BARRIE COURT FILE NO.: FC-20-534-01
DATE: 20220628
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Simcoe Muskoka Child, Youth and Family Services, Applicant
AND:
E.L., Respondent
C.S.G., Respondent
BEFORE: The Honourable Justice Krause
COUNSEL: L. Gibson, for the Applicant
Respondent E.L., Self Represented
Respondent C.S.G., Not Present
HEARD: June 28, 2022
ENDORSEMENT
[1] On April 4, 2022 I found E.L. in contempt of paragraph 5 of the Order dated February 11, 2022.
[2] On May 24, 2022 I received evidence and heard submissions on the penalty phase of the contempt Motion.
[3] This is my decision.
[4] Simcoe Muskoka Child, Youth and Family Services (“the Society”) filed an updating Affidavit sworn May 11, 2022 in support of its position on penalty. E.L. did not file any material. Both parties made submissions.
[5] I adjourned the contempt Motion from April 4, 2022 to May 16, 2022 to give E.L. an opportunity to purge her contempt. On May 16, 2022, the Motion was adjourned at E.L.’s request as she was ill.
[6] The Society’s evidence is the Tik Tok post referencing Society workers G.P. and M.S.J. continues to be present on E.L.’s Tik Tok account.
[7] The evidence is that E.L.’s post referencing the paternal grandmother has been taken down.
[8] The Society’s evidence is, on March 17, 2022 E.L. posted a video of her children with a caption indicating they were kidnapped by the Ministry. That post continues to exist.
[9] The Society’s evidence is that E.L. has continued to post on Tik Tok about these proceedings since April 4, 2022.
[10] I am only dealing with the penalty in reference to my finding of contempt on April 4, 2022. However, E.L.’s continued posts on TikTok provide an indication of her unwillingness to follow the court order which is relevant to the penalty to be imposed.
[11] Rule 31 of the Family Law Rules provides the penalties which may be imposed by the court on a finding of contempt.
[12] Rule 31(5) provides as follows:
(5) If the court finds a person in contempt of the court, it may order that the person,
(a) be imprisoned for any period and on any conditions that are just;
(b) pay a fine in any amount that is appropriate;
(c) pay an amount to a party as a penalty;
(d) do anything else that the court decides is appropriate;
(e) not do what the court forbids;
(f) pay costs in an amount decided by the court; and
(g) obey any other order.
[13] I have given E.L. an opportunity to purge her contempt and demonstrate she is able to follow the court order. She has chosen not to do so.
[14] The Society requests that I impose the following penalty:
a. An Order that E.L. remove all social media posts concerning these proceedings.
b. An order that E.L. disclose to the Society the identity of any of her mental health professionals, including any psychiatrist(s) or counsellor(s).
c. An Order that E.L. consent to the Society speaking with her mental health professionals.
d. An order compelling E.L. to work with the Family Service worker in the Society’s clinically managed access program.
e. An Order of incarceration for 3 days.
f. Costs in the amount of $300.00
[15] The Society’s position is that E.L. has willfully disobeyed the order. She is hostile and disrespectful and demonstrates no insight into her behaviour. Despite the opportunity to purge her contempt she has not removed her posts and has refused to stop making posts on social media.
[16] E.L.’s position is she has civil rights and she is being deprived of those rights. She is subject to what she refers to as a “gag order”. Her view is the Society workers are public workers and can be identified. E.L. states she is allowed to speak the truth and she is not harming anyone. It is her view she can speak and solicit support and help for her position online.
[17] E.L.’s submissions are that as she uses a different name on social media, she has maintained privacy. She says she has freedom of speech and nothing she has done is against the law. She specifically stated that I cannot stop her. E.L. also stated I could put her in jail and she would still not stop what she is doing. She indicated whatever the court does will not control her. She views her behaviour as protecting her family and standing up for her civil rights.
[18] E.L. also viewed the attempt to address her contempt as harassment and her answer was just to not watch her posts.
