COURT FILE NO.: FC-19-477 DATE: 20240531

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.S., Applicant AND S.C., Respondent

BEFORE: Justice Hélène C. Desormeau

COUNSEL: Michael Rappaport, for the Applicant Rebecca Rosenstock for the Respondent

HEARD: April 4, 2024

RULING ON motion

DESORMEAU J.

Introduction

[1] This is the latest installment in protracted litigation following the dissolution of the parties’ relationship.

[2] The Respondent mother brought this contempt motion against the father, alleging he has breached several court orders and/or endorsements and/or domestic contracts filed. The mother is also seeking an order that the father be prohibited from taking any steps in the proceedings until his contempt and/or non-compliance is rectified; an order striking his pleadings until his contempt and non-compliance have been rectified; if contempt is not found, a finding that the father is in non-compliance with the orders pursuant to s.1(8) Family Law Rules; an order for the appointment of a Children's Lawyer (from the OCL) for V and T; or in the alternative, a Voice of the Child Report, or in the alternative, an order that a Children's Lawyer be privately retained with each party paying 50% of the expense; and costs.

[3] The Applicant father brings a cross-motion to stay enforcement of child support payable by him; to have the mother pay child support to the father based on both parties’ income and equal parenting time; disclosure; questioning and costs.

OCL or VOC or private retainer of a Children’s Lawyer.

[4] The father objected to the request for appointment of the OCL or Voice of the Child Report (“VOC”) or a private retainer of a Children’s Lawyer. He instead asserted that if anything, an update to the s.30 CLRA assessment would be appropriate. He also argued that the court has no authority to make an order requesting OCL or VOC given that a s. 30 assessment had been completed but provided no authority to substantiate that submission.

[5] For reasons put on record, this court disagrees there is no authority to request involvement of OCL after a s.30 assessment. OCL order issued.

Questioning

[6] The father sought an Order that the parties attend questioning for two hours. At the motion, both parties agreed to same, restricting it to only the mother and father, three hours each as a maximum.

Contempt or non-compliance pursuant to R 1(8) FLR

[7] The mother alleges the father is in breach of the following orders, for the following reasons:

Non-Compliance/Contempt Order/Endorsement, Paragraph Number

1. Not permitting V to receive psychological services. ** Remedy sought: 1. finding of contempt/non-compliance of a parenting order which has negatively affected V’s mental health and well-being; 2. an order that J.S. is not permitted to cancel or interfere with V’s psychological services; 3. an order permitting S.C.to arrange psychological services for V without J.S.’s consent and involvement.

November 16, 2021, Para 43

2. Not permitting Tto receive counselling. ** Remedy sought: 1. finding of contempt/non-compliance of a parenting order which has negatively affected T’s mental health and well-being; 2. an order that J.S. is not permitted to cancel or interfere with T’s psychological services; 3. an order reinstating Dr. Moncion for T without J.S.’s consent.

October 23, 2019, Para 2 (vii) December 21, 2020, Pg 24, Para 7 March 6, 2020 , Pg 19, Para 7

3. Refusing or failing to follow referrals of treating physician. ** Remedy sought: 1. Finding of contempt/non-compliance with an order on parenting for cancellations of referrals from a treating physician.

November 16, 2021, Para 44

4. Refusing to follow recommendations of CHEO Pain Management Clinic. ** Remedy sought: 1. Finding of contempt/non-compliance with an order on parenting for failure to follow recommendations of the CHEO Pain Management Clinic; 2. an order that S.C.be permitted to bring the children to skating, and V to dance on Thursdays and Saturdays on J.S.’s weeks.

November 16, 2021, Para 44

5. Refusing to follow dietary restrictions during parenting time for the children. ** Remedy sought: 1. finding of contempt/non-compliance of orders on parenting for feeding T dairy and feeding V gluten and for failing to ensure that their dietary restrictions are met while in his care; 2. an order that J.S. shall not feed V foods containing gluten, dairy, egg or sugar; 3. an order that J.S. shall provide a separate daily ledger/journal of food fed to V and T, with photographs of ingredients and food provided, including restaurant receipts on a weekly basis when the children are with him; 4. an order that on Thursdays, S.C.shall be permitted to pick V up from school so that she can eat before her dance classes (5:15-8:15 pm), with V returning to school the following day, or in the alternative to J.S.’s home after dance.

Issued Domestic Contract June 7, 2021, Para 4 October 23, 2019 , Para 2 viii December 21, 2020, Pg 24, Para 8 March 6, 2020, Pg 19, para 9

6. Refusing not to consume marijuana within 12 hours or during parenting time. ** Remedy sought: 1. finding of contempt/non-compliance of a parenting order; 2. an order that J.S. shall not consume any non-prescribed drugs 24 hours before or during any parenting time; 3. an order that J.S. shall submit to random drug testing and shall be required to provide clean results.

Issued Domestic Contract June 7, 2021, Para 8 October 23, 2019 , Para 2v December 21, 2020, Pg 24, Para 5 March 6, 2020, Pg 18, Para 5

7. Breach of a Non-Disclosure Agreement. ** Remedy sought: 1. finding of contempt/non-compliance for breaching a non-disclosure agreement/order, which actions have caused S.C.emotional distress; 2. an order that J.S. shall not be permitted to provide any documents to any third parties involved with the children, nor to make changes to the children’s files without S’s written consent or a court order.

8. Refusing to speak civilly in the presence of the children. ** Remedy sought: 1. finding of contempt/non-compliance of orders on parenting for disparaging S.C.in front of the children.

Issued Domestic Contract June 7, 2021, Para 5 October 23, 2019 , Para 2vi December 21, 2020, Pg 24, Para 6 March 6, 2020, Para 6

9. Refusing to cease recording. ** Remedy sought: 1. finding of contempt/non-compliance of a parenting order for videotaping.

Issued Domestic Contract June 7, 2021, Para 10 October 16, 2020, Para 4h

10. Refusing to behave civilly at exchanges. ** Remedy sought: 1. finding of contempt/non-compliance of a parenting order.

Issued Domestic Contract June 7, 2021, Para 11

11. Refusing to bring children to activities/allow them to attend special events. ** Remedy sought: 1. finding of contempt/non-compliance of a parenting order; 2. an order that S.C.shall bring the children to skating, and that S.C.shall bring V to dance, including on J.S.’s scheduled time.

Issued Domestic Contract June 7, 2021, Para 7

12. Failing to pay child support ($1,000), pending income determination. ** Remedy sought: 1. finding of contempt/non-compliance of a child support order; 2. an order that J.S. shall pay $1,000 per month until previously ordered disclosure is provided.

Issued Domestic Contract June 7, 2021, Para 12.1

13. Failing to share Section 7 Expenses (50%). ** Remedy sought: 1. finding of contempt/non-compliance with a child support order; 2. an order setting interim section 7 expenses owed by J.S. at $25,000 as of September 30, 2023, subject to a recalculation at trial if sought; 3. an order that J.S. pay $500 per month on account of the children’s ongoing section 7 expenses commencing October 1, 2023, and on the first of each month thereafter, subject to a recalculation at trial.

Issued Domestic Contract June 7, 2021, Para 12.2, para 7

14. Refusing or failing to provide disclosure. ** Remedy sought: 1. finding of contempt/non-compliance of a disclosure order; 2. an order that J.S. income shall be imputed to $150,000 from 2018 to present, for the purposes of trial, pending J.S.’s disclosure and compliance with the income determination and June 2021 order.

October 23, 2019

15. Refusing to provide info@tremblant.cc email account entirety. ** Remedy sought: 1. finding of contempt/non-compliance of a disclosure order; 2. prohibiting J.S. from introducing any evidence from the info@tremblant.cc email account until the entire account and disclosure order is complied with.

October 23, 2019, Para 1(a)(i)

16. Refusing to provide Consents for Flipkey, TripAdvisor etc. ** Remedy sought: 1. finding of contempt/non- compliance; 2. an order that J.S.’s income be imputed to $150,000 from 2018 to present, for the purposes of trial, pending J.S.’s disclosure and compliance with the income determination and June 2021 order .

Nov 16, 2021

[8] The father is found to be in contempt of count 3; and in non-compliance of counts 5, 7, 8, 9, 12, 13 and 14.

[9] Counts 1, 2, 4, 6, 10, 11, 15, and 16 are dismissed.

The law: Contempt and/or non-compliance

[10] Rule 31 Family Law Rules (“FLR”) governs contempt proceedings in family court.

