ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-20-0056
DATE: 2022-06-01
BETWEEN:
K.M.
Applicant
– and –
C.M.
Respondent
Shawn Hamilton, for the Applicant
Ryan Leckie, for the Respondent
HEARD: April 14, May 11 and May 19, 2022 in North Bay, Ontario
DECISION ON CONTEMPT MOTION
S.K. Stothart j.
[1] The Respondent, C.M. has brought a motion seeking that the Applicant, K.M. be found in contempt pursuant to section 38 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and Rule 1(8)(g) and Rule 31(1)(5)(a) of the Family Law Rules, O. Reg. 114/99.
I. OVERVIEW
[2] C.M. and K.M. were married on September 24, 2011, and separated in June 2018. They have three children, K.M. (aged 14), B.M. (aged 11) and A.M. (aged 9).
[3] Mr. C.M. and Ms. K.M. have struggled to cooperatively parent their three children. This has necessitated repeated court involvement.
[4] There have been repeated interim court orders between June 1, 2021 and March 13, 2022, that order that parenting time with all three children be shared between the parties on a week-about basis. Despite these orders, Mr. C.M. has not had week-about parenting with two of his children, K.M. and A.M. since September 2021.
II. POSITION OF THE PARTIES
C.M.
[5] Mr. C.M. says that Ms. K.M. is in contempt of the interim parenting orders. Specifically, she has failed to comply with the orders that parenting time be equally shared between the parties on a week-about basis.
[6] It is agreed between the parties that the middle child, B.M., has had shared parenting time with both parents on a week about basis, in accordance with the court orders.
[7] The two other children K.M. and A.M. have not had shared parenting time with both parents on a week about basis since the end of September 2021. Neither K.M. or A.M. have ever stayed at their father’s residence overnight since September 2021.
[8] Mr. C.M. believes that Ms. K.M. has alienated K.M. and A.M. from him by involving them in the parental conflict and through more subtle actions such as controlling the circumstances under which he can see or speak to them.
[9] Mr. C.M. says that he has had to bring multiple motions in an attempt to see his children. He wants to have consistent extended parenting time with all three children. He fears that the longer they are kept away, the more alienated they will become from him.
K.M.
[10] Ms. K.M. acknowledges that Mr. C.M. has not had week-about parenting time with K.M. and A.M. since late September. She says that K.M. and A.M. don’t want to see their father as much as he wants to see them. While she acknowledges that she is aware that there are court orders in place, she says she can’t force the two children to see their father.
[11] Ms. K.M. blames the poor relationship between Mr. C.M. and K.M. and A.M. on his own poor behaviour and actions. She says she tries to encourage the children to have a relationship with their father, despite his repeated failures.
III. FACTS
[12] The evidence received in this contempt motion has consisted of nine affidavits filed by the parties. C.M. filed five affidavits and K.M. filed four affidavits. The court also received two affidavits from Jason Millward who is a clinical investigator with the Office of the Children’s Lawyer. Both Mr. C.M. and Ms. K.M. were cross-examined on their respective affidavits. The court also heard vive voce evidence from Cst. Ryan Robertson.
[13] Most of the evidence on the key issues relevant to this motion is not significantly in dispute.
[14] The parties acknowledge that they have experienced significant conflict in relation to parenting their three children.
[15] Following their separation in 2018 until June 2021, the parties shared the parenting of the children on a week-about basis. Initially this involved the children spending time with their mother each morning and after school, including on the days they were to be with their father. In September 2020 this changed and the children began to be bussed from their father’s home.
[16] On April 1, 2021, Mr. C.M. was charged with sexual assault, invitation to sexual touching, sexual interference and voyeurism. The charges relate to allegations involving a family member and are alleged to have occurred when Mr. C.M. was under the age of 18 years.
[17] On April 1, 2021, Mr. C.M. was released on an undertaking that required him to notify the Greater Sudbury Police of any change in his residence or employment and to not communicate directly or indirectly with the complainant or attend at her place of residence, employment or education.
[18] On April 3, 2021, Ms. K.M. refused to return the children to their father in accordance with the established parenting regime.
[19] Given Ms. K.M. would not return the children to his care, Mr. C.M. brought a motion seeking to resume his week-about access to his children. Ms. K.M. opposed this motion and sought to have any access between the children and their father supervised.
[20] On June 11, 2021, following a contested motion, Justice P. Boucher made a temporary order that Mr. C.M. and Ms. K.M. share parenting time for all three children on a week about basis.
