COURT FILE NO.: FC-12-2014-2
DATE: 2022/07/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Debra Warren
Applicant (Responding Party on Contempt Motion)
– and –
Robby Binette
Respondent (Applicant on Motion)
Pamela Barron, for the Applicant
Altynay Teshebaeva, for the Respondent
Marcelle Story, for the OCL
HEARD: July 13, 2022
MOTION FOR CONTEMPT
sOMJI J
Overview
[1] Robby Binette (“father”) seeks an order that the Debra Warren (“mother”) be found in contempt of the Final Order of the Honourable Justice Shelston dated January 12, 2018 (“Final Order”). The grounds of the contempt motion are that the mother failed to respect the parenting schedule for the parties’ two children on the following dates:
➢ For L.W., age 15: on May 19-22, 2022; June 2-5, 2022; June 16-19, 2022; and June 30-July 8, 2022
➢ For C.W., age 13: on May 19-22, 2022; June 2-5, 2022; June 16-19, 2022.
[2] The mother acknowledges that the children did not visit with their father on the four dates in question, but it was the children’s own wish to not attend. The father communicates with the children directly and arranges for picking them up. She is minimally involved and sometimes even absent from the home when the pick ups occur. The mother maintains that she supports the children’s parenting time with the father and has not engaged in any intentional conduct to obstruct parenting time. The youngest child has more recently agreed to see his father, but the eldest child L.W. continues to refuse.
[3] In support of the motion, the parties rely on the following evidence:
➢ The father’s affidavits dated June 13, June 17, June 21, and July 5, 2022.
➢ The mother’s affidavits dated June 20, 2022, and July 6, 2022.
[4] The primary issue in this motion is whether the mother intentionally engaged in conduct to obstruct the father’s parenting time on these dates so as to find that she was in contempt of a court order.
[5] Upon review of the evidence filed, I find the father has not established the mother was in contempt of the Final Order.
Analysis
[6] To find civil contempt, the court must be satisfied that first, the order alleged to have been breached states clearly and unequivocally what should or should not be done; second, that the person alleged to be in contempt had actual knowledge of the terms of the order; and, third, that the person alleged to be in contempt committed an act that the order prohibited or intentionally failed to do an act that the order required. Unless the motion for contempt satisfies all three of these criteria, the motion must be dismissed: Hobbs v. Hobbs 2008 ONCA 598, [2008] CarswellOnt5037 (CA); Smith v Reynolds, 2018 ONSC 7706 at para 21; see also Moratto v Papadapoulo (April 30, 2019), Ottawa FC-17-2476-2 (Ont. SCJ) at page 1.
[7] The onus is on the moving party which in this case is the father. The standard of proof is the criminal standard of beyond a reasonable doubt. Smith v Reynolds at para 21.
[8] The Ontario Court of Appeal in Kopaniak v MacLellan, 2002 CanLII 44919, quoted, at para 28, from Nigel Lowe and Brenda Sufrin, Borrie and Lowe on the Law of Contempt, 3rd ed. (1996) at pp. 655-56 to explain that the court’s jurisdiction in criminal contempt is penal but the court’s jurisdiction for civil contempt is remedial:
The essence of the court’s jurisdiction in respect of criminal contempt is penal, the aim being to protect the public interest in ensuring that the administration of justice is duly protected. On the other hand, the court’s jurisdiction in respect of civil contempts is primarily remedial, the basic object being to coerce the offender into obeying the court judgment or order, etc.”
[9] The Final Order provides for the children to live primarily with the mother and parenting time for the father on alternate weekends during the school year. In the summer time, the parties share parenting on a week on/week off basis.
[10] The father claims that since the Final Order, the mother has become a drug addict, sought to purchase a weapon, rented out the children’s rooms, exposed the children to adult conflict in the home, failed to maintain the children’s attendance at school, and alienated the children from him. Consequently, the father brought a Motion to Vary the Final Order in October 2020 which is now scheduled to be heard on September 13, 2022. Following the missed parenting visits on the dates in question, the father brought an urgent motion on June 13, 2022, to obtain a police enforcement clause which was settled on consent of the parties and ordered by the court on June 16, 2022. When further parenting time visits did not commence on June 19 and June 30, 2022, the father filed an urgent motion for contempt on July 5, 2022.
[11] The mother denies the father’s allegations. She maintains the father has repeatedly made false accusations against her since the issuance of the Final Order, and there is no evidence to support his defamatory allegations. She describes the father’s pleadings in support of this motion as a “witch hunt.” The father has brought numerous urgent motions since the Final Order to obtain the children in his care and this motion for contempt is yet another attempt to circumvent the Motion to Vary scheduled to be heard this fall. The mother maintain she supports the children to have parenting time with their father and has not engaged in any deliberate conduct to obstruct his parenting time.