[11] As per the leading decision, Carey v. Laiken, 2015 SCC 17, the legal test to be applied for a party to be found in contempt of court for breaching an order is a three-pronged test for which each element must be proven beyond a reasonable doubt (at paras. 32-35). The three elements are the following:

(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 had actual knowledge of it; 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 compels.

[12] Civil contempt is a remedy of last resort, one which should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order. (See G.(N.) c. Services aux enfants & adultes de Presott-Russell, [2006] O.J. No. 2488 (Ont. C.A.), Hefkey v. Hekfey, 2013 ONCA 44 (Ont. C.A.), and Children’s Aid Society of Ottawa-Carleton v. S.(D.), [2001] O.J. No. 4585 (Ont. S.C.J.) : See Perna v. Foss, 2015 ONSC 5636, at para. 12.

[13] The party alleging contempt has the burden of proving same beyond a reasonable doubt given the quasi-criminal nature of the proceeding. Often, a trial is necessary to establish the alleged contempt beyond a reasonable doubt: Amid v. Houdi, 2016 ONSC 2849, at para. 12.

[14] Having regard for the quasi-criminal nature of contempt, the alleged contemnor must be afforded the same protection and procedural safeguards as an accused in a criminal proceeding. This includes the right to a hearing, the right not to be compellable as a witness at the hearing, and the right to make full answer and defence, including the right to counsel, to call evidence and to cross examine upon the other party’s evidence: Antoine v. Antoine, 2024 ONSC 1397, at para. 38; also see Barbara v. Cordeiro, 2024 ONSC 2951.

[15] The first element of the test for contempt 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: Babinets v Babinets, 2021 ONSC 2143 at para. 37.

[16] The court may decline to make a contempt finding even if there was non-compliance with the Order if the Respondent acted in good faith by taking all reasonable steps to comply with the Order: Babinets v. Babinets, supra, at para. 42. In order to establish contempt, the acts in question cannot be accidental but willful.

[17] Unless the three parts of the test for contempt are met, the relief sought must be dismissed: Amid v. Houdi, 2016 ONSC 2849, at para. 14.

[18] Even in cases where a party is in breach of a court order, the court must be satisfied that the breach is wilful and must consider the explanation for the alleged breach. In Szyngiel v. Rintoul, 2014 ONSC 3298 (Ont. S.C.J.), the court stated (at para. 24):

There are situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order.

A reasonably held belief is one that is both sincere and has some objective basis for it.

[19] The Court of Appeal in G.(N.) c. Services aux enfants & adultes de Presott-Russell determined it is an error in law for the court to conclude contempt had been established based on contradictory facts alleged and evidence presented by way of affidavits: G.(N.) c. Services aux enfants & adultes de Presott-Russell, [2006] O.J. No. 2488 (Ont. C.A.) at paras. 19 and 45. A trial of the issues ought to be conducted in such circumstances.

[20] Equally appropriate to the case at bar, the chambers judge in G.(N.) c. Services aux enfants & adultes de Presott-Russell stated the following:

The court is not omniscient and has no monopoly of wisdom when it comes to ruling on what is in the best interests of the child. It is highly possible that an intervener or parent will not agree with the decision of the court. This disagreement may be in good faith and based on very sound reasons. Notwithstanding all that, court rulings have to be respected and obeyed because the collectivity has democratically decided to vest the court with the mandate of ruling upon such issues. The survival of our democratic society and public order hinges upon this. If not, we would be faced with anarchy: G.(N.) c. Services aux enfants & adultes de Presott-Russell, [2006] O.J. No. 2488 (Ont. C.A.) at para. 31.

[21] Nevertheless, the court is guided by the principal that caution must be exercised prior to reaching a finding that someone is guilty of contempt of court: G.(N.) c. Services aux enfants & adultes de Presott-Russell, [2006] O.J. No. 2488 (Ont. C.A.) at para. 32.

[22] Pursuant to Rules 26(4) and 31 Family Law Rules, orders that require payment may not be enforced through contempt proceedings.

[23] A contempt finding is a discretionary power and must be exercised cautiously and with great restraint. The court should consider other options and alternatives prior to making a contempt finding too readily (Valoris pour enfants et adultes des Prescott-Russell c. K.R. et A.C., 2021 ONCA 366 at para. 41; Moncur v. Plante, 2021 ONCA 462 at para. 10).

[24] One such restraint is turning to Rules 1(8) and 1(8.1) of the Family Law Rules, which provides the court with options to deal with a party failing to obey an order in the case or failure to follow the Family Law Rules. The court therefore has a varied selection of possible orders, which range from dismissing a claim or striking a pleading to, in the context of contempt, incarceration. Ultimately, the court must be mindful of the primary objective of the Rules: to deal with cases justly.

[25] As set out in Oliver v. Oliver, 2020 ONSC 2321 at para. 37, the case law regarding Rule 1(8) has evolved to establish a three-part inquiry:

1. The court must ask whether there is a triggering event of non-compliance with a court order that would allow it to consider the wording of sub-rule 1(8).
2. If the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under sub-rule 1(8).
3. In the event the court determines it will not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy under sub-rule 1(8).

[26] Similar to contempt proceedings, non-compliance with an order should not be taken lightly. The onus is on the non-compliant party to show, on a balance of probabilities, why the sub-rule should not apply: Gordon v. Starr, [2007] O.J. No. 3264 (Ont. S.C.J.); Also see Oliver v. Oliver, 2020 ONSC 2321.

[27] In order to prove a breach of an Order, a specific breach is not required: "it is sufficient if the actions are designed to obstruct the course of justice by working or attempting to thwart a Court Order": Skalitzky v. Skalitzky, 2010 ONSC 7150, at para. 20.

[28] With regard to allegations of failure to obey a disclosure order, as set out in Mullin v. Sherlock, 2018 ONCA 1063, the court must first be satisfied there has been non-compliance with the order; and once satisfied, the court may have recourse to the alternatives as set out in Rule 1(8) FLR. To assess the most appropriate remedy, the court should consider the following factors and then determine the most appropriate remedy:

• the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
• the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
• the extensiveness of existing disclosure;
• the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
• any other relevant factors.

Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception : Mullin v Sherlock, supra, at paras. 44-46.

[29] Of note, the orders available in Rule 1(8) are not exclusive, and other options include inviting the moving party to seek at trial an adverse inference from failure to disclosure and the motion judge to memorialize this invitation in reasons for decision: Mullin v Sherlock, supra, at para. 46.

[30] Further, Rule 19(10) FLR provides the court with the additional power to:

(a) order the party to give another party an affidavit, let the other party examine a document or supply the other party with a copy free of charge;

(b) order that a document favourable to the party’s case may not be used except with the court’s permission; or

(c) order that the party is not entitled to obtain disclosure under these rules until the party follows the rule or obeys the order.

[31] As stated by Justice Benotto J.A. in Roberts v. Roberts, 2015 ONCA 450 (Ont. C.A.), at paras. 11 and 12:

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled: Also see Mullin v. Sherlock, 2018 ONCA 1063 at para. 32.

[32] Traditionally, striking of pleadings has been considered a remedy of last resort: Mullin v. Sherlock, 2018 ONCA 1063, at para. 33. However, as set out in Purcaru v. Purcaru, 2010 ONCA 92, in family law cases, pleadings should only be struck and trial participation denied in exceptional circumstances where no other remedy would suffice: Also see Mullin v. Sherlock, 2018 ONCA 1063 at para. 33.

[33] There is some caselaw to the effect that where a party fails to comply with a parenting order, the court may impose a change in schedule, particularly where the long-term interest of a child requires the current circumstances not continue. In Bouchard v. Sgovio, where there were allegations of parental alienation and the father refused to engage with professional therapists, pursuant to Rule 1(8) FLR, the motions judge provided for a temporary order regarding parenting time to allow the mother a period of time to ensure the children were enrolled in a counselling program and outlined steps to be taken “to prevent the father from sabotaging the program by controlling his contact with the children until his involvement is required by the leaders” of the program: Bouchard v. Sgovio, 2021 ONCA 709, at para. 41. The motions judge also imposed a restraining order for 90 days against the father contacting the children pursuant to s.35 Children’s Law Reform Act. This decision was upheld by the majority of the court of appeal. Prior to making an interim order modifying the parenting schedule in the context of a non-compliance motion, it is necessary to consider the child’s best interest.

[34] Additionally, as found in J.D.M. v. T.L.L.M., 2019 ONSC 2232, contempt can be found where a parent puts up multiple roadblocks preventing children from attending or facilitating court ordered counselling : J.D.M. v. T.L.L.M., 2019 ONSC 2232, at para. 52. In that case, the court stated, and this court agrees, that a party cannot conduct themselves in a manner that flaunts the orders of the Court. This is especially so when the order that is not complied with is designed to help foster the children's best interest. J.D.M. v. T.L.L.M., 2019 ONSC 2232, at para. 60.