[19] E.L. noted the Society’s requests for information about her service providers involve her privacy rights. She views the Society as discriminating against her due to her mental health. She views the Society’s’ request for her to engage in clinically managed access as just a way for the Society to collect evidence against her.
[20] In Cassidy v. Cassidy, 2010 ONSC 2707, Price J. laid out the principles on sentencing for contempt in the family law context. Penalties for contempt should meet two objectives: be restorative to the victim and punitive to the contemnor. To be restorative a penalty must correlate to the conduct producing the contempt. To be punitive the penalty must not reflect a marked departure from penalties imposed in similar circumstances.
[21] At paragraph 18, Price J. noted, in determining an appropriate sentence, the court should consider the following factors:
a. Whether the contemnor has admitted the breach;
b. Whether contemnor has demonstrated a full acceptance of the paramountcy of the rule of law, by tendering a formal apology to the Court;
c. Whether the breach was a single act or part of an ongoing pattern of conduct in which there were repeated breaches;
d. Whether the breach occurred with the full knowledge and understanding of the contemnor that it was a breach rather than a result of mistake or misunderstanding;
e. The extent to which the conduct of the contemnor displayed defiance;
f. Whether the Order was a private one, affecting only the parties to the suit or whether some public benefit lay at the root of the order;
g. The need for specific and general deterrence; and
h. The ability of the contemnor to pay.
[22] I have considered each of these factors in determining the penalty for E.L.’s contempt.
Whether the contemnor has admitted the breach
[23] E.L. did not admit the breach of the order in the context of the contempt Motion. Rather, she has stated that she is entitled to post whatever information she wishes on social media. She did not deny any of the posts were hers.
Whether contemnor has demonstrated a full acceptance of the paramountcy of the rule of law, by tendering a formal apology to the Court
[24] E.L. has been clear in her submissions to the court. Her view is she is entitled to post information as she sees appropriate on social media. Her view is this court has no authority over her. She did not apologize to the Court for her breach of the order.
Whether the breach was a single act or part of an ongoing pattern of conduct in which there were repeated breaches
[25] E.L.’s breach of the Order is part of an ongoing pattern of conduct given the evidence of what has occurred since my finding on April 4, 2022. E.L. has continued to post about these proceedings on social media and has identified her children by picture in one post.
[26] I note also from the Society’s evidence that E.L. was found in contempt by Justice Guay on December 20, 2019 for publishing and making public information identifying the child subject of that proceeding. E.L. was ordered to immediately remove all publications relating to the case including to publications on social media.
[27] E.L. knows or ought to know her behaviour would likely attract a finding of contempt and penalty. She chose to breach the Order in any event. She has refused to remove the post.
[28] This creates, in my view, a pattern of conduct by E.L. of breaching court orders for which she shows no remorse or accountability. She views it as her “right” to post whatever information she chooses on social media.
[29] Despite the opportunity to do so, E.L. has not purged her contempt by taking down the offending social media post.
Whether the breach occurred with the full knowledge and understanding of the contemnor that it was a breach rather than a result of mistake or misunderstanding
[30] E.L. did not misunderstand the order; she does not agree with it and, in her view, it infringes her “rights”.
[31] As a result of the previous finding of contempt for similar behaviour, I am satisfied that E.L. knows or should have known her behaviour was a breach of the order.
The extent to which the conduct of the contemnor displayed defiance
[32] E.L. has been clear she will take any steps that she believes are required whether she is correct in law or not. She specifically stated that the court cannot stop her. E.L. also stated I could put her in jail and she would still not stop what she is doing. She indicated whatever the court does will not control her. She views her behaviour as protecting her family and standing up for her civil rights.
[33] E.L. does not accept the authority of the court in making the court Order; it is clear from her behaviour and statements that she has no intention of following the court Order. In that regard, she is defiant.
