COURT FILE NO.: FC408/18
DATE: November 29, 2022
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: M.P.M., Applicant
AND:
A.M.L., Respondent
BEFORE: SAH J.
COUNSEL: Brian Ludmer for the Applicant
HEARD: November 17, 2022
ATTENDANCES: Applicant and counsel, B. Ludmer Respondent, in person
RULING ON MOTION
Overview
[1] In his notice of motion dated November 7, 2022, the Applicant seeks an order for costs pursuant to rule 1(8) of the Family Law Rules, O Reg 114/99, and my order of July 27, 2022. He requests the Respondent pay $1,000 for each breach that occurred from August 3, 2022 to November 6, 2022.
[2] The Applicant also seeks permission to apply to the court for any further breaches of my order from today onwards. He filed two affidavits and one of a third party, his father.
[3] The Respondent seeks a dismissal of the motion. She relies on her affidavit and that of a third party, Charis Perrineau.
The July 27, 2022 Order
[4] The order states, at para. 4, to ensure the Respondent’s strict compliance with the parenting time orders, if she breaches the terms set out in paras. 2 and 3, the Applicant may apply for an order for costs in connection with each breach pursuant to r. 1(8)(a) of the Family Law Rules.
[5] Paras. 2 and 3 of the order are as follows:
Effective Wednesday, August 3, 2022 at 7:30 p.m., and on each Wednesday thereafter, the Applicant shall have virtual parenting time with the children for a minimum of 15 minutes.
Effective Sunday August 21, 2022 at 5:30 p.m., and on every other Sunday thereafter, the Applicant shall have further virtual parenting time with the children for a minimum of 15 minutes.
[6] Further, the order provides, at para 18, in the event that the Respondent breaches the terms set out in paragraphs 6-16, the Applicant may apply for an order for costs in connection with each breach pursuant to r. 1(8)(a) of the Family Law Rules.
[7] Paras. 6-16 of the order are as follows:
The Respondent shall ensure that the children are available for their virtual parenting time five minutes prior to the scheduled start time.
The Respondent shall ensure that the children are visibly present during the virtual parenting time, specifically that their faces are in camera range.
The Respondent shall not undermine, in any way, subtle or overt, the Applicant’s parenting time. Instead, it shall be expected that the Respondent act in common cause, in the same manner expected of parents in an intact family situation.
The Respondent shall not discuss current or past legal proceedings or issues between the parties relating to current or past legal proceedings with the children or with another party in the presence of the children.
The Respondent shall not permit or acquiesce in the children being disrespectful to the Applicant and she shall take appropriate action to support the Applicant if he is being treated disrespectfully by the children during the virtual parenting time.
The Respondent shall assist the Applicant in rectifying the children's behaviour if it is disrespectful or non-compliant, and the parties shall ensure that they always procure healthy and respectful behaviour towards both parents.
Neither parent will disparage the other parent in the community generally or, in particular, to anyone who has direct or indirect involvement with the children.
Neither parent will suggest, encourage, acquiesce in, or permit the children to record their interaction or parenting time with the other parent.
The Respondent shall not state to the children or otherwise communicate to the children directly or indirectly that she was or is being abused by the Applicant.
If the Respondent is faced with resistance from the children, she will document what discussions she engaged in with the children to determine why they are resisting, she will encourage the Applicant to speak to them about their resistance and, if required, she will document what incentives she offered the children to comply with this court order as well as any disciplinary measures imposed if their resistance continues.
If required to document details set out in paragraph 15 above, the Respondent shall immediately share this information with the Applicant and her own therapist/counsellor to assist her with the development and implementation of strategies that will promote a meaningful, positive, and loving relationship between the father and children. The Respondent will also share this information with the children’s therapist/counsellor appointed by this court.
Events since the Order was made
[8] From August 3, 2022 to November 6, 2022, there have been 20 video calls. The Applicant claims that the Respondent has consistently breached the provisions of the order and engaged in systemic non-compliance.
[9] On the issue of the Respondent’s non-compliance, the Applicant deposes that:
- The Respondent refuses to assist when he seeks help and direction, her comments have a dismissive tone that shows disdain.
- The children are not always visible during the calls; he sees an arm or leg but not their faces, and occasionally only a portion of their faces.
- The children are hidden from view because they are sitting to either side of the far backbench of a three-row van. He claimed the entire environment is not conducive to the parenting time.
