Court File and Parties
COURT FILE NO.: FC-21-00000015-0000 DATE: 2023-03-01
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Brianna Christie Applicant – and – Matthew Christie Respondent
Counsel: P. MacLeod, for the Applicant J. Stall, for the Respondent
HEARD at St. Catharines: January 31-February 1, 2023
THE HONOURABLE JUSTICE J. R. HENDERSON
DECISION ON CONTEMPT MOTION
INTRODUCTION
1This is my decision on the respondent’s motion for a declaration that the applicant is in contempt of court with respect to the order of Standryk J., dated May 27, 2022 (the “May 2022 order”).
2Paragraph 29 of the May 2022 order, subparagraphs iv and vi (respectively called “paras. 29(iv) and 29(vi)”), read as follows:
iv. The applicant shall ensure that the respondent is regularly updated on Brielle’s activities, including schooling, medical well-being and her counselling.
vi. The applicant shall immediately remove references to the respondent on all her social media accounts and abstain from any indirect or direct references to the respondent.
3The respondent alleges that the applicant breached para. 29(iv) of the May 2022 order as the applicant failed to fully inform him about changes in counselling for their daughter, Brielle, and failed to provide the name of Brielle’s psychiatrist. It is the applicant’s position that she gave the respondent regular updates about Brielle’s counselling and her psychiatrist, and therefore she has not breached para. 29(iv).
4The respondent further alleges that the applicant breached para. 29(vi) of the May 2022 order as the applicant failed to remove videos that reference the respondent, and posted other videos that reference the respondent, on her social media accounts. The applicant submits that the contentious videos do not reference the respondent as none of them refer to the respondent by name or contain any images of the respondent. Therefore, the applicant submits that she has not breached para. 29(vi) of the May 2022 order.
5In the alternative, the applicant submits that she used her best efforts to remove or delete any videos that reference the respondent from her social media accounts, but that she may have inadvertently failed to find and delete all of such videos. Thus, she submits that she is not in contempt of court as she has not deliberately and wilfully breached the order.
THE BACKGROUND HISTORY
6The parties were married in 2010 and separated in August 2020. They have one child, Brielle, born October 1, 2010. Brielle has been in the primary care of the applicant since the parties separated. There is a temporary order granting parenting time to the respondent from Thursday overnight to Friday evening, and from Thursday overnight to Sunday evening, in alternating weeks.
7There has been a high level of conflict between the parties since their separation. The applicant has alleged that she has suffered domestic abuse at the hands of the respondent, that the respondent has exposed Brielle to adult films, and that Brielle may not be safe in the respondent’s care. The respondent denies these allegations, and the court has not yet made any findings on these issues.
8It is clear from the litigation history that Brielle has been, and remains, stressed and anxious. The Office of the Children’s Lawyer informed the court that Brielle did not wish to see her father and that Brielle has observed the respondent being violent in the matrimonial home. Further, Brielle has made some disclosures to her family doctor, including a disclosure that she engaged in certain behaviours to harm herself in order to avoid visiting with her father.
9Because of the applicant’s allegations and Brielle’s disclosures, the respondent’s parenting time with Brielle has been suspended or interrupted from time to time. Brielle has engaged in counselling sessions, and the parties have participated in reunification therapy.
10The matter came before Standryk J. in May 2022 on the respondent’s motion for an increase in parenting time. Standryk J. noted the high level of conflict between the parties, the allegations by the applicant, and the denial of those allegations by the respondent. In her endorsement, Standryk J. wrote that the court was “not in a position to assess the veracity of all of the allegations.”
11At the time of the May 2022 order, the applicant was making extensive use of social media. The applicant had accounts with, and was present on, many social media platforms, including Facebook, Instagram, TikTok, and YouTube, among others. Further, it was apparent that the applicant had recorded and posted a large number of video recordings on her social media accounts, many of which made reference to the respondent or to the ongoing litigation.