[21] Following Justice Boucher’s order, Ms. K.M. posted disparaging comments on social media about the court outcome. She posted “The system is fucked. I will never stop fighting to protect my kids…that’s a promise”. Ms. K.M. acknowledges that she posted these comments and explains that she did this out of frustration and she ultimately removed the posts.
[22] During the summer of 2021 the parties continued to experience conflict with respect to their children. By around the end of September 2021, the children K.M. and A.M. stopped attending their father’s residence for week-about access.
[23] On October 1, 2021, Mr. C.M. was arrested and charged with assault x 3, uttering a threat, and sexual assault. The complainant in that matter is Ms. K.M.. The charges are historical in the sense that they relate to alleged events that occurred during the marriage, and an alleged event that occurred on November 16, 2018.
[24] Mr. C.M. was released on a release order on October 2, 2021. As part of his release order, Mr. C.M. is prohibited from communicating in any way with Ms. K.M. and D.L. and is required to remain away from their places of residence, employment, schooling or where they may be except in accordance with a family court order.
[25] On November 12, 2021, Mr. C.M. was arrested and charged with failing to abide by his release order. He was released on a release order on November 15, 2021.
[26] In November 2021 the parties returned to court. Mr. C.M. brought a motion seeking to have the children primarily reside with him and that Ms. K.M. have supervised visits with the children. Ms. K.M. brought a counter motion seeking to have the children reside primarily with her, with Mr. C.M. having supervised visits with the children. She also sought the involvement of the Office of the Children’s Lawyer.
[27] On November 26, 2021, the parties entered into minutes of settlement and agreed that the week-about parenting regime would resume. Pursuant to these minutes of settlement, Justice Ellies made a further temporary order that the parties continue to operate under a week about schedule with all three children. His order addressed how the parties would exchange the children each Saturday, how the parties would deal with the children’s extracurricular activities, their attendance at the children’s school, school transportation and communication between the parents. It also permitted Mr. C.M. to be within 200 metres of K.M., B.M., M.M. and D.L. for the purposes of the family order, to attend the children’s school, extracurricular activities and for the purposes of parenting time. Justice Ellies also ordered that the parties involve the Office of the Children’s Lawyer.
[28] When things did not improve between the parties, the matter returned to court again. On December 17, 2021, Justice Wilcox made a further temporary order that addressed the involvement of the Office of the Children’s Lawyer and provided for police assistance in the exchange of the children.
[29] On February 19, 2022, the North Bay Police Service was contacted by Mr. C.M. in an effort to obtain assistance with the exchange of the children. Cst. Robertson was one of the officers who attended. He testified that only one of the children was present for the exchange. When the officers reviewed Justice Wilcox’s order, they concluded that there was nothing they could do at that time to enforce an exchange with the other two children.
[30] On March 11, 2022, Justice Wilcox amended his December 17, 2022 order by adding paragraphs 9 & 10, which direct the local police to locate, apprehend and deliver the three children to their father and the authority to enter and search any place where the police have reasonable and probable grounds to believe the children may be and with such assistance and force as are reasonable in the circumstances. Justice Wilcox also ordered that all three children shall be brought to the parenting time exchanges.
[31] Mr. C.M. has provided extensive evidence regarding conduct by Ms. K.M. that he says continues to exacerbate the alienation that is taking place with his children. This includes making the children aware of parental disputes over financial issues and controlling/interfering with his time spent with the children.
[32] Ms. K.M. says that K.M. and A.M. do not want to go to their father’s residence. She cites incidents where conflict has occurred in the presence of the children that causes them to be upset. She further says that the father hangs up on the children when they speak to him on the phone and that this damages their relationship with him.
[33] Ms. K.M. says that she encourages the children to have phone conversations with their father and to meet their father in a community setting, such as dinner at a restaurant or at a hockey arena.
[34] Ms. K.M. says she can’t physically get K.M. and A.M. to get into her car if they don’t want to. She does not see the need to punish her children for refusing to see their father. She does not take away activities or impose any consequences if the children refuse to see their father. She testified that she does not see the need to inflict trauma on the children by removing them from their comfort zone.
IV. IS K.M. IN CONTEMPT OF THE TEMPORARY COURT ORDERS?
The Law:
[35] In contempt proceedings, liability and penalty are two discreet issues. The two goals of civil contempt proceedings are to secure compliance with court orders and/or protect the integrity of the administration of justice. Carey v. Laiken, 2015 17 at para.18 and 30.
