Court File and Parties

COURT FILE NO.: SIM FC-24-70 DATE: 2024-05-15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: K.M., Applicant AND: J.R, Respondent

BEFORE: The Honourable Justice C. D. Braid

COUNSEL: Applicant - self-represented Respondent - self-represented

HEARD: May 15, 2024

Endorsement

[1] K.M. and J.R. were married in 2015; separated in 2016 and divorced in 2018. They are the biological parents of one son, who was born in May 2017 and who is approximately 7 years old. In these reasons, I shall refer to the parties as the mother and the father.

[2] On January 5, 2022, Justice Pazaratz made a final order with extensive terms that were crafted to reduce conflict between the parents, including the following:

• the mother shall have sole decision-making authority in relation to all issues relating to the child.
• The mother shall consult with the father in all major decisions involving the child.
• The order included details regarding parenting time.
• The parties shall only communicate with one another in relation to the child, those communications shall be in writing using the messaging service AppClose. The communications shall be civil, respectful and child focused.
• Paragraph 20 of the order addressed past problems with abusive and inappropriate messages being conveyed by the father, and allowing the mother to suspend her obligation to consult with the father if such messages were sent in the future.

[3] In February 2024, Justice Pazaratz heard evidence and submissions over three days on Motions to Change. On March 5, 2024, Justice Pazaratz released a Judgment, K.M. v. J.R., 2024 ONSC 1338, that was 102 pages long. In that decision, he stated the following: “Two years ago I warned the mother and father that their hatefulness toward one another was ruining their son’s life. I tried to craft an order which was so specific and restrictive that it was intended to pre-empt opportunities for conflict and misadventure.”

[4] Justice Pazaratz acknowledged that the order did not prevent conflict between the parties, who were focused on the bitterness in their relationship with one another, rather than on their respective relationships with the child. He found that some of the mother’s text messages were disrespectful, and that many of the father’s messages were disrespectful and aggressive. A large number of communications back and forth were unproductive, provocative and misleading. He also found that the mother kept complaining about the father’s rude and uncooperative attitude in their texts, but she glossed over the fact that his antagonism may have something to do with the fact that she repeatedly calls him a liar without ever having any proof.

[5] On March 22, 2024, the parties appeared before Justice Pazaratz to address some residual issues regarding the Judgment. Some minor orders were made on consent. The attendance then became volatile and ultimately unpleasant. The father’s behaviour became unacceptable, and he was removed from the Zoom call. The mother expressed disagreement with some of the findings and determinations in the Judgment, and she was advised to get legal advice. She was also told that it was not the appropriate forum to voice disagreement over a final order.

[6] Less than two months after the final appearance before Justice Pazaratz, the mother has brought two motions returnable before me today:

i. A contempt motion seeking a finding that the father is in contempt of Justice Pazaratz’s order; and ii. A motion seeking declarations that the father is in breach of Justice Pazaratz’s orders, and seeking an order that the mother be made responsible to select third party exchange persons when necessary, and plan the exchanges.

[7] Justice Pazaratz referred to times when “it becomes clear that parents who repeatedly return to court aren't really seeking help. They pretend they're doing it “for the sake of the child.” But really, they have their own agenda. They’re using the trappings of the court as an institutional tool for vindication, punishment - and to perpetuate conflict. They're not here to solve the problem. They are the problem.” While his comments were general, it is clear that Justice Pazaratz was referring to the parties who are before the court today.

[8] Justice Pazaratz is a senior and well-respected family court judge. At the time of writing his decision on March 5, 2024, he had heard a significant amount of evidence and submissions from these parties – first, at a 22-day trial and then at a subsequent, 3-day hearing on Motions to Change. I accept and adopt his comments. The fact that the mother has brought these motions less than two months after the final court appearance, when the ink was barely dry on the Judgment, is further proof of Justice Pazaratz’s comment: “it's as if final has no meaning for litigants who don't like the result.” It appears that the mother is attempting to relitigate matters that Justice Pazaratz decided on a final basis. For the reasons set out below, both motions are dismissed.

Analysis

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

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

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

a. The order alleged to have been breached must state clearly and unequivocally what should and should not be done; b. The party alleged to have breached the order must have actual knowledge of the order’s terms; and c. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order requires.

