COURT FILE NO.: FS-14-397562-01 DATE: 20230209 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Y HON PHONG Applicant – and – JADE NGUYEN Respondent

Counsel: Yunjae Kim, for the Applicant Jonathan Miller, for the Respondent

HEARD: January 17, 2023

AKAZAKI, J.

INTRODUCTION

[1] After the parties resolved their matrimonial dispute in 2017, their five-year-old daughter enjoyed the time with her father scheduled in the court’s joint parenting order. In March 2020, the World Health Organization declared a global pandemic. Covid-19 interrupted the co-parenting schedule much as it scuppered people’s pre-arranged plans all over the world. The father, a dentist, continued to treat patients. He did not wish to risk exposing his daughter’s household to the virus. He stopped seeing his daughter in person. The father should have understood how this could affect his daughter. Public health measures and isolation do not stop children from growing older, but they can cause their growth as young people to veer off course. The father should have found a way to remain part of her life, in person and not just as a voice on a phone or an image on a tablet. This contempt motion was not, however, brought by the mother against the father for having breached the 2017 parenting order.

[2] Instead, in 2022, the father reopened the proceeding after his attempts to resume his contact with the daughter ran into resistance, not the least of which was from the daughter herself. He obtained a temporary order for resumption of his parenting time. After the mother did not make the parenting visits happen, he brought this motion for a contempt order. At issue in this motion is the mother’s efforts, or lack thereof, in helping the daughter, now eleven, reintegrate the father into the daughter’s life.

[3] The father blames the mother and alleges active attempts to undermine his relationship with the child. The evidence on this point is thin but cannot be ignored altogether. The motion is ultimately rooted in the mother’s refusal to get overly involved in countering her daughter’s reluctance to visit with the father. The power of this court to reach into a family and change behaviour is limited by the bluntness of the instruments in the judicial toolbox. The mother does not dispute the fact that she failed to comply with the court order. Instead of offering an apology, she attempts to turn the tables on the court itself and defies the court to tell her what a parent must do to compel a child to see the other parent, if the child is no longer an infant and has set her mind against it. In explaining my ruling that the mother has been in contempt of court, I will also try to answer her question.

THE COURT ORDERS

[4] The father alleged the mother breached the provisions of two separate consent orders of this court. For ease of review, I have categorized them as follows:

Trial Management Conference Order of January 30, 2017 a. joint custody and parenting arrangements (paras. 1 and 8); b. prohibitions against one parent disparaging the other, to or in front of the daughter, and against discussing family law issues with her (paras. 9 and 10); and c. prohibition against unilateral decision-making regarding health care and education (para. 18).

Case Conference Order of November 2, 2022 a. father’s parenting time arrangements and the mother’s encouragement of same (paras. 1 and 3); and b. prohibition against one parent disparaging the other, to or in front of the daughter (para. 7).

[5] The only breaches of these orders on which I will focus are those resulting in the daughter’s loss of parenting time with her father. These are the only ones that bear scrutiny, if only because of the law of contempt in family disputes requires the drawing of clear and bright lines.

[6] The orders relating to what can be said to or in front of the child are ancillary to the parenting time, because they relate to the spectre of alienation, either intended or not intended, by the mother. In themselves, on an imperfect record of competing affidavits without cross-examination, the contempt powers are hard to apply. The term of the order related to decision-making concerns the child’s psychotherapy. There are competing accounts of the interruption of the therapy, and there is insufficient detail in the evidence to make a meaningful inquiry whether the mother acted unilaterally, for the purposes of ascertaining whether there was a breach of the court order. Modern family law expects each parent to maintain and sometimes repair the child’s bond with the other. Without the father’s in-person contact with the child, the remaining issues become more or less immaterial. I will therefore concentrate my attention on the mother’s failure to drop the child off for the court-ordered visits with the father.