[36] As part of the liability hearing, the party asserting contempt must establish, beyond a reasonable doubt, an intentional act or omission that is in fact a breach of the clear order which the alleged contemnor has notice. There are three elements of contempt, they are:
a. The order alleged to have been breached must clearly and unequivocally state what should and should not be done;
b. the party alleged to have breached the order must have actual knowledge of it; and
c. the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
Carey v. Laiken, supra. at paras 33-35, 38.
[37] The party asserting contempt does not have to prove that the contemnor intended to disobey the order. Rather, all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact a breach of a clear order which the alleged contemnor has notice. Contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt. Carey v. Laiken, supra at para 38
[38] The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. Rather, courts have been encouraged to approach contempt proceedings with caution and great restraint. Carey v. Laiken, supra. at para 36.
[39] The need for caution and restraint is particularly required in high-conflict family law disputes involving children as it may serve only to exacerbate the parental conflict to the detriment of the children. Moncur v. Plante, 2021 ONCA 462 at para. 20.
[40] In high-conflict family law disputes, courts are encouraged to use a staged approach in which a declaration of breach precedes a formal contempt order. This allows the parties to reflect on their conduct and work on cooperative solutions that are in the best interests of the children.
[41] Where the main issues relate to access to children, the best interests of the children should be the paramount consideration of the court. Parties are to be encouraged to take steps to address any issues between the children and their parents rather than resort to contempt proceedings. Ruffolo v. David, 2019 ONCA 385 at para 19, Chong v. Donnelly, 2019 ONCA 799 at para 11.
[42] Where the court is satisfied that the circumstances have reached a point of last resort and where it would not work an injustice, a court may decide in its discretion to make a formal order of contempt. Moncur v. Plante, surpra at para. 20.
[43] In Goddard v. Goddard, 2015 ONCA 568, the Ontario Court of Appeal held that parents are expected to take concrete measures and apply normal parental authority in having a child comply with an access order. This form of normal parental authority is expected go beyond mere encouragement. The Court of Appeal stated as follows at para 28 and 29:
Although a child's wishes, particularly the wishes of a child of S.'s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child's best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": Quaresma v. Bathurst, [2008] O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349 (Ont. S.C.J.); Stuyt v. Stuyt,2009 43948 (ON SC), [2009 CarswellOnt 3432 (Ont. S.C.J.)] 2009 43948; Stuyt v. Stuyt, [2009 CarswellOnt 3432 (Ont. S.C.J.)] 2009 43948; and Hatcher v. Hatcher, 2009 14789 (ON SC), [2009] O.J. No. 1343 (Ont. S.C.J.).
No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant's failure to do all that she reasonably could: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order".
Analysis:
[44] Having listened to the evidence called at this motion, and applying the test as set out in Carey v. Laiken, supra. I am satisfied beyond a reasonable doubt that:
a. The court orders of Justice Boucher dated June 1, 2021, Justice Ellies dated November 26, 2021 and Justice Wilcox dated December 17, 2021 set out clearly and unequivocally what should and should not be done. All three orders state that parenting time with all three children is to be exercised on a week-about basis;
b. The court order of Justice Ellies was the result of minutes of settlement between the parties and clarifies that all three children are to be exchanged every Saturday at 10 a.m.;
c. Ms. K.M. acknowledges that she is aware of all three court orders, having been present for them; and
d. Despite the court orders, week-about parenting time with K.M. and A.M. has not taken place since late September 2021.
[45] I am satisfied, beyond a reasonable doubt, that K.M. has failed to comply with the orders of Justice Boucher dated June 1, 2021, Justice Ellies dated November 26, 2021 and Justice Wilcox dated December 17, 2021.
[46] Having heard the evidence called as part of this motion, the court is satisfied beyond a reasonable doubt that Ms. K.M. has left the children with the impression that they do not have to comply with the court orders regarding parenting time. She and the children seem to believe that the children have a choice to comply or not comply with the court orders with respect to parenting time and that no consequences flow from non-compliance.
[47] The most recent affidavit of Jason Millward dated May 18, 2022 confirms the childrens’ impression of the current court orders. At paragraph 8 it is noted that A.M. reported that she is “given a choice to attend visits with her father” and that her mother is “fine with whatever I pick”.
