COURT FILE NO.: FS-17-90706

DATE: 2022 08 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

E.M.B.

Jared Teitel and Caroline Elias, for the Applicant Father

Applicant

• and -

M.F.B.

Sofia Ashraf as agent for R. Shulman,

for the Respondent Mother

Respondent

HEARD: August 4, 2021

REASONS ON LIABILITY IN TRIAL FOR CONTEMPT

MANDHANE J.

[1] The Applicant/Father asks me to find the Respondent/Mother in contempt for breaching a final order in a high conflict parenting dispute. For reasons that follow, I find the Mother in contempt and adjourn the matter for a hearing to determine the appropriate penalty to be imposed.

OVERVIEW

[2] The parties appeared before me for a four week trial in 2021, which resulted in a “Final Order” (as amended July 14, 2021) granting the Mother sole parental decision-making over the “Child” (4 years old), and the Father overnight and summer parenting time: see E.M.B. v. M.F.B., 2021 ONSC 4741 (“Trial Decision”).

[3] The Father brings a motion for an order finding the Mother in contempt pursuant to Rule 31 of the Family Law Rules, O. Reg. 114/99. In the alternative, he asks me to make an appropriate compliance order under Rule 1(8). He says that Mother has repeatedly breached my Final Order by failing to facilitate his overnight parenting time with their Child.

[4] The Mother asks me to dismiss the Father’s motion. She denies being in contempt or otherwise breaching my Final Order. She says that she has facilitated the majority of the Father’s parenting time and when she has not it is because it was not in Child’s best interests to do so.

[5] For reasons that follow, I find the mother in contempt and adjourn the matter to December 6, 2022, for a hearing on the appropriate penalty to be imposed.

THE PROCEEDINGS

[6] While these reasons should be read in conjunction with the Trial Decision, it is helpful to highlight some of my factual findings at trial, and to briefly summarize the developments since trial.

Trial Decision and Final Order

[7] The Father alleges breach of Part D of my Final Order which relates to parenting time. Part D is reproduced at Appendix A. In Part D, I gave custody and primary residency to the Mother in Brampton, with gradually increasing overnight parenting time to the Father, who lives in London.

[8] The Father’s increase in parenting time was tied to his completion of an evidence-based alcohol abuse treatment program (the “program”). Before completing the program, the Father would have parenting time every weekend from Saturday to Sunday (one overnight) and consistent holiday time. After completion of the program, he would have alternating weekends (two overnights), and summer parenting time (nine consecutive overnights each month).

[9] At trial, I found that the Father had abided by all court orders since the litigation was commenced in 2017: para. 127. In contrast, I found that that the “Mother [had] not supported the Child’s relationship with the Father”: Trial Decision, para. 110. She had twice resorted to self-help measures, “refused to abide by the court-ordered parenting schedule, and unilaterally blocked the Father’s parenting time”: para. 111. I found the Mother’s actions in denying the Father’s parenting time to be “wrongful”: para. 114.

[10] In deciding to order police enforcement pursuant to s. 36(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, I stated at para. 172 of the Trial Decision that:

While police enforcement is generally an extraordinary remedy, it is necessary here to ensure that the Child has stable and consistent parenting time with the Father. The Mother has repeatedly breached court orders and forced the Father to bring motions to reinstate his parenting time. The threat of police enforcement is the only way to ensure that the Mother will not supplement her judgment for that of this court.

[11] Neither party appealed my Final Order nor filed a motion to change. Even still, since the trial and my Final Order, the Father has again had to resort to the police and the courts to have parenting time with his Child.

Urgent motion for parenting time

[12] On December 13, 2021, the Father brought this contempt motion, as well as an urgent motion for overnight parenting time. Doi J. scheduled the matter before himself for an urgent hearing on the parenting time issue only, and adjourned the contempt motion to March 15, 2022.

[13] On December 21, 2021, immediately before the hearing before Doi J., the Mother consented to an order requiring her to comply with para. 28 of my Final Order retroactive to November 5, 2021; and to facilitate the Father’s parenting time over the Christmas holidays. Doi J. adjourned to the matter of costs to the contempt motion.

Contempt motion

March 15, 2022 Appearance

[14] At the first hearing of the contempt motion, Lemon J. noted that the Notice of Motion did not sufficiently particularize the alleged contempt and granted the Father leave to file a Revised Notice of Motion on March 22, 2022. Lemon J. then adjourned the matter to April 22, 2022, to give the Mother enough time to respond to the revised motion materials.

