SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christina Smart, Applicant
AND:
Peter Belland, Respondent
BEFORE: The Honourable Justice Laurie Lacelle
COUNSEL: Jeffrey Langevin, Counsel, for the Applicant
Stephane Perreault, Counsel, for the Respondent
HEARD: August 25, 2022 and by written submissions received on August 31, 2022, September 9, 2022 and September 14, 2022
ENDORSEMENT
1On February 12, 2021, I found the Applicant, Ms. Smart, in contempt of court, for the reasons reported at Smart v. Belland, 2021 ONSC 1124. Since the facts underlying the contempt are fully set out in that decision, I will not review them here.
2The hearing has now progressed to the penalty stage. Following a hearing on August 25, 2022, I requested that counsel provide me with up-to-date case law demonstrating the options that were considered in other cases. They have now done so, and I have reviewed the authorities each has submitted.
Additional evidence on the sentencing hearing
3The Respondent has opted not to cross-examine on the affidavits or viva voce evidence given by the Applicant. He has filed additional evidence on the motion indicating that:
a. Since the last court appearance, reunification counselling was commenced but has not been successful. A report from the counselor states that during her several meetings with the child, B., B. was not able to “remember or articulate why she did not want to see her father”; that she found Mr. Belland to be co-operative and dedicated to reunification counselling, including by taking responsibility and apologizing for his role in the conflict; that despite Ms. Smart presenting as co-operative, she had not attended at certain meetings or responded to requests to meet, had misled both the counselor and Mr. Belland about B.’s online presence for one of the sessions, and presented other issues with her behaviour; and concluding that Ms. Smart was acting as “the gatekeeper” and has alienated B. from her father over the years such that reunification counselling was not successful and no longer recommended at this time because it would not be effective until “Ms. Smart opens the gate and ensures that B. will participate in counselling and has direct contact with her father”;
b. The breaches of the court orders by the Applicant continue – in addition to the lack of adherence to the parenting terms, the Respondent, who shares joint legal custody with Ms. Smart, receives no information about B. and is not consulted about any decisions made on B.’s behalf. For over a year, the Applicant has also not renewed Our Family Wizard, the platform by which the parties are court ordered to communicate. She has not disclosed her income tax information as required by the court order;
c. There has been very little contact with B. since the contempt finding was made;
d. While counsel has written to the court with further information about further criminal charges which counsel says arise from the ongoing conflict between the parties (in a letter dated September 14, 2022), quite apart from the issue of relevance to this proceeding, the information is not submitted in affidavit form or with an application to file further evidence. I make my findings based only on the evidence properly before me.
4The Applicant Ms. Smart has opted not to cross-examine on any of the materials filed by the Respondent. She has testified and filed further evidence for the penalty hearing. In brief, it indicates:
a. She has encouraged B. to participate in counselling and see her father, even when B. was sick. Ms. Smart files additional affidavits from her daughter and son about her efforts, as well as theirs, to ensure B. has a relationship with her father;
b. Some of the appointments for reunification counselling had to be rescheduled because of her work schedule;
c. She has made efforts to ensure B. has ongoing support from counsellors (she says it is the reunification counsellor’s conduct which resulted in one of the counsellor’s discontinuing service and causing distress to B.);
d. While some progress was made (such as by arranging for online games between B. and her father), the Respondent insisted “this wasn’t good enough” – Ms. Smart says he should understand this transition will take time;
e. While she did move a few times and did not notify the Respondent, Ms. Smart claims she thought that in notifying the reunification counsellor she was in fact also notifying the Respondent – she says she will notify him directly in future;
f. B. has been diagnosed with an anxiety disorder and her anxiety has become more serious as the years have progressed. Ms. Smart says B. is now self-harming by cutting herself. She attributes this, at least in part, to pressure placed on B. by the Respondent and the reunification counsellor regarding “her social life and school performance”. This self-harming behaviour is not referenced in the letter of Dr. Kelly dated February of this year, which appears to be focused on other anxiety issues affecting B.’s school attendance. The Applicant says she does not want B. to commit suicide because she is “being pushed”;
g. Ms. Smart says that B. is very sensitive and she knows B. loves her Dad. She says it is not B.’s fault she (B.) is upset with him, “he needs to solve it”;
h. When asked whether she had done anything to tell B. to make an effort, such as punishing her, the answer, implicitly, was no – she said that B. has her own phone so can contact her father any time;
i. Ms. Smart says she has limited income since she is now working as a roofer. She grossed $26, 949 last year. In her financial statement she reports current employment income of $4, 506.67 a month, and receives a child tax benefit of $800 per month, for total annual income of $63, 680.04. She has $90, 000 in what is listed as an RRSP on her financial statement, which she said in her viva voce evidence is a LIF which she can only access at age 55. Whatever the proper descriptor for the funds, I take it from her evidence that they are locked in because the funds are from a previous employer pension. Revenue Canada documents attached to her financial statement indicate that on March 7, 2022, Ms. Smart owed $9, 622.35 for unpaid taxes, but this is not listed as a debt in her most recent financial statement. Her 23-year-old son lives with her in the basement and pays rent (I see no reference to this in her financial statement). B. is her only dependent.
