Court File and Parties

COURT FILE NO.: FC1201/22 DATE: May 1, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Matthew Warren Carey, Applicant AND: Amanda Anne Carey, Respondent

BEFORE: TOBIN J.

ATTENDANCE: William R. Clayton, for the Applicant Danica Francis, for the Respondent Jim Pietrangelo, Office of the Childrens Lawyer

HEARD: April 26, 2024

Endorsement

[1] The Applicant (the “father”) brought a contempt motion dated December 4, 2023 against the Respondent (the “mother”). The reason for the request is the father’s claim that the mother is not allowing him parenting time contrary to outstanding orders.

Facts

[2] The parties are parents of two children, Jackson Warren Carey, born October 4, 2015, now eight years of age, and Connor Joshua Carey, born June 5, 2018, now five years of age.

[3] The parties separated on January 28, 2020.

Separation Agreement

[4] On June 16, 2021, the parties entered into a separation agreement. It provided, in part, that the parties have joint decision-making responsibility with respect to their children.

[5] As part of the joint decision-making responsibility consultation process, the parties agreed to consider the views and preferences of the children.

[6] If, after meaningful consultation, the parties were not able to agree on an important decision, the mother was to make the final decision. The mother’s decision, however, was subject to review by the court if the father believed the decision was not in the best interests of the children.

[7] The parties also agreed that the children’s primary residence would be with the mother. The father’s parenting time was defined in the separation agreement.

[8] In accordance with the terms of the separation agreement, the father had parenting time with the children until August 2022.

August 26, 2022 Incident

[9] On August 26, 2022, the father went to the mother’s house to pick up the children for his parenting time. The mother’s evidence was that the father was “intoxicated and caused a scene.” As a result, she would not allow the children to go with the father.

[10] The father denies this incident occurred as described by the mother. His evidence is that the mother “began to arbitrarily withhold the children and refused [him] any contact with them.”

[11] What the parties do agree upon is that the father did not have parenting time with the children for a number of months after that date. The mother’s evidence is that she did not hear from the father to resume his parenting time until he retained counsel.

A Court Case is Started by the father

[12] On November 7, 2022, the father started an application, asking the court, in part, to reinstate his parenting time, provide him with makeup parenting time, and provide for scheduled telephone calls.

[13] On February 21, 2023, the matter was before the court and Justice Price made an order upon the following terms:

1. the parenting arrangements for the children were to be as set out in the separation agreement made by the parties except as varied by the court’s order;
2. the father was not to consume alcohol during his parenting time and for 12 hours prior thereto;
3. makeup parenting time was ordered;
4. the father was to have telephone contact with the children on the Saturdays, Sundays, and Tuesdays when they were not in his care. The telephone contact was to be for up to 15 minutes each day. The default time for the telephone calls was to be 6:30 p.m.

[14] This order was followed until March 25, 2023.

March 25, 2023 Incident

[15] On March 25, 2023, the father had the children in his care. He brought them to a hockey rink in London so that Jackson could participate in a hockey tournament. The mother also attended that day as the parties’ usual practice was for her to bring the children’s hockey equipment.

[16] The mother’s evidence is that on that day was that:

1. the father “appeared to be intoxicated, as he was stumbling, had red eyes, and was slurring his words;”
2. the father threw something at the mother;
3. another parent told the father that his behaviour was inappropriate; and
4. the father stormed out of the arena and the children stayed with the mother the rest of the weekend.

[17] The father’s evidence regarding this event is that the mother “purported to remove the children” from his care. In order to avoid a confrontation that would embarrass the children, he left the arena.

[18] Following that event, the father did not see the children for a number of months. The mother’s evidence is that the father did not attend to pick up the children during his three parenting time weekends in April 2023 nor the three parenting time weekends he had in May 2023.

[19] Also, during this period, the father did not have telephone contact with the children. The mother’s evidence is that the parties agreed the calls would occur at 6:30 p.m. The missed calls were due to the father calling late or requesting a different schedule.

