Superior Court of Justice – Ontario – Family Court

NEWMARKET COURT FILE NO.: FC-22-2141-00

DATE: 20231102

RE: G.D., Applicant

AND:

J.D., Respondent

BEFORE: The Honourable Mr. Justice G.A. MacPherson

COUNSEL: S. Kalra, Counsel for the Applicant

R. Aalto, Counsel for the Respondent

HEARD: November 1, 2023

ruling on motion

Relief Requested

[1] The Respondent advances a motion requesting the relief that follows:

(a) an Order finding the Applicant in contempt of paragraphs 4 and 5 of the Order of Justice Bird dated January 26, 2023 by failing to deliver the children, B.D.#1 born in 2012 and B.D.#2 born in 2006;

(b) sentencing of the Applicant for the contempt as follows:

i. a period of imprisonment;

ii. pay a fine;

iii. pay a penalty;

iv. pay costs;

v. obey an Order; and

vi. do anything else the court orders or forbids;

(c) splitting the visits with the children such that the Respondent has visits with B.D.#2 twice per week and visits with B.D.#1 once per week;

(d) expanding the hours for visits with B.D.#2 to four hours;

(e) provide unsupervised visits; and

(f) supervision, if required, to be done by the paternal grandparents; the maternal grandparents; or extended family.

Brief Background Facts

[2] The parties were married July 2, 2004 and separated August 17, 2022.

[3] There are two children of the relationship namely, B.D.#1 born in 2012 and B.D.#2 born in 2006.

[4] On January 26, 2023 Justice Bird made an Order, on the consent of the parties, following the court hearing an urgent Case Conference. The pertinent details, for the purpose of this motion, are as follows:

a) The Respondent will have parenting time with the children in person every Sunday from 2:00 p.m. to 4:00 p.m. The parenting time was to be supervised; and

b) The Respondent will have virtual parenting time with the children every Tuesday evening at 5:00 p.m. with an expected duration of 30 minutes; and

c) the children will undergo counselling with Joanna Seidel.

[5] There is no doubt that the affidavit evidence filed confirms that the children have not attended all of the parenting time that was court ordered.

Summary of the Parties’ Positions

[6] The Respondent advances the position that prior to June 2022 he had an excellent relationship with the children. He suggests that the children, since that time, have been alienated against him and he holds the Applicant responsible. The Respondent is of the view that the Applicant could simply tell the children what to do and that they will listen to her.

[7] The Applicant advances the position that the Respondent has been physically and emotionally abusive to her and the children for years and that prior to separation the children lived in constant fear of the Respondent. Post separation the Applicant states that the children have emotional outbursts when brought to visits and that B.D.#1, in particular, and often B.D.#2, refuse to see the Respondent.

Contempt

[8] The first element of the test for contempt of a court Order is that there must be a court Order to be enforced. Given that the fundamental purpose of the civil contempt remedy is to protect and enforce private rights, it is only available to redress breaches of Orders that are live and operative when the contempt finding is made, and which the aggrieved party wishes to enforce. I find there is a court Order to be enforced and that is the Order of Justice Bird dated January 26, 2023.

[9] The second requirement for a finding of contempt of a court Order is that the Applicant must have had actual knowledge of the Order that she is alleged to have breached. I find that the Applicant had knowledge of the court Order as she was present in court at the time the order was made and she consented to the order.

[10] The third element of the test for contempt is that the Order alleged to have been breached must state clearly and unequivocally what should and should not be done. I find the Order to be clear and unambiguous for the purposes of a contempt motion.

[11] The fourth element of the test is that the moving party must establish that the Applicant disobeyed the Order. I am not satisfied that the Applicant disobeyed the court Order.

[12] Finally, there must be a finding that the Applicant disobeyed the Order in a deliberate and wilful fashion. The court may decline to make a contempt finding even if there was non-compliance with the Order if the Applicant acted in good faith by taking all reasonable steps to comply with the Order. I find that the Applicant took all reasonable steps to comply with the Order.