Whether the Order was a private one, affecting only the parties to the suit or whether some public benefit lay at the root of the order
[34] These are child protection proceedings governed by the Child, Youth and Family Services Act. The Act is clear that these proceedings are in private and the legislation provides for privacy for the children and their families involved in child protection proceedings. There is a public benefit to ensuring privacy for the children who are subject of these proceedings. There are serious policy considerations to support in ensuring the privacy offered by the CYFSA and obeying Orders made in those proceedings.
[35] The Order breached was not only an order affecting the parties to this proceeding.
The need for specific and general deterrence
[36] The previous finding of contempt and resulting Order for similar behaviour has not deterred E.L. from breaching this Order. Her sanction must take this into account.
[37] There is also a requirement the court approach seriously breaches of any orders made in child protection proceedings. The public must know that there is no general right of information in child protection proceedings.
[38] There must be a general deterrence to making public information in child protection proceedings and breaching orders made within those proceedings relating to publication.
[39] Social media has created a situation where information can be shared instantaneously around the world. The court must ensure persons know and understand there is no entitlement to post on social media any information about child protection proceedings in Ontario which will identify the child(ren), family or caregivers.
The ability of the contemnor to pay
[40] I have no information about E.L.’s ability to pay a fine as penalty. Given her position about the court order, it is unlikely she will pay any fine imposed.
[41] In Carter v. Carter, 2020 ONSC 1095, Jarvis J. acknowledged that custodial sentences for contempt in family law proceedings were rare. The husband in that case was nevertheless imprisoned for 30 days for behaviour that that the court viewed as “inexcusable” and “clearly contumacious”.
[42] Incarceration as a penalty for contempt should only be used where there is no less restrictive option available.
[43] In Houle v. White, 2014 ONCJ 397, Kukurin, J. made the following comments when considering incarceration as a penalty for contempt,
“The sanction has to have some teeth to be effective. To be effective, there has to be change in behaviour. In short, the primary goal of a sanction is to stop the objectionable conduct that is the basis for the contempt finding. There are other goals as well. Not the least of them is to ensure that the administration of justice does not fall into disrepute. Our legal system is premised on community respect for the law. When the law is perceived to be unjust or ineffective, respect falters. Orders of the court are required to be obeyed. Where individuals do not obey them, and particularly when they flaunt their disregard for the law, it is appropriate to impose penal sanctions.”
[44] In my view, based on the evidence, E.L. has flaunted her disregard for the law.
[45] I recognize whatever penalty I impose for her contempt; E.L. will characterize it as yet another infringement of her rights. She is unlikely to change her behaviour and obey the order dated February 11, 2022. She has not yet done so. She has been found in contempt of a similar order in the past.
[46] The Society’s requests for information about E.L.’s service providers and compelling E.L. to engage with the Society are not appropriate penalties for contempt, in my view. The penalty must have some connection to the contumacious behaviour. The penalty is not a method for the Society to obtain information or assess its case.
[47] Any parent involved with the Society has the choice to engage with the Society or not. I am not going to make an Order that E.L. provide information to the Society or engage in services as part of the contempt process.
[48] E.L. is self-represented. She declined the assistance of duty counsel She does not want to retain a lawyer to assist her. She is entitled to make that choice. That choice, however, does not insulate her from being held accountable for her contempt and her position in that regard.
[49] I have considered the available penalties to me. I have considered that I must utilize the least restrictive option available to me to enforce compliance with court orders.
[50] I have considered the penalty must deter others from taking similar steps and must promote respect for court orders and respect for the administration of justice.
[51] I cannot do nothing.
[52] Given E.L.’s position, I am left with no other option than a period of imprisonment.
[53] For these reasons there shall be an Order as follows:
a. E.L. shall immediately be imprisoned for a period of three (3) days as a sanction for her contempt of the Order dated February 11, 2022.
b. A Warrant of Committal shall issue immediately.
[54] There shall be no Order as to costs.
Krause J.
Date: June 28, 2022