April 22, 2022 Appearance

[15] The parties and their counsel appeared before me on April 22, 2022, and were prepared to argue the motion.

[16] However, on consent, they agreed to adjourn the matter to August 4, 2022, to allow for cross-examinations, and for a psychological assessment of the Mother at her own expense. As noted in my endorsement, the Father agreed to the adjournment because “it would be helpful to understand the root cause of the Mother’s apparent pattern of refusing to facilitate the Father’s parenting time.” In advance of the return date, the parties were ordered to agree on the summer parenting time schedule pursuant to para. 31 of my Final Order.

[17] The parties could not agree on the psychological assessor. Therefore, on May 27, 2022, in response to the Father’s 14B motion, I ordered that Dr. Susan Walker-Kennedy be appointed to conduct the assessment and prepare a report. The Mother was ordered to pay costs of $750.

[18] On June 29, 2022, the Father filed another 14B motion because the Mother would not agree to a summer parenting time schedule.

July 27, 2022 Focus Hearing

[19] I conducted a focus hearing with counsel by telephone on July 27, 2022. Counsel told me that cross-examinations had not yet been conducted because the Mother would not agree to dates, and that Dr. Walker-Kennedy’s report was delayed because the Mother had not paid the expert in a timely manner.

[20] I refused the Mother’s request for further adjournment, this time because she had retained new counsel. Instead, I decided to hear both the contempt and summer parenting time motions at the upcoming hearing. I ordered that viva voce cross-examinations be conducted at the hearing and that they be confined to the issue of contempt only. I held that the first stage of the contempt motion dealing with liability could proceed without the expert report.

August 4, 2022 Contempt Hearing

[21] At the August 4th hearing, after permitting cross-examination of both parties on their affidavits, and hearing submissions from counsel, I reserved my decision on the contempt motion.

Summer parenting time motion

[22] At the August 4th hearing, I also heard submissions from both counsel on the summer parenting time motion. The Mother’s main argument against facilitating the summer parenting time was that the Father had not completed an evidence-based alcohol abuse treatment program such that he was not entitled to expanded parenting time pursuant to para. 31 of my Final Order. The Mother also argued that summer parenting time was not in the Child’s best interests because she alleged that the Father was drinking during his parenting time. The Mother relied on surveillance video in support of her position.

[23] I found that the Father had complied with all aspects of my order, including the requirement that he complete an alcohol abuse treatment program, and to abstain from consuming alcohol before and during his parenting time. I found as follows:

The Father has satisfied me that he completed an evidence-based alcohol abuse treatment program on November 1, 2021. The program was developed by a mental health and addictions professional after a comprehensive assessment of the Father, including the administration of psychometric testing (namely, the GAINS test). The program was offered through a highly reputable provider, namely, the Canadian Mental Health Association of Ontario. The provider indicated that the Father was an active participant and that he successfully completed an individualized program. The provider did not recommend that the Father abstain for consuming alcohol or that he complete any other, additional programming. There is nothing in my order (or in the provider’s recommendations) that required the Father to provide breathe or hair samples prior to his summer parenting time commencing. The Father provided evidence that he has is better able to control his alcohol use as a result of participation in the program. I am satisfied that there are no lingering risks to the child of expanding his parenting time to encompass 9 consecutive overnights.

The evidence that the Father bought three beers since completion of the alcohol abuse treatment program is not particularly probative in relation to the child’s best interests. The fact that someone buys alcohol does not mean that they are not a fit parent or that an expansion in parenting time is not in the Child’s best interests. There is no evidence that the Father consumes alcohol before driving or while caring for the Child.

This motion should not have been necessary. The Father was right to rely on the Mother’s consent to an expansion in overnight parenting time as of November 2021, as a clear indication that she accepted his successful completion of the required alcohol abuse programing. The fact that she wished that the programming was more extensive or onerous does not change the fact that the Father has complied with the terms of my Final Order and that his summer parenting time should have been granted.

[24] At the conclusion of the August 4th hearing, I ordered that the Father’s August summer parenting time begin the next day and include nine consecutive overnights. I further ordered that the Father have make-up parenting time in relation to his July summer parenting time. I awarded $3000 in costs against the Mother for the summer parenting time motion only, payable within 14 days.

ISSUES

[25] The only outstanding matter is the Father’s motion for contempt pursuant to Rule 31 of the Family Law Rules. To resolve the motion, I must answer the following questions:

a. Is the Mother in contempt of my Final Order?

b. If so, should I exercise my discretion to decline to make a finding of contempt?

c. What are the appropriate next steps?