EVIDENCE AND FINDINGS OF FACT

[7] The parents were married in 2008 and separated in 2014. The father is a dentist. The mother is a science teacher with 20 years’ experience at the Toronto District School Board (TDSB). At the time of the 2022 order, she was working half-time, in order to pursue further professional qualifications at York University. Their only daughter was born in 2011.

[8] The 2014-17 matrimonial proceedings entailed competing acrimonious allegations, including the involvement of the Office of the Children’s Lawyer (OCL). The OCL prepared a report in 2016 that described the daughter as having a happy and comfortable relationship with her father. It also expressed concern that this relationship suffered from the mother’s interference. The proceeding concluded in a settlement. The consent order emerging from that settlement reflected cautious optimism that the parents would adhere to the joint custody arrangements. In the present motion, the parents do trade accusations that either mother alienated father or father disappointed the daughter by not maintaining contact. Whatever the truth of these allegations, the government restrictions arising from the March 2020 declaration of the Covid-19 Pandemic evidently made it more difficult for the father to maintain contact with the daughter.

[9] During the initial height of the Covid-19 public health restrictions, the father would have found it difficult to see his daughter in person without posing a risk to her and her mother, himself, and his dental patients. As I discuss in the legal analysis, the father himself made a decision not to comply with the 2017 court order requiring him to spend time with the daughter. Many health care workers sacrificed their family lives during this period. The evidence from the pre-pandemic chronology of this dispute suggests the marital breakup would already have strained the relationship. The cause is less important than a recognition of that the child’s relationship with her father had been damaged. Her best interests, set out in the legislated criteria under s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Suppl), required both parents to do their utmost to repair that relationship. Instead, he stayed away, during the first two years of this part of the chronology. He cannot blame the mother for that.

[10] The mother maintains that she was the one who initiated meetings between the father and the daughter in the summers of 2021 and 2022, albeit outdoors, where the risk of Covid-19 transmission was reduced. She states that the father and the daughter argued whenever they met by online Facetime. The 2021 part of this evidence was contradicted by the notes of Dr. Pugliese of March 23, 2022, in answer to that child psychologist’s question whether the mother had discussed resumption of in-person visits with the father: “M indicated that they have not discussed this yet.” The father contends that he was the one who tried to resume in-person contact with his daughter at the beginning of 2022, when the restrictions were being lifted, and that he had to instruct a lawyer to deal with the mother’s contention that the daughter no longer wished to see her father and that the Covid situation had not resolved sufficiently to resume the father’s parental visits.

[11] The mother’s narrative, in shifting responsibility for the situation to her daughter and portraying the father as the one with faint interest, is belied by the practical reality that it was the father who instructed lawyers to obtain the November 3, 2022, case conference. At the case conference, this Court ordered parenting time for the father on specific days of the week, commencing November 12, 2022. It also required the mother to “drop off” the child “at the parenting time location.” There cannot have been any misunderstanding of the meaning of the order.

[12] What happened after November 3, 2022, is not really in dispute. On November 12, 19, 26, December 3, 10, and 18, the mother either allowed the daughter to stay at home or brought the daughter to the mall at the appointed time and drove her back without dropping her off.

[13] The mother’s defence relied on the court’s discretion not to make a finding of contempt, if she had made all reasonable efforts to comply. Her counsel cited six examples of her attempts to comply with the November 3, 2022, order. The father adduced no evidence contrary to the mother’s statement that she made these attempts:

a. offering the daughter a “reward” to take her to a park or some other place; b. driving her straight home instead of anywhere else, as an implied punishment for not meeting with the father; c. suggesting to the daughter that she only had to meet with the father for one hour, instead of the minimum three hours prescribed in the order; d. attempts to convince the daughter to meet her father at the mall; e. preparing the daughter two or three days in advance; and f. general encouragement to spend time with her father.

[14] The threshold question is therefore whether these efforts were sufficient to move the court to exercise its discretion to refrain from finding her disobedience a contempt of court. If not sufficient, the court must find the mother in contempt and then determine a suitable penalty or remedy.