[35] Appropriate requests of relief for non-compliance with court orders include: no motions without a court’s leave; no further steps until the order is followed; a parent having decision-making authority over the therapeutic intervention or some other area of the children’s lives; changing the parenting time regime to allow regular attendance at counselling by other parent, etc.: High Conflict Files Best Practices, 2019Docs 3919.

Analysis

[36] Firstly, from a procedural aspect, the motion for contempt was not personally served on the father but instead on his counsel. Nevertheless, the father was aware of the motion, and at the first return date an adjournment was granted for the father to prepare materials, which are now before the court.

[37] The starting point regarding any alleged breach of any court order is to recognize that court orders are not suggestions. They are to be followed. Failure to follow the court orders trigger an analysis regarding what sanctions are appropriate for the contravening party.

[38] The allegations leveled by the mother against the father the following:

1. Not permitting V to receive psychological services.
2. Not permitting T to receive counselling.
3. Refusing or failing to follow referrals of treating physician.
4. Refusing to follow recommendations of CHEO Pain Management Clinic.
5. Refusing to follow dietary restrictions during parenting time for the children.
6. Refusing not to consume marijuana within 12 hours or during parenting time.
7. Breach of a Non-Disclosure Agreement.
8. Refusing to speak civilly in the presence of the children.
9. Refusing to cease recording.
10. Refusing to behave civilly at exchanges.
11. Refusing to bring children to activities/allow them to attend special events.
12. Failing to pay child support ($1,000), pending income determination.
13. Failing to share Section 7 Expenses (50%).
14. Refusing or failing to provide disclosure.
15. Refusing to provide info@tremblant.cc email account entirety.
16. Refusing to provide Consents for Flipkey, TripAdvisor etc.

[39] The father in his affidavit denies or disputes all sixteen allegations of contempt/non-compliance. He argues that the contempt motion raises issues of credibility which can only be resolved with viva voce evidence at trial. He also advances that the mother is unable to meet the threshold of beyond a reasonable doubt based on conflicting affidavits alone.

[40] This court notes that neither party requested an opportunity to cross-examine the other on the affidavits filed or a trial of the issues.

1. Not permitting V to receive psychological services.

[41] The breach is based on the court order of November 16, 2021, at paragraph 43. Pursuant to a motion argued, Desormeau J. ordered the following:

The Wife shall provide three names of pediatric psychologists available to assist V, and the Husband shall choose one of the three. Both parents shall be equally entitled to speak to the psychologist to provide information to her/him. The intake appointment shall be conducted by both parents, separately, one after the other, to ensure there is no appearance of bias or alleged undue influence.

[42] To establish the breach or non-compliance, with the onus on the mother, the court must be persuaded that the order was unambiguous as to what needed to be done or not done; that the father had knowledge of the existence of the order; and that the father willfully and deliberately failed to comply with the terms of the order.

[43] On this allegation, the mother sought a finding that the father was in contempt/non-compliance of the parenting order which has negatively affected V’s mental health and well-being; an order that the father is not permitted to cancel or interfere with V’s psychological services; and/or an order permitting the mother to arrange psychological services for V without the father’s consent and involvement.

[44] The mother’s evidence was that in 2021, the father terminated V’s psychologist, Dr. Moncion; then the dietician Tatiana Hunt, and then despite Dr. Goulet referring V to CHEO psychology, and the father refused to allow them to provide referrals to psychologists for V. The mother also proposed in 2021 and 2022 that therapy was available through Crossroads.

[45] At the November 15, 2021, motion, the above term of the order was made by Desormeau J. By January 2022, the mother located three counselling options for V, 2 psychologists and one therapist. The father then allegedly refused to provide his consent to treatment.

[46] The mother relied on hearsay evidence, self-reporting to service providers and letters from counsel regarding same. The mother argued she was not relying on the letters for the truth of their contents, she relied on them to establish that V was still not in counselling.

[47] The father categorically denied this allegation, and stated he wished both children to have psychological services. He relied on the s.30 assessment ordered by this court, released November 26, 2021, which states that the children’s therapy should be in the context of “Safe Harbour therapy.” According to the s.30 assessment, at page 132, this means that the “therapeutic space is a space where the information said in the session is confidential; parents and their counsel will not attempt to gain advantage in any legal proceedings from the involvement of the therapist with the child; clinical files will not be subpoenaed; the therapist will not be requested to testify or provide an opinion in regard to decision making and parenting time; and the parents’ involvement will be based on the therapists’ discretion.”

[48] The father argued that none of the therapists suggested by the mother provide Safe Harbour therapy. He argues that Dr. Moncion was not appropriate for several reasons, including that Safe Harbour therapy is not offered by that doctor. As such, he argued that it was not an issue of compliance, rather an issue of implementation based on the s.30 assessment.

[49] The mother did not respond in her affidavit to the recommendation of Dr. Pishva regarding the children attending Safe Harbour therapy but denied pressuring or coaching the children.

[50] The evidence was unclear as to whether Crossroads therapy provides Safe Harbour therapy.

[51] While the evidence establishes that mother provided three names of psychologists, and the father did not choose one of the three, given the recommendations by Dr. Pishva, which was released 10 days following the order in question. In light of this context, the court is not prepared to find the father was in contempt or non-compliance of this order. The s.30 assessment was prepared to help the court and the children in the context of this high-conflict litigation. The father’s defence to this allegation is accepted.

[52] Both parties are directed to explore if Crossroads provides Safe Harbour therapy. If so, then V shall attend counselling through them. Failing this, then the father shall propose three names of psychologists or counsellors that provide Safe Harbour therapy within 30 days, and the mother shall choose one of them to provide services.

2. Not permitting T to receive counselling.

[53] The breach is based on the court orders of October 23, 2019, para 2vii); December 21, 2020, at page 24, para. 7; and March 6, 2020, page 19, para. 7.

[54] On October 23, 2019, Desormeau J. ordered: The parties agree that… T should attend counselling as soon as possible.

[55] On March 6, 2020, Corthorn J. ordered: T shall attend counselling as soon as possible if he is not already doing so and as directed by the health professional by whom he is seen for that purpose.

[56] On December 21, 2020, Desormeau J. ordered that T shall attend counselling as soon as possible if he is not already doing so and as directed by the health professional by whom he is seen for that purpose.

[57] On this count, the mother sought a finding that the father was in contempt/ non-compliance of a parenting order which has negatively affected T’s mental health and well-being; an order that the father is not permitted to cancel or interfere with T’s psychological services; and/or an order reinstating Dr. Moncion for T without the father’s involvement.

[58] Much of the mother’s evidence on this issue was based on hearsay, which this court will not consider. However, the evidence sets out that the father threatened to fire Dr. Moncion, T’s psychologist in October 2022, and then followed through with doing so on March 28, 2023.

[59] The father categorically denied this allegation, and stated he wished both children to have psychological services. He relied on the s.30 assessment, arguing that the service provider must provide Safe Harbour therapy. He argued that Dr. Moncion does not offer Safe Harbour therapy. As such, he argued that it was not an issue of compliance, rather an issue of implementation based on the s.30 assessment. He also wished to provide the treating therapist a copy of the s.30 assessment.

[60] The mother did not respond in her affidavit regarding the recommendation regarding the children attending Safe Harbour therapy but denied pressuring or coaching the children. She also indicated that Dr. Moncion will resume services if ordered by the court.

[61] The evidence was not clear as to whether Dr. Moncion provides Safe Harbour therapy.

[62] With the onus on the mother, the court must be persuaded that the order was unambiguous as to what needed to be done or not done; that the father had knowledge of the existence of the order; and that the father willfully and deliberately failed to comply with the terms of the order. The evidence establishes that T was seeing Dr. Moncion until March 2023. The s.30 assessment was completed on November 26, 2021, which recommended Safe Harbour therapy. In light of all of the evidence, this court is not prepared to find the father was in contempt or non-compliance of this order. The s.30 assessment was prepared to help the court and the children in the context of this high-conflict litigation. The father’s defence to this allegation is accepted.

[63] Both parties are directed to explore if Dr. Moncion provides Safe Harbour therapy. If so, then T shall attend counselling with him. Failing this, then the father shall propose three names of psychologists or counsellors that provide Safe Harbour therapy within 30 days, and the mother shall choose one of them to provide services.