12For reasons set out in her endorsement, Standryk J. declined to interfere with the existing parenting time order. Further, Standryk J. ordered the applicant and the respondent to immediately engage in individual counselling and to commence reunification therapy. In addition, at the conclusion of her endorsement, Standryk J. made the two aforementioned orders that are the subject of this contempt proceeding.
13On August 25, 2022, the matter came before Donohue J. on the respondent’s motion to compel the applicant to comply with the part of the May 2022 order that required her to remove all references to the respondent from her social media accounts. At the commencement of the motion, the applicant informed the court that she had removed all of the offending video posts. However, the respondent informed the court that the applicant had not removed all of the videos that referenced him.
14Donohue J. found that the applicant had taken down some of the offending videos, but not all of them. Further, Donohue J. found that, subsequent to the May 2022 order, the applicant had posted additional videos on her social media accounts that referenced the respondent.
15By way of an endorsement, Donohue J. ordered counsel for the respondent to write to counsel for the applicant with a list of the offending video posts and applicant’s counsel to respond with details regarding the applicant’s efforts to remove the posts. Costs were ordered against the applicant in the amount of $4,000.
THE CURRENT ALLEGATIONS
16The respondent makes two allegations of breach of para. 29(iv) of the May 2022 order. First, the respondent swears that the applicant did not inform him that Brielle stopped counselling in June 2022, but that the respondent obtained this information from the counsellor in September 2022. Second, the respondent alleges that the applicant did not disclose to him the name of the psychiatrist that Brielle saw in September 2022. In support of their positions, both parties rely on the information, or the absence of information, contained in their communications through Our Family Wizard.
17As to the alleged breach of para. 29(vi) of the May 2022 order, the respondent alleges that there are many videos that remain posted on the applicant’s social media accounts that reference him, directly or indirectly, contrary to the May 2022 order.
18At the hearing, respondent’s counsel presented 29 separate videos that were posted to the applicant’s social media accounts. I find that all of those 29 videos were posted to at least one of the applicant’s social media accounts as of the date on which the respondent commenced this contempt motion in November 2022. I also find that all of those social media accounts were the applicant’s accounts, and it was exclusively the applicant who posted the videos to her accounts.
19In general, in most of the 29 videos, the applicant appears on camera making statements or comments. The applicant usually identifies herself by her first name or by her maiden name. She comments on topics that include domestic abuse generally, her own experiences with domestic abuse, Family Court litigation, and the feelings of her child.
20In some of the videos, the applicant has creatively incorporated music or song into the recording. In other videos, texts or scripts appear on the screen. Also, most of the videos include the title of the video, which often appears on the screen. In a few of the videos, people other than the applicant appear on screen to make statements, particularly about domestic abuse.
21In addition to the two distinct allegations of contempt of court, in the notice of motion for contempt, the respondent seeks an order requiring the applicant to pay the $4,000 costs order made by Donohue J. The respondent acknowledges that the payment of money cannot be the subject of a contempt motion but asks that I consider the fact that the costs have not been paid as evidence of the applicant’s general disregard of court orders.
THE LAW
22The Ontario Court of Appeal has set out a three-pronged test for contempt of court. In the case of Prescott-Russell Services for Children and Adults v. G. (N.), 2006 ONCA 81792, 82 O.R. (3d) 686 (C.A.), at para. 27, Blair J.A. wrote:
The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
23The test for contempt of court was further parsed and summarized by Chappel J. in Jackson v. Jackson, 2016 ONSC 3466. At paras. 47-53, Chappel J. found that the elements of contempt were as follows:
- there must be a court order to be enforced;
- the order must be clear and unequivocal;
- the party alleged to be in contempt must have actual knowledge of the order;
- the moving party must establish that the order was disobeyed;
- the moving party must establish that the party alleged to be in contempt deliberately and willfully failed to do something that is compelled by the order.
24Further, it is well-established that contempt of court proceedings are quasi–criminal in nature and therefore each element of the claim must be proven beyond a reasonable doubt: see Prescott-Russell, at para. 26; Jackson, at para. 48.