The positions of the parties
The Respondent
5Counsel for the Respondent submits that the evidence demonstrates that the Applicant has not involved the Respondent father in any decision-making since my ruling on the contempt hearing were released. Parenting time has not resumed. Counsel makes no comments on the additional affidavits filed by Ms. Smart and says they are not relevant. He notes that the letter from B.’s doctor, Dr. Kelly, which is attached to Ms. Smart’s affidavit, has not been previously shared with the Respondent. Counsel says there have been only two face-to-face visits with B. since the contempt finding was made, and these only occurred after a date was set for the penalty hearing. Counsel emphasizes the finding of alienation in the report of the reunification counselor, and the counselor’s concerns about Ms. Smart’s conduct. Counsel suggests this is one of the worst cases of contempt and emphasizes the legal principle that the sentence should be proportionate to the conduct. The aggravating factors here include the fact that Ms. Smart takes no responsibility and there have been multiple breaches of the court orders. He says Ms. Smart did not follow through with reunification counselling but used it to further delay the relationship, and it cost a lot. Her continued attacks on the Respondent as a sexual deviant have only made matters worse. He notes that while Ms. Smart chose the reunification counselor, the pattern here is the same - she complains about every worker involved with B. and moves on to another counselor when they don’t agree with her.
6The Respondent asks the court to consider imposing a sentence that would include terms that: 1) Ms. Smart reimburse him for the cost of the reunification counselling ($4, 725.00); 2) that child support be suspended while he does not have access (this submission was abandoned in the further written submissions filed following a review of the case law); 3) that he be given sole decision-making authority for B.; and 4) that B. be placed in his primary care. If this is not acceptable to the court, counsel submits an appropriate sanction is to sentence the Applicant to imprisonment for 30 days, which sentence shall be suspended on condition that for 3 years she not breach the final order. The Respondent also seeks full indemnity for his costs in the amount of $16, 314.38.
The Applicant
7On the Applicant’s behalf, counsel submits that she is “not a sophisticated alienator”. He says that the problem here is that while the Applicant is doing her best, she doesn’t seem to have the skills to ensure that B. has a relationship with her father, even though the Applicant supports this. Counsel says the Applicant is hoping “Dad will press the magic buttons” to advance that relationship which the Applicant acknowledges is important. Counsel also submits that B. has a voice and she wants to be heard, and it is disturbing to hear that B. is sick and engaging in self-harm. However, counsel suggests that progress is being made and B. is getting professional help. Counsel submits that an appropriate disposition would be to suspend the passing of sentence to permit further professional assistance to assist the parties and B. This would allow the option of imposing a different sentence going forward. As for the changes in the parenting order sought by the Respondent, counsel submits that any parenting order must be in the best interests of the child and it is not in B.’s best interests to make these orders. Her counsel accepts that costs will flow from the finding of contempt and makes no further submissions on that issue.
The legal principles
8Rule 31(5) of the Family Law Rules sets out the parameters for the consequences of a contempt finding. They are very broad, and include imprisonment, payment of a fine, paying an amount to a party as a penalty, payment of costs, and doing “anything else the court decides is appropriate”. Consequently, it is helpful to consider what sanctions have been imposed by other courts in similar circumstances.
9Geremia v. Harb, 2007 CanLII 30750 (ON SC), [2007] O.J. No. 3019 (S.C.J.) outlines some of the factors to be considered, including the primary purpose of preserving the integrity of the administration of justice; denunciation of the conduct; deterrence; proportionality of the sentence to the wrongdoing; similarity of sentences in like circumstances; aggravating and mitigating factors; appropriateness of a fine; and appropriateness of incarceration.
10The case of N.H. v. J.H., 2017 ONSC 4867, further outlines these considerations, including that a custodial sentence is not generally imposed for a first finding of contempt: at para. 610.
11N.H. also has many similarities factually with this case. It too involved a first finding of contempt. However, as is the case here, the breaching behaviour had gone on for some time. It was described as “serious and long standing” and had resulted in serious disruption to the relationship with the father (at para. 612). Mackinnon J. described the mother at para. 3 in ways that are similar to Ms. Smart – “[h]er mind is closed as far as the father is concerned. She sees him as a major risk to the children to the point that she has unilaterally breached the court access order multiple times, each time for significant durations”. One of the children also suffered from a significant anxiety disorder, and as in this case, the mother arranged for counselling for the child without involving the father or seeking his consent, contrary to an order for joint decision making (paras. 577-581). As in this case, the mother relied on the defence of justification and of having made good faith reasonable efforts to have the children see their father, which defence was rejected. The mother was found to be “not remorseful, rather appeared to be feel [sic] fully justified.” The experienced judge held: “She gave me no confidence that in future she would comply with an order she disagrees with”. One significant difference from this case is that the mother was a person of greater financial means.
