an alternating weekly schedule. The child shall be picked up on Fridays after school or after daycare/day camps if applicable, by the parent with whom the next week's access is to be with. For all other times when there is no school or camps, the child shall be dropped off at the home of the parent whose week is to commence by the parent who had access the previous week, by no later than 5:00 p.m. on the Friday. This schedule shall start with Ms. Dunn having the seven-day period commencing after this judgment is released
[19] The order also dealt with phone calls :
2 (i). The parent with whom the child is with shall ensure that [A] is available to be called by the other parent on Wednesdays and on his birthday each year, between 7:00 p.m. and 8:00 p.m., for a minimum of 15 minutes or shall make alternate arrangements that are suitable and reasonable.
Was the breach deliberate and wilful?
[20] Deliberate and willful disobedience may be inferred if a party does not take concrete measures to apply normal parental authority to have the child comply with the order. See Godard v. Godard, 2015 ONCA 568 at para 29, Karar v. Abo-El Ella, 2016 ONSC 7926, at para 17.
[21] This flows from a parent’s obligation to require the child to comply with the order rather than simply leave the decision up to the child. The Ontario Court of Appeal describes this obligation as to do all that the parent reasonably can to require the child to comply with the parenting order.
[22] Although the onus of proof beyond a reasonable doubt remains throughout on the moving party to the contempt motion, the responding party has both a parenting responsibility and an evidentiary onus in responding to the contempt motion. Iarrobino v. Valente, 2020 ONSC 7960 describes this at para [46] (d) as follows:
When the parties are unable to productively communicate, it is not the place of the access parent to suggest as to how the primary residence parent discipline the children. The access parent is not in a position to discipline the children. The responsibility is of the primary resident parent to ensure compliance and they must provide a coherent narrative to show how they attempted to comply with the order. The response must have specific facts, and not generalities: Michener v Carter, 2018 ONSC 2780, at paras. 34-36.
[23] My conclusion is that the applicant mother did not do everything she reasonably could, including taking concrete steps to require the child to comply with the court ordered parenting time. In her affidavit she deposes that she has encouraged A. to have in person contact with his father and has discussed the matter with him many times. She says she has encouraged him to see a counsellor, but he categorically refuses to do so. She also twice advised through her lawyer that A. was willing to communicate with his father by email, as did A., provided it was through his personal email rather than his school email account.
[24] It is also in evidence that on A.’s birthday she emailed the father to say that A. would be available for a phone call at the appointed time, but that the father did not place the call.
[25] This specific phone call is the only example the mother provides of a specific fact showing a specific effort to require A. to comply with the order. She did not contact the father after A. arrived at her home in September 2020, or later when he explained to her his reasons for leaving his father’s home. She ought to have done so, whether to calm the waters or offer an agreed upon time out to facilitate compliance with the order. She describes no disciplinary measures or incentives offered to A., nor does she state that she at any time she told him he was required to comply with the order. In submissions her counsel noted it was hard for the mother to require A. to comply given that the previous year his father had permitted A. to stay with him contrary to the terms of the order. One might infer that the events of the previous year could make it harder for the mother, but there is no evidence that A. ever said this to her.
[26] The events of the previous year are relevant to the exercise of my discretion in dismissing the contempt motion, and I will return to them later in my endorsement.
[27] On two occasions the father’s lawyer very sensibly proposed arranging short in person visits built around an activity. The mother did not respond to either letter nor does she depose that she even discussed this specific idea with A.
[28] Through her lawyer the mother proposed a judicial conference and /or the appointment of the OCL. She did not book a conference or seek the OCL order until delivering her motion in response to his contempt motion. The mother made these suggestions, but she did not actually act on them in a timely way that would suggest she was sincerely looking for a solution.
[29] Through counsel she did suggest exploring the option of reintegration counselling, although the letter did not provide any concrete details. The father did look into it, but replied providing information about the cost which he found to be beyond his ability to afford
[30] An email from A. to his father sent on November 25, 2020 accurately reflects the situation. He wrote that his mother “encourages [ him ] to visit if I want to but I’m comfortable emailing not visiting at this time.” I find the mother did go beyond encouragement and did leave the decision whether or not to to comply with the order up to A.
[31] No issue was taken with the clear and unequivocal nature of the second Final order. I infer deliberate and wilful disobedience of the order from the mother’s failure to take concrete measures to apply normal parental authority to have the child comply with it. I have no doubt, and I do find that she has breached the alternating weekly residential schedule required by the second Final order.
Was there an alternate adequate remedy?
[32] The mother submits the respondent brought this motion as his enforcement mechanism of first resort and that other adequate remedies were available to him. She refers to Mancour v. Plante, 2021 ONCA 462 where examples are provided of potential alternate remedies including issuing a declaration that a party has breached the order, ordering terms to facilitate compliance, or encouraging professional assistance.