ANALYSIS
1. NON-PAYMENT OF COSTS
25Regarding the applicant’s non-payment of costs, I accept that until the start of this motion the applicant had not paid the $4,000 costs order made by Donohue J. The applicant stated that she did not have the funds to make this payment. I accept the applicant’s statement to be true, as it is clear that the most significant asset of the parties, the matrimonial home, has been sold and all of the net proceeds are currently being held in trust pending settlement or resolution of the case.
26In any event, the applicant and the respondent have now agreed that these costs can forthwith be paid out of the applicant’s share of the money that is being held in trust. Thus, the respondent will shortly receive payment of these costs.
27For these reasons, I will not give any weight to respondent’s counsel’s submission that non-payment of costs by the applicant is evidence that the applicant tends to disregard court orders.
2. FAILURE TO REGULARLY UPDATE THE RESPONDENT
28Regarding the alleged breach of para. 29(iv) of the May 2022 order, I will deal with each of the two allegations made by the respondent separately.
29As to the counselling issue, I find that the evidence of contempt is very limited. The respondent deposed that the applicant did not inform him that Brielle stopped seeing a counsellor in June 2022, but the respondent found out about the termination of counselling from the counsellor herself in September 2022.
30The applicant acknowledged that she did not tell the respondent of a change in Brielle’s counselling in June 2022 as she thought that the matter was not closed at that time. She did not explain what she meant by this comment, but I assume that it meant that there was a period of indecision.
31I find that the parties in fact exchanged some information about counselling for Brielle through Our Family Wizard, although I accept that there have been periods of imprecise and sporadic communications.
32Further, I find that there is a specific text message from the applicant to the respondent in August 2022 by which the applicant informed the respondent about Brielle’s progress in therapy. This would suggest that Brielle was attending some therapy or counselling at that time, and that the applicant was providing the respondent with an update.
33Still further, the applicant deposed that the respondent had full access to the counsellor and to Brielle’s family doctor, both of whom could give the respondent any information that he requested about counselling. This seems to be corroborated by the respondent’s evidence that he obtained information directly from the counsellor.
34In my view, this issue was never fully explored by either party at the contempt hearing. I have no evidence as to when counselling stopped, whether counselling stopped, when a final decision was made, whether counselling was switched to a different counsellor, when that decision was made, how often Brielle attended counselling, whether Pathstone Mental Health (“Pathstone”) or the family doctor or the Office of the Children’s Lawyer were involved, what information was communicated by the applicant, and what information was available to the respondent.
35I find that the evidence on this point is not sufficient to prove contempt of court beyond a reasonable doubt.
36Regarding the psychiatrist issue, the respondent deposed that the applicant failed to inform him of the name of the psychiatrist who assessed Brielle. Both parties attached excerpts from Our Family Wizard to their affidavits that contained their text messages about Brielle’s assessment by a psychiatrist.
37I find that Brielle’s assessment by a psychiatrist was not something that was hidden from the respondent. The texts suggest that both parties were aware that Contact Niagara had made a referral for a psychiatric assessment through Pathstone. On September 15, 2022, the applicant informed the respondent by text that Brielle had seen the psychiatrist, that the psychiatrist felt that she had situational anxiety, and that the psychiatrist had referred her for CBT therapy.
38In a responding text, the respondent asked for the name of the psychiatrist and where he or she worked. The applicant replied that she did not have that information, but that the respondent could get it from the family doctor or from Pathstone.
39On the witness stand, the applicant testified that she did not know the name of the psychiatrist and that Brielle only saw the psychiatrist on that one occasion. As to the respondent’s request for the name, the applicant said, “He’s a big boy. He can find out for himself.”
40I find that the respondent in fact found out the name of the psychiatrist for himself. He was informed of the name of the psychiatrist by letter from Contact Niagara dated December 20, 2022. Further, on the witness stand, the respondent admitted that he found out the name of the psychiatrist from the family doctor a few days earlier. I note that this is in direct contradiction to his sworn affidavit, dated January 10, 2023, in which he deposed “to this day I have still not been advised as to who this psychiatrist was.” He explained on the witness stand that he meant that he had not been given the name by the applicant.