ANALYSIS

[26] The Father alleges that the Mother is in contempt of paragraphs 27 and 28 of my Final Order. According to Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; and Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26, to find the Mother in contempt, I must be satisfied beyond a reasonable doubt that:

a. The Final Order states clearly and unequivocally what should and should not be done;

b. The Mother had actual knowledge of the Final Order; and

c. The Mother intentionally failed to do what the Final Order required of her.

Is the Mother in contempt of paragraph 27 of my Final Order?

[27] The Father alleges that the Mother breached paragraph 27 of my Final Order on June 19, 26; July 3, 10, 17, 31; and September 11, and 25, 2021.

[28] The first question I must consider is whether paragraph 27 of my Final Order was clear and unequivocal. It stated that:

Until such time as he proves successful completion of an alcohol abuse program, the Father shall have parenting time with the Child on alternate weekends, from Saturdays at 9:00 a.m. until Sundays at 6:00 p.m. (one overnight), at his home in London.

[29] The Mother says that she did not facilitate the Father’s overnight parenting time on June 19, 26; and July 3, and 10, 2021 because the Order was not “clear and unequivocal” because it did not indicate a start date for the Father’s parenting time. The correspondence exchanged between counsel supports the Mother’s position.

[30] Indeed, when the Father contacted the police on July 3, 2021 to enforce the Final Order, according to the police occurrence report, they would not enforce it without a clear “start date” being specified. As a result, the Father filed a 14B motion to clarify my Final Order.

[31] By way of endorsement dated July 14, 2021, I amended paragraph 27 of the Final Order as follows (emphasis added):

Until such time as he proves successful completion of an alcohol abuse program, commencing on Saturday, June 19, 2021, the Father shall have parenting time with the Child on alternate weekends, from Saturdays at 9:00 a.m. until Sundays at 6:00 p.m. (one overnight), at his home in London.

[32] I accept that paragraph 27 of the Final Order was unclear until it was amended on July 14, 2021 to include a start date: Kaskhs Enterprises Inc. et. al v. Indus Corporation et al., 2004 CanLII 32262 (ONSC) at para. 40. The fact that the police refused to enforce paragraph 27 of the Final Order is cogent evidence of its lack of clarity. For the purposes of a finding of contempt, and bearing in mind the standard of proof, I must give the Mother the benefit of the doubt, even though Rule 25(18) of the Family Law Rules is clear that orders are effective on the date on which they are made unless otherwise stated.

[33] In any event, after July 14, 2021, the amended Final Order was clear and unequivocal, and I have no trouble concluding that the Mother had actual knowledge of it through her counsel. Therefore, the crux of the issue is whether the Mother intentionally breached paragraph 27 on July 17, 31; and September 11, and 25, 2021. I consider each of these dates below.

July 17, 2021

[34] The Father says that he had to resort to police enforcement on July 17, 2021. He says that the police attended at the Mother’s residence and that it took several officers and a police sergeant over five hours to transfer the Child into the Father’s care. The Father says that this was a “horrible encounter.”

[35] The Mother says that she did not breach para. 27 of my Final Order because the Child was eventually transferred to the Father’s care on July 17, albeit late due to police enforcement. This argument is absurd. A police enforcement clause is just that – it allows one party to enforce an order against another party who refuses to comply with it. Police enforcement orders are only made in cases like this one where the Court is concerned that the other parent will not comply with an order based on their past conduct. The fact that police enforcement was needed speaks to the Mother’s breach.

[36] Moreover, given that this was the Father's first overnight in the five weeks since the trial, and because his parenting time was already limited to 33 hours per week, I find that parenting time lost to police enforcement is significant and constitutes a significant breach of my order. The Mother breached paragraph 27 of my Final Order on July 17, 2021.

July 31, 2021

[37] The Father says the Mother withheld the Child on July 31, 2021 because he was unable to switch days to accommodate the Child’s attendance at the Mother’s family event. The Mother says that the Father “forfeited” his access the morning of the parenting time.

[38] The text messages relied upon by the Mother support her version of events. The Father wrote her on July 31 at 7:08 a.m. stating: “I will give you this weekend for her to attend these occasions u have and like I said I’d like to have her next weekend...”

[39] While the Mother did not reschedule make up time in a timely manner, I cannot find a breach of the Final Order on July 31, 2021 beyond a reasonable doubt.

