COURT FILE NO.: FC-16-FO-499-001

DATE: 2022-02-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lindsay Alyson McCarthy, Applicant AND: Devin Murray, Respondent

BEFORE: Madam Justice Catrina Braid

COUNSEL: Joy Nneji, for Applicant Simon Marmur, for Respondent

HEARD: January 19 and 21, 2022

E N D O R S E M E N T

I. OVERVIEW

[1] Lindsay McCarthy and Devin Murray were married and subsequently divorced. They have one child together. In these reasons, I shall refer to the parties as the mother and the father.

[2] The parties resolved all issues arising from their separation, and a consent final order was signed in 2017. The father subsequently commenced a Motion to Change. Although the final and interim court orders provide equal parenting time, the father alleges that the mother has been withholding their 11-year-old daughter Cadence.

[3] The father has brought a motion stating that the mother is in contempt of court. The primary issue on the contempt motion is the mother’s non-compliance with the week-about schedule set out in the final order and reaffirmed by an interim order. In addition to the contempt motion, both parties brought competing motions seeking primary residence, sole decision-making for the child, and other relief.

[4] The following issues arise on these motions:

A. Is the mother in contempt of the court orders?

B. Should the court make orders for return of the child, sole decision making, primary residence or police assistance?

C. Should the court make any of the other orders sought in the father’s confirmation?

[5] For the reasons that follow, I find that the mother has breached the prior orders but decline to find the mother in contempt of court. Further, I decline to make any of the other interim orders sought by the parties. I reaffirm the previous orders and provide direction regarding compliance with those orders.

II. FACTS

[6] There is one child of the marriage, Cadence Jade Murray, born November 22, 2010 (currently 11 years of age). On April 5, 2017, Justice Rogers made a final order on consent granting the parties joint custody of Cadence. The order stated that the primary residence of Cadence would be shared equally between the parties on a week about basis.

[7] In August 2020, when Cadence was nine years old, the mother refused to bring Cadence to the father for his scheduled parenting time because she stated that Cadence did not want to return to him. The mother advised the father that she had relocated from Cambridge, Ontario to Brantford, and initially did not provide the father with her address. When counsel became involved, she provided an address and stated that the father “is welcome to come and try and pick her up.”

[8] The father attended at the mother’s residence. The mother stated that Cadence’s feelings matter and that it was important that she felt empowered with her own wants and needs. She told the father that he should be more flexible with the parenting schedule.

[9] In January 2021, the mother withheld Cadence from the father. She sent a message to the father stating, “I think Cadence is feeling on the fence about coming there this weekend because she’s rather upset with you…because you’re trying to take full custody of her.” Approximately a week later, the mother stated “she [Cadence] was present when I received the phone book sized stack of papers from your lawyer’s office. She feels like you have blindsided her.” Further, in June 2021, the mother told the father that Cadence would not attend at his residence because “she’s really mad at you, she says she doesn’t want to see you right now…she’s been crying and upset about what you’re wanting me to agree to with the court stuff.”

[10] During this time period, the mother insisted that the father attend at her house to pick up the child. On one occasion, he requested that the mother send Cadence out to meet him, but the mother refused. She messaged him that he was welcome to come to the door and “ASK Cadence to go” with him [Emphasis in the original]. He did not go to the door because he did not want to expose Cadence to conflict.

[11] The father states that, out of desperation to see Cadence, he took whatever time he could get when she was made available by the mother, which was usually on weekends.

[12] The mother unilaterally signed Cadence up for online learning at a public school and part-time in-person learning at a private school, without the father’s consent or court order. Although the father objected to the mother making these unilateral decisions, he agreed to bring Cadence to her in-person school during his parenting time as he did not want to put Cadence in the middle of a conflict.

[13] Several interim orders have been granted, including the following:

i. Order for Voice of the Child Report.

ii. Order for reunification counselling between Cadence and the father.

iii. Orders regarding where and how Cadence could attend school.

iv. On August 18, 2021, Goodman J. made a temporary order addressing parenting time and exchanges. The court ordered the immediate return of Cadence to the father’s residence and required the parties to follow the final order of Rogers J., subject to certain specified modifications. On September 7, 2021, Goodman J. ordered the mother to pay $8,500 in costs for the father’s motion, and stated “the applicant’s actions in continually flaunting or disobeying a court order cannot be condoned.” Those costs have not yet been paid.

v. On November 30, 2021, Breithaupt Smith J. made a temporary order amending Goodman J.’s order to change the location of exchanges to a neutral location.