Case Conference

[20] On May 24, 2023, a case conference was held before Justice Sah. An order giving effect to a Consent Endorsement Request signed and filed by the parties was granted by the court that day. Mr. Clayton advised that the formal order has yet not been taken out.

[21] The Consent Endorsement Request provided in part:

1. The children were to be picked up and dropped off at the mother’s residence, or the children’s school, if applicable, by third parties, namely Sarah Hardman (the father’s girlfriend) or Cathy Carey (the paternal grandmother), starting May 26, 2023 at 5:00 p.m.
2. Except as otherwise provided for in the Consent Endorsement Request, the order of Justice Price was to remain in full force and effect.
3. “Parties to remain in vehicle, and third parties to remain in vehicle or, if applicable, in the residence.”
4. Direct telephone calls prescribed in the order of Justice Price were to take place at 6:30 p.m. and were to be initiated by the mother.

May 26, 2023

[22] The next scheduled parenting time following the appearance before Justice Sah was to take place May 26, 2023 at 5:00 p.m.

[23] The children were not made available at that time.

[24] The mother explained that the children were not at her home at that time because they were with her due to an “urgent emergency” with a relative. The mother’s evidence is that she did not call the father because there was a non-communication order in place as a result of an outstanding criminal charge against him. The mother understood she was prohibited from communicating with the father. As well, the mother was not able to call the paternal grandmother as she (the paternal grandmother) had blocked the mother’s ability to do so. The mother offered makeup time to the father, but this was declined by him.

[25] On June 2, 2023, the father’s girlfriend attended to pick up the children. The children came out of the house ready to go to their father’s for parenting time. The weekend parenting time took place without incident.

[26] Subsequent to June 2, 2023, weekend parenting time continued without significant incident [1] until September 28, 2023.

[27] The case was before Justice Campbell on September 13, 2023 to address the father’s amended contempt motion dated June 5, 2023. The father did not pursue his contempt claim that day. Instead, parenting time issues were addressed. The court’s decision was released on October 5, 2023. The order made by Justice Campbell, released October 5, 2023, provided, in part,

1. for makeup parenting time and allowed the father to attend at parenting time pickup as long as he stayed in his vehicle.
2. the father was to give notice to the mother that he will exercise parenting time no less than 18 hours in advance.
3. also, it was ordered that the mother comply with the telephone contact order made by Justice Price on February 21, 2023.

September 25, 2023 Incident

[28] The father had parenting time with the children on the weekend of September 23–25, 2023.

[29] After Jackson returned home, he disclosed to the mother that the day before, his father “assaulted” [2] him.

[30] The mother reported this disclosure to the Children’s Aid Society and police.

[31] The children were not made available for parenting time with the father on the next scheduled visit as Jackson was interviewed by a police detective.

[32] On the next mid-week parenting time, being October 4, 2023, the children did not want to go with their paternal grandmother when she came to pick them up. Consequently, the maternal grandmother left without the children.

[33] The next weekend of parenting time was scheduled for October 6, 2023. The paternal grandmother attended the mother’s home to pick up the children. Both children went to the paternal grandmother’s vehicle and told her they would not go with her. The mother, who heard and saw this exchange through her Ring doorbell, came outside to try to convince the children to go. She spent two hours trying to do this. The children refused. The paternal grandmother drove away.

[34] Despite attempting to have the children in his care, they have not gone for parenting time since the weekend of September 23, 2023.

[35] The paternal grandmother attended at the mother’s home to pick up the children for the father’s parenting time on each scheduled occasion. The children have not made the transition from the mother’s care to his [3].

[36] The parties agree that no charges were brought against the father arising from Jackson’s disclosure and the CAS closed its file.

[37] In addition to not seeing the children, the father has not received a telephone call from them despite the existing court orders providing for this to occur.

Contempt Motion

[38] These events precipitated the father bringing this contempt motion dated December 4, 2023.

[39] The mother’s evidence is that she tried to facilitate the father’s parenting time. She described in detail [4] the steps she takes to prepare the children to go on parenting time visits. The mother’s efforts to do so are confirmed by the maternal grandfather in his affidavit sworn January 12, 2024.

[40] Subsequent to bringing the contempt motion, the father has not had parenting time with the children.