12In these circumstances, the sentence included a penalty component and a component for make-up time, in addition to costs on a full recovery basis. The penalty required the mother to contribute a total of $15, 000 to the RESP the father had set up for the two children. The make-up time extended the father’s time with the children on various occasions. While it was not part of the contempt sentencing order, an order was also made in that case requiring the mother to retain a behavioural therapist “with a view to changing her reactive behaviour”.
13In Gagnon v. Martyniuk, [2020] ONCA 708, also a case with similarities to this one, the orders following the penalty hearing included an order that the mother comply with the order in respect of the father’s parenting time and that she enroll in a session for co-operative parenting. A fine was ordered to be paid to the father for each occasion that the mother missed one of the parenting program sessions or was late. The motion judge further indicated that the breach of those orders that lead to a second finding of contempt “shall result in further fines, or a period of incarceration, or both”.
14The Court of Appeal held that this penalty was not improper and said the motion judge “demonstrated great restraint in penalizing the appellant’s flagrant contempt”: at paras. 23-26. It found nothing in the fine aspect of the order could be considered contrary to the best interests of the children: at para. 25. The court further held that the order that the mother comply with the order regarding the father’s parenting time was in the children’s best interests since it sought to prevent future disputes over parenting time.
Analysis and decision
15This motion started when B. was 12. She is now 14. In the time since, I found Ms. Smart in contempt of court, very little has changed. I find the contempt has not been purged. Ms. Smart appears to continue to feel justified in her position. Her conduct in regard to decision making, such as moving without notifying Mr. Belland of her new address, continues to demonstrate her intention to rupture Mr. Belland’s relationship with B. This aspect of Ms. Smart’s conduct has nothing to do with lacking the skill set required to convince B. to see her father. Ms. Smart continues to act entirely unilaterally when it comes to B., which behaviour is entirely within her own control. This behaviour continues to belie any suggestion that Ms. Smart genuinely fosters the relationship.
16I have considered the submissions of counsel, the nature of the breaching behaviour, the additional evidence filed, and the legal principles and case law that apply. I confirm that suspending child support is not an appropriate penalty. As discussed during submissions, child support is the right of the child. It should not be used as a tool to secure Ms. Smart’s future compliance with the court order.
17I am not persuaded that it is appropriate to change B.’s primary residence as a penalty for her mother’s contempt of the court process. The cases cited by the Respondent where this has followed upon a finding of alienation were not decided in the context of a contempt motion (e.g. W.S. v. P.I.A., 2021 ONCA 923, A.M. v. C.H., 2019 ONCA 764, and A.M. v. C.H., 2018 ONSC 6472).
18I expect the Respondent father suggests this as a penalty because he wishes to have time with his daughter and to repair the relationship without Ms. Smart’s interference. While I am sympathetic to his circumstances in trying to be a father to his daughter, any order that I make regarding the penalty for Ms. Smart’s contempt must be consistent with B.’s best interests. In so finding, I should not be understood as condoning Ms. Smart’s behaviour or viewing it as irrelevant to her ability to parent B. Ms. Smart’s conduct is important in assessing her ability to parent B. and the conclusion of the reunification counselor that she has alienated B. would be an important consideration in determining what parenting order is now in B.’s best interests. However, I do not have sufficient evidence in this proceeding to determine what parenting order, including decision-making, is in B.’s best interests at this time.
19This is not a case, like others provided to me, where a trial is imminent and any change in the child’s residence will necessarily be reviewed by the court in the near future (unlike Stone v. Stone, 2019 ONSC 3214 at para. 47). Nor is it a case where OCL has been involved in the motion (also unlike Stone v. Stone, 2019 ONSC 3214). Here, the parties have a final order. Ms. Smart has been disregarding its terms for years but has not brought a motion to change them. Mr. Belland has initiated this proceeding to ensure compliance with the existing order but has not brought a motion to change its terms. While I appreciate he may have financial reasons for making that choice, in my view, the question of what parenting order is in B.’s best interests given my findings in the course of this hearing are best addressed in the context of a motion to change the parenting orders. This is particularly true given the evidence about B.’s anxiety and recent self-harming behaviour. While it may be that some of this evidence, which comes only from Ms. Smart and has not been confirmed by a medical professional, is self-serving, it is of concern to me. Any order changing the parenting terms at this time needs to be made on an appropriate evidentiary record. Ideally, that record would include a clinical assist from the OCL, and more independent evidence about B.’s views and preferences.