[12] It is important to note that the purpose of this motion is not to address whether the parenting order should be amended. This will be determined by the presiding judge at the Motion to Vary. The decision that I have to make is whether the mother has engaged in deliberate conduct to obstruct the father’s parenting time on the dates in question. Counsel for the father concedes that should I find contempt, the remedy being sought is an order that should the mother breach the parenting schedule again, their would be a fine brought against her. The mother relies on the decision of Justice Phillips in Moratto v Papadopoulo in this regard.
[13] The problem which arises in this case is that the father’s affidavits allege at length the changes in the mother’s home circumstances which are relevant to his Motion to Vary, but fails to provide sufficient facts with respect to what transpired on the four dates in question to enable this court to make a finding that the mother intentionally obstructed the Final Order.
[14] The father does not address in his four affidavits the factual circumstances surrounding the May 19th or June 2nd scheduled visits. The only evidence of what transpired on May 19th is based on text exchanges filed between himself and the children.
[15] The father sends a text on May 19th asking L.W. whether he is attending with his brother today to which L.W. replies “no.” The father asks, “Are you sure” and L.W. replies “yes I sure.” The father then states, “Can I pick u up tomorrow” and L.W. replies “probably not.” On June 2, 2022, the father texts L.W. asking “Hows my boo” to which LW replies “Dad I don’t want to go this weekend”. The father replies “Why not buddy we going to have a good weekend” to which L.W. replies “Because I don’t really want to.” There is no further response from the father until June 3rd where he texts L.W. to tell him he loves him.
[16] The text exchange filed with C.W. has no dates and does not provide any other information to surmise why he did not attend for his parenting time. The father reasons that C.W. did not attend on May 19th because the father filed his materials for the Motion to Vary on that date, but the motion materials were filed with counsel for the mother on May 22nd.
[17] L.W. expressly indicated to his father in the text messages that he did not want to attend on May 19th or June 2nd. There is no evidence of what the father did further to encourage the visits of either child on these weekends. More importantly, there is no evidence that the mother engaged in any communications or conduct with the children to discourage the visits. I find there is insufficient evidence on the record filed to conclude that the mother obstructed the father’s parenting time on these dates.
[18] With respect to the scheduled visit of June 16 to 19, 2022, the father states that he attended the house around 4 pm on June 16th. He states the boys came out around 4:30 pm and told him they were not coming with him. He describe their demeanor as “unusual” and that they looked “stiff and almost scared.” The father states he told the boys to come with him and asked them to get their things from home for the weekend. They went in and did not come out.
[19] The father provided a record of the text exchange between the parties surrounding the June 16th visit. At 3:52 pm he texted the mother to tell her he was there and to send the boys out. At 4:12 pm, the father messaged the mother again asking, “Where are they?” The mother replied, “I sent them out” to which the father replied, “And I sent them in to get there stuff.” At 4:13 pm, the father texted the mother that “They said they aren’t coming is this what’s happening?” At 4:15 pm, the mother replied “I don’t know I wasn’t out there I’m in a work call. If that is what they said to you.” At 5:01 pm the mother sent a message asking the father “Did they go?” to which the father replied “Stop playing games. Not they didn’t. And it’s your responsibility not theirs.” The father also sent a message stating, “Make sure u provide pay stubs for next court appearance since you’ve been working.” The mother replied “I was working. The boys were sent out. Please don’t text me with hostility. I was told by my lawyer in email 4:30….”
[20] The father assumes that the boys’ failure to attend was because of the mother, but there is no evidence of what, if any, communications the mother had with the boys surrounding the June 16th visit. Moreover, the messages suggest, and the mother maintains in her affidavit, that she was working during the father’s arrival and was not involved in the exchange. The mother explains that the father was previously charged with abducting the children and a peace bond was issued against him which expired on June 21, 2022. As a result of the peace bond, the father had been communicating directly with the boys to confirm pick up and the mother has been minimally involved in the parenting time arrangements. Such was the case on June 16, 2022.
[21] The mother explains that not only was she was not involved in the exchange, the father did not force the children to attend nor did he use the police enforcement clause that was issued the same day. Furthermore, contrary to the father’s speculation that she discouraged the parenting time, the mother explained that she advised both boys that as a consequence of their refusal to go with the father, she would take away their electronics for the weekend.
[22] The Final Order provides the father a right to parenting time. Knowing the children have been reluctant to attend, the father brought an urgent motion to obtain a police enforcement clause. When the children stated they were not coming, he did not make any inquiries with them as to why. When the children did not come out after he sent them to get their stuff, he does not appear to have taken any steps to go to the door or to communicate with the children further by text to encourage their attendance. While I appreciate the peace bond restricting contact between the parents was still in place at the time, there were other options available to the father, including the use of a third party to attend the home or further inquiries and communication with the children to encourage their attendance.