September 11, 2021

[40] The Father again had to use police enforcement on September 11, 2021. Officers attended at the Mother’s home at 12:55 p.m. and even with police present, it took the Mother 4.5 hours to release the Child into the Father’s care.

[41] The Mother indicated that the Child was “unwell and didn’t want to go for parenting time.” She says that she offered to drive the Child to London but that the Father refused and instead went to the police station for 9:00 a.m. The Mother repeatedly noted in her cross-examination that the Child was anxious and stressed about expanded parenting time with her Father but also admitted that she did not immediately enroll the Child in counselling or therapy to address these concerns. She only started counselling in February 2022, after this contempt motion was filed. Inexplicably, she enrolled the Child with a new therapist rather than resuming therapy with Ms. Maryna Svitasheva, the psychotherapist who testified at trial.

[42] This Mother breached the Final Order on September 11, 2021.

September 25, 2021

[43] On September 25, 2021, the Mother would not release the Child to the Father at 9:00 a.m. because she had enrolled the Child in dance lessons on Saturday mornings and insisted that the Father pick the Child up at her home after dance class was over. The Father offered to take the Child to her lessons after picking her up at 9:00 a.m. but the Mother would not agree. The Child was not released to the Father until 1:00 p.m.

[44] The Mother explains that the Child has been enrolled in dance on weekends since August 2019, and that the Father “consistently does not take her to her dance class on his parenting weekends despite the fact that it starts at 10:00 a.m. and goes until 11:30 a.m.” She notes that the Child “loves her dance class and gets upset when she misses it. I believe this makes weekend with her dad more difficult for [the Child] because she knows that when she goes to her dad’s she does not go to dance class.”

[45] During cross-examination, the Mother admitted that she enrolled the Child in dance on Saturdays after my Final Order was made, despite knowing that the lessons would interfere with the Father’s parenting time. She also admitted that she did not explore whether lessons were available during the week through another studio. While she acknowledged that the Father offered to take the Child to dance that weekend, she said that she was not agreeable to it “at first.”

[46] I find that the Mother breached para. 27 of my Final Order by failing to release the Child into the care of her Father at 9:00 a.m. on September 25, 2021.

Is the Mother in contempt of paragraph 28 of my Final Order?

[47] The Father says that the Mother breached paragraph 28 of my Final Order by failing to facilitate the Father’s weekend parenting time (2 overnights) on November 5, and December 3 and 5, 2021.

[48] The first question I must consider is whether paragraph 28 of my Final Order dated June 11, 2021 was clear and unequivocal. It stated as follows:

After he proves successful completion of an alcohol abuse program, the Father shall have parenting time with the Child:

a) on alternate weekends, from Fridays at 6:00 p.m. until Sundays at 6:00 p.m. (two overnights), at his home in London; and

b) if the Father’s parenting time falls on a long weekend (unless specifically set out below), his parenting time shall be extended to include the Friday or Monday (with the same exchange time).

[49] Again, the Mother says that my Order was not “clear and unequivocal” because it did not specify a start date and because she was not satisfied that the Father “proved” his completion of the program as of November 5, 2021.

[50] I reject this argument. My Final Order was tailored to this family and contemplated an expansion in parenting time contingent on the Father’s completion of an alcohol abuse treatment program. Through his counsel, the Father provided the Mother with clear proof of both enrollment in the program on September 1, 2021, and completion of the program on November 1, 2021. The Mother’s counsel did not write to dispute the program’s compliance with the terms of my order. As discussed in relation to my summer parenting time order, the program met the requirements of my Final Order. Indeed, the Mother at least implicitly accepted that the program complied with my Final Order because she consented to Doi J.’s order expanding overnight parenting time, retroactive to November 5, 2021.

[51] However, while paragraph 29 of my Final Order was clear and unequivocal, I am not satisfied beyond a reasonable doubt that the Mother intentionally breached it. I accept her evidence that, on the dates in question, she was not personally satisfied that the Father had complied with my Order. Indeed, after Doi J. made his consent order on December 17th, the Mother began to facilitate the expanded overnight parenting time.

Should I exercise my discretion against making a finding of contempt?

[52] The purpose of the civil contempt power is to uphold the dignity and respect for the court process. The contempt remedy is “a mechanism designed to emphasize that court orders must not be ignored or disobeyed:” Jackson v. Jackson 2016 ONSC 3466 at para. 46. However, a finding of contempt should not be made lightly, especially where it might escalate the conflict in toxic matrimonial cases like this one: Chong v. Donnelly, 2019 ONCA 799, at para.12.