3. Refusing or failing to follow referrals of treating physician.

[64] The breach is based on the court order of November 16, 2021, at paragraph 44, whereby Desormeau J. ordered the following:

It is hereby Ordered that V shall continue to attend for treatment as required by her treating physician. The Wife is hereby granted authorization to take V to the CHEO Pain Management pertaining to her injured ankle, injured finger, concussion, and management of pain symptoms. Both parents are hereby Ordered to cooperate with and follow the recommended treatment. Both parents are equally entitled to speak to the treating doctor/ facility.

[65] On this allegation, the mother sought a finding that the father was in contempt/ non-compliance with an order on parenting for cancellation of referrals from a treating physician.

[66] The mother’s evidence was that the father repeatedly cancelled V’s referral to the CHEO pain management clinic and fails to bring her to medical referrals and appointments, including cancelling appointments during the mother’s schedule time. This includes Dr. Ying (pediatric surgeon), Lyne Denis (physiotherapist) and CHEO dental.

[67] Dr. Denis is a dance physiotherapist who saw V for her sprained ankle injury, an injury the father does not believe V has, and therefore the father had V do activities without her brace. One cancellation was March 22, 2022, when the mother took V to her physiotherapy appointment, and found out the appointment had been cancelled by the father. He also cancelled her appointment with Dr. Ying regarding her finger, and CHEO dentistry.

[68] The father provided a blanket denial of this allegation and argued it is an unspecified allegation.

[69] Despite the father’s blanket denial, this court is of the view that the mother has met her onus beyond a reasonable doubt that the order was unequivocal, in particular regarding her injured ankle and the order to cooperate with and follow the recommended treatment. The cancellation of appointments was an intentional act by the father. As such, the father is found in contempt of this term of the order.

[70] The mother only argued that the remedy was the finding. In the circumstances, the court makes that finding and continues to order that V shall continue to attend for treatment as required by her treating physician. The mother is hereby granted authorization to take V to the CHEO Pain Management pertaining to her injured ankle including attending for physiotherapy, injured finger including for plastic surgery if recommended by the doctor, concussion, and management of pain symptoms. Both parents are hereby ordered to cooperate with and follow the recommended treatment. Both parents are equally entitled to speak to the treating doctor/ facility. The father is not permitted to cancel any of V’s related appointments.

4. Refusing to follow recommendations of CHEO Pain Management Clinic.

[71] The breach is based on the court order of November 16, 2021, at paragraph 44, whereby Desormeau J. ordered the following:

It is hereby Ordered that V shall continue to attend for treatment as required by her treating physician. The Wife is hereby granted authorization to take V to the CHEO Pain Management pertaining to her injured ankle, injured finger, concussion, and management of pain symptoms. Both parents are hereby Ordered to cooperate with and follow the recommended treatment. Both parents are equally entitled to speak to the treating doctor/ facility.

[72] On this allegation, the mother sought a finding that the father was in contempt/non-compliance with an order on parenting for failure to follow recommendations of CHEO Pain Management Clinic; and/or an order that the mother be permitted to bring the children to skating, and V to Dance on Thursdays and Saturdays on the father’s weeks.

[73] The mother’s evidence was the same as that found in count three, above, as well as allegations that the father did not give V her medications or supplements and he refused to allow V from attending her activities such as skating and dance.

[74] The father denied the allegation and relied on the child’s hearsay evidence to establish why he did not take her to the CHEO pain management clinic.

[75] On this count, with the onus on the mother, this court is not persuaded the order is unequivocal to establish the breach or non-compliance, even on a balance of probabilities.

[76] However, to remedy this, this court hereby orders that both the mother and father shall take the children to their regular activities, which include skating, dance, dance competitions, and shall provide the children with their prescribed medication and/or supplements.

5. Refusing to follow dietary restrictions during parenting time for the children.

[77] The breach is based on the court orders of October 23, 2019, para 2 viii; December 21, 2020, page 24, para. 8; March 6, 2020, page 19, para 9; and the issued Domestic Contract dated June 7, 2021, at para. 4.

[78] On October 23, 2019, Desormeau J. ordered: The parties agree on an interim, without prejudice basis to either of them… Both parents are to strictly comply with the dairy-free diet for both children and gluten-free for V.

[79] On March 6, 2020, Corthorn J. ordered (at paragraph 8, not paragraph 9) that both parties shall strictly comply with the dairy-free diet for both children and gluten-free diet for V.

[80] On December 21, 2020, Desormeau J. ordered that both parties shall strictly comply with the dairy-free diet for both children and gluten-free diet for V.

[81] On June 7, 2021, the mother filed with the court an affidavit dated May 6, 2021, for “filing the domestic contract with the court”. That domestic contract stipulates at paragraph 4 both parties shall abide by the children’s dietary restrictions, as medically indicated which includes dairy intolerance for both children and gluten for V. The court notes that the filing of a domestic contract is for enforcement of child support obligations. The remainder of the terms are not viewed as court orders for enforcement purposes.

[82] The mother sought a finding of contempt/non-compliance of orders on parenting for feeding T dairy and feeding V gluten and for failing to ensure that their dietary restrictions are met while in his care; an order that the father shall not feed V foods containing gluten, dairy, egg or sugar; an order that the father shall provide a separate daily ledger/journal of food fed to V and T, with photographs of ingredients and food provided, including restaurant receipts on a weekly basis when the children are with him; an order that on Thursdays, the mother shall be permitted to pick V up from school so that she can eat before her dance classes (5:15-8:15 pm), with V returning to school the following day, or in the alternative to the father's home after dance.

[83] The mother alleged that T’s chronic diarrhea is worst when she returns from the father’s time. The mother provided examples of food sent with the children for school lunches, such as cheese sandwiches, chocolate milk, and failed to advise the extended daycare program of the children’s food intolerances. She provided undated photographic evidence of the foods sent with the children.

[84] The father categorically denied this allegation and stipulated that he followed the dietary restrictions. He argued that V never had any issues with eggs or sugar and the mother’s request for a food ledger/ journal and picking the child up on Thursday nights was absurd. He asked the court that the children be subject to full testing of food intolerances or allergies.

[85] The orders clearly state that parents are to strictly comply with the dairy-free diet for both children and gluten-free for V, thus it was unambiguous, and the father was aware of the orders. Given the denials by the father, based on the contradictory evidence which has not been subject to cross-examination, the court is unable to find beyond a reasonable doubt that the father was in fact not following the dietary restrictions of the children.

[86] However, on a balance of probabilities, this court finds that it is more likely than not, particularly given the photographs, that he was not complying with the dietary restrictions, and thus he is found to be in non-compliance with the court order.

[87] This court finds it appropriate to reiterate the order that both parties shall strictly comply with the dairy-free diet for both children and gluten-free diet for V; and additionally, order that the father shall provide a separate daily ledger/journal of food fed to V and T, with photographs of ingredients and food provided, including restaurant receipts on a weekly basis when the children are with him. In addition, the court is of the view that on an interim, without prejudice basis, the mother may continue to provide meals for V for school during the father’s weeks.

[88] The court is not prepared to order that the children be subjected to full testing of food intolerances or allergies.

6. Refusing not to consume marijuana within 12 hrs or during parenting time.

[89] The count is based on the court orders of October 23, 19 at para. 2v; December 21, 2020, at page 24, para. 5; March 6, 2020, at page 18, para. 5; and domestic contract of June 7, 2021, at para. 8.

[90] On October 23, 2019, Desormeau J. ordered: The parties agree on an interim, without prejudice basis to either of them… neither parent shall consume marijuana within 12 hours of access or while in a caregiving role.

[91] On March 6, 2020, Corthorn J. ordered that neither party shall consume marijuana within 12 hours of the children's time with that party or while in a caregiving role.

[92] On December 21, 2020, Desormeau J. ordered that neither party shall consume marijuana within 12 hours of the children’s time with that party or while in a caregiving role.

[93] On June 7, 2021, the mother filed with the court an affidavit dated May 6, 2021, for “filing the domestic contract with the court”. That domestic contract stipulates at paragraph 8 that neither parent shall consume or use alcohol or marijuana or other non-prescription illicit drugs while the children are in his or her care, or within 12 hours prior to taking the children into his or her care. Again, the court notes that the filing of a domestic contract is for enforcement of child support obligations. The remainder of the terms are not viewed as court orders for enforcement purposes.

[94] The mother sought a finding of contempt/non-compliance of a parenting order; an order that the father shall not consume any non-prescribed drugs 24 hours before or during any parenting time; and/or an order that the father shall submit to random drug testing and shall be required to provide clean results.