[41] The mother’s evidence is that from October 7, 2023 until April 12, 2024 the father cancelled four visits, did not provide prior notice five times, and failed to attend despite messaging that he would attend for parenting time five times.

Legal Considerations: Contempt

[42] Motions for Contempt in family law proceedings are governed by Family Law Rules, O. Reg. 114/99 R. 31.

[43] Under this rule, a party may seek enforcement of an order by bringing a notice of motion and supporting affidavit to obtain a contempt order: r. 31(1) and (2).

[44] The supporting affidavit may contain information that the person who signed the affidavit learned from someone else. However, the source of the information must be identified by name and the affidavit must state that the person signing it believes the information is true. In addition, this type of information is limited to that which is not likely to be disputed: rr. 31(3) and 14(19).

[45] Exact particulars of the alleged breaches must be provided either in the Notice of Motion or the supporting affidavit.

[46] If found in contempt, r. 35(5) provides for the penalties that may be imposed.

[47] The party alleging contempt by reason of disobedience of a court order must prove it beyond a reasonable doubt: Jackson v. Jackson, 2016 ONSC 3466, at para. 48.

[48] In Carey v. Laiken, 2015 SCC 17 (S.C.C.), at para. 38, the court described the requisite mental element of contempt as follows:

38 It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, at para. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25; Sharpe, at ¶6.190. The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test "too high" and result in "mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge" (2013 ONCA 530 (Ont. C.A.) (para. 59)). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard; and Sharpe, at ¶6.200.

[49] A party seeking a finding of contempt must therefore only prove that the alleged contemnor intentionally did not do what was required under the order. The absence of contumacious [5] intent is a mitigating but not an exculpatory circumstance: Sheppard, Re, [1976] 67 D.L.R. (3d) 592 (Ont. C.A.), at 595-596.

[50] In Moncur v. Plante, 2021 ONCA 462, at para. 10, the Ontario Court of Appeal set out concisely the general principles that govern the use of the court’s power to find a party in contempt for breaching a court order, as follows:

10 The following general principles govern the use of the court's power to find a party in civil contempt of court for breaching a court order:

1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32–35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25–26.

2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first 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: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799 Ont. C.A., 33 R.F.L. (8th) 19, at paras. 9–12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385 Ont. C.A., 25 R.F.L. (8th) 144, at paras. 18–19.

3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

[51] At paras. 19 and 20, the court addressed the importance, especially in family law cases, of considering alternatives to contempt as follows:

19 I do, however, agree with the appellant's argument that the motion judge did not appear to consider whether a declaration of contempt was a remedy of last resort or whether there were alternative enforcement options, such as a declaration that the appellant had breached the order or encouraging professional assistance. Without considering any alternative options, he appears to have proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt. Although the motion judge had earlier properly held the contempt ruling in abeyance to allow the parties to arbitrate their parenting conflicts, and offered to help the parties resolve their issues, his reasons do not suggest that he considered other enforcement options in lieu of ultimately making his declarations of contempt. The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court. In fairness to the motion judge, such other options do not appear to have been raised by the appellant, who was self-represented, or by the respondent. Even so, I conclude that it was an error of law not to have considered such options: Chong, at para. 12.

20 It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.

Discussion: Contempt

[52] The father’s Notice of Motion set out the alleged breaches that occurred between February 21, 2023 until November 17, 2023 as follows: − Negligently refusing to deliver up the children for prescribed parenting time with the father as ordered by Justice Price; − Refusing to arrange for telephone calls as prescribed by Justice Price; − Willfully refusing to deliver up the children for parenting time on dates specified, contrary to the orders of Justices Sah and Campbell.

[53] The mother concedes that she had actual notice of the three orders. [6]

Ambiguity

i) Telephone calls

[54] The mother submits that paragraph 3(c) of the order of Justice Price, which requires there to be telephone contact, does not specify who is to initiate that contact. Consequently, it is not clear and unequivocal that it is she who was to initiate the calls.