[53] Before finding the Mother in contempt, I must consider whether this is an appropriate case to exercise my discretion against making such a finding: Chong, at para. 8. To do so, I must consider whether the contempt finding is truly a “finding of last resort” with due regard to the alternatives and the child’s best interests: Chong, paras 9-12. For example, the Court in Ruffolo v. David, 2019 ONCA 385. 25 R.F.L. (8th) 144 at para. 19, noted that it is generally in the best interests of the child to encourage professional assistance as an alternative to making a finding of contempt too readily.

[54] That all being said, the obligation to pursue alternative remedies to a contempt motion only extends to other approaches that may be adequate to redress the wrong that has occurred: Jackson, at para. 58. Family law litigants should not be compelled to pursue avenues other than contempt proceedings in circumstances where there is no reasonable prospect that other options will resolve the situation: Jackson, at para. 58.

[55] Here, to determine whether to exercise my discretion against ordering contempt, I consider the remedy sought by the Father, the Mother’s pattern of conduct, and the Child’s best interests. After doing so, I find that the Mother shall be found in contempt and that the matter should be adjourned for a hearing to determine the appropriate penalty.

The remedy sought by the Father

[56] Pursuant to his Amended Notice of Motion dated July 19, 2022, the Father asks me to find the Mother in contempt under Rule 31. In the alternative, the Father asks me to make compliance order against the Mother under Rule 1(8). The parties agree that, if I find the Mother in contempt, I must adjourn the matter to a penalty hearing, whereas I can make a compliance order without the need to return the matter for a separate hearing: K.M. v. C.M., 2022 ONSC 3287 at para.35.

[57] The Father says that a finding of contempt is necessary because he has already pursued enforcement of my Final Order through two motions. The motion before Doi J. for enforcement of paragraph 28 of my Final Order was resolved on consent and expanded the Father’s parenting time as I had ordered. The second motion related to summer parenting time again enforced paragraph 31 of my Final Order. The Father is rightly concerned that enforcement motions do not seem to deter the Mother from resorting to self-help measures.

[58] The Father also says that a finding of contempt is necessary prior to granting the primary relief sought, namely, a transfer of custody and primary care from the Mother to himself. Despite cases that interpret Rule 1(8) expansively, the Father says that there are no cases in which a court has ordered transfer of custody and primary care pursuant to a Rule 1(8). Indeed, I am hesitant to expand Rule 1(8) beyond enforcement to include changing key terms of a Final order: Bouchard v. Sgovio, 2021 ONCA 709, at para. 52. In my view, the only way to grant the primary relief sought by the Father would be through a contempt motion or a motion to change.

[59] On the other hand, I have no trouble concluding that the Father could obtain the alternative relief he seeks through a Rule 1(8) motion, namely, make-up parenting time, and counselling for the Child and Mother. To this, the Father notes that I adjourned the contempt motion once and ordered the Mother to undergo an expert psychological assessment, which she delayed such that the report was not complete some four months later. Moreover, the Child already began seeing a therapist in February, but the Mother offered no evidence at the contempt motion regarding the Child’s progress. Overall, the Father says that further therapeutic orders are unlikely to change the Mother’s conduct. Given the history of the matter, I am inclined to agree.

[60] The only option that the Father has not pursued is a motion to change. However, given the history of the matter and the focus of the Father’s concerns being not necessarily on a change in circumstances but rather the Mother’s apparent disregard for court orders and involvement of police, I find that the Father’s decision to pursue contempt to be reasonable. I agree that a motion to change is not the right remedy where a primary goal of the motion is to ensure compliance with a final order that was found to be in the best interests of the child.

The Mother’s pattern of conduct

[61] Unfortunately, throughout the five years since this application was commenced, the Mother has shown a complete disregard for court-ordered parenting time, and a frequent resort to self-help measures.

[62] In my Trial Decision, I recounted as follows:

111. Twice the Mother has refused to abide by the court-ordered parenting schedule, and unilaterally blocked the Father’s parenting time. At the outset of the pandemic, from March 16, 2020 onwards, the Mother refused to facilitate the Father’s in-person parenting time contrary to the order of November 14, 2017. After hearing the Father’s motion, on May 20, 2020, Fowler-Byrne J. ordered that the Father’s parenting time be reinstated, consistent with public health guidelines.