LAW

[15] Before applying the Superior Court’s contempt power, the court has to describe the power and how it applies to this matrimonial litigation. This expository exercise in itself provides no concrete guidance about the steps the mother had to take. However, it explains the nature and limits of the court’s power.

[16] Subrule 2(1) of the Family Law Rules (Rules) define “contempt motion” and “contempt order” in relation to the general common law concept of contempt. There is no sui generis family law contempt power in the Rules.

[17] There are two types of contempt, civil and criminal. The lay observer may find it hard to tell the difference. Civil contempt concerns the obstruction or interference with the fair administration of justice between private litigants. It is invoked whenever a party disobeys an order made in a civil proceeding other than order for payment of money. It is to be distinguished from criminal contempt, which concerns attacks against the court itself, either within the precinct of the court or at large, such as comments made to the media. The label “criminal contempt” should not confuse one to believe it arises solely in criminal proceedings. It can arise in civil disputes, and there does not have to be a dispute before the courts. The classic example of criminal contempt is an activity blocking people access to the courthouse: B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 SCR 214, at paras. 32-37. Since both contempt provisions in the Rules (discussed below) refer to enforcement of orders made in a case, as opposed to an act of aggression against the court, the principles of civil contempt apply.

[18] The civil contempt power can only be exercised if all elements of an initial three-pronged test are made out and is subject to a discretionary fourth element:

1. The order that was breached must state clearly and unequivocally what should and should not be done.
2. The party who disobeys the order must do so deliberately and wilfully.
3. 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.
4. The court’s power is discretionary and amounts to a remedy of last resort in civil and family law matters. Routine use is discouraged. A party acting in good faith and taking reasonable steps to comply may be relieved of a finding of contempt.

Carey v. Laiken, 2015 SCC 17, [2015] 2 SCR 79, at paras 32-37; Prescott-Russell Services for Children and Adults v. G. (N.), at para 27. Hefkey v. Hefkey, 2013 ONCA 44, at para 3.

[19] In Ontario, procedural rules dealing with the enforcement of court orders in the civil context, including family cases, have been said to “occupy the field”: Forrest v. Lacroix (Estate of), at para 23. There is no need to tap into the law of contempt in other civil contexts, such as the wide range of subject matter under rule 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. There are two rules in the Family Law Rules that deal with contempt, subrule 1(8) and rule 31. The first of these reads:

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(g) on motion, a contempt order. O. Reg. 322/13, s. 1.

[20] This subrule contains the qualifying phrase that the contempt order must be “necessary for a just determination of the matter.” This provision deals with the failure to obey court orders relating to pretrial process, such as the preparation and disclosure of financial statements or the failure to answer questions ordered pursuant to a rule 20 questioning. There is no basis to conclude that the orders were in aid of helping the parties get their cases ready for trial, since the triable matrimonial litigation had concluded in 2017. The moving party did not obtain the 2022 order and did not bring this motion for the purpose of shepherding an ongoing unresolved matter. His purpose in now coming to court is to rebuild the relationship with his daughter contemplated in the earlier 2017 settlement. Subrule 1(8) therefore does not apply.

[21] Rule 31, in contrast, is an unqualified contempt provision that imports court powers including imprisonment, payment of a fine, payment to a party as a penalty, and temporarily seize property. The purpose of rule 31 tempers the scope of judicial remedies for the family law context, such as in limiting the length of prison time or the amount of fines. Rule 31 is the applicable rule. It is more consistent with the father’s purpose in bringing the motion.

[22] Finally, clause 16(3)(c) of the Divorce Act, requiring the court to consider “each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse,” as part of the best interests of the child, is important in interpreting the parenting order that the mother failed to obey. I do not read the clause to express “each spouse’s willingness” to denote it as an optional feature of the statutory parenting duty. Rather, a parenting order such as the one in issue here addresses the duty of the court to measure the compliance of the spouses’ observance of orders made to enforce laws enacted by Parliament. The contempt power must be harnessed to support the best interests of the child: Moncur v. Plante, 2021 ONCA 462, at para 10. This qualification does not dilute the seriousness of disobeying the court order. Rather, it means that such disobedience is contrary to the child’s best interests. The family court’s reluctance to exercise the contempt power does not make court orders optional: Godard v. Godard, 2015 ONCA 568, at para 28; and McCarthy v. Murray, 2022 ONSC 855, at paras 32 and 48.