41I accept that if the applicant knew the name of the psychiatrist and refused to disclose it, she would be in contempt of court. However, I am not convinced beyond reasonable doubt that the applicant did in fact remember the name of the psychiatrist. Thus, I am only able to find that the applicant knew how to find out the name of the psychiatrist, but she did not want to go to the trouble of looking it up for the respondent.
42I agree that the applicant’s conduct is not laudable. She was uncooperative and impolite. However, her conduct does not amount to contempt of an order that required her to regularly update the respondent. Moreover, I find that neither party has been open and frank with the court on this issue.
43Accordingly, the respondent’s request to find the applicant in contempt of para. 29(iv) of the May 2022 order will be dismissed.
3. THE CONTENTIOUS VIDEOS ON SOCIAL MEDIA
44Paragraph 29(vi) of the May 2022 order requires the applicant to “immediately remove references to the respondent on all her social media accounts” and to “abstain from any indirect or direct references to the respondent.” The respondent alleges that the applicant breached the May 2022 order by posting, or failing to remove, the 29 videos that were presented at this hearing. The respondent submits that all of the 29 videos reference the respondent.
45The applicant acknowledges that she was aware of the May 2022 order. The applicant did not submit that the May 2022 order was not clear and unequivocal, even though the parties advocated for different interpretations of the order. In my view, this debate about the meaning of the order does not necessarily make the order unclear or equivocal. In the present case, I find that the order is clear and unequivocal, as discussed herein.
46The applicant defends the allegations of contempt in two ways. First, the applicant submits that she has not breached the May 2022 order because none of the 29 videos constitute a reference to the respondent as the respondent’s name is not mentioned, the applicant did not use her married name, and the respondent did not appear on the screen.
47Second, in the alternative, the applicant submits that even if she has technically breached the order, the applicant did not do so deliberately and wilfully as the applicant used her best efforts to remove or delete any videos that referenced the respondent.
48Regarding the applicant’s first defence, I find that para. 29(vi) of the May 2022 order should not be interpreted in the narrow manner suggested by the applicant. A video can make reference to a person without naming that person or showing his image on the screen. If the court had intended to prohibit only naming a person or displaying his image, the court would have used language to that effect. The word “reference” has a far broader meaning.
49The word “reference” must be given its ordinary meaning. As it is used in the May 2022 order, it means a brief mention, directly or indirectly, of the respondent. Also, in my opinion, there is no practical distinction between orders that a party shall not reference, refer to, or make reference to, a person or event. In all cases, the root is the word “refer.”
50I find that a video posted to social media will make reference to the respondent if the audio and visual presentation is such that a person who is acquainted with the parties would reasonably in the circumstances believe that the respondent was the person referred to. This is a subjective/objective test. The essential question is: Would a person who is acquainted with the parties reasonably be able to identify the respondent as the person who is mentioned in the videos?
51There is some support for my interpretation of this part of the May 2022 order in the law of defamation. One of the elements of a civil defamation case is proof that the contentious words in fact referred to the plaintiff: see Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.
52In S.G. v. J.C., 2001 ONCA 3041, 56 O.R. (3d) 215 (C.A.), at para. 20, Borins J.A. adopted an excerpt from R.E. Brown, The Law of Defamation in Canada, 2nd ed., (Toronto: Carswell, 1999), as to the test for this element of defamation, as follows:
The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?
53Using this approach, I have carefully reviewed the 29 videos and find that many of them reference, or refer to, the respondent. The most obvious reference to the respondent was the first video in the series which is a recording of a verbal argument between the parties that occurred at their matrimonial home. It appears as if this video was recorded by the respondent as he does not appear on screen, but both the applicant and their matrimonial home appear on screen. The voices of both the applicant and the respondent can be clearly heard as they engage in a heated argument.
54Further, it was obviously the applicant’s intention to reference the respondent in this video as the next video in the series is an enhanced version of the first video in which a third party appears on screen to analyse the argument. That third party comments that the male person in the video is acting like a narcissist, that he is deliberately upsetting the female person, and that the male person’s actions are a form of abuse.