[14] The following motions are before the court today:

i. The father’s contempt motion.

ii. The father’s motion for the immediate return of the child; police assistance clause; primary residence with the father; sole decision-making responsibility to the father; and requiring the mother to pay a penalty to the father. In his confirmation, the father states that he also seeks orders for three months of make-up parenting time; requiring the mother to transport the child to reunification counselling; requiring the mother to pay 50% of the costs of reunification counselling and individual counselling for the child; striking paragraphs of the mother’s material; an order that the mother not be entitled to participate in this proceeding other than the upcoming settlement conference until the mother takes numerous steps; and requiring the mother to disclose financial information. Counsel submits that the court has jurisdiction to grant these additional remedies under the category “such further and other relief” as set out in the Notice of Motion.

iii. The mother’s motion for primary residence; sole decision-making responsibility to the mother; and parenting time to the father every second weekend. In her confirmation, she also seeks an order that the father be entirely responsible for the cost and transportation for reunification therapy.

[15] More than 1,800 pages of material have been filed in support of these three motions.

III. ANALYSIS

A. Is the Mother in Contempt of the Court Orders?

[16] The father submits that the mother is in contempt of the final order of Rogers J. dated April 5, 2017 and the temporary order of Goodman J. dated August 18, 2021.

[17] The father states that the mother is intentionally withholding Cadence from the father; that the mother is refusing to bring Cadence to the father’s residence and is insisting that he pick up Cadence from her residence, contrary to Goodman J.’s order; and that she signed Cadence up for part-time in-person private school without the father’s consent, contrary to the joint decision-making regime in the final order and contrary to the interim order that required Cadence to attend online learning classes.

The Test for Contempt

[18] An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available: see Rule 31 of the Family Law Rules, O. Reg. 114/99.

[19] Civil contempt is a quasi-criminal procedure. Where contempt is alleged, the onus is on the party alleging contempt to prove it beyond a reasonable doubt. Any doubt must be exercised in favour of the person alleged to be in breach of the order: see Jean v. O’Callaghan 2017 ONSC 4027 at para. 8 and Weber v. Merritt, 2018 ONSC 7590 at para. 34.

[20] Civil contempt has three elements which must be proven beyond a reasonable doubt by the party alleging contempt:

a. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;

b. The party alleged to have breached the order must have actual knowledge of the order’s terms; and

c. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to the act that the order requires.

See Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R 79 at paras. 32-35 and Moncur v. Plante, 2021 ONCA 462 at para. 10.

[21] The offence of contempt consists of the intentional doing of an act or the intentional failure to do an act that has been ordered by the court to be done. The required intention relates to the act itself, not to the disobedience. The intention to disobey, in the sense of desiring or knowingly choosing to disobey the order, is not an essential element of civil contempt: see Greenberg v. Nowack, 2016 ONCA 949 at para. 27.

[22] In the case before the court, the mother had actual knowledge of the orders. The terms of the orders are clear and unambiguous. The primary issue is whether the mother intentionally failed to do the acts that the orders compel.

Did the Mother Intentionally Fail to do the Acts Required by the Orders?

[23] The contempt motion alleges that the mother has failed to comply with the court orders in three ways. I shall deal with each allegation in turn:

1) By Intentionally Withholding Cadence from the Father

[24] The orders state that the primary residence of Cadence would be shared equally between the parties on a week about basis.

[25] Counsel for the father submitted that the mother withheld Cadence during three time periods: August 3, 2020 – August 18, 2021; Sept 19 – Dec 8, 2021 and Jan 14 - 21, 2022. During these time periods, Cadence was not continuously withheld from the father because she spent parenting time with the father on numerous weekends. However, there were also five extended time periods when Cadence was away from the father for 18 to 35 consecutive overnights each time.

[26] The Voice of the Child Report notes that Cadence loves both her parents very much. Cadence claimed that the choice to spend less time with her father was totally her own idea, and that her mother was simply supporting her choice. There is no evidence that she is unhappy when she visits the father. Her sole complaint is that her father does not spend enough time with her when she is at his residence. She acknowledges that circumstances have changed since her father has had to close his martial arts studio due to the COVID-19 pandemic, and that he has been spending more time with her.