ANALYSIS

Breaches of the Order(s)

[23] The mother knew about the orders, because she agreed to them. More specifically, she knew that, by failing to drop the daughter off for the visits, she was disobeying the 2022 order that had just been made. Indeed, she deposed in her affidavit that a meeting of one hour with the father would not have been “in strict compliance with the Order.” Driving up to the arranged location and driving away without leaving the daughter in the father’s care breached the order requiring the mother to “drop off” the daughter and to pick her up and drive her home. The mother’s defence relied on the discretionary power of the court to decline to make a finding of contempt or to impose a penalty, on the ground that she her efforts to comply constituted “all reasonable steps.” The balance of the analysis deals with this claim.

[24] The father relied on authorities stating that a custodial parent cannot hide behind a child’s unwillingness to spend time with the non-custodial parent. Although the wishes of the child, if relevant, should be considered prior to making a parenting order, the parent with whom the child resides cannot allow the child to have the final say. Parents must “do all that they reasonably can” and “take concrete measures to apply normal parental authority”: Godard v. Godard, 2015 ONCA 568, at para 26-33.

[25] The father himself had breached the 2017 order. In addition to the parenting schedule, there are mandatory parts of that order stating that the father “shall spend time” with his daughter at designated times, in accordance with a two-week routine. If he felt relieved from those obligations because of the Covid-19 restrictions, he should have sought a suspension of the 2017 order. It was not up to either parent to waive compliance with an order made for the child’s benefit. There was no Ontario regulation under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 suspending family law orders. For the following reasons, I find the common arguments for seeking relief from consent court orders, force majeure and frustration, do not apply.

[26] The force majeure doctrine only applies to contracts that contain clauses dealing with such extraordinary events: Braebury Development Corporation v. Gap (Canada) Inc., 2021 ONSC 6210, at paras. 8 and 36. Paragraph 5 of the 2017 order, deeming a change in the father’s employment situation or work schedule to be a material change requiring review of the parenting schedule, did not amount to a force majeure clause.

[27] While it is possible to obtain a change to a consent parenting order based on changes in circumstance, it is hard to rely on the contractual principle of frustration after a party is in breach, because frustration essentially requires the intervening event to render compliance impossible: Gustafson v Future Four Agro Inc., 2019 SKCA 68, at paras. 30 and 54-60. The bottom line was that the father was legally required to spend time with his daughter. If that meant having to close his clinic, that is what he had to do.

[28] I have not been asked to find the father in contempt for having deprived his daughter of the parenting time required by the 2017 order. This breach does not provide a defence to the mother. One cannot trade off a breach against another. The mother’s offence was that she made the father’s breach worse, by failing to do what was needed to repair the relationship. For her, the father’s absence relieved her of an irritant in her life. In the absence of a motion under rule 31, I lack the jurisdiction to find the father in contempt of the 2017 order. One notable difference between civil and criminal contempt is that civil contempt, as governed by the procedural rules, requires formal motions on notice. Yet I also cannot ignore father’s admitted breach and must find a place for it in the legal analysis. It would be hard to find the mother in contempt of the 2017 order when it was the father who was principally in breach. Therefore, in addition to the reasons I cited earlier for ruling out the 2017 order as a viable basis for this motion, I exercise my discretion not to cite the mother in contempt for failing to observe it.