55Thus, I find that the whole purpose of the applicant posting these two videos was to criticize the respondent, and therefore, in my opinion, the applicant intentionally made reference to the respondent. Any person who is acquainted with the parties would reasonably in the circumstances believe that the respondent was the person referred to.
56There are other videos in which the reference to the respondent is also obvious. For example, in one video the applicant talks about sleep deprivation as a form of abuse. She says, “Mine would throw water on me in the middle of the night…” Again, I find that the applicant posted this video as a form of criticism of the respondent, and thus she intentionally made reference to the respondent. And again, any person who is acquainted with the parties would reasonably in the circumstances believe that the respondent was the person referred to.
57Still further, during cross-examination at the contempt hearing, the applicant admitted that some of the videos referenced the respondent, including some of the videos about sleep deprivation and physical abuse.
58In summary, using the paragraph numbers from the respondent’s sworn affidavits as a guide, I find that the following videos reference the respondent:
a. Affidavit of the Respondent sworn November 2, 2022: * Paragraph 11 (a) (i) – posted on TikTok on October 24, 2022 – video of an argument between the applicant and the respondent at the matrimonial home. * Paragraph 11 (a) (ii) – posted on TikTok on October 24, 2022 – same video as above with commentary by a third party. * Paragraph 11 (a) (vii) – posted on TikTok on August 21, 2022 – video regarding sleep deprivation and the respondent throwing water on the applicant while she slept. The applicant admitted this was a reference to the respondent. * Paragraph 11 (b) (i) – posted on Facebook on October 24, 2022 – same video of the argument at the matrimonial home with commentary by a third party. * Paragraph 11 (b) (ii) – posted on Facebook on October 5, 2022 – video about strangulation and domestic violence in which the applicant indicated that strangulation “was his go to.” * Paragraph 11 (c) (ii) – posted on Instagram on June 20, 2022 – video entitled “My Poor Kiddo” with a man’s voice reading scripts that appeared on the screen including, “Mom, don’t make me go back there”. The applicant admitted this was a reference to the respondent. * Paragraph 11 (c) (iii) – posted on Instagram on December 16, 2021 – video entitled “Dog Whistling” in which the applicant talks about her abuser sending her coupons for a fast-food restaurant “when the abuser and I were together.” * Paragraph 11 (c) (iv) – posted on Instagram on October 24, 2021 – video in which the applicant discusses her 17-year relationship and an incident wherein “the ex” baited her, recorded her reaction, and suggested that she was holding a knife. * Paragraph 11 (c) (v) – posted on Instagram on October 7, 2021 – video in which applicant states, “I was in an abusive relationship for 17 years.” * Paragraph 11 (c) (vi) – posted on Instagram on September 18, 2021 – video in which the applicant describes herself as a domestic abuse survivor of 17 years. * Paragraph 11 (c) (vii) – posted on Instagram on August 26, 2021 – video entitled “Flying Monkeys” in which applicant describes her relationship with a covert narcissist who spread stories about the applicant’s drinking and the applicant being a pill popper. * Paragraph 11 (c) (ix) – posted on Instagram on August 5, 2021 – video about the respondent pouring water on the applicant while she was sleeping. The applicant admitted this was a reference to the respondent. * Paragraph 11 (c) (x), (xi), (xii) – three videos posted on Instagram on July 20, July 25, and August 1, 2021 – these were almost identical versions of the same video in which the applicant talks about her experience with physical abuse. She stated that her child had observed the abuse, that she would never forget the look on her sad face, and that her child was torn between mommy and daddy. The applicant admitted these videos made reference to the respondent. * Paragraph 11 (c) (xiv) #1 – posted on Instagram on unknown date – referring to the applicant’s experience with narcissistic dads. * Paragraph 11 (c) (xiv) #2 – posted on Instagram on unknown date - same as 11 (a) (vii) above. The applicant admitted this was a reference to the respondent. * Paragraph 11 (c) (xiv) #3 – posted on Instagram on unknown date – video in which the applicant talks about her daughter’s face when she “saw him strangling me.” * Paragraph 11 (d) (i) – posted on Pinterest on June 21, 2022 – same video as the “My Poor Kiddo” video mentioned above. The applicant admitted this was a reference to the respondent. * Paragraph 11 (e) (i) – posted on YouTube on October 30, 2022 - same video of the argument at the matrimonial home with commentary by a third party.