112. More recently, from March 19 to April 19, 2021, relying on her own reports of abuse to Dr. Lewi and the C.A.S., the Mother breached the existing temporary parenting order and withheld the Child from the Father. The Mother refused to facilitate the Father’s second overnight visit scheduled for March 20, 2021, despite C.A.S.’s specific advice to abide by court orders. Even after learning on March 24, 2020 that the C.A.S. would be closing its file, the Mother refused to reinstate the Child’s parenting time with the Father.

113. The Mother did not attempt to file an emergency motion before the court prior resorting to self-help measures. On April 14, 2021, LeMay J. reinstated the Father’s parenting time. His second overnight took place on May 1, 2021, just days before the commencement of this trial.

114. The Mother’s actions in denying the Father’s parenting time have been wrongful. Temporary parenting orders are presumed to be in the best interests of the child, and the child’s right to maintain an attachment to both parents should not be forfeited except in the most extreme and unusual circumstances: Jennings v. Garrett, 2004 CanLII 17126 (ON SC), 2004 CarswellOnt 2159 (S.C.), at para. 128. Such measures must be especially discouraged when access to the courts is limited due to the COVID-19 crisis: Duffitt v. Graham, 2020 ONSC 2845, at para. 9.

[63] I am particularly troubled that the Mother’s pattern of conduct has continued since the trial and after my Final Order was made. In my view, breach of a Final Order is a very serious matter. The Final Order was made after a four-week trial that involved testimony from the parties, their families, and the Child’s treating physician and therapist. There is simply no other court that will be in a better position to craft an order that is in the Child’s best interests than the judge who hears a contested trial and makes a final order. If a party believes that the trial judge got it wrong, they have a right to appeal.

[64] Here, the Mother did not appeal my Final Order. Instead, she has continued her pattern of breaching orders and resorting to self-help measures. I am extremely troubled that, in addition to the breaches of paragraph 27 noted above, the Mother also refused to agree to a summer parenting time schedule without the Father resorting yet again to the courts.

[65] Courts have found that the contempt remedy may be appropriate where the alleged contemnor has engaged in a history of conduct that has the effect of generally sabotaging the custody and access order: Godard v. Godard, 2015 ONCA 568, at paras. 20-21; Jackson, at para. 63.

[66] Here, the Father had to wait five weeks after my Final Order was made to commence his overnight parenting time. He missed his July summer parenting time because the Mother would not agree to a schedule. He has had to fight to see his Child every step of the way.

[67] The Mother’s blatant disregard for court orders favours finding her in contempt. The Final Order was found to be in the best interests of the Child; the Mother’s repeated failure to follow it requires censure and not just another compliance order.

The Child’s best interests

[68] In determining whether to exercise my discretion against finding the Mother in contempt, I must consider the best interests of the child, bearing in mind that restraint is always appropriate when balancing the best interests of the child against the need for effective administration of justice: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3.

[69] In my Trial Decision, I discussed at length the court’s role in determining the child’s best interests (paras. 52-71) and made findings of fact regarding this particular Child’s circumstances and needs (paras. 75-136). There was no evidence proffered by either party during the contempt motion to suggest that the Child’s circumstances, needs or best interests have changed significantly since I made my Final Order just over a year ago.

[70] The Father says that a finding of contempt is consistent with the Child’s best interests because the Mother remains unsupportive of his relationship with the Child, and because she continues to involve police in his parenting time to the detriment of the Child’s mental health.

[71] The Mother says that it is the Father who resorted to police enforcement five times between June 26, 2021 and January 14, 2022, not her. I reject this argument. It is the Mother who has a legal obligation to ensure that the parenting time takes place without the need for further enforcement measures: Jackson, at para. 63. If enforcement is needed, it is because the Mother has failed in her obligation.

[72] It is troubling that the Mother has continued her pattern of making unfounded complaints to police and child welfare agencies immediately prior to or during the Father’s parenting time: Trial Decision, paras. 25-28. Since the trial, the Mother has called the London Police Service to request a “wellness check” on the Child twice during the Father’s overnight parenting time. On September 12, 2021, the Mother made a report to the London Police who attended at the parenting time location (his sister’s home) in the middle of the night. The following weekend, on September 26, 2021, the Mother again called the London Police who tracked the Father down at his ex-wife’s house. The police took no further action in relation to these calls.

[73] On February 11, 2021, the Mother hired a private investigator to surveil the Father during his parenting time. The Mother also hired private investigators to follow the Father prior to trial: E.M.B. v. M.F.B., 2021 ONSC 3691. The surveillance was discontinued after the Father confronted the private investigator and learned that he was hired by the Mother.

