COURT FILE NO.: FC-12-610-1
DATE: 2022/10/03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Julie Michelle Green, Applicant
AND:
Andrew Charles Green, Respondent
BEFORE: Justice Ian Carter
COUNSEL: Cynthia Squire, for the Applicant
Respondent, Self-Represented
HEARD: September 29, 2022
ENDORSEMENT
[1] The Respondent brings a motion for a finding that the Applicant is in contempt. The Applicant brings a cross-motion for a variety of relief. During the course of the hearing, it became clear that a legible copy of the cross-motion materials was only served on the Respondent the day before the hearing. In fairness to the Respondent, the cross-motion was adjourned. However, as will be explained further below, there is some urgency to the relief sought and the cross-motion should be rescheduled for as soon as possible.
[2] As a result, the sole issue for this Court to decide at this time is whether a finding of contempt should be made against the Applicant.
[3] By way of background, the parties married on August 30, 2008. They separated on December 17, 2015. They have two children, Quintin who is 10 years old and Logan who is 7. The final Order of Justice Ryan Bell dated May 23, 2018 (“the Order”) provided the Applicant with decision-making and primary residence for the children. The Order has the Applicant’s parenting time occurring in three separate phases with a gradual increase in parenting time. In
February 2019, the Applicant’s parenting time had increased to every other weekend and certain holiday/vacation times.
[4] The Respondent alleges that starting May 14, 2021 and continuing until the present, the Applicant has been willfully not complying with the Order. In particular, the Respondent states that the Applicant failed to drop off the children for the weekends of May 14, May 21 and June 18, 2021. Although not explicitly stated in the Respondent’s affidavit, the clear inference is that the Respondent has not had parenting time with the children since May 14, 2021 in contravention of the Order.
[5] The Applicant does not deny that the Respondent’s parenting time has not taken place. Rather, she claims that she should not be found in contempt pursuant to Rule 31 of the Family Law Rules, O.Reg. 114/99 as am for two reasons:
a. The order that is the subject matter of the contempt proceeding must be unambiguous. In this case, in order for Phase IV of the Order (which allows for parenting time every other weekend) to commence, the Respondent was to follow all other provisions of the agreement/order. It is alleged that he has failed to do so; and
b. There was a legitimate excuse for not following the Order – concern over the well-being of Quintin, who was demonstrating extreme resistance to going to the Respondent’s home. As a result, she was not wilfully and deliberately breaching the Order.
[6] For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) 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 (Moncur v. Plante, 2021 ONCA 462 at para. 10).
[7] There are situations where the reasons for a breach provide a legitimate excuse. In order to make out this defence, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order. There is both a subjective and objective component (Chatur v. De Los Reyes, 2021 ONCJ 367 at para. 31).
[8] When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children (Moncur at para. 10).
[9] 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. A parent has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order. 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 (Godard v. Godard, 2015 ONCA 568 at paras. 28 and 29).
[10] Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance (Moncur at paras. 10, 19 and 20).
[11] While there may be some ambiguity in the phased in approach to parenting time in the Order, the reality is that under any of the phases of the Order the Respondent was entitled to parenting time. Nowhere in the Order does it state that the Respondent would be denied all parenting time (as occurred here) if he was in breach of the Order. I would further note that the Applicant does not state in her affidavit that she was unsure about the terms of the Order. I find beyond a reasonable doubt that the order was clear that the Respondent was to have parenting time and that the Respondent had knowledge of it.
[12] The real issue on this application with respect to the three part test for contempt is whether the Applicant was wilfully breaching the Order or had a reasonable excuse.
[13] The Applicant was faced with a difficult situation the weekend of May 14, 2021. The evidence clearly establishes that Quintin was very resistant to attending at the Respondent’s residence for the weekend visit. The Applicant was prepared to facilitate parenting time with Logan that weekend. That appears not to have occurred and the Respondent requested police
assistance to enforce the Order. According to CAS records, police spoke with the Applicant and ascertained she was not “withholding” the children and that Quintin outright refused to visit the Respondent. The police informed the Respondent that they would not force the children from the home.
[14] In light of this evidence, I have a reasonable doubt that the Applicant was intentionally breaching the Order. She had a genuine concern for the well-being of Quintin and in light of the police response, that belief was objectively reasonable.
[15] While the Applicant’s actions in May and June 2021 may have been reasonable, she did not do all that she could to reasonably comply with the Order from September 2021 on.
[16] On August 25, 2021 the Applicant, through her counsel, filed a Motion to Change in which she sought to change the parenting time provisions of the Order. In particular, she requested that the Respondent’s parenting time with Logan be supervised at the Supervised Access Center and that the Respondent’s parenting time with Quintin be suspended until further order of the court or with written, executed and witnessed agreement between the parties. The overwhelming inference is that the Applicant knew she could not simply continue to ignore the Order; if she had concerns about the children, she would need to amend it.
[17] No motion to change the parenting time was brought until the cross-motion was filed in response to the Applicant’s Motion for Contempt. As candidly admitted by the Applicant in her affidavit:
I am aware that I should have brought a motion to seek changes to the parenting schedule to reflect current realities. However, the financial and economical cost of bringing a motion was not feasible. I was only legally aided for a brief period during the pandemic.
[18] In delaying bringing an application to make changes to the Order, the Applicant has not done all that she reasonably can to avoid a finding of contempt.
[19] As previously noted, however, I have discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, the
Ontario Court of Appeals directs me to consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance.
[20] This is not a case of last resort that requires a finding of contempt. Given the circumstances, I will exercise my discretion to make a declaration that the Applicant has breached the Order but will not find that she is in contempt. In light of the fact that the Applicant has brought a cross-motion dealing with parenting time, I will not make further comment except to emphasize the importance of the motion being heard as soon as possible. The status quo cannot be maintained.
[21] Although the Respondent has not been successful in his application for a finding of contempt, I have found that the Applicant was in breach of the Order. As a result, success on this motion has been divided. The parties will bear their own costs.
Carter J.
Date: October 3, 2022
COURT FILE NO.: FC-12-610-1
DATE: 2022/10/03
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Julie Michelle Green, Applicant
AND:
Andrew Charles Green, Respondent BEFORE: Justice Ian Carter COUNSEL: Lisa Sharp, for the Applicant
Respondent, Self-Represented
ENDORSEMENT
Carter J.
Released: October 3, 2022