b. Affidavit of the Respondent sworn January 10, 2023: * Paragraph 3 – posted on TikTok on January 5, 2023 – this video included footage of a broken door at the former matrimonial home and copies of text messages that had been exchanged between the applicant and the respondent about Father’s Day.
59Regarding the applicant’s submission that any breach of the order was not deliberate and wilful, I do not accept the applicant’s evidence that she used her best efforts to remove all of the offending videos.
60The applicant’s credibility was very poor. She regularly made broad exculpatory statements that were either false or misleading. For example, in two separate affidavits, she deposed that she had diligently pursued settlement of the equalization issue, but that the respondent had refused to settle. In cross-examination, she confirmed that neither she nor her lawyer had ever made any offer to settle the equalization issue. She acknowledged that any settlement discussions had only been between herself and her lawyer.
61The applicant also deposed that the respondent had refused to settle the child support issue, whereas the evidence is that the respondent has been paying child support with the consent of both parties.
62More concerning, at the start of her viva voce evidence, the applicant testified that there were no offending videos left posted on her social media accounts that referenced the respondent, but as her cross-examination unfolded, she acknowledged that several of the 29 videos in fact referenced the respondent. When confronted with this fact, she attempted to excuse her behaviour by testifying that she must have missed these videos when she was removing the offending videos. At a minimum, this testimony shows that the applicant is reckless about statements that she makes under oath.
63Further, the applicant testified on the witness stand that she was “off of all social media” and that she had “deleted from the internet” all of her social media accounts. Later, when pressed, the applicant acknowledged that her social media accounts remained available to her, and that she could log on to any of them at any time. She then attempted to explain that contradiction by testifying that she meant that she was just not using her social media accounts at present. The applicant’s explanation for that contradiction was then contradicted by her evidence that she had logged onto, and used, her TikTok account in January 2023.
64Complicating matters, the applicant initially testified that she only accessed her TikTok account to obtain some personal information and it was only open for a few hours. The evidence shows that the applicant in fact used her TikTok account for at least several days in January 2023, and that she posted at least 16 videos to that account in January 2023.
65Furthermore, the evidence shows that the applicant’s Snapchat account remained open and was available online as of the date of this contempt hearing. The applicant acknowledged this fact on the witness stand and acknowledged that the Snapchat account contained links to some of the offending videos.
66Also, the applicant’s testimony that she used her best efforts to remove all of the offending videos is further undermined by the fact that even after the orders were made in May 2022 and August 2022, the applicant continued to post offending videos to her social media accounts. The last offending video in fact was posted on January 5, 2023, approximately two months after this contempt motion had been commenced.
67For these reasons, I find beyond a reasonable doubt that the applicant has deliberately and wilfully posted, or failed to remove, videos that reference the respondent as listed above, in breach of the May 2022 order. In total, the offending videos constitute 21 separate posts involving 14 distinct video recordings. Accordingly, I find that the applicant is guilty of contempt of court with respect to para. 29(vi) of the May 2022 order.
CONCLUSION
68I find that the applicant is not in contempt of the May 2022 order, para. 29(iv), but that the applicant is in contempt of the May 2022 order, para. 29(vi), as she has posted, or failed to remove, the 21 video posts listed herein.
69The parties are directed to contact the trial co-ordinator at St. Catharines to schedule a date to appear before me to make oral submissions regarding the appropriate sanction for the contempt. If costs are an issue, the parties shall make costs submissions on that date as well.
Justice J. R. Henderson Released: 2023-03-01