[33] Several alternate remedies potentially adequate to this case can be identified as within the scope of the preamble to FLRs r 1(8) : a motion for a declaration that the mother is in breach of the order; a temporary order identifying specific short in person visits that shall occur, with a fixed review date; an order requiring A. to attend a counsellor for the purpose of finding out about counselling so that he may then make an informed decision; an order that telephone contacts shall be by video calls and providing neutral verification of A.’s email address; an order for a facilitated mediation-like session between father and son to assist them in sorting out whatever prompted the break in the relationship; an order requiring the parents to attend a parenting course for high conflict separations with a focus on insulating the child from parental conflict and fostering a relationship with both parents; a change to the first Final order to provide himself with decision making authority with respect to schooling and academic progress.
[34] These were and remain alternate initial remedies adequate as first steps and presenting a reasonable prospect of facilitating compliance with the parenting terms of the second Final order.
[35] The father did make direct requests to the mother for parenting time with A. He also reached out to A. on occasion, saying he loved him, and reminding him he was always welcome to come over to visit or for help with school.
[36] The father also acted in ways he should have known would not be helpful. For example in November 2020 he emailed the mother imploring her to bring A. to him for the start of his next parenting time, but went on to deter her from doing so by advising that once A. is back he should remain with him for the duration of the court process, and she should not have equal parenting time.
[37] In November 2020 A. emailed his father saying he had called many times, but his father had refused to answer. This appears to have been related to the father’s preference for video calls, so that he could satisfy himself as to A.’s privacy during the call. A more helpful approach would have been to take any call A. made to him in whatever form. From a legal point of view, the court order only referred to “calls” generally. The father was unwisely restrictive in requiring only video calls with A.
[38] A controversy also arose over email communications. A. told his father that he did not like to see his emails coming in on his school email account. He asked his father to use his personal account. This was a reasonable request but instead of agreeing to it, the father launched into a running diatribe, accusing the sender of being the mother, not A., and directing rude, accusatory, and derogatory terms at both the mother and son.
[39] The final order provides that the receiving parent is to pick up A. from school on Fridays. The record is silent whether in all the months since September 2020, the father tried to do so.
[40] Finally, whether the reasons for the break were as described by the father or as relayed from A. through his mother’s affidavit, the simple expedient of a note of apology from the adult involved for his part in it has been known to go a long way.
[41] Such personal efforts on his part may not amount to an alternate adequate remedy, nonetheless they would have shown the father as motivated to find a solution to the problem, before launching what should be the final resort to securing enforcement of an order. Taken together both have factored into my decision not to exercise my judicial discretion to make a finding of contempt against the mother.
Exercise of Judicial Discretion
[42] Several cases, including Mancour and Jackson include the exhortation that when the issue raised on a contempt motion concerns parenting time the paramount consideration is the best interests of the child. Regrettably in this case neither parent has consistently acted in their child’s best interests.
[43] As previously noted, despite the terms of the second Final order the child lived exclusively with his father from May 2019 until the end of September 2020. Emails from that time show the father telling the mother that it is their son’s choice if he doesn’t answer her phone calls, he doesn’t want to return to her care, the father encourages him freedom due to his age, with the goal being to allow him to be involved in the decision making process. These comments do not show the father in good light, rather suggest he may have been derelict in his parenting obligations to require his son to comply with the parenting order, or to bring the matter to court if he could not so do.
[44] This year the parents are at a similar impasse but with their roles reversed. Now it is the mother who if she truly could not secure the child’s compliance with the court order ought to have returned the matter to court in a timely fashion, rather than waiting to respond after this contempt motion was brought.
[45] It may also be worth noting that in May 2021 when asked, the father did not provide the mother with originals or copies of A.’s OHIP card or birth certificate, preferring to criticize her for apparently losing her own copies. This at least delayed A.’s vaccination against Covid, given that the parents could not agree in August that the father should be the one to take A. to this appointment.
[46] I conclude that the mother is in breach of the parenting time order but that the contact problem between father and son is also due to the son’s reluctance to see his father for reasons not fully developed before me, and also due in part to the father’s intransience on the partial solutions that were offered by his son, at the time when they were offered.
[47] A finding of contempt against the mother would provide the father with a “win” in their long running litigation but would not advance their son’s best interests. This important power intended to uphold the dignity and authority of the court ought not to be exercised in these circumstances.
The order
[48] Despite making the finding that the applicant mother is in breach of the parenting order dated March 17, 2014, the motion for contempt is dismissed.
Costs
[49] On its face this does not appear to be a case for costs to either party. The respondent’s motion has been dismissed. The applicant has been found to be in deliberate breach of a court order. Should either party nonetheless wish to make written submissions for costs they may do so, on or before January 14, 2022. If submissions have not been made by that day, the order will issue dismissing the motion without costs.
Mackinnon J.
Date: December 16, 2021
COURT FILE NO.: FC-09-1166-3 DATE: 2021-12-16
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Sara Dana Dunn, Applicant AND James David Shaw, Respondent
BEFORE: Mackinnon J.
COUNSEL: Emma Dupuis, for the Applicant Stephen Pender, for the Respondent
ENDORSEMENT
Mackinnon J.
Released: December 16, 2021