[74] Sometime after February 25, 2022, the Child’s therapist reported to CAS that the Child told her that she was pushed by the Father during an exchange. Nothing came of this report either.

[75] I agree with the Father that the Mother’s continued pattern of involving police, child welfare authorities, and private investigators in the Father’s parenting time is not in the Child’s best interests. Final Orders are meant to provide predictability and finality, and to deescalate the conflict between the parties. In this case, the Final Order has done nothing to change the Mother’s problematic conduct, to the detriment of the Father’s relationship with the Child, and to the detriment of the Child’s mental health and wellness. The best interests of the child favour a finding of contempt.

[76] Finally, I refuse to give any weight to the Mother’s argument that I should exercise my discretion against finding contempt because the Father has breached my Final Order and not acted in the Child’s best interests. While the Father admits that he has missed some Facetime calls with the Child as ordered in paragraph 29 of my Final Order, I refuse to find that the occasional missed video call has a negative impact on the Child’s best interests. I further note that the Mother has never brought an enforcement motion or otherwise taken steps to ensure that the Facetime calls take place as ordered.

[77] More seriously, the Mother alleges that the Father withholds the Child’s personal items during his parenting time contrary to paragraph 10 of my Final Order. Paragraph 10 states: “The Child’s personal items are her own and she shall be free to transport her personal items between parenting locations, within reason.” The Mother says that the Father does not allow the Child to access her iPad during parenting time in breach of paragraph 10 and that this causes the Child distress. The Father says that he allows the Child to use her iPad during his parenting time, but also places limits on her screentime (i.e. during mealtime). During cross-examination, the Mother took the position that the Father should never limit the Child’s screentime, and that doing so constituted withholding the Child’s belongings contrary to para. 10 of my Order.

[78] I disagree. Paragraph 10 simply states that the Child’s belongings should travel with her but says nothing about her access to the items during the entirety of the Father’s parenting time. I find that the Father’s approach to limiting screentime during his parenting time is consistent with the Child’s best interests. He has not breached my Final Order.

[79] Overall, weighing the breaches of my Final Order, the Mother’s pattern of conduct, the remedies sought by the Father, and the Child’s best interests, I find that this is an appropriate case in which to find the Mother in contempt.

What are the appropriate next steps?

[80] As noted above, a contempt hearing must proceed in two stages. Having determined liability, I must go on to consider the appropriate penalty. A delay between the liability and penalty hearings is appropriate because it will give the Mother ample opportunity to purge her contempt through facilitation of the Father’s make-up parenting time for any parenting time that he has missed, for whatever reason.

ORDER

[81] All Final Orders in this matter remain in full force and effect.

[82] The penalty portion of the contempt motion is adjourned to December 6, 2022 for a full day hearing.

[83] In advance of the hearing on December 6, 2022, the parties shall follow the following timelines:

a. The Father shall not serve or file any additional materials;

b. No further cross-examinations shall be scheduled or conducted;

c. On or before September 9, 2022, the Mother shall serve and file a Response to the Father’s Amended Notice of Motion dated July 19, 2022;

d. On or before September 30, 2022, the Mother shall serve and file a copy of the psychological assessment report of Dr. Susan Walker-Kennedy;

e. On or before October 30, 2022, at her sole expense, the Mother shall obtain, serve, and file an assessment report from the Child’s therapist Daniela Shulman; and

f. The parties shall file the necessary confirmation forms prior to the hearing on December 6, 2022.

[84] Costs on Justice Doi’s motion are set at $1000 and shall be paid by the Mother within 30 days.

[85] Costs on the contempt motion are reserved to the penalty hearing on December 6, 2022.

[86] I remain seized of this matter.

Mandhane J.

Released: August 23, 2022

Appendix A

D. Parenting time – General

14. The Child shall reside primarily with the Mother in Brampton and secondarily with the Father in London.

15. The parents shall exchange at the Petro Canada Gas station located 7443 Trafalgar Road, Hornby, Ontario, L0P 1E0 (by Highway 401 and Trafalgar Road), or at any other location of mutual agreement.

16. The Peel Regional Police, the Ontario Provincial Police, the R.C.M.P. or any other enforcement agency necessary shall be directed and authorized to enforce the parenting terms of this Final Order. This Order shall be in effect for three years from the date of this Final Order.

17. The Child shall attend parenting time consistent with this Final Order unless:

a) The other party consents in writing to a change in the schedule (which shall not be unreasonably withheld);

b) There is a subsequent court order that varies the terms of this Final Order;

c) there is an emergency (in which make-up time shall be scheduled); or

d) where the Mother provides a healthcare provider’s note advising against the visit.