[27] The father works from 8 am to 5 pm. Cadence is apparently unhappy that she has to go to her grandmother’s house during the day for online school when she is staying with her father, although she has not raised this issue with him. If Cadence has this concern, it is an unreasonable one. If she had been attending school in person, she would be at school during the hours that she is with her grandmother.

[28] The mother has imposed discipline on Cadence in the past for leaving her lunch bag in her bedroom and a bowl of cereal in the living room. Cadence was grounded, had to stay home doing chores and could not attend cheerleading or horseback riding activities. Unfortunately, the mother has not taken any steps to apply normal parental authority to ensure that Cadence attended for her parenting time with the father.

[29] The mother states that she is not in contempt because Cadence told her that she does not want to go to her father’s residence; that the mother pleaded with Cadence to go to the father’s residence but she refused; that the father did not come to the mother's residence to pick up Cadence; that the father has not overheld Cadence when she is with him on a weekend; and that the 50-50 parenting schedule is impossible to enforce based on the child's views and preferences.

[30] A parent has a positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order. The parent is not entitled, in law, to leave access up to the child: see Hatcher v. Hatcher, 2009 CanLII 14789 (Ont. S.C.) at paras. 27-28.

[31] A parent does not have to force a child to go for access with the other parent, but should require the child to go. A failure to require the child to do this is considered contempt: see Sickinger v. Sickinger, 2009 CanLII 28203 (Ont. S.C.) at para. 30, aff’d 2009 ONCA 856.

[32] Although a child’s wishes should be considered by a court prior to making an access order, 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 a 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: see Godard v. Godard, 2015 ONCA 568, 387 D.L.R. (4th) 667 at paras. 28 and 29.

[33] At para. 30 of Godard, the Court of Appeal asked, what does the mother do when the child does not want to go to school or to the dentist? What are the mother’s mechanisms to get the child to go? Does the child have an allowance? Does she have a hockey tournament that maybe she is not allowed to attend if she does not go to see dad before? Are there things that the mother could do to force the child to go, short of the police attending at her house and physically removing the child?

[34] Actively promoting and facilitating compliance with a custody and access order requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following: (i) Did they engage in a discussion with the child to determine why the child is refusing to go? (ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? (iii) Did they offer the child an incentive to comply with the order? (iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?: see Smart v. Belland, 2021 ONSC 1124 at para. 10.

[35] 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: see Godard, at para. 29.

[36] Counsel for the mother submits that the equal parenting schedule is impossible to enforce based on the child’s views and preferences. She also submits that a parent who acts in the child’s best interests should not be held in contempt.

[37] In my view, this is a completely unacceptable stance to take, and it is irresponsible for counsel to suggest that the mother’s actions are appropriate or in the best interests of the child. There is absolutely no evidence of any harm or risk to the child when she spends time with her father.

[38] Starting in 2020 when Cadence was only 9 years old, the mother has let Cadence dictate when she did not want to spend time with the father. The mother did not require Cadence to see her father and did not offer any incentive or apply parental authority to have Cadence comply with the court orders.

[39] It appears that Cadence’s views on whether she wants to see her father are impacted, in part, by the mother discussing the court dispute with the child. For the mother to suggest that positions taken by the father in the family law dispute between the parents have “blindsided” Cadence, and that the child is upset about what the father is wanting the mother to agree to in court, demonstrates that the mother has put the child squarely in the middle of the family law dispute.

[40] The mother’s behaviour is harmful to the child. Although she has not alienated the child from her father in the usual sense of the word, the mother’s behaviour has put the child in the middle of the conflict and has fractured the father’s relationship with the child, which is not in the child’s best interests.

[41] The facts in Godard v. Godard are similar to the case before the court. In both Godard and in this case, the mothers failed to take concrete measures to apply normal parental authority to have the child comply with access orders. They did not go beyond mere encouragement to attempt any stronger forms of persuasion.

[42] In the case before the court, the mother failed to apply normal parental authority to have the child comply with access orders. The mother’s failure to do all that she reasonably could leads me to infer deliberate and willful disobedience of the court orders.

Should the Court Make a Finding of Contempt for Withholding the Child?

[43] Court orders are not suggestions, guidelines, or invitations open to acceptance or rejection by the parties. Court orders must be followed: see Janowski v. Zebrowski, 2019 ONSC 4046 at para. 24.

[44] Exercising the contempt power is discretionary. It should be used with great restraint as an enforcement tool of last 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: see Moncur v. Plante, at para. 10.