[95] The mother’s evidence on this count was that until September 2022, the children and their clothes reeked of marijuana, the children would complain of headaches and “seemed dazed”, the children have made statements that led the mother to believe the father is smoking, and in the summer of 2023, the mother smelled marijuana on the children.

[96] The mother’s friend, David Chuka, who has assisted with some exchanges, provided evidence as to the strong smell of marijuana in the father’s home, as well as the smell on the children and their belongings after leaving the father’s home. He made observations as to the father’s demeanour when he believed the father had recently smoked or appeared under the influence.

[97] Meanwhile, the father categorically denied the allegation, and asserted he has not been consuming marijuana within 24 hours before parenting time, as set out in the s.30 assessment.

[98] The orders clearly state that neither party shall consume marijuana within 12 hours of the children’s time with that party or while in a caregiving role, thus it was unambiguous, and the father was aware of the terms. The domestic contract uses similar language. Given the denials by the father, based on the contradictory evidence which has not been subject to cross-examination, the court is unable to find beyond a reasonable doubt that the father is in fact not following this restriction. Even on a balance of probabilities, this court is not persuaded that the mother has met her onus, and as such, this count is dismissed.

7. Breach of a Non-Disclosure Agreement.

[99] On February 15, 2022, the parties agreed to partial minutes of settlement. Clause 11 of the minutes of settlement set out that neither party shall directly or indirectly share Dr. Pishva’s report with any non-party until the return of mediation presently scheduled for March 23, 2022. If the parties are unable to agree in writing, this prohibition continues until it is adjudicated by a court or tribunal of competent jurisdiction. Each party is entitled to release Dr. Pishva’s report to an expert retained by counsel or an expert retained by a self-represented party for this Family Law litigation.

[100] At the motion, it was agreed that this at best could be a non-compliance of minutes of settlement as the agreement had not yet been turned into a court order.

[101] The mother raised issues regarding the manner in which the s.30 assessment was conducted and the lack of analysis. The mother argued that sharing the assessment prior to any testing of the evidence is “akin to slander or defamation”, particularly as it contained details of abuse. The father’s taunts and follow through in releasing the report causes her emotional distress, which negatively impacts her disability.

[102] The mother’s evidence was that following the agreement, the father provided the report to Dr. Gunnink, CHEO, the extended daycare program and CAS. Amongst other documentary evidence, she relies on an email sent by the father to the school on June 19, 2023, including Ms. Jennifer Capitani, attaching the s.30 assessment, and another email sent by the father to Dr. Moncion from March 2023.

[103] The father “categorically” denied the allegation, indicated the parties do not have a “non-disclosure agreement” and that he provided the assessment to CAS, CHEO, and the police prior to signing the minutes. He then stated, “I have not provided the s.30 to any other party since then.”

[104] The mother argued that the minutes of settlement form a “non-disclosure agreement”. To be clear, the parties agreed to not share the s.30 assessment with any non-party until the return of the mediation or adjudication, except to an expert retained by a party for this litigation.

[105] The evidence belies the father’s assertions. The terms of the agreement were clear, unequivocal, and known to the father, and the father wilfully and knowingly provided the assessment following the signing of the agreement. As such, this court finds him to be in non-compliance for breaching the agreement.

[106] Without the benefit of cross-examination and assessing the parties’ credibility, this court declines at this junction to make a finding that the father’s actions have caused the mother emotional distress. On a without prejudice basis, this court however orders that the father is prohibited from providing the s.30 assessment to any third parties involved with the children and shall not make changes to the children’s files without the mother’s written consent or court order.

8. Refusing to speak civilly in the presence of the children.

[107] The breach is based on the court orders of October 23, 2019, para 2vi; December 21, 2020, page 24, para. 6; March 6, 2020, disposition at para 6; and the issued Domestic Contract dated June 7, 2021, at para. 5.

[108] On October 23, 2019, Desormeau J. ordered: The parties agree that neither parent to discuss adult issues with the children nor shall they speak disparagingly about the other parent or their family.

[109] On March 6, 2020, Corthorn J. ordered that neither party shall discuss adult issues with the children, nor shall the parties speak disparagingly about the other party or their family.

[110] On December 21, 2020, Desormeau J. ordered that neither party shall discuss adult issues with the children, nor shall the parties speak disparagingly about the other party or their family.

[111] On June 7, 2021, the mother filed with the court an affidavit dated May 6, 2021, for “filing the domestic contract with the court”. That domestic contract stipulates at paragraph 5 that neither party shall talk negatively about the other to the children or in the presence of the children, nor will they permit others to do so. A party will immediately remove the children from any situation where third parties attempt to speak negatively about the other parent. Again, the filing of a domestic contract is for enforcement of child support obligations, the remainder of the terms are not viewed as court orders.

[112] The mother’s evidence was that the father has frequently yelled at her in front of the children, has called her a bad mother and stupid, including in front of third parties such as her father and Mr. Chuka.

[113] Mr. Chuka’s evidence was that the father makes aggressive hand gestures “as if he wishes to hit [the mother]”, he frequently yells at the mother in an insulting manner, badmouths her and calls her names, all in front of the children. He frequently yells “what type of parent would…” in an insulting manner toward the mother in front of the children, once on a megaphone. Based on hearsay evidence, Mr. Chuka suggests the father involves the children in adult issues, such as discussing details of his prior affidavit with the children.

[114] The father denied these allegations, asserting the mother has made several false claims against him, that she encourages the children to disclose the false claims, and that she has spoken uncivilly toward him many times.

[115] On this allegation, the mother sought a finding that the father was in contempt/non-compliance of these orders on parenting for disparaging her in front of the children.

[116] While the court orders are somewhat ambiguous regarding “discussing adult issues”, it is unequivocal about being disparaging about the other parent. Given the contradictory affidavit evidence, the court is unable to find the father has breached the order beyond a reasonable doubt. However, the court is satisfied, on a balance of probabilities, that the father has intentionally failed to comply with the terms of the order.

9. Refusing to cease recording.

[117] On June 7, 2021, the mother filed with the court an affidavit dated May 6, 2021, for “filing the domestic contract with the court”. That domestic contract stipulates at paragraph 10 that neither parent shall use their phones or other recording devices to record the other parent during exchanges.

[118] The mother also alleged that on October 16, 2020, the court ordered that parties shall not record exchanges. As set out on the record at the motion, there is no court order of that date, but one dated October 19, 2020. Nevertheless, both counsel agreed this could be a case of non-compliance as opposed to contempt, given the terms of the domestic contract.

[119] The mother sought the remedy of finding of contempt/ non-compliance of a parenting order, as well as a finding that the recording constituted family violence.

[120] The mother’s evidence included the father holding his phone up in front of him in several locations, then through multiple video and audio cameras on his property. The positioning of the cell phone led the mother to conclude the father was recording her. She also relied on correspondence from the father’s former counsel dated August 26, 2021, which stated that the mother is “aware that [the father] has cameras recording the pick ups and drop offs.”

[121] Mr. Chuka’s evidence was he witnessed the father holding out his cell phone in a manner that suggested he was recording, and the father opened the door immediately when they park, suggesting he has cameras trained down the street. The father also has a large sign near his home advising people he is audio and video recording on his property. He set up additional cameras on a lawn pole to watch the mother and Mr. Chuka coming and going from exchanges.

[122] The father did not deny he has ring cameras but categorically denied recording, and indicated he has no recordings of the exchanges. He argued the mother recorded an exchanging involving Brayden supervision. This was denied by the mother.

[123] The court has not considered any hearsay evidence regarding this allegation.

[124] As noted, the mother cited the wrong paragraph of the court order. Counsel agreed that the count therefore only went toward non-compliance rather than contempt. The wording of the domestic contract is clear and unequivocal, the father signed same, and this court finds, on a balance of probabilities, that the father has failed to comply with the terms of the domestic contract.

[125] However, this court declines to make a finding at this juncture that recording the mother constitutes family violence.

10. Refusing to behave civilly at exchanges.

[126] On June 7, 2021, the mother filed with the court an affidavit dated May 6, 2021, for “filing the domestic contract with the court”. That domestic contract stipulates at paragraph 11 that both parties shall behave in a civil manner at all exchanges.

[127] The mother was seeking a finding of contempt/non-compliance of a parenting order.

[128] The father cannot be found in contempt of this domestic contract; thus, no finding is made on this count, and this count is dismissed.

11. Refusing to bring children to activities/allow them to attend special events.

[129] On June 7, 2021, the mother filed with the court an affidavit dated May 6, 2021, for “filing the domestic contract with the court”. That domestic contract stipulates at paragraph 7 that where a child has a pre-scheduled event or activity on a weekend the parties have the children in his/her care, they shall assure the child attends. The children's current schedule of activities shall be maintained and where a child is invited to a birthday party or special event, the parent who has the children in his/her care on that day shall be notified and if he/she cannot take the child, shall allow the other parent to do so.