[55] I agree that the logistics of the telephone calls were not set out in the order. I infer that the parties acknowledged that the logistics were not set out because, in the Consent Endorsement Request signed by them and given effect to by the endorsement of Justice Sah on May 24, 2023, it specifies that the mother is to initiate the calls.

[56] Given the ambiguity of the telephone contact provisions of the Justice Price order, I would not find that the mother intentionally failed to comply with this term of the order.

ii) The parenting time exchanges

[57] The mother and father disagree about what was expected of her during parenting time exchanges under the Justice Sah order. The term provides: “Parties to remain in vehicle and third parties to remain in vehicle or if applicable in the residence.”

[58] The mother argues that she understood this term required her to remain in her home when the children were picked up by the father or his designate.

[59] The father argues that there is no ambiguity. He asserts that on a plain reading of the clause, it applies only to the father or his designate, not to the mother.

[60] I agree with the mother that the provision can fairly be interpreted to require her to remain in her home. − The provisions refer to the parties not just to the father. − The evidence disclosed that the children were picked up from the mother’s home. − I was not directed to any evidence or provision that the mother did or was required to attend at the father’s home for parenting time exchanges. − The evidence of the paternal grandmother was that she was advised by the father that she was one of the two parties designated to pick up and drop off the children for parenting time exchanges.

iii) Which three weekends

[61] The mother argues that the order of Justice Price at paragraph 3(a), which requires the father have parenting time with the children “three weekends out of four weekends … until mid-February 2024”, is not clear. She submits that this clause does not specify which of the three weekends per month are to be scheduled for the father’s parenting time.

[62] I do not agree with the mother that this provision is unclear and unequivocal. The parties were aware that, for the purpose of makeup time, the father was to have an extra weekend each month. There is no evidence that when parenting time did take place after February 2023, the parties were unable to arrange for this extra weekend. I was not advised of any steps the mother took to resolve which extra weekend was to be given to the father for his makeup parenting time.

Intentional Breach

[63] The evidence before the court consists of the affidavits of the parties and their collaterals. As well, it was agreed the court could consider the letter sent to the father by the Children’s Aid Society dated April 3, 2024. This letter confirms that the Society had closed the case.

[64] The affidavit evidence is conflicting on the essential facts of this motion. The evidence has not been tested by cross-examination. As Justice Campbell observed in his endorsement of October 5, 2023, at paragraph 20:

It is trite to say that determining serious issues involving children is challenging and particularly so when the court is faced with untested contradictory evidence.

[65] This situation makes it difficult as there is no corroborating evidence to make a principled credibility finding with respect to the disputed evidence. The trial judge will be in a much better position to resolve conflicting evidence when there is a full evidentiary record.

[66] Having reviewed the evidence filed and arguments made, I am not persuaded beyond a reasonable doubt that the mother “intentionally failed to deliver up the children” to the father as particularized in the Notice of Contempt Motion, except on May 26, 2023.

[67] I accept that the children were not in the father’s care on the days set out in the Notice of Motion. That evidence is not in dispute. What is in dispute is why the father did not exercise his parenting time.

[68] During the March 25, 2023 weekend the evidence discloses that the children were with the father until the incident at the hockey rink occurred. The father left the children with the mother, he said, to avoid a confrontation with her and thereby embarrass the children. This evidence does not support a finding that the mother failed to deliver up the children to the father contrary to the order of Justice Sah [7], which order was not made until May 24, 2023. Nor does the evidence support a finding that the mother failed to deliver the children to the father contrary to the order of Justice Price.

[69] Regarding the weekend of April 6, 2023, the father acknowledged in his evidence that it “slipped” his mind that he was to have parenting time that weekend.

[70] Regarding the weekends of April 21 and 28, 2023, the parties provided conflicting evidence. The mother claimed that the father did not attend to pick up the children. The father’s evidence is that he was advised by his mother, and verily believed, she went to pick up the children, but they did not come out. This is not admissible evidence on a contempt motion. I was not directed to evidence that the paternal grandmother responded to the mother’s evidence about these occasions.

[71] On the May 5, 2023 weekend, the father chose not to attempt to exercise parenting time.