- The Respondent has not been supportive and does not take appropriate actions to support him in rectifying the disrespectful behaviour of the children. When he asks for assistance, he is met with silence or opposition in a dismissive and/or disparaging manner. For example, the Respondent replied to say that everything looks fine on her end, that she cannot climb into the back seat, and they are on camera.
- On occasion, one of the children rolled their eyes and this behaviour was not corrected by the Respondent.
[10] The Respondent denies that she is non-compliant. The Respondent deposes that:
- She wanted to control the environment to ensure the children remained fully present during the calls, that they were not able to leave and could be viewed on camera. As a result, calls have taken place at friends’ homes, in friends’ vehicles, and in her own vehicle.
- Her friend, Mrs. Perrineau, drives while she holds the phone facing the children. She claims the children sit towards the middle of the back seat and are fully visible, the phone is inches away from their face. After they began therapy, the children felt comfortable and willing to do the calls in their home.
- She claims the children turn their head to peer out the window at times when the Applicant becomes frustrated and angry because the children are not responding to him, when he demands that she force the children to speak, or when she engages in conversation with him instead.
- When in a vehicle, the sound is on the car speakers so that the children can hear everything. They do not have their devices with them.
- She encourages the children to answer their father’s questions when he asks them, and she uses an upbeat tone when reiterating to the children that they must engage with him. She did not witness them rolling their eyes. The children have not been disrespectful on the video calls.
- Since August 10, 2022, the Respondent has not directed consequences to the children for not responding.
- She claims to use a respectful and non-confrontational tone when speaking with the children and the Applicant.
- She provides one example where she documented a discussion she had with the children, listed the strategies she used as well as the disciplinary measures she employed. She claims to have shared this with her therapist and Dr. Haner.
- She tried to encourage the children to tell their father what they did today and what they're doing tomorrow.
- She claims that discussions about an uncle Kyle upset one of the children.
- One child goes directly to their room following the calls and the other spends upwards of an hour in the washroom with stomach issues.
[11] My order provided for weekly Wednesday and alternate Sunday virtual parenting. What follows is a summary of the evidence from parties in relation to each court-ordered parenting time.
Wednesdays
[12] August 3 – According to the Applicant, parenting time took place in an unidentified home. One child’s entire body was visible; only a small portion of the other’s face was visible. One child hid their face. According to the Respondent, the call took place at her friend's home. The children sat side by side on a couch with their faces and full bodies visible. During the call, one of the children began shaking and started to cry. The other child became stiff and began practicing deep breathing techniques.
[13] August 10 – No evidence from the Applicant. According to the Respondent, she encouraged the children to tell their dad what they did today. The children remained silent, she reiterated by saying they must talk. The Respondent requested the child move closer. She claims the child began crying and the Applicant thanked him for being on camera.
[14] August 17 – According to the Applicant, he saw one child and believes the other was not there. The Respondent denies this alleging that both children have been present for all calls with the exception of August 24, when they were sick, and October 14, the anniversary of her mother's death
[15] August 27 – No evidence from either party.
[16] August 31 – No evidence from either party.
[17] September 7 – According to the Applicant, one child had earbuds in.
[18] September 14 – No evidence from either party.
[19] September 21 – No evidence from either party.
[20] September 28 – According to the Applicant, the Respondent gave a “thumbs up” to the children to express approval of the children’s not replying to his questions regarding Thanksgiving plans.
[21] October 5 – No evidence from either party.
[22] October 12 – No evidence from either party.
[23] October 19 – According to the Applicant, he told the children that the next call will be on Sunday to make up for a missed call, the Respondent replied there will be no call on Sunday and to “finish up”. According to the Respondent, the Respondent provided the Applicant with a suggestion to speak about his own feelings in order to open dialogue. The Respondent gave her rationale for why it would be helpful to build a bridge with the children. She claimed the Respondent talked about his feelings in an upbeat nature and not by acting in a vulnerable manner, as she had hoped. The Respondent claimed she does not want the children to resent the Applicant. They did not know their father was requesting to have a make-up call. The children exited the vehicle and told the Respondent that they did not like when the Respondent tried to control them and demanded a make-up call.
[24] October 26 – According to the Applicant, the lighting in the vehicle was dim, and eventually it went pitch black. He requested the Respondent turn the lights on. After an exchange, the children unbuckled their seatbelts and exited the vehicle. According to the Respondent, once the lights came back on in the vehicle, the Applicant continued arguing despite her requests that he focus on his time with the children. After the children exited the vehicle, the Applicant demanded the Respondent get the children after which she informed him that it had been 20 minutes and it was best to end for the night.