[48] The affidavit of Jason Millward indicates that K.M. reported that his mother always asks him if he wants to attend visits but does not pressure him about his relationship with his father and there are no consequences if he chooses not to attend.
[49] The court orders of Justice Boucher, Justice Ellies and Justice Wilcox do not state that parenting time is to be exercised in accordance with the wishes of the children or that it be exercised in community settings. While that may be what Ms. K.M. wanted, it is not what was ultimately ordered.
[50] The order of Justice Boucher, and the subsequent orders of Justice Ellies and Justice Wilcox relate to “parenting time” to be exercised by both parents. When a court allocates parenting time between parents it reflects the court’s decision that it is in the best interest of the child/children that each parent exercise designated time with the children where they are responsible for the physical, emotional, social and intellectual development of their child. Parenting time is not “social” time spent with a parent nor does it consist of “visits”.
[51] In this case it appears that the children K.M. and A.M. believe that it is their choice whether they are parented by their father and view their time with him as “visits”. This is regrettable.
[52] In Jackson v. Jackson, 2016 ONSC 3466, the court reviewed the development of the law where contempt is alleged in the context of a parenting order. At paragraph 63, the court noted:
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 (Godard, Supra.; McGinn v. McGinn, 2006 SKQB 105 (Sask. Q.B.); Blair v. Blair, 1995 6977 (ON SC), [1995] O.J. No. 2962 (Ont. Gen. Div.); Howe v. Whiteway, 2015 SKCA 72 (Sask. C.A.); Gharabegian v. McKinney, [2008 CarswellOnt 7884] (Ont. S.C.J.); Quaresma, Supra.; K. (B.) v. P. (A.), [2005] O.J. No. 3334 (Ont. S.C.J.); Hatcher, Supra.; Sickinger, Supra.; Haywood, Supra.) As Quinn, J. stated in Geremia, Supra.:
Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.
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 (Godard, Supra.).
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 (Godard, Supra.; V. (S.) v. I. (T.), 2009 9396 (ON SC), 2009 CarswellOnt 1023 (Ont. S.C.J.); Hatcher, Supra.; K. (B.) v. P. (A.), Supra.; Sickinger, Supra.; Haywood, Supra.; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551 (Ont. S.C.J.); Stuyt, Supra.; Scrivo v. Scrivo, 2013 CarswellOnt 5156 (Ont. S.C.J.); Campo, Supra.).
d) Actively promoting and facilitating compliance with a custody and access requires the parent to "take concrete measures to apply normal parental authority to have the child comply..." (Godard, Supra.; Wright v. Meyer, 2012 CarswellOnt 14827 (Ont. S.C.J.)). 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? (Godard, Supra.; Jackscha v. Funnell, 2012 CarswellOnt 10467 (Ont. S.C.J.)).
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 (Stupple, Supra.).
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 (Brooks, Supra.; Paton, Supra). 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 (Godard, Supra.; Rego, Supra.; Thomas v. Pearcy(1993), 1993 16086 (ON SC), 48 R.F.L. (3d) 407 (Ont. Gen. Div.); Wood v. Miller(1993), 1993 16057 (ON SC), 45 R.F.L. (3d) 244 (Ont. U.F.C.); Campbell v. Campbell, 1994 CarswellOnt 4468 (Ont. Gen. Div.); Ebrahim v. Ebrahim, 2000 BCCA 398 (B.C. C.A.); Paton, Supra.; Cooper v. Cooper, 2004 47783 (ON SC), [2004] O.J. No. 5096 (Ont. S.C.J.)); L. (A.G.) v. D. (K.B.), Supra.; V. (S.) v. I. (T.), Supra.; Courtney v. Sambray, 2015 ONSC 4872 (Ont. S.C.J.); Carr-Carey v. Carey, 2014 ONSC 5441 (Ont. S.C.J.); Perna v. Foss, 2015 ONSC 5636 (Ont. S.C.J.). 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.
[53] Ms. K.M. has admitted that she does not impose any consequences upon the children when they refuse to see their father. She sees enforcing the court orders with the children as “inflicting trauma” upon them.
[54] Based on the evidence called at this motion, the court finds as a fact that while Ms. K.M. may ask K.M. and A.M. if they want to see their father, she takes no steps beyond that to comply with the court orders that they spend every second week with their father at his home. Further, the court finds as a fact that Ms. K.M. has left the children with the incorrect impression that parenting time is based on their wishes.