[29] The 2017 order had also intended to be a long-term blueprint for the family’s parenting arrangements. Seen in this light, it was all the more important for the mother to observe the 2022 order. The 2022 order was an instrument in reinstating the pre-pandemic legal normalcy of relations among the two parents and their child. The 2022 order carried an element of urgency in recognizing the need to reintegrate the father into the daughter’s life. This is where the mother failed her daughter by allowing her to stay at home and by not doing more to complete the drop-off and pickup. I still have not addressed the mother’s question of this court: What more, then, was the mother to do, in order to comply with the 2022 order? What follows is my answer to this question.

Mother’s failure to apply normal parenting authority

[30] One must first frame or scaffold the answer by rejecting any attempt to use the child’s reluctance as a justification for not exercising parental authority. There is no need to ask whether this reluctance was genuine or coached by acts of parental alienation. Children are affected by the circumstances of marital conflict, whether or not the custodial parent is exercising undue influence. If family law litigants throw darts at each other, their children may be hit by them. The record contained ample evidence the daughter was psychologically damaged by her parents’ divorce and by the court case. It is equally possible the daughter developed some resentment toward her father, in the belief that he chose his work over her. Whatever the cause, parental alienation was the problem the court aimed to resolve in the 2022 order and was not part of the bundle of rights belonging to the child.

[31] On this last point, the mother argued that a new Voice of the Child assessment should be requested from the OCL because the daughter is now older. Canada, as signatory to the United Nations’ Convention on the Rights of the Child (“Convention”), observes the art. 12 right of the child to have her views heard and given weight in accordance with her age and maturity. The daughter’s views here were by no means immature. Having spent time apart from her father, it was understandable that she could feel rejected and frustrated. The time to consider further involvement of the OCL through the authority provided by s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 was at the time the 2022 order was made, when the agency’s report could have informed the terms of the order. The first of several considerations for the court before requesting a Voice of the Child report is the ability of the parents to provide adequate care: J.N. v. C.G., 2023 ONCA 77, at para. 32. The remaining considerations lose much of their relevance if that first one is not in issue. In fact, once the order was made, its terms set out a parenting schedule in the child’s best interests: Godard, at para. 28.

[32] Aside from the importance of recognizing the court’s authority as an instrument of peacemaking in family conflict, modern family law, including clause 16(3)(c) of the Divorce Act, has embraced the normative value of each spouse protecting (and ergo developing or repairing) the child’s relationship with the other spouse. (Q.v. also Margaret M. Mahoney, "The Enforcement of Child Custody Orders by Contempt Remedies" (2007) 68:4 U Pitt L Rev 835. at p. 838.) Providing an individual, no matter what their age, an outlet for expressing a preference could run counter to the need for more pressing needs and outcomes. Perhaps, after the father re-enters the daughter’s life, an OCL intervention or a psychological or social work assessment could be useful for the daughter and her family in addressing any serious problems in reintegration. In other words, the daughter’s views in enacting reluctance to see father might be appropriate for such intervention if she took a dramatic turn for the worse from having had their meetings. Right now, the pathology of the reluctance originates from her father’s self-isolation and her mother’s own reluctance to step in to resolve it. There is no place for a child advocate if the purpose of the referral is to help the child continue an unhealthy course of behaviour: Decaen v. Decaen, 2013 ONCA 218, at para 41.

[33] Confronted by the express desire of her daughter not to spend time with her father, the mother was obligated to exercise parental authority to persuade her to see her father despite her desire. Canadian law does not elevate the right of children to express their views to the level of complete autonomy. It also expects grown-ups to identify tantrums or feigned illnesses when they see them, not to make light of such behaviour but to understand that giving into them cannot be an acceptable option (however convenient to the mother, in this instance). As hard as it might be to stand up to a child, these are battles parents must fight in order to allow them to grow up as responsible citizens. A typical and normal parental response to a child’s tantrum is to deprive her of family activities (“time outs”) or access to devices used to communicate socially. A similar response to a child refusing to do something by claiming to be ill is to feel their forehead and to bring out a thermometer. I need not list the escalations of such parental measures.