[25] November 2 – According to the Applicant, virtual parenting time took place at the dining room table – one child pulled the hood of their sweatshirt over their face, and the other remained looking downward. The Applicant requested assistance; the Respondent stated, in effect, this was his call with the kids and to please stop bringing her into it as it was not healthy.
Alternate Sundays
[26] August 21 – No evidence from either party.
[27] September 4 – No evidence from either party.
[28] September 18 – According to the Applicant, one child peered their head around the seat in front and was momentarily in view. After an exchange with the Respondent, the child removed their head out of view.
[29] October 2 – According to the Applicant, one child had earbuds in and there was a rapid motion of the camera – it moved back and forth several times between the children who were hidden behind the seats. There was laughter, which the Applicant claimed to be the Respondent. The Respondent commented that the Applicant was putting the kids in the midst of a parental conflict. The Respondent stated that the Applicant commented on one child’s hair and also said that the other was getting “so big”. Multiple requests were made by the Applicant to move the camera. The call was ended early by the Respondent because she heard a baby crying and was fearful that the children would hear and ask questions.
[30] October 16 – This was the one-year anniversary of the Respondent’s mother’s death and she requested to postpone the call. The Applicant agreed and requested a make-up time later that week. The Respondent stated that it would not be a positive development to tell the children that they now had to do three calls this week, and the Respondent claimed that the children had asked their father to be kind, understanding, and empathetic towards their feelings of grief over their grandmother’s death.
[31] October 30 – The call took place at the dining room table in full view. According to the Applicant, the Respondent did nothing to assist with silence from the children.
[32] The Respondent relies on a collateral affidavit from Mrs. Perrineau. Mrs. Perrineau cited her qualifications as a Child and Youth Care Practitioner and deposed that the Respondent consulted her on how best to ensure the virtual parenting calls go smoothly and in accordance with my order, while also ensuring the children feel emotionally supported.
[33] Mrs. Perrineau was asked to be present as a support person for the Respondent, as the Respondent claims that her PTSD is triggered when hearing the Applicant’s voice. Mrs. Perrineau claims to have witnessed all video calls between August 3 and November 2.
[34] Mrs. Perrineau provided the court with her observations before, after, and during the virtual parenting time. To summarize her evidence, she denies all the allegations raised by the Applicant and supports all of the Respondent’s assertions.
[35] The Applicant relies on a third-party affidavit sworn by his father. This affidavit speaks to issues not before the court.
[36] Overall, I do not place much weight on either third-party affidavit.
[37] The Applicant’s third-party affidavit is irrelevant to the issues before me and simply seeks to discredit the Respondent.
[38] The Respondent’s third-party affidavit is equally unpersuasive. Although it provides Mrs. Perrineau’s observations as well as statements from the children, she is not an expert and has demonstrated that she is not a neutral party. Mrs. Perrineau does sets out her qualifications in the affidavit, but she also confirms that she was consulted by, and acts an advisor to, the Respondent. Accordingly, I do not place weight on her untested evidence.
Analysis
[39] There are two entirely different versions of events before me. None of the affidavits have been tested. Each party makes strong allegations against the other.
[40] In Ierullo v. Ierullo (2006), 2006 CanLII 33301 (ON CA), 152 A.C.W.S. (3d) 105 (Ont. C.A.), the Court of Appeal held that because of the need to make credibility findings on a significant matter in dispute and because the record contained only the competing affidavits of the two parties, the motion could not be decided properly without a trial: see para. 18.
[41] However, that case dealt with an appeal of an order varying spousal support. Here, I am faced with a determination on the issue of non-compliance of court-ordered parenting, which speaks to the best interests of children.
[42] It is not in the children’s best interest to delay my determination on the issue of non-compliance to allow for a finding to be made on credibility at trial. This is because the purpose of the award is to sanction behaviour and to incentivize compliance.
[43] The Court in Belittchenko v. Belittchenko, 2008 CarswellOnt 5216 (Ont. S.C.), at paras. 9-11, discusses the unique powers of a case management judge and the reliance on a previous findings made:
In cases in the Family Courts of the Superior Court designated in Rule 1 of the Family Law Rules, a case management judge is automatically assigned… In the case of highly litigious and acrimonious proceedings, it is particularly desirable that a judge who is familiar with the matter hear it. In addition, the court must be able to control its own scheduling without it being alleged that this raises a reasonable apprehension of bias.