[23] Counsel for the father argues that the mother’s failure to encourage the children to attend after they returned to the house constitutes contempt given that the mother knew that the children had failed to attend the previous visits and the father had sought a police enforcement clause. However, I fail to see how this court can find contempt in the absence of any evidence of the communications or conduct between the mother and the children that demonstrates the mother intentionally discouraged the father’s parenting time. I do not find that passivity on her part equates with intentional or wilful conduct to breach the court order so as to constitute contempt beyond a reasonable doubt, particularly in these circumstances where there are no conditions on the Final Order that require the mother to take certain actions to facilitate access and the father appears to have taken minimal steps himself to compel the children to attend.
[24] The facts in this case can be distinguished from the situation in Moratto on which the father principally relies. In that case, a 13 ½ year old child complicated access between herself and her mother by refusing to put her seatbelt on when entering the mother’s vehicle thereby thwarting the mother’s efforts to take her home. In addition, the child called her father within minutes of arriving at the mother’s residence asking to be picked up. Upon receiving the call, the father promptly showed up to take the child from her mother’s place. Consequently, Justice Phillips found that there was evidence that the father was aiding and abetting the child’s headstrong behaviour in a manner that was undermining the parenting order.: Moratto at page 3. There is no evidence before me of any such conduct on the part of the mother on these dates.
[25] While one might wish for the mother to play a more active role in facilitating the father’s parenting time such as packing the children’s bags, showing them to the car, and gently nudging them to be on their way, there are no specific conditions on the Final Order that require her to take such actions. Moreover, this is a high conflict case where the mother wishes to minimize her contact with the father and has little incentive to communicate or work cooperatively with him given the defamatory allegations he has brought and continues to bring against her.
[26] Depending on the outcome of the Motion to Vary, additional conditions compelling the mother to take certain steps to facilitate the father’s parenting time might be considered as part of a revised parenting order. Having said this, it is important to note that even if there were conditions for the mother to take certain steps to facilitate the father’s parenting time as suggested above, there are limitations on what either parent can do when a teenage child does not wish to go to another parent’s home. Neither parent wishes to manhandle a child into a car, and counsel for the mother questions whether even the police would do so if the enforcement clause was utilized and L.W. physically resisted. The real issue is how to address the children’s state of mind, particularly L.W., to encourage visits with the father.
[27] In this case, the Office of the Children’s Lawyer is engaged to represent the children and report their wishes and preferences. Counsel for the OCL states that C.W. is generally agreeable to visiting with his father and has now started to follow the summer parenting schedule. However, L.W. has been consistent in his position that he sometimes wants to visit his father and sometimes does not. Unfortunately, a clinical assessment has not been undertaken by the OCL, and counsel for the OCL was not in a position at the motion hearing to provide any insight into why L.W. refuses to attend and whether there may be any steps, such as reunification therapy between the father and L.W. that might assist in changing L.W.’s mindset. The parents have their own theories for L.W.’s unwillingness to see his father which they attribute to the influence or conduct of the other parent, but the OCL was not able to report if their was any merit to either parent’s theories for L.W.’s resistance.
[28] Finally, with respect to the July 1st visit, the father states that he went to pick up the children on that date to commence the week on/week off summer parenting schedule. C.W. agreed to go with the father but not L.W. The father reports that L.W came out, gave him a hug, said he loved him, but did not want to go home with him. The father does not explain what further steps he took, if any, to encourage L.W.’s attendance or what inquiries, if any, he made with L.W. for not wanting to go with him. The father explains that L.W. is autistic and despite being in his teen years, operates as a child. According to the father, L.W. cannot be left to make decisions for himself and needs to be told to go to his parenting time. The father believes that the mother tells L.W. that he does not have to go for visits with his father and that is why L.W. did not attend on that date. In support of this position, the father relies on the information provided to him by C.W. who reported to him that the mother tells L.W. he does not have to go to his father’s house.
[29] I do not find the hearsay evidence of C.W. alone is sufficient to find beyond a reasonable doubt that the mother was in contempt of the court order. The father has not provided any evidence of his communications with the mother or any evidence of what the mother did on July 1st to intentionally obstruct his parenting time. I find there is insufficient evidence to conclude the mother was in contempt of the court order on July 1, 2022.
[30] The father’s motion for contempt is dismissed.
[31] The issues of whether the mother has engaged in alienation or whether there has been a material change in circumstances as per the father’s allegations to warrant a variation of the parenting order are to be determined by the presiding judge at the Motion to Vary.
Costs
[32] The mother is the successful party on this motion. If the parties are not able to settle the issue of costs, submissions can be filed in writing. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The mother shall file her submissions by August 2, 2022, the father by August 16, 2022, and the mother will have until August 23, 2022 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.
Somji J.
Released: July 18, 2022
COURT FILE NO.: FC-12-2014-2
DATE: 2022/07/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Debra Warren
Applicant (Responding Party on Contempt Motion)
– and –
Robby Binette
Respondent (Applicant on Motion)
MOTION FOR CONTEMPT
Somji J.
Released: July 18, 2022