[13] In addition to the substantive elements to the test for civil contempt as described above, there are notice requirements that must be satisfied. The Applicant must be given proper notice for a contempt finding, including particulars of the alleged breaches clearly laid out so that she is made aware of the case to which she must respond. It is preferable that the full particulars of the alleged contempt be clearly set out in the Notice of Motion. In the case before me, the Notice of Motion signed October 2, 2023 provides sufficient details and notice.

Analysis

[14] As stated, I am not satisfied that the Applicant disobeyed the court Order and I am not satisfied that the parenting time missed by the Respondent was done in a wilful and deliberate fashion for the reasons that follow.

Independent and Neutral Evidence

[15] There is much independent evidence.

[16] In a letter dated December 5, 2022, the principal, and two vice-principals at Aurora Montessori School, where the children attend, described their observations of the children at school and made the following comments:

(a) depending on the day, the children’s emotional reactions were varied. Some days the children attend school without apprehension or emotional dysregulation. On other days the children have tears and are concerned about being separated from their mother; and

(b) there are days when B.D.#1 refuses to go to class and there are days when B.D.#1 has numerous conflicts with others, has broken people’s pencils, poured water onto other people’s work and has pushed people out of his way.

[17] Dr. Tang is the children’s doctor. In a letter dated July 13, 2023 Dr. Tang makes the following comments:

B.D.#2 has been diagnosed with generalized anxiety with somatic symptoms. What this means is that when B.D.#2 is stressed or anxious her emotions manifest with a mixture of overwhelming feelings and physical symptoms. B.D.#2 has began to manifest her anxiety in the form of bladder and bowel incontinence; and that B.D.#2’s episodes of incontinence occur the closer she gets to the weekend.

[18] Starting in February 2023, the Respondent’s visits were supervised at Brayden Supervision Services Inc. The Brayden case notes state as follows:

(a) on February 5, 2023, the Applicant brought the children to the parenting time visit and the children did not want to go on the visit with the Respondent. The supervisor did her best to encourage the children to have a visit with the Respondent. B.D.#1 would not get out of the car. B.D.#2 did get out but would not speak to the Respondent;

(b) on February 12, 2023 the Applicant brought the children to the parenting time visit and the children did not want to go on the visit with the Respondent. The Applicant tried to calm B.D.#2 and get her out of the car. B.D.#1 began throwing items at the Respondent. The Applicant and Respondent both tried to get the children out of the car. B.D.#1 was yelling and throwing items. B.D.#1 did not get out of the car. B.D.#2 did get out of the car but would not engage with the Respondent. B.D.#2 wet her pants during the visit;

(c) on February 19, 2023, the Applicant brought the children to the parenting time visit and the children refused to get out of the car. The Applicant and the Respondent encouraged the children to get out of the car but the children refused. B.D.#1 tried to kick the Respondent. The Respondent asked B.D.#1 whose behaviour this was and B.D.#2 responded “yours.” The Respondent stated “I teach you to hit?” B.D.#1 responded: “We watched you do it.” The supervisor spoke to the children to encourage them to attend the visit. The children refused to go to the visit;

(d) on February 26, 2023 the Applicant brought the children to the parenting time visit and the children refused to get out of the car. B.D.#1 hit and kicked the Respondent numerous times. B.D.#1, at one point, was sobbing. The Applicant tried to have B.D.#2 exit the vehicle but she refused. B.D.#1 indicated he would hurt himself and started to hit himself. B.D.#1 threw his shoes at the Respondent. The supervisor attempted to have B.D.#2 exit the car for the visit but she was unable to do so;

(e) on March 5, 2023 the Applicant brought B.D.#2 to the parenting time visit and B.D.#2 refused to exit the car for the visit. Both the Applicant and supervisor encouraged her without success. B.D.#2 was crying and holding the Applicant;

(f) on March 12, 2023 the Applicant brought B.D.#2 to the parenting time visit and B.D.#2 refused to exit the vehicle throwing things at the Respondent. B.D.#2 was described as shrieking and crying. B.D.#2 vomited. The Applicant and Respondent encouraged B.D.#2 to exit the vehicle and attend the visit. B.D.#2 refused; and

(g) on July 30, 2023 the Applicant brought the children to the parenting time visit and both B.D.#1 and B.D.#2 refused to exit the vehicle. There was yelling and there was hitting.