The reality is that regardless of the judge hearing these motions, findings of the Court in previous proceedings between the same parties are part of the record. These findings cannot be challenged collaterally.
[44] In Callwood v. Purdy, 2020 ONSC 3657, Desormeau J. was the case management judge in an acrimonious custody battle. At para. 75, Desormeau J. notes that she made a finding that one of the children had special needs in an unreported mobility motion in February 2020. At para. 84, Desormeau J. relies on that previous finding on a motion to determine the best interests of the child.
[45] In my July 27, 2022 Ruling on Motion, I made the following findings, which I rely on in the motion before me:
a) The children continue to suffer emotional harm caused by their mother's behaviour. Her parental alienation is frustrating the parenting order made.
b) There is no evidence before me to suggest that it is not in the children's best interests, at the very least, for the father's parenting time to occur virtually.
c) There is no evidence before me to suggest that the mother has taken any concrete steps to apply normal parental authority to have the children comply with any of the parenting time orders made. She has not done all that she reasonably can to ensure compliance with any of the parenting time orders made to date.
d) The mother engaged in tactics to prevent in-person parenting time.
e) The mother possesses characteristics that I find to be manipulative. She creates her own narrative focusing on herself as a victim. Her alienating behaviour is informed by her attitude toward the father and her beliefs about what is in the children’s best interest.
f) The mother consistently points the finger towards the father and his family. She lacks self-awareness or the ability to recognize what role she plays in the children's past and current mental health issues.
[46] The issue of credibility may be properly resolved by the motion judge where it is clear that statements made in the affidavits are inaccurate or unreliable, and that examination or cross-examination on the assertions would be a waste of time and money: see Kline v. Kline and Kline, 2007 ONCJ 575, at para. 37.
[47] Here, the parties and the children’s situation will not improve if the issue before me is delayed for cross-examination on the affidavits. When it comes to compliance with parenting orders, delays should be avoided and, in the appropriate circumstance, a decision should be made promptly to avoid potential damage to the children.
[48] Relying on my previous findings, I conclude that some of the Respondent’s evidence is unreliable and, where indicated, I prefer the evidence of the Applicant.
[49] As outlined below, the Respondent breached some of the terms of my July 27, 2022 order.
[50] Her behaviour in relation to the virtual parenting time continues to be informed by her beliefs about what is in the children's best interest. For example, her desire to control the environment undermines the Applicant’s parenting time.
[51] This decision was based on her belief about what is in the children's best interest. She did not act in common cause or in the same manner expected of parents in an intact family. It is unnatural for parenting time to occur in the type of a setting the Respondent used, and it is inconsistent with what I required of the Respondent in para. 8 of the order. I find that the Respondent acted in contravention to paragraph 8 of the July 27, 2022 court order.
[52] Similarly, on October 19, 2022, the Respondent made suggestions to the Applicant regarding her belief about what is best for the children, undermining his parenting time, acting in a manner inconsistent with intact families, not in common cause, and pointing the finger at, or placing blame on, the Applicant. This is in contravention to paragraph 8 of the July 27, 2022 court order.
[53] Despite her claim that the children are in plain view with their faces within camera range, the Respondent did state that the children peered out the window from time to time. She claimed that this is the result of the Applicant’s conduct. This supports the Applicant’s evidence that the children are not always fully visible and that only portions of their face are in view. The Respondent’s statements are in keeping with my finding that her behaviour is informed by her attitude towards the Applicant.
[54] Further, it is consistent with my finding that she consistently points the finger towards the Applicant and that her parental alienation is frustrating parenting orders. Although I cannot comment on the frequency of the breach, I find, on a balance of probabilities, that the Respondent acted in contravention of paragraph 7 of the July 27, 2022 order and I accept the evidence of the Applicant.
[55] It is undisputed that the children remain silent during their virtual parenting calls with the Applicant. The Respondent, under my order, has an obligation to procure a healthy and respectful behaviour towards the Applicant and not acquiesce or permit disrespectful behaviour of the children.
[56] The parties have presented diametrically opposite evidence in their affidavits. I find the Respondent’s evidence to be unreliable on the backdrop of my previous finding that she possesses characteristics that are manipulative, that she creates her own narrative, that she lacks self-awareness, and that her alienating behaviour is informed by her attitude toward the Applicant. I prefer the Applicant’s evidence.
[57] On November 2, 2022, the Respondent, in reply to the Applicant’s request for assistance, asked that she not be brought into it as it was “not healthy.” By responding in this manner, the Respondent is not procuring a healthy and respectful relationship. Rather, she is placing blame on the Applicant and doing so in the children’s presence – acting contrary to the July 27, 2022 court order.