18. In the event either parent would like a temporary change to the parenting schedule so the Child can attend a special occasion, and when the scheduling of these special occasions is out of the control of the parent requesting the change (examples being family weddings, family birthdays, special anniversaries, etc.), the party requesting the temporary schedule change or modification shall request it in writing and provide as much notice as possible. A response shall be provided by the other party within 48 hours of receiving the request. Consent to a request shall not be unreasonably withheld.

19. The parents shall canvass proposed and/or potential changes to the schedule first with the other parent and prior to speaking to the Child about a change and/or a special activity to the extent possible.

20. Within three months of the date of this Order, at his sole expense, the Father shall enroll in an evidence-based alcohol abuse program (“alcohol abuse program”) and provide the Mother with proof of his enrollment in the same.

21. Within eight months of the date of this Order, the Father shall provide the Mother with proof of successful completion of the alcohol abuse program.

22. The Applicant Father shall not consume alcohol, during or within 12 hours of parenting time with the Child.

23. Until such time as the Father proves successful completion of an alcohol abuse program, the shall Father comply with the terms of the court Order dated December 18, 2018, regarding use of the BACtrack device.

24. After the Father proves successful completion of an alcohol abuse program, he will no longer be required to provide BACtrack readings to the Mother.

25. The Father shall ensure that his BACtrack is properly calibrated on an ongoing basis.

26. Both parents shall comply with all current government safety COVID-19 guidelines, including those in place in the Child’s jurisdiction.

[a] Parenting time during the school year (September through June)

27. Until such time as he proves successful completion of an alcohol abuse program, the Father shall have parenting time with the Child on alternate weekends, commencing June 19, 2021, from Saturdays at 9:00 a.m. until Sundays at 6:00 p.m. (one overnight), at his home in London.

28. After he proves successful completion of an alcohol abuse program, the Father shall have parenting time with the Child:

a) on alternate weekends, from Fridays at 6:00 p.m. until Sundays at 6:00 p.m. (two overnights), at his home in London; and

b) if the Father’s parenting time falls on a long weekend (unless specifically set out below), his parenting time shall be extended to include the Friday or Monday (with the same exchange time).

29. During her parenting time, the Mother shall facilitate one daily Facetime call at 7:00 p.m. between the Father and the Child. The Father shall not be required to facilitate a Facetime call between the Mother and the Child during his parenting time, unless requested by the Child (see below).

30. The Father shall have additional parenting time at the Mother’s discretion, consistent with the best interests of the child.

[b] Parenting time during the summer (July and August)

31. The Father shall have parenting time with the child during the summer as follows:

a) During July, for one consecutive period, beginning on Friday at 6:00 p.m. and ending the following Sunday at 6:00 p.m. (9 overnights);

b) During August, for one for one consecutive period, beginning on Friday at 6:00 p.m. and ending the following Sunday at 6:00 p.m. (9 overnights);

32. During the summer, the non-resident parent shall be entitled to speak with the Child once daily at 7:00 p.m. by way of Facetime.

33. The Father shall have additional parenting time at the Mother’s discretion, consistent with the best interests of the child.

[c] Parenting time during holidays

34. This holiday schedule is in addition to the summer and school-year parenting schedules (above) and overrides it in the event of conflict.

35. If the holiday is not set out below, the Child shall spend it with the parent who has parenting time on that day.

36. If the Child is not to be with the Father on Mother’s Day, the Father shall return the Child on Mother’s Day at 9:00 a.m. (instead of the usual time of Sunday at 6:00 p.m.).

37. If the Child is scheduled to be with the Mother on Father’s Day, the Father shall have parenting time with the Child on Father’s Day from 9:00 a.m. until 6:00 p.m.

38. In relation to Easter, in even years, the Child shall be in the Father’s care from Thursday at 6:00 p.m. until Saturday at 12:00 p.m. (i.e., for Good Friday), and will be in the Mother’s care for the rest of Easter (i.e., for Easter Sunday). In even years, the Child will be in the Father’s care from Saturday at 12:00 p.m. until Monday at 6:00 p.m. (i.e., for Easter Sunday).

39. The parents shall share the Child’s Christmas Break. The Christmas Break shall be deemed to start on the Saturday following the last day of school and end on the Sunday before the first day of school.

40. In even years, the Child will reside with the Father for the first half of the Christmas Break. In odd years, the Child will reside the Father for the second half of the Christmas Break.