20As for imposing a jail term, as indicated in N.H., this is generally not a penalty imposed after a first finding of contempt. This penalty would not be consistent with the range of penalties imposed in other cases with similar circumstances.
21I have also considered a period of probation and a suspended sentence, but tend to agree with Mr. Belland’s counsel that the period of time between the contempt finding and now has served that purpose, without effect.
22I have decided that a financial penalty may be more meaningful to Ms. Smart at this point and do more to secure her compliance. I fix the amount of that penalty having regard to the evidence I have about her financial circumstances, and mindful that B. continues to reside in Ms. Smart’s primary care and any fine imposed should not be so onerous as to impact on B.’s need for financial support. I also consider the amount of this penalty in light of the fact that I will also order Ms. Smart to pay the costs of reunification counselling and Mr. Belland’s costs for this motion.
23In fixing the amount of the fine, which shall be payable to Mr. Belland, I note that the information provided by Ms. Smart in her financial statement is likely unreliable, given the discrepancy in her claimed annual income from last year, the possible omission of a debt to the CRA, and the absence of any indication of whether she is receiving rent money from her son. I am satisfied Ms. Smart is working, however, and that she has significant funds in an RRSP. She also has some savings in a bank account. In my view, having regard to all the circumstances, it is appropriate and proportionate to her conduct to require her to pay $2, 000 to the father within 90 days. Ms. Smart cannot use her financial circumstances to escape consequences for her conduct.
24I am also ordering that Ms. Smart attend counseling. Ms. Smart clearly has no insight into how her conduct is affecting B. I order her to attend counselling provided by Family Services Ottawa and in particular, to attend the course listed on their web site, “Parenting Through High Conflict Separation and Divorce”. I make this order to promote Ms. Smart’s understanding of the consequences of this ongoing conflict with Mr. Belland on B. and to promote her future compliance with the final order. I do so mindful that there is a $350 fee for the course, with limited subsidies available, for which Ms. Smart may or may not qualify. The course registration is now open on the Family Services Ottawa website for a session starting October 20th and continuing for 6 weeks. Ms. Smart shall provide proof of her completion of this course to the Respondent within 90 days, or proof of her efforts to register in the next available session if she is wait-listed for the course.
25As for the costs of the reunification counselling and the costs of this proceeding, these should be paid by Ms. Smart. It is her conduct which has made the motion necessary. She has been given several opportunities to take a different course of action and has not done so. As is required by the case law, the Respondent has tried conferences and other ways to address the contempt, without success. The bill of costs is reasonable given all the various steps required to get to this point, and the time for the preparation of materials and court appearances. As for the reunification counselling, given the letter of the reunification counselor, I am not satisfied that Ms. Smart undertook that effort in good faith. It is only fair that Ms. Smart pay these costs as well.
26I have considered ordering make-up time to Mr. Belland. Given the current circumstances, it would be a success if the terms of the final court order were followed. I am not inclined to order further time at this juncture. However, Mr. Belland may raise the issue of make-up time with B. in the event the case returns to court on a further contempt motion or on a motion to change.
27I conclude my endorsement by stating that I am not naïve that this order may not be sufficient to ensure Ms. Smart’s compliance. It may be that a further contempt motion will be considered by Mr. Belland if Ms. Smart does not comply with the terms of my order or the final order of Justice Desormeau. However, in my view, the appropriate next step in this case, in the event Ms. Smart does not comply with the existing order, is a motion to change. This may be pursued by Mr. Belland with or without counsel. Ms. Smart should understand that in the context of that proceeding, her conduct in alienating B. from her father may be a significant factor which might warrant an order that B. reside with her father and that he have sole decision-making for her. In any case, since the parties and the child all now reside in Ottawa, in my view, any future proceedings should be commenced in that jurisdiction.
28The disposition in this case is therefore as follows:
a. Ms. Smart shall pay the sum of the reunification counselling ($4725.00) to Mr. Belland.
b. Ms. Smart shall pay a fine to Mr. Belland in the amount of $2, 000 within 90 days of the release of this endorsement.
c. Ms. Smart shall register for and complete the course “Parenting Through High Conflict Separation and Divorce” offered by Family Services Ottawa. She shall provide proof of her completion of the course to the Respondent within 90 days of the release of this endorsement, or proof of her efforts to register in the next available session if she is wait-listed for the course.
d. Ms. Smart shall abide by all terms in the final order of Justice Desormeau dated June 13, 2019 [“the final order”] unless and until they are modified on consent or by the court.
e. Mr. Belland may request make-up time for the parenting time missed to date in the event this case returns to court on a further contempt motion or a motion to change.
f. Mr. Belland is entitled to the costs of this proceeding on a full indemnity basis. Ms. Smart shall pay to Mr. Belland costs of $16, 314.38 inclusive.
The Honourable Justice Laurie Lacelle
Date: October 4, 2022