[130] The mother’s evidence was the father rarely allows the children to attend their scheduled activities and provides examples such as the father taking V to one dance class out of 25 between March 3, 2022, and June 28, 2022. The father did not consistently take either child skating despite being on the Synchronized Skating Ice Gems team, and they were kicked off the team in November 2022. The father also refused to allow the children to attend Kit’s graduation and graduation party on June 30, 2022, a birthday dinner for the mother on May 2, 2022, and Kit’s birthday dinner for September 28, 2022, despite requests. A significant amount of information provided on this point was hearsay evidence and has not been considered.

[131] The father categorically denied these allegations, indicating he constantly brought the children to their activities and provided extra time with the mother for special events like Kit’s birthday, but the mother has not “traded back the access time.”

[132] The mother sought a finding of contempt/non-compliance of a parenting order. She sought an order that she shall bring the children to skating, and V to dance, including on the father’s scheduled time.

[133] The filing of a domestic contract is for enforcement of child support obligations. The remainder of the terms are not viewed as court orders for enforcement purposes. The father cannot be found in contempt of this domestic contract and given this is not an order, a finding of non-compliance of the order cannot be made. This count is therefore dismissed.

12. Failing to pay child support ($1,000), pending income determination.

[134] On June 7, 2021, the mother filed with the court an affidavit dated May 6, 2021, for “filing the domestic contract with the court”. That domestic contract, signed June 14 and 25, 2019, stipulates at paragraph 12.1 that commencing on June 1, 2019 and on the first day of each month thereafter, [the father] shall continue to pay child support to [the mother] for T, born April 22, 2015, and V, born December 10, 2012, in the amount of $1,000.00 per month for V and T, until further court order or agreement of the parties. This amount is an interim without prejudice amount pending determination of J.S.'s income from all sources.

[135] This domestic contract, having been filed with the court for enforcement of a payment order through the Family Responsibility Office, has the effect of a court order regarding support provisions, as per Rule 26 Family Law Rules and section 35(1) Family Law Act.

[136] The mother is seeking a finding of contempt/non-compliance of a child support order, as well as an order that the father pay $1,000.00 per month until previously ordered disclosure is provided.

[137] As noted above, Rules 26(4) and 31 Family Law Rules confirm that orders that require payment may not be enforced through contempt proceedings.

[138] Further, given the filing of the domestic contract for FRO enforcement, unless the parties sign a notice of withdrawal, the Family Responsibility Office has exclusive jurisdiction to enforce payment of the child support. That being said, this does not preclude the court from determining the father is not in compliance with the terms of the domestic contract or preclude a fixing of the arrears owed.

[139] The mother’s evidence was that the father paid $999.00 in monthly child support from June 2019 to March 1, 2022, with the exception of June 2019 and August 2019, where he paid the full $1000.00. He has not paid any child support since March 1, 2022, despite the agreement of February 15, 2022, which stated all prior orders and agreements continued to be in effect.

[140] The father’s evidence was that he paid the requisite $1,000.00 per month from June 2019 until the signing of the minutes were signed in February 2022, where it was agreed the father would have the children primarily in his care for five months. During those five months he asked the mother to pay support. Following that time, when the shared parenting regime started, he assumed support payments “went away” since there was no primary caregiver. He argued the mother never asked for support until the FRO contacted him on February 3, 2023, advising him he owed $25,468.30. Then, on February 21, 2024, he was terminated from his place of employment. He provided a letter addressed to him which confirmed he was informed that his employment was ceased as of February 21, 2024, noted as a “cessation date.”

[141] Given the above, it is not disputed by the father that he has not paid child support since February 15, 2022. While he argued support ought to have been readjusted and bring a cross-motion to do exactly that, he was aware of the terms of the agreement, and willfully stopped paying child support. As such, this court finds he is in non-compliance with the agreement.

13. Failing to share Section 7 Expenses (50%).

[142] As noted above, on June 7, 2021, the mother filed with the court an affidavit dated May 6, 2021 for “filing the domestic contract with the court”, which stipulates at paragraph 12.1 that [the father] and [the mother] will share equally the children's section 7 expenses until further order of the court or the parties agree otherwise, provided that neither parent will be obliged to contribute unless his or her written consent has first been obtained through Our Family Wizard (“OFW”), such consent not to be unreasonably withheld. The children's current activities shall be deemed consented to, along with their summer day camps for the 2019 period.

[143] The mother requested a finding of contempt/non-compliance with a child support order. She seeks an order setting interim s.7 expenses owed by the father at $25,000.00 as of September 30, 2023, subject to a recalculation at trial if sought. She is asked for an order that the father pay $500.00 per month on account of the children’s ongoing s.7 expenses commencing October 1, 2023, and the first of each month thereafter, subject to recalculation at trial.

[144] The mother’s evidence was that the father was required to pay 50% of children’s s.7 expenses. Consent was obtained for V to see Dr. Moncion up until May 2021 and T’s therapy was court ordered. The father refused to reimburse any s.7 expenses including camps from 2019, skating and dance which were expenses prior to separation, psychologists, physiotherapy, prescribed medication, glasses, etc., which have been incurred by the mother since their separation on March 27, 2018. Proof of said expenses and requests for payment were sent to the father on several occasions and through several methods. As of November 7, 2022, the father owed $27,000.00 for the children’s s.7 expenses, including over $600.00 for access exchange costs. Not included are summer camps for 2022, 2023 and cell phone plans. The mother argued the father had medical, health and dental benefits since April 1, 2022.

[145] The father categorically denied the mother’s allegations, indicating all expenses were incurred without his consent or agreement. He also argued the mother had not reimbursed him for his expenses, and the issue ought to be determined at trial. The father however provided no evidence of any s.7 expenses, and those provided by the mother on his behalf were contested.

[146] The father did not deny that skating and dancing were pre-separation expenses which continued. Further, there are court orders substantiating the children attending for physiotherapy and seeing psychologists. In addition, a term of the agreement was the father was not to unreasonably withhold his consent. Given the father’s position that he did not consent to expenses such as those for medical, health and dental needs of the children, and this court’s review of said expenses substantiates the expenses were reasonable, this court finds that he did unreasonably withhold his consent.

[147] Having reviewed the expenses set out in the mother’s evidence, in conjunction with the reading of the agreement, the court will allow for said expenses to be tallied based on the evidence above regarding them being pre-separation expenses or reasonable medical, dental or health expenses.

[148] It was not established to this court’s satisfaction that pre-separation expenses, or “current expenses” included guitar, piano, fencing, and passport photos, and they are as such excluded at this time in this final calculation. Further, though the access exchange costs arguably benefited both parties, this court is not prepared to consider that cost at this time without better evidence. Also, the expenses from 2018 are not included in this calculation at this time, but those from 2019 are included as they were incurred shortly prior to, or shortly following the agreement being signed. Finally, while the mother provided more evidence of s.7 expenses in her reply affidavit, the breakdown is less clear. Given this, those additional s.7 expenses may be argued at trial.

[149] The court has therefore removed $1,293.80 (2018 charges); $117.50 (guitar); $45.20 (passport); $142.95 (fencing); $994.37 (piano); and $629.37 (access), for a total of $3,223.19 from the calculation provided. On a without prejudice basis, arrears of s.7 from 2019 to September 30, 2023, are fixed at $25,916.73, to be repaid at a rate of $500.00 per month by the father, commencing June 1, 2024, until paid in full.

[150] In addition, on an interim without prejudice basis, the court finds it reasonable to order the father to pay $300.00 per month for the children’s ongoing s.7 expenses, commencing June 1, 2024. The mother shall provide receipts of any expenses incurred by her for the children’s benefits within 7 days of same. The father’s consent for any new expenses shall first be obtained, but the father’s consent shall not be unreasonably withheld.

[151] Finally, the father is found to be in non-compliance with the terms of the agreement.