[34] The law expects parents to correct their children’s behaviour. Counsel for the father drew the analogy of a child not wanting to attend school. The sanction under the Education Act, R.S.O. 1990, c. E.2, s. 30, is a provincial court offence for which the parent could be liable to pay a fine of no more than $200. The 19th-century legal positivist John Austin would likely have characterized this law as a sovereign command which the parent is simply expected to obey, on pain of a quasi-criminal sanction. It is not the purview of the sovereign to figure out how the subject corrects the child’s behaviour. Despite the inadequacy of our statute laws in addressing truancy, educators and social workers today would recognize that switching a child on to schooling is a complicated endeavour. The transfer of the threat of punishment from the parent to the child does not entail a prescription of what the parent must do.

[35] Attempts to impose parental responsibility have inevitably relied on such a transfer of commands, based on threats of punishment. Early this century, the passage of the Parental Responsibility Act, 2000, S.O. 2000, c. 4, codified the common-law civil liability of parents for property damage suffered as a result of a child’s torts and the repeal of s. 68 of the Family Law Act. The legislative debates show passage of the law over the concern that parents themselves already suffer from “a child who has gone off the track”: Ontario, Legislative Assembly, Hansard, 37th Leg., 1st Sess. (4 April 2000), at p. 1866. Despite the difference of the subject matter to the instant family law motion, the mechanism of the legal instrument of correction is identical. The child will not do as the court ordered. The parent is responsible for correction of the child’s conduct, or else the parent will be punished.

[36] We therefore start with the outside limit of the parental authority to impose discipline or correction. This is the reasonable force doctrine arising from s. 43 of the Criminal Code, R.S.C. 1985, c. C-46. The Supreme Court of Canada has held that articles 5 and 19 of the Convention carve out a zone of parental right to use reasonable force: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 32. This decision capped off a public debate starting in the late 1960’s, in which jurists attempted to draw a bright line between responsible and abusive parenting in criminal law. A similar debate emerged in the non-criminal setting of child protection law: Bernard Dickens, "Parental Discipline" (1978) 1:4 Can. J. Fam. L. 601. This court has previously held that, depending on the circumstances, a parent may be expected to apply physical force on a child to go on an access visit, short of doing actual physical harm: Geremia v. Harb, at para 44. With all due respect, it may be hard for many parents to imagine how the operation of a parent’s superior strength or ability to afflict pain (short of actual damage) could beneficially condition a child to spend time with the other parent. Some may prefer to spend time in a cell than to lay a forceful hand on one’s child, and the authority of the court to fulfil the tenets of modern family law may indeed suffer from having gone too far. Whatever the law of permissible force, the court should not require a parent to step up to that edge in order to comply with a family court order intended to be in the child’s best interests. We therefore rule out use of force.

[37] The other side of the spectrum, in which the parent only half-heartedly tries to correct the child’s behaviour or too readily backs down, is also unhealthy because the child learns from the parent that time with the other parent is not worth the effort in overcoming anxieties or other consequences of alienation. Whether the law expects positive or negative measures to correct the behaviour, or a combination of these measures, the objective that Parliament expects divorcing parents to meet is to expose the child to a life with both parents and to be conditioned beneficially by that experience. Giving in to the child’s reluctance is also not an option.

[38] Here, the fact that the mother in this case is a veteran public-school teacher does not elevate the law’s expectations of her as a parent in her private life. (E.g., an engineer is held to the standard of an ordinary homeowner, when performing work in his own home: Lambert v. Lastoplex Chemicals, [1972] SCR 569, at 575-76.) At school, a teacher would be expected to have “supraparental expertise” in the supervision of pupils: MacCabe v. Westlock Roman Catholic Separate School, 2001 ABCA 257, at para 26; Adams v. Halifax (City) Board of Education, 27 M.P.R. 232, [1951] 2 D.L.R. 816, at 264 M.P.R.; Linda McKay-Panos et al, “In Loco Parentis,” LawNow Magazine, 2019 44-1, 2019Docs 3769. When she is off-duty, the teacher should be expected to be an ordinary parent with ordinary parenting skills. In considering the mother’s claim to having taken “all reasonable steps to comply with the order,” the standard of an ordinary parent must apply. We therefore rule out the use of skills only expected of professional educators, because the law of contempt in family cases must guide the observance of court orders by all parents who have come to court.