[45] A finding of contempt is a remedy of last resort, to be exercised only where there are no other adequate remedies available to the aggrieved party: see Godard v. Godard at para. 17.

[46] The contempt power is typically reserved for cases involving defiant conduct that is at the most significant end of the spectrum, and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted. The complex emotional dynamics involved in family law disputes and the desirability of avoiding a further escalation of the conflict between the parties are additional factors that prompt a cautious approach to the use of contempt as an enforcement tool in family law proceedings: see Jackson v. Jackson, 2016 ONSC 3466 at para. 56.

[47] Even where an order is clear and a person’s wilful disobedience of a court order is established, it would be an unusual case that would call for a finding of contempt on a first non-compliance with an access order. Accordingly, in a usual case on a first default, a warning, admonition, or a penalty in costs would seem to be more appropriate: see Jean v. O’Callaghan at para. 11.

[48] Notwithstanding the court's reluctance to exercise its contempt powers, it is important that such power be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is not optional: see Perna v. Foss, 2015 ONSC 5636 at para. 14.

[49] When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: see Moncur v. Plante, at para. 10.

[50] The father states that he had Cadence in his care on weekends but did not overhold her following the weekends because it was not exactly in line with the schedule ordered by the court. He did not want to engage in self-help by taking unilateral actions, nor did he want to expose Cadence to conflict. Although the father was frustrated by the mother’s actions, he acted in a restrained manner. His actions demonstrate that he is willing to act in the best interests of the child.

[51] At the same time, the father’s request for three months straight of make-up time is not in the child’s best interests. The parties must return to compliance with the court-ordered week-about parenting schedule, which is the status quo.

[52] I find that the mother is in breach of the final order of Rogers J. dated April 5, 2017 and the temporary order of Goodman J. dated August 18, 2021. However, I recognize that the exercising of the contempt power is discretionary and should be used with great restraint. I decline to make a contempt finding in this case.

[53] However, by virtue of this endorsement, the mother should consider herself on notice that she must refrain from discussing the ongoing court proceedings with the child, and that she cannot leave the decision about whether to comply with the court orders up to the child. The mother must take concrete measures to apply normal parental authority to have the child comply with the access orders.

2) By Refusing to bring Cadence to the Father’s Residence

[54] Paragraph 3 of the temporary order of Goodman J. states “the party whose parenting time is ending shall be responsible for dropping Cadence off at the party’s residence whose parenting time is beginning.” The father states that the mother is refusing to bring Cadence to the father’s residence for his parenting time and is insisting that the father pick Cadence up from her residence.

[55] The breach of this term is closely tied to the breach alleged by intentionally withholding the child. I find that the mother intentionally failed to comply with this term and is in breach of this term of the court order. However, I decline to make a finding of contempt. As stated previously, the mother has an obligation to take concrete measures to apply normal parenting authority to have the child comply with the access order. She is now put on notice that the court will not tolerate her continued abdication of her responsibilities in that respect.

3) By Signing Cadence Up for In-Person Private School

[56] Paragraph 1 of the final order of Rogers J. sets out a joint decision-making regime. In addition, the temporary order of Goodman J. requires Cadence to attend online learning. However, the mother signed Cadence up for in-person private school, without the father’s knowledge or consent.

[57] The mother’s behaviour is concerning. She unilaterally enrolled the child without the father’s input. She has demonstrated a concerning pattern of behaviour that excludes the father from important decisions in the child’s life. These are issues that should be explored further at a trial, where the court can consider viva voce evidence from the parties.

[58] I find that the mother is in breach of these terms of the court orders. However, I decline to make a finding of contempt.

[59] The mother should consider herself on notice that any further unilateral decisions by the mother concerning the child will likely lead to a contempt finding by this court.

B. Should the Court Make Orders for Return of the Child, Sole Decision Making, Primary Residence or Police Assistance?

[60] In the Voice of the Child Report, Cadence expressed that she would prefer to primarily reside with the mother. However, she also expressed that she loves both parents. It would be inappropriate for me to make any interim order varying the previous orders regarding decision-making and primary residence. These are issues that should be determined after the court hears viva voce evidence at trial which will permit the court to weigh all of the factors and make a determination in the best interests of the child.