14. Refusing or failing to provide disclosure.

[152] The breach is based on the court order of October 23, 2019. On that date, Desormeau J. ordered: The Applicant, J.S., shall provide the following disclosure to the Respondent, S.C. within 30 days:

(a) Regarding the Jointly owned property at 585 Rue Albert, Tremblant, Quebec;

i. An electronic copy of all emails sent, emails received, and drafts saved on the info@tremblant.cc email account between the period of January 1, 2012, to the date of this order, exported onto a USB;

ii. A copy of any and all lease agreements and/or rental contracts (short and long term) entered into with regards to this property from the date of separation to the date of this order;

iii. An accounting of all rents paid to the Applicant for in accordance with the terms of any and all lease agreements and/or rental contracts (short and long term) entered into from the date of separation to the date of this order;

iv. Passwords and login details for all sites and rental platforms the property is/was listed on at the date of separation to the date of this order, including but not limited to:

1. Trip Advisor
2. Home and Away
3. Flipkey, and
4. Airbnb.

b. A copy of the corporate income tax returns, as filed and notices of assessment (and re-assessment, if any) for Deja Technologies for 2016, 2017, 2018;

c. A copy of his Personal income tax returns and notices of assessment (and re-assessment, if any) for the years 2016, 2017, 2018 with all schedules and attachments;

d. A copy of the Corporate financial statements of Deja Technologies for the years 2015, 2016, 2017 and 2018.

e. A copy of all statements relating to his personal RBC chequing account for the period of March 1, 2018, until the date of trial, redacted to conceal the identities of any third party individuals;

f. A copy of statements relating to his personal RBC Visa account for the period of March 1, 2018, until the date of trial, redacted to conceal the identities of any third party individuals; and statements from March 2018 to the date of trial, redacted with respect to privacy;

g. A copy of the Credit Application, if any, to finance the vehicle he purchased in 2019.

[153] The mother’s evidence included allegations of nefarious conduct by the father and his company, as well as allegations of spoliation, which were denied by the father and will need to be proven at trial. The mother argued the father refused to comply with the disclosure obligations imposed on him pursuant to the current legislation and requests made by the mother. She attached as an exhibit 13 pages of explanations regarding where the disclosure stands, some of which has been provided in part.

[154] The father argued the mother was provided all the disclosure and he is happy to provide anything outstanding.

[155] Based on contradictory evidence, this court cannot find the father in contempt, but is prepared to make a finding of non-compliance.

[156] The father must provide the mother, within 60 days, a copy of all the disclosure set out in the order of October 23, 2019, by Desormeau J., above, even if this means duplication of any evidence. He shall also provide, attached to an affidavit:

a. Evidence of having given the mother the password information and login details for 1(a)(vi); as well as disable the two factor authentication;

b. Notices of assessment (and re-assessment, if any) for Deja Technologies for 2016, 2017, 2018;

c. an accounting for rents received;

d. regarding 1(f), the July 2018 Visa statement; and

e. Complete July 2018 VISA Statement outstanding

[157] In addition, the father is ordered to provide, attached to an affidavit, the following additional disclosure:

a. Details of any investments in tax shelters, including summary of amounts reported on personal income tax returns, and actual cash flows related thereto;

b. Details of any estates or trusts under which the spouse is a trustee or beneficiary, including trust settlement agreement, trust income tax returns, and financial statements since inception;

c. Details of all barter transactions during 2017 to 2021;

d. Details of any other sources of income not reported on his personal income tax returns during 2017 to 2021 (i.e. lottery winnings, gambling income, unreported cash sales, capital dividends, disability policy income, etc.);

e. Bank account statements, and cancelled cheques for 2017 to 2021;

f. Details of all vehicle purchases including the wrapped vehicle and the truck from during 2017 to 2021;

g. Details of all loans, including personal loans, from Richard Verdun and his companies outstanding during 2017 to 2021, including loan repayments;

h. Pursuant to the father’s Form 13.1, he owned 100% of the shares of Coristine Law Inc. As such, confirmation of any interest in same from 2017 to 2021; as well as Financial statements for Coristine Law Inc. for 2017 to 2021, if the father owned shares in the company during 2017 to 2021;

i. Brief description of each of the father’s company’s history and operations;

j. Organization chart outlining the fathers’ corporate interests;

k. List of shareholders, including identity and relationship to other shareholders, number of shares owned, and rights attached to each class of shares and any shareholder agreement or shareholder registers; and

l. Financial statements for Deja Technologies for 2019 to present; federal and provincial corporation income tax returns from 2016 to present.

15. Refusing to provide info@tremblant.cc email account entirety.

[158] The breach is based on the court order of October 23, 2019, para. 1(a)(i). On that date, Desormeau J. ordered: The Applicant, J.S., shall provide the following disclosure to the Respondent, S.C., within 30 days (a) Regarding the Jointly owned property at 585 Rue Albert, Tremblant, Quebec (i) An electronic copy of all emails sent, emails received and drafts saved on the info@tremblant.cc email account between the period of January 1, 2012 to the date of this order, exported onto a USB.

[159] This allegation is addressed above on count 14, above. No further finding will be made, and this count is dismissed.

16. Refusing to provide Consents for Flipkey, TripAdvisor etc.

[160] The breach is based on the court order of November 16, 2021, at paragraph 43, where Desormeau J. ordered the following:

Pursuant to Rule 1 (7.2) (a) and Rule 13 (11) FLR, the Husband shall sign consents for the authorization and release of information from all rental platforms, including Trip Advisor, Home and Away, Flipkey, Airbnb, Vacasa, booking.com, hotels.com, Canada stays, sublet.com, VRBO, as well as Microsoft regarding info@Tremblant.cc, and directing that information be provided to both the Husband and Wife forthwith.

[161] The mother’s evidence was the father refused to sign said consents until November 2022. While she argued this was strategic, this court is not prepared to make that finding. The mother also argued the father failed to provide the property identifier numbers for their two rental units on the consent, making his signing perfunctory and not in compliance with the order.

[162] The father categorically denied this assertion and argued he provided all the information including passwords, etc. The accounts were closed in 2019 as they were no longer able to rent the premises.

[163] This court declines to make any findings on this count, particularly given the issue was resolved over a year prior to the motion being argued. This count is dismissed.

[164] However, though not in the current court orders, if it assists in obtaining the information, the court will order that the father sign, within 30 days, new consent forms drafted to be drafted by the mother’s counsel, which shall contain the property identifier numbers for their two rental units.

Ultimate remedies sought: Prohibiting the father from taking steps until contempt or compliance rectified and/or striking the father’s pleadings until his contempt or non-compliance has been rectified and/or other relief and/or impute the father’s income to be $150,000.00.

[165] As a remedy to the contempt and/or non-compliance, the mother sought an order that the father’s consent to therapy should be dispensed with, and the mother should be able to ensure the children attend counselling. This court is not persuaded, on this evidence, at this juncture, that this remedy is appropriate.

[166] The mother also requested orders prohibiting the father from taking any further steps in the proceeding until his contempt and/or non-compliance is rectified; and/or striking the father’s pleadings until there is compliance.

[167] A litigant should not have to bring a motion to get an order requiring a party to do something that has already been ordered (such as a motion for enforcement of a disclosure order). If there has been a breach, the appropriate step is to seek a remedy under r. 1(8): see Varcoe v. Varcoe, 2014 ONSC 328; also see Monga v Monga, 2024 ONSC 761.

[168] The primary objective of the Family Law Rules requires courts to deal with cases justly. Dealing with a case justly includes saving expense and time as well as giving appropriate court resources to the case while taking account of the need to give resources to other cases. The court has a positive obligation to promote the primary objective.

[169] The Ontario Court of Appeal has repeatedly confirmed that dismissing or striking out a party’s pleadings is a drastic remedy that should be applied only in exceptional circumstances. It is essential that this remedy of last resort be granted only on a complete evidentiary record.

[170] Further, striking of pleadings is discretionary in nature.

[171] At this motion, there are credibility issues and contradictory affidavit evidence that cannot be resolved without trial.

[172] While the court has found it is more likely than not that the father has not complied with the 2019 disclosure order, this court is not prepared at this juncture to strike his pleadings.

[173] The father is reminded that court orders are not suggestions. Should the father not remedy his non-compliance regarding all the orders contained herein, an adverse inference may be drawn at trial regarding all the issues.

[174] In addition, should either party fail to comply with the disclosure obligations set out and/or reiterated herein, a case management meeting shall be conveyed before me, at which point the court may be inclined to offer another motion date to remedy the issues.

[175] Finally, regarding the mother’s request to impute to the father a revenue of $150,000.00, as set out in Dryagala v. Pauli, [2002] CarswellOnt 3228, the court cannot arbitrarily impute an amount of income. There must be some factual basis in the evidence for the amount imputed. The onus is on the mother to establish a rational and solid evidentiary basis to justify imputation of income. The court is not persuaded this onus has been met.

Child support

[176] The father sought an Order staying the enforcement of paragraph 12.1 of the interim agreement, signed June 25, 2019, for the father to pay the mother $1,000 per month in child support. He also sought an order varying child support from February 15, 2022, to present based on the parties' incomes and the equal-shared parenting schedule.