[39] On the whole, the mother’s claim to having made an effort was disingenuous. She treated the court-ordered parenting time as somewhat of a nuisance, the observance of which could be suspended if it interfered with a routine that had developed without the father. The mother’s list of “best efforts” only betrays one parenting error after another.

[40] The mother admitted she allowed the daughter to avoid a visit with her father by telling him she was “sick.” She did not state whether the mother investigated this excuse any further. Indeed, the mother simply sent him text messages to confirm the daughter’s claim that she was “not feeling well.” During this entire period of illness, the daughter was actually “busy practising for her Havergal entrance exam for tomorrow since last week.” (Havergal College is the Toronto independent school in whose primary school division she was enrolled.)

[41] The mother’s professed attempts to persuade the daughter to leave the house to see her father evidently succeeded on at least one occasion, when the daughter got into the car but refused to leave the car once she was at the appointed location. The offer to take the daughter to a park or somewhere else after the visit with the father came across as a faint inducement at best. The claim that the mother drove the daughter straight home without taking her anywhere else, after the daughter refused to get out of the car, was an attempt to recast the earlier inducement as a “punishment” when the inducement was not granted. It is hard to see the punishment, if the child got what she wanted. The offer to change the visit from three hours to one only implied falsely that the mother had the authority to change the length of the visit. It was therefore not difficult to see the mother’s best efforts as weak excuses. She has nevertheless challenged the court to say how she could have done better, and the court can do this for her.

[42] It would not have been onerous for the mother to exercise her authority as the driver of the car and to refuse to drive home until the daughter saw her father. Nightfall and hunger would have provided powerful inducements. It would not have been an act of confinement, because the point of such an exercise would have been to coax the daughter to exit from the unlocked car by giving the daughter the power to change the outcome of the episode. Most likely, the daughter would have ended the standoff and met with her father. The father would have been able to relieve their effects by feeding and entertaining his daughter at the mall. The very fact that the mother did not employ such an obvious strategy indicated that she really did not want the father to have time with their daughter. Losing her patience, giving into the tantrum, and driving home were not efforts to comply with the court order. They were the worst things the mother could have done.

[43] The relevance of the mother’s professional qualifications and experience as a teacher is not their effect on the law’s expectations in her role as a mother. Rather, it pertains to the lack of credibility in the steps she took to comply with the 2022 court order. She was a seasoned professional trained to regulate a classroom of children, but she tried to cast herself as overwhelmed by the stubbornness of one child. I therefore do not accept her claim to have made a true effort to make the father’s parental visit happen. Moreover, the inconsistency and half-heartedness of the mother’s efforts have made it harder for the child to accept her father back into her life. Children do not come with user manuals. More importantly, children do not have a parental vantagepoint to know what is good for them when their choice is harming them. Parents have to take cues from the avoidance strategies employed by their children to turn the behaviour around.

[44] By allowing her daughter to avoid contact with the father by busying herself with practice exams for entry into a socially desirable school, while the daughter claimed to be ill, the mother perpetuated the daughter’s alienation from her father instead of helping her daughter to overcome it. The daughter only learned that coming up with excuses was a means to an end, and that one could substitute a legal requirement if the custodial parent approved the priority of an alternate activity. The mother allowed her daughter to devalue the relationship with her father, contrary to the purpose of a court order to strengthen that relationship. When the mother’s conduct is considered from the perspective of the best interests of the child, it must be given a failing grade. It certainly fell short of persuading the court to exercise its discretion to relieve her from a finding of contempt of court. I therefore find the respondent, Jade Nguyen, in contempt of the orders contained in paragraphs 1 and 3 of the order of November 3, 2022.