[61] The status quo may be established by reference to the parents’ practice or routine prior to separation, by any consensual arrangement made after separation, or by court order. However, the status quo cannot be established or altered by the unilateral “self-help” conduct of one parent. A parent cannot be permitted to gain a litigation advantage by unilateral action. Even if there is an alleged safety issue, a parent taking steps to ostensibly protect the child must still come to the court at the earliest opportunity on an urgent basis: see Gray v. Canonico, 2020 ONSC 5885 at para. 50.

[62] I do not accept the mother’s position that a status quo has been created for the father to have bi-weekly weekend parenting time only. A parent cannot unilaterally impose a schedule in the manner that the mother has done in this particular case and then suggest that a status quo been created. In my view, the father should be commended for attempting to avoid confrontation, especially in front of the child.

[63] In addition, there is no evidence before this court that the parties have disagreed on decisions, other than the mother unilaterally making decisions without informing the father. The issue of decision making should also be addressed at trial.

[64] The prior court orders are in force, requiring the parties to follow an equal shared parenting time schedule. I expect that the mother will comply with the terms of this order. Therefore, I do not need to make an order for the return of the child.

[65] In addition, I decline to order a police assistance clause. The police apprehension of an 11-year-old girl would be a traumatic experience for the child and would not in her best interests in the circumstances of this case.

C. Should the Court Make Any of the Other Orders Sought in the Father’s Confirmation?

[66] I decline to grant any of the orders sought by the father that are not articulated in the notice of motion. It is not appropriate to add significant substantive relief on a confirmation and/or during submissions that were not included in the notice of motion that was served.

[67] The only exception is the request to strike paragraphs of the mother’s affidavits that were filed on these motions, which fall into two categories:

i. The mother’s affidavit refers to comments made in a text from a reunification counsellor, referencing confidential settlement discussions. Those references will be excised.

ii. Three affidavits filed by the mother reference her allegations that the father cheated before and during their marriage. This evidence is completely irrelevant to the issues before this court and should not have been included. They will be given no weight.

IV. COSTS

[68] In the event that the parties cannot agree as to costs, they are directed to provide written submissions. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs and written Offers to Settle. The father shall provide costs submissions by February 18, 2022; and the mother shall provide any response by March 4, 2022.

[69] In the event that submissions are not received from either party by March 4, 2022, costs shall be deemed settled. Costs submissions shall be filed in the usual manner and also sent by email to Kitchener.SCJJA@ontario.ca, marked for the attention of Justice Braid.

V. CONCLUSION

[70] For all of these reasons, the motion for contempt is dismissed, without prejudice to the father to renew this motion if the mother does not take proactive steps as set out in this endorsement. In addition, all other requests for relief are dismissed, save and except for two orders made on consent regarding financial disclosure.

[71] This matter is scheduled for a settlement conference on February 4, 2022. If the parties are unable to resolve all issues at the conference, I strongly recommend that this matter be placed on an early trial list. This is a high conflict situation and bringing this matter to a conclusion will be in the best interests of the child.

[72] When this matter was before me on January 22, 2022, I made temporary orders for the father to have parenting time with Cadence from January 21, 2022 at 6:30pm until January 28, 2022 at 6:30pm. Exchanges were to take place at the Tim Hortons Restaurant, 184 Brant Road, St. George, Ontario.

[73] As set out in these reasons, the motions are dismissed. The final order of Rogers J. dated April 5, 2017 states that Cadence’s primary residence shall be shared equally between the parties on a week about basis. Therefore, the father, Devin Murray, shall have parenting time with the child, Cadence Jade Murray born November 22, 2010 on a bi-weekly basis, commencing February 4, 2022 at 6:30pm until February 11, 2022 at 6:30pm, and thereafter shall have the child in his care commencing every second Friday at 6:30pm.

[74] In addition, pursuant to the interim order of Breithaupt Smith J. dated November 30, 2021, exchanges of the child shall take place at the child’s cheerleading class, or in the evening that such class is not in session, at the Tim Hortons Restaurant, 184 Brant Road, St. George, Ontario.

[75] Finally, the court makes the following orders on consent:

1. The mother, Lindsay McCarthy Joseph, shall provide the father with the following financial information by March 1, 2022:

a) a copy of her complete personal income tax returns for the years 2017, 2018, 2019 and 2020 as filed, with all schedules and attachments;

b) a copy of her 2017 Notice of Assessment and/or Re-assessment; and

c) a year-to-date statement/breakdown of the mother’s self-employed income and expenses.

__________________ Braid J.