[58] On October 2, 2022, the Respondent suggested, during the call, that the children were placed in the middle of parental conflict and ended the call early based on her fears and what she thinks was in the children's best interest. In doing so she undermined the Applicant’s parenting time.
[59] Ending a parenting time call early, referring to what may or may not be healthy when a request for assistance is made, and raising the issue of parental conflict during the virtual parenting time does not procure a healthy and respectful behaviour between the Applicant and the children. The Respondent acted in contravention with paragraphs 10 and 11 of the July 27, 2022 order.
[60] The July 27, 2022 order requires the Respondent to document details of discussions had with the children if she is faced with resistance from them. She is required to share that information with the Applicant and her own therapist to assist her with the development and implementation of strategies that will promote a meaningful, positive, and loving relationship between the Applicant and the children.
[61] The Respondent submits the children do not enjoy the virtual parenting calls, that they react negatively following the calls, that her prompting and encouragement is needed, and she expresses fear that they may resent the Applicant.
[62] Her evidence suggests that she is faced with resistance from the children regularly.
[63] However, she provides only one example of her documenting discussion with the children, strategies used, incentives offered, and disciplinary measures imposed. She claims that this information was shared with her therapist. By her own account, she should be documenting regularly as required in the July 27, 2022 order but chose not to.
[64] By her own account, she has not given the children consequences since August 10, 2022 because she is concerned that they will only resent the Applicant and totally refuse to do the calls. She admits she has not complied with paragraph 15 of the July 27, 2022 order since August 10, 2022.
[65] Notwithstanding the one example provided in her material, I find that the Respondent has contravened paragraphs 15 and 16 of the July 27, 2022 order.
[66] Having found that the Respondent has failed to comply with my order, I must now determine if it is appropriate to exercise discretion not to sanction her for her non-compliance.
[67] I recognize that my discretion in this regard should only be exercised in exceptional circumstances and should take into consideration the history of the litigation, including the conduct of the non-complying party.
[68] I have observed the Respondent’s pattern of behaviour throughout the history of this litigation. This pattern extends beyond my involvement and dates to the original trial decision and the review decision made by Grace J. The Respondent’s conduct has been admonished repeatedly, and she fails, or refuses to, understand why or how this impacts the children. Discretion will be not afforded to the Respondent.
[69] I must now determine the appropriate cost amount to remedy the non-compliance.
[70] I am not prepared to accept the Applicant’s proposed remedy requiring the respondent to pay him $1,000 for each breach, totaling $20,000 (20 virtual parenting time calls from August 3, 2022 to November 6, 2022). A cost award of that nature would require findings of breach on each virtual parenting time call. I have not done so and reject this approach.
[71] The court has the authority to make any order that it considers necessary for a just determination of the matter, and I shall exercise my discretion to set an amount I consider to be appropriate in the circumstance.
[72] The Respondent should be sanctioned for her conduct. This cost award is intended to penalize the Respondent and act as incentive for future compliance. An award of $10,000 will adequately sanction and incentivize the Respondent.
[73] It is expected that the Respondent will learn from this endorsement, correct her conduct going forward, or she risks similar motions being brought and potentially further costs awards against her.
[74] The Applicant does not require permission from the court to bring a similar motion in the future. The July 27, 2022 order makes it clear that he may apply for an order for costs in connection with each breach. Should they continue, further motions should be anticipated.
Orders
[75] An order shall issue on the following terms:
The court finds the Respondent to be in breach of paragraphs 7, 8, 10, 11, 15 and 16 of the order of Sah J. dated July 27, 2022.
Costs are awarded, pursuant to paragraph 18 of the said order and Rule 1(8), Family Law Rules, fixed in the amount of $10,000, payable forthwith by the Respondent to the Applicant.
This order shall be drafted by counsel for the Applicant. The Respondent’s approval of the draft order as to form and content is dispensed with.
The parties may secure a date from the trial coordinator for a further case management conference to discuss next steps, in view of the recent letter received by the court from Dr. Haner.
Costs
[76] If costs of this motion are sought and if the parties cannot settle, they may submit cost submissions of no more than two pages, exclusive of any bill of costs or offers to settle, by January 3, 2023.
[77] If cost submissions are not received under the timeline set out above, costs shall be deemed settled.
“Justice K. Sah”
The Honourable Madam Justice K. Sah
Released: November 29, 2022