REMEDY OR PUNISHMENT?

[45] I now come to the point in the conclusion of a contempt of court decision in the family law context, where the court reminds itself that the penalty should not make a problem situation worse. A typical argument is that fining or jailing the contemnor parent cannot be in the interests of the child, and the mother’s counsel raised this in argument. Unfortunately, parents do not leave the court with many better options, when they ignore or disobey court orders.

[46] Subrule 31(5) authorizes the court to make different types of orders, ranging from monetary fines to imprisonment. Perhaps the least effective order, under clause 31(5)(g), requiring the contemnor to obey another order, would serve little purpose. Under subparagraph 31(8), a penalty can be suspended on a conditional basis, similar to suspended sentences in criminal and provincial offence cases. Courts frequently suspend sentences after convicting accused persons, if the aim is to alter behaviour and to prevent the punishment itself from causing harm.

[47] The father’s counsel urged me to consider an order for payment to his client under clause 31(5)(c), instead of a fine, payable to the public purse. Such an order would start with a fine of $5,000 payable to the father, and subject to a further fine of $1,000 for any additional failures to comply with the parenting time order. Interestingly, the claim in the bill of costs of over $14,000, would seem to be much more consequential than the fines themselves. Costs are ordinarily a reality of litigation and subject to a different set of rules and discretionary factors. However, clause 31(5)(f) does permit an award of costs as a sanction after a finding of contempt.

[48] The father’s argument in favour of a compensatory fine is that it would represent a form of restitution for the lost parenting time.

[49] In keeping with the reasoning that the purpose of the parenting order was to restore the child’s relationship with the father, in her best interests, I do not believe a compensatory fine payable to the father would be appropriate. There is no evidence that he would come under hardship if the court did not make the order payable to him. What such an order would do is provide potential symbolism that further interferes in the relationship. Making the mother pay the father only gives the daughter a reason to see a false functional equivalence between the mother’s pain and the father’s gain. Furthermore, such an order for payment could conceivably allow the mother to tell the father simply to offset the fine against his child support obligations. That support belongs to the child, not the mother.

[50] In order for the fine for contempt to have any moral sting to it, the mother must be required to pay it as if she had been convicted of any public offence, as opposed to it being lost in a sea of expenses within the family law litigation. Even if she pays the fine through her lawyer instead of attending at the court counter, the fact that she has to execute a direction for payment will register the fact that the court has disapproved of her conduct.

[51] It is also possible for the respondent mother, now found in contempt, to tender a proper apology to the court to explain, in her own words, how she now appreciates that her conduct was wrongful. One of the reasons for a court’s duty to provide reasons is to explain to wrongdoers why the court has ruled against them. Undoubtedly this is not something she would relish doing more than once, if she could avoid it by mustering a better effort to facilitate the father’s parenting time. Apologies entail loss of face, but they also bear restorative value.

[52] I therefore fine the mother the sum of $5,000. $1,000 of the fine is payable within 15 days of the release of this order, payable by her to the Minister of Finance of Ontario. The balance of $4,000 is hereby suspended for 30 days, pending a handwritten apology to be filed with the court as an attachment to an affidavit prepared by her lawyers. On the filing of such an apology, the fine will be limited to $1,000.

[53] The father has been successful in the motion and presumed entitled to costs under rule 24. Given that the court relies on parties such as the father to enforce breaches of court orders, it would be contrary to the administration of justice to relieve the mother of the costs burden and thus create a disincentive to parties in the position of the father. Both parties have submitted bills of costs. The mother’s bill submitted an amount in the order of $8,000, in the event of her success in resisting the motion. She therefore expected to receive that from the father, had the motion been dismissed. Given that the father would not have brought the motion if the mother had properly respected the court order, or even partially complied with it, I hereby award costs to the father in the amount of $10,000, inclusive of disbursements and HST.

Akazaki, J.

Released: February 9, 2023