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

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

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

[14] The contempt motion alleges that the father has failed to comply with the court orders in three ways:

i. Paragraph 13 of the order: the parties shall only communicate with one another in relation to the child. The mother alleges that the father breached this term on February 8, March 31, April 3 and April 14, 2024. ii. Paragraph 15 of the order: only child-related issues shall be discussed on AppClose, including topics such as scheduling, activities and the child's health. The mother alleges that the father breached this on February 8, March 31, April 3 and April 14, 2024. iii. Paragraph 16 of the order: all communications shall be civil, efficient, respectful and child focused. The mother alleges that the father breached this term on February 8, March 22 and 31, April 1, 3, 13, 14, 15, 2024 via AppClose; and on March 22, 2024 in the courtroom.

[15] The mother seeks an order that the father be found in contempt, and additionally seeks an order that she be granted sole responsibility to plan the exchange of the child, including selecting the exchange party, as well as the time. She states that this is meant to eliminate unnecessary back and forth and confusing scheduling and conflict for exchanges.

[16] In a separate notice of motion, the mother seeks:

i. declarations that the father is in breach of paragraphs 21, 22, 23 and 30 of the order dated January 5, 2022 ii. declarations that the father is in breach of paragraphs 228f), 235 and 248 of Justice Pazaratz judgment of March 5, 2024. iii. an order that the mother be made responsible to select third party exchange persons when necessary, and plan the exchanges. iv. That the father provide her with discharge paperwork from the April 14, 2024 hospital visit.

[17] I have reviewed the mother's affidavits in detail. She has attempted to raise events that occurred prior to the March 5, 2024 ruling and which were likely raised in evidence on the motion to change before Justice Pazaratz. It is not appropriate to raise these issues once again as they have already been addressed by the court.

[18] I have considered the messages sent after the date of the Judgment. While some of the father's messages are not exactly child focused, most of them do not even come close to being a breach of the order. In my view, the mother has overreacted to some of the messages. One such example is an exchange on April 1, 2024, when the mother sent the father information about meeting with the child's teacher. The father responded “Very interesting FYI”. In her affidavit, the mother described this as a “ridiculing and dismissive response”. On a plain reading of his response, it is neither of those things. The mother has interpreted the message with a negative tone, causing her to overreact.

[19] On the Motion to Change, Justice Pazaratz found that the father's messages were frequently unpleasant, offensive, profane and crudely insulting. At least one-third of the father’s messages had nothing to do with the child and were more of a hateful rant. Having read the mother's summary of the most recent messages that she complains of on these motions, I find that none of them rise to the level of being offensive, profane or crudely insulting. At best, some of them are inappropriate for parents who have been so seriously scolded by a court on a prior occasion. The messages do not rise to the level of an intentional breach of a court order.

[20] However, the mother’s messages to the father's new partner on the day that the child was brought to the hospital are insulting to the extreme. The mother insulted the father’s new partner and the child that they share together, in a vulgar manner. While these types of messages from the mother are not an excuse for the father to send disrespectful messages, it is certainly antagonistic. The mother’s messages do not breach the court order, but she needs to recognize how her own behaviour contributes to the animosity between the parties.

[21] During his submissions before me, the father suggested that there should be a change in “who is driving the bus”. I understand this comment to mean that the father wishes to have more decision-making power. However, those issues have already been litigated and a decision made by the court in March 2024. To his credit, the father acknowledged that he understood this.

[22] Importantly, these parties need to realize that both of them are driving the bus, so to speak, in terms of the extreme conflict in their relationship. They should both reflect on their own behaviour. Although they may each be angry at each other, they are a team for life as parents of a young child. Hostile messages are unnecessary and only stoke the fires of resentment. Overreacting to messages also creates further unnecessary conflict. All of this will be harmful to the child that they share.

[23] Justice Pazaratz took a great deal of care and time in an attempt to reduce opportunities for conflict. The court is not here to resolve every conflict between parties who cannot get along. It is now up to these parties to take responsibility themselves.

[24] The motions are dismissed. In light of the unreasonable behaviour by both parties, there shall be no order as to costs. However, the parties are put on notice that further motions of this nature may lead to cost orders being made.

Braid, J. Date: May 15, 2024