[19] There are other Brayden case notes that I have not referenced. They are all strikingly similar. In a nutshell, the Applicant brings the children to the parenting time visit and the children refuse to engage with the Respondent despite the encouragement of the supervisor, the Applicant and the Respondent. I was not directed to a single instance where the Applicant, in any way, did anything other than bring the children to the visits and encourage them to attend.

[20] The Applicant cannot and will not be held in contempt for failing to convince the children to participate in the visit despite her noted efforts. The Respondent was unable to convince the children to attend the visit. The supervisor, from Brayden supervised Services, was similarly unable to convince the children to attend. The evidence does not support a finding that the Applicant disobeyed the Order and it does not support a finding that she did so in a deliberate and wilful fashion. Rather, the evidence supports a finding that the Applicant has delivered the children to visits and encouraged them to attend visits.

[21] With respect to virtual visits, the Applicant sets up the device so that the children can participate in parenting time with the Respondent. However, the Applicant states that the children resist engaging with the Respondent. The Applicant states that she has spent many evenings running around the house chasing the children with the phone on video. If left unattended, B.D.#1 will turn off the device. This is confirmed in a May 2023 text message from the Respondent when he states: “B.D.#1 trying to wrestle you and get the phone away is not right.”

Counselling

[22] Both children are engaged in counselling services with Rebecca Skippen and have been since January 2023. B.D.#1 has attended 27 sessions and B.D.#2 has attended 21 sessions. There have also been three family sessions that include both the Applicant and the Respondent and those occurred recently. Ms. Skippen provided a report dated October 31, 2023. In it she makes the following observations:

(a) the children do not demonstrate a strong or healthy relationship with the Respondent;

(b) the children have a negative view of their parent’s separation and the Respondent’s participation in the separation;

(c) the children continue to experience emotional confusion and distress when interacting with the Respondent; and

(d) further therapy is recommended to help the children and parents navigate their family dynamic.

[23] There is no suggestion the Applicant is alienating the children from the Respondent contained in the counselling report from Ms. Skippen.

[24] It is noteworthy that Diana Polak is completing a section 30 assessment and quite appropriately so. Both parties consented to the assessment. Both parties are contributing to the cost of the assessment. There are clinical issues here that need to be addressed.

[25] Advancing this contempt motion was misguided and certainly illustrates a lack of insight by the Respondent to the family dynamic. If the Respondent thinks that placing the Applicant in jail or some other form of punishment would be the great panacea to the issues and, therefore, advance his cause he is seriously mistaken. If the Respondent thinks that increased parenting time or a change of supervisors or location will magically reduce the clinical issues that are presenting, he is mistaken.

[26] The most prudent course of action for the Respondent to take in the immediate future is to:

(a) recognize that the children are in distress;

(b) recognize that there is precious little evidence, currently, to suggest that alienation may be the foundation of the issues;

(c) to explore what part, if any, he has played in the presenting clinical issues;

(d) continue to encourage the children to participate in visits;

(e) continue to participate in family counseling with Ms. Skippen; and

(f) wait for the section 30 assessment from Ms. Polak so that all parties and the court can have some confidence that the underlying clinical issues have been identified.

ORDER

1. The Respondent’s motion, including the contempt motion, is dismissed in its entirety.

2. If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, written submissions, limited to three pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.

The Honourable Justice G.A. MacPherson

Date: November 2, 2023