[72] On the May 12, 2023 weekend, the children were with the mother because it was Mother’s Day weekend. The father did not provide evidence to the contrary.

[73] With respect to the weekend of May 19, 2023, the father had been charged with criminal harassment against the mother and was prohibited from communicating with her. As to why parenting time did not take place that weekend, he stated that he was defending the charges and that he was subject to interim release provisions which impeded his ability to communicate with the mother.

[74] The mother admits that the children were not made available on May 26, 2023. This was the day she dealt with the family medical emergency. On that day, the mother did intentionally not make the children available for the father’s parenting time. In the circumstances, I would not make a finding of contempt against the mother nor impose any penalty. This incident arose out of an emergency situation and the mother offered the father makeup parenting time. The statement of the police officer to the father about what the mother said is not admissible on this motion.

[75] Regarding the May 31, 2023 weekend, the parties provided conflicting evidence. On that day, the father’s girlfriend attended to pick up the children. They were ready to go but refused to leave with her. I am not able to find on the evidence that the mother prevented the children or impeded them from going with the father’s girlfriend for the father’s parenting time.

[76] Regarding the weekend of September 23–25, 2023, the children were with the father.

[77] Subsequent to that weekend, the children have not been in the father’s care for parenting time. The evidence is conflicting why this is the case. The father’s evidence is that the mother is willfully refusing to allow the children to attend. His theory is that she is attempting to alienate the children from him. The evidence of the paternal grandmother is generally that when she attended the mother’s home to pick up the children, they would come outside to her car but refuse to go with her, or they did not appear at all. [8]

[78] The mother’s evidence is that she makes the children available for their scheduled parenting time. However, following Jackson’s disclosure about being assaulted by the father, the children do not want to go.

[79] The uncontradicted evidence of the mother is that she actively prepares and encourages the children to attend for parenting time with the father. On the basis of this evidence, I am not able to find beyond a reasonable doubt that the mother has intentionally failed to produce the children for the father’s parenting time as required by the outstanding court orders.

[80] On this contempt motion, I am not called upon to decide what, if any, changes are to be made to the existing parenting orders having regard to the best interests of the children. That motion has been scheduled for May 17, 2024 before me. I expect to have the benefit of updated evidence relevant to the children’s best interests, including from the Children’s Lawyer’s agent who was recently appointed.

[81] Had I exercised my discretion to find the mother in contempt, the father would have asked that the children be placed in his care. The father can renew that request when the motion to vary the existing court orders is made.

[82] The Notice of Contempt Motion did not ask for a finding based on the mother not initiating phone calls as ordered by Justice Sah. No finding in this regard will therefore be made. I note that the mother did not explain in this motion why these calls were not being made. It is expected that the mother, who says that she is or tries to be in compliance with the court orders, will do so with respect to the three times per week telephone calls.

Decision

[83] It is for these reasons that the father’s motion asking that the mother be found in contempt and punished is dismissed.

[84] In the circumstances of this case, I would not be inclined to award costs. This was a motion the father had to bring to move this case forward and try to resume parenting time with the children.

[85] However, if the parties wish, they may make submissions on costs limited to three pages together with a bill of costs and any offers to settle. The mother is to provide her submissions within seven days of the release of this endorsement and the father within seven days after being served with the mother’s submissions on costs. If submissions are not filed in accordance with this timeline, the issue shall be deemed settled and no order shall issue.

“Justice B. Tobin”

Justice B. Tobin Date: May 1, 2024

Footnotes

[1] The parties disagreed on the summer parenting time schedule. [2] This was the word used in the mother’s affidavit of November 30, 2023. [3] This was the father’s evidence as contained in his affidavit sworn December 4, 2023, at paragraph 21. [4] See affidavit of the mother sworn January 11, 2024, at paragraph 42. [5] Stubbornly or willfully disobedient to authority. [6] Even though the Justice Sah order has not been formally taken out as yet. [7] As described in the Notice of Contempt Motion at para. 3 i [8] The paternal grandmother’s affidavit of December 4, 2023, at paragraphs 5 to 20, details all the times she attended to pick up the children but was unsuccessful in having them go with her.