[55] As such, I am satisfied beyond a reasonable doubt that Ms. K.M. has not complied with the court orders that specify that parenting time is to be equally shared by both parents, on a week about basis. Further, I am satisfied beyond a reasonable doubt that Ms. K.M. has not taken the steps expected of a parent to ensure that all three children attend the drop off and spend every second week with their father.
[56] It is apparent that the children in this case find themselves in the middle of a high-conflict relationship between their parents. In these circumstances, courts are encouraged to use a staged approach in which a declaration of breach precedes a formal contempt order. This allows the parties to reflect on their conduct and work on cooperative solutions that are in the best interests of the children.
[57] I am mindful that the best interests of the children must remain the paramount consideration in any decision made in this matter. It is unfortunate that circumstances have reached the point where K.M. and A.M. are resistant to seeing their father. The court finds that this resistance has likely been the product of the contentious relationship between the parents and subtle parental alienation on the part of Ms. K.M..
[58] It is the court’s view that a staged approach to re-integrate parenting time with the father is in the best interests of the children, given the current circumstances. The staged approach will begin in June and continue throughout the summer break which should afford sufficient flexibility to slowly increase the time the children spend with their father. By the time school starts in 2022, the parenting time must resume to a full week about basis.
[59] The court wishes to make it clear that this order is a staged approach to Ms. K.M.’s failure to comply with Justice Boucher, Justice Ellies and Justice Wilcox’s orders. It is an opportunity for Ms. K.M. to demonstrate that she is prepared to comply with those orders and take the proactive steps to ensure that the children are spending parenting time with their father. This will necessarily involve work on her part to repair and re-establish a “parenting relationship” between the children and their father.
[60] If Ms. K.M. fails to comply with this staged order, then the court will have no choice but to move to the next step in the contempt proceedings.
V. STAGED ORDER
[61] For the reasons outlined above, the court makes the following orders:
The Applicant, K.M. shall not speak to the children about their father, C.M. in a negative manner
The Respondent, C.M., shall not speak to the children about their mother, K.M. in a negative manner.
The Applicant and Respondent shall not discuss any details of the family proceedings, and specifically any details from these contempt proceedings, with any of the children;
The Office of the Children’s lawyer shall meet with K.M. and A.M. and explain Justice Boucher’s order (in a child friendly way) and explain that the court has decided that they are to live with their father for one week and then their mother for one week;
The orders of Justice Boucher, Justice Ellies and Justice Wilcox are varied for the months of June, July and August, 2022 as follows:
(a) During the month of June 2022, C.M. shall have one on one parenting time with K.M. and A.M. in an effort to spend time alone with each child in an effort to restore their relationship. He shall have three, one on one parenting time sessions with each child for a total of six parenting sessions. Each parenting session shall be for a minimum of two hours
(b) During the month of June 2022, in addition to the parenting time described above, the C.M. shall have access to all three children on at least three occasions. This parenting time shall be for a minimum of two hours each time;
(c) During the month of July 2022, C.M. shall have parenting time with all three children for two weekends. The exchange of the children shall take place on Friday at 6 p.m., with the father returning the children to their mother on Sunday at 6 p.m. The exchange shall take place at the old Sears parking lot. Mr. C.M.’ father shall do the exchanges unless the parties agree otherwise;
(d) During the month of August 2022, the Respondent C.M. shall have two weeks of uninterrupted parenting time with the children. The exchange of the children shall take place on Friday at 6 p.m., with the father returning the children to their mother 14 days later, on Friday at 6 p.m. The exchange shall take place at the old Sears parking lot, again with Mr. C.M.’ father conducting the exchange unless the parties agree otherwise. The children shall reside with their father for the two-week August period. The children shall be permitted to speak to their mother by way of cell phone or video conferencing at any time, in accordance with their wishes;
(e) The orders of Justice Boucher (dated June 11, 2021), Justice Ellies (dated November 26 and November 29, 2021) and Justice Wilcox (dated March 11, 2022) shall resume and be in full force and effect commencing September 1, 2022.
(f) The Office of the Children’s lawyer shall explain the terms of my order, again in child friendly terms.
[62] The matter is adjourned to August 30, 2022 at 10 a.m. for an in-person status hearing to determine whether this staged order has been complied with or whether the matter should proceed to the next step of the contempt process.
S.K. Stothart
Released: June 1, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
K.M.
Applicant
-and-
C.M.
Respondent
DECISION ON CONTEMPT MOTION
S.K. Stothart
Released: June 1, 2022