[177] As noted above, the father’s evidence was that he has paid child support at a rate of $1000.00 per month from June 25, 2019, to February 15, 2022. Then the children were primarily in his car for five months, when the mother ought to have paid support. Thereafter, the parties had equal time with the children, at which time he assumed no support was payable by either of them.

[178] The father also argued that the mother refused to provide him sufficient disclosure to be able to calculate child support payable by her. He argued that the mother was clearly not declaring all her income given she was able to purchase a home in 2020 while unemployed or on disability.

[179] To address the child support and s.7 issues, the father requested the following disclosure from the mother, within 30 days:

a) Personal and corporate TI Income Tax Returns with schedules including T4s and T5s for 2021, 2022 and 2022, 2023;

b) Proof of current income from all sources;

c) An updated financial statement;

d) Mortgage application and agreement of purchase and sale for new residence on Georgina Drive;

e) Bank and credit card statements from date of separation to present;

f) Coristine Law Office bank and credit card statements for the past five years;

g) Joint line of credit statements for HELOC on matrimonial home;

h) Proof of rental income from Hanlon property; and

i) Disclosure of all legal proceedings with pleadings which the Respondent is engaged in either as a plaintiff or an applicant from the date of separation to present.

[180] The mother’s evidence supports a finding that the father actually paid $999.00 per month except for two months when he paid $1,000.00.

[181] The mother argued that in 2019, the parties agreed to $1,000.00 per month pending income determination but the father never provided the disclosure as ordered and as requested. Following the 2022 agreement which came into effect March 3, 2022, the father cancelled mediation and refused to provide disclosure.

[182] The mother argued she has never refused to pay child support. When they finally attended mediation in December 2023, the father refused to address the support issue.

[183] She also advanced that straight set-off support would cause undue hardship given her circumstances, which included not receiving child support from her other child’s father. In addition, this court has found the father has not contributed to reasonable s.7 expenses, for which the mother has borne the burden alone despite a signed agreement.

[184] The mother’s evidence supports a finding that the father actually paid $999.00 per month except for two months when he paid $1,000.00.

[185] As noted above, the father did not dispute stopping child support payments as of February 15, 2022, when the children resided primarily with him. The evidence shows that as of July 8, 2022, the children spent equal time with both parents.

[186] In this regard, the mother made several requests: that the father’s income be imputed to $150,000.00 until he provides the court ordered disclosure; that the father continue to pay $1000.00 per month for child support until he provides the previously ordered disclosure; that income needs to be added back into the father’s income given the improper deductions made from same; that the father’s pleading be struck pending receipt of the disclosure; and that the father not be permitted to take any steps until his deficiencies are rectified.

[187] The court has already addressed the imputation of income argument and striking pleadings, above.

[188] A review of the father’s financial statement shows he has a T4 from Moneris Solutions Corp from 2023 whereby his income is stated to be $89,326.23. He did not provide his ROE from Moneris or evidence to substantiate his self-employment income from his business Deja Technologies. He indicated his income from last year was $84,572.00. He suggests he is currently earning $60,000.00 per year from self-employment income, with bills of $97,752.00 per year.

[189] Though this is the father’s motion to adjust child support from February 15, 2022, and he filed over 225 pages in support of the motion, he failed to attach to his financial statement evidence of his last three years Notices of Assessment, which would have assisted the court in determining this issue.

[190] Further, while the court did not have access to the entire continuing record given this is a 2019 file which pre-dates online filings, the father’s financial statement commissioned April 21, 2023, was markedly different than that provided in support of today’s motion, in particular, the assets and liabilities section. For instance, at part 4(a) Land, in 2023 the father indicated three properties in which he had interest, in the 2024 financial statement he listed one. In the 2023 financial statement at part 4(c) Bank Account, etc. section, he listed 13 accounts, whereas in his 2024 financial statement he listed one bank account.

[191] The mother’s financial statement indicated she has a net annual income of $9,835.32, not including child tax benefits or tax rebates, broken down as follows:

• pension income of $15,864 per year
• Schedule A she lists a loss annually of $6,028.68, resulting in a net annual income of $9,835.32, not including child tax benefits or tax rebates:

i. Net rental income: ($92,720.68) based on: (Gross annual rental income of $0 less $27,095.96 (mortgage) + $1,504.72 (insurance) + $3,500 (staging) + $4,800 (repairs and maintenance) + mortgage break fee ($10,820) + legal fees ($5,000) + real estate fees ($40,000) *estimated losses, if the sale of the property closes by July 2024

ii. LTD Policy $65,892.00

iii. Statutory Accident Benefits (est. TBD) - $800 per week: $20,800

[192] Despite her net annual income of $9,835.32, her total monthly expenses are $18,984.15; and annual expenses are $227,809.90. The mother argued that $30,000.00 annual expenses was for second mortgage on Georgina Drive, estimated to be paid following sale of Hanlon property; $65,000.00 annually for Hanlon, estimated sale in the near future; and expenses for the children and food- paid for by credit.

[193] While it may have been provided to counsel as part of disclosure, the mother did not attach to her financial statement evidence of her last three years Notices of Assessment, which would have assisted the court in determining the issue of child support. She did however list her income from last year to be $62,940.00.

[194] Ultimately, this court has too many questions that cannot be answered with the evidence filed. Moreover, the father’s financial statement significantly undermines his credibility on the financial issues.

[195] Given the deficiencies in the father’s materials, and his non-compliance with a significant amount of court orders or agreements, this court is not persuaded the domestic contract which was filed for FRO enforcement ought to be varied, despite the fact that the children are currently residing equally with both parents. The father’s motion to vary child support is dismissed. He shall therefore continue to pay $1,000.00 per month for child support on an interim without prejudice amount pending determination of the father’s income from all sources.

[196] As for the father’s disclosure requests, the court accepts the mother’s explanation about some of the disclosure previously provided, such as the Notice of Dissolution of Coristine Law Office Professional Corporation and disclosure of the general account and credit card statements for same and the mortgage application regarding Georgina Drive. Further, the court is not prepared to order, in this family law file, disclosure regarding any civil claims the mother may have interest in.

[197] However, again in an effort to move this file along, even if it has already been provided, the mother is ordered to provide the following disclosure to the father within 60 days, attached to an affidavit:

a. Personal and corporate TI Income Tax Returns with schedules including T4s and T5s for 2021, 2022 and 2022, 2023;

b. Proof of current income from all sources;

c. Agreement of purchase and sale for new residence on Georgina Drive;

d. Bank and credit card statements from date of separation to present; and

e. Joint line of credit statements for HELOC on matrimonial home.

[198] Counsel for both parties are urged to discuss and confirm what has already been provided, and they may together agree not to duplicate any disclosure. Failing any agreement however, all the above disclosure is to be provided within 60 days of the release of this judgment.

Disposition

[199] The father is found to be in contempt of count 3; and in non-compliance of counts 5, 7, 8, 9, 12, 13 and 14.

[200] Counts 1, 2, 4, 6, 10, 11, 15, and 16 are dismissed.

[201] Both parties are directed to explore if Crossroads provides Safe Harbour therapy within 7 days. If so, then V shall immediately attend counselling through them. Failing this, then the father shall propose three names of psychologists or counsellors that provide Safe Harbour therapy within 30 days, and the mother shall choose one of those three to provide services.

[202] Both parties are directed to explore if Dr. Moncion provides Safe Harbour therapy. If so, then T shall attend counselling with him. Failing this, then the father shall propose three names of psychologists or counsellors that provide Safe Harbour therapy within 30 days, and the mother shall choose one of those three to provide services.

[203] V shall continue to attend for treatment as required by her treating physician and/or optometrist. The mother is hereby granted authorization to take V to the CHEO Pain Management pertaining to her injured ankle including attending for physiotherapy, injured finger including for plastic surgery if recommended by the doctor, concussion, and management of pain symptoms. Both parents are hereby ordered to cooperate with and follow the recommended treatment. Both parents are equally entitled to speak to the treating doctor/ facility. The father is not permitted to cancel any of V’s related appointments.

[204] On a without prejudice basis, the father is prohibited from providing the s.30 assessment to any third parties involved with the children and shall not make changes to the children’s files without the mother’s written consent or court order.

[205] Both the mother and father shall take the children to their regular activities, which include skating, dance, dance competitions, and shall provide the children with their prescribed medication and/or supplements.

[206] Both parties shall strictly comply with the dairy-free diet for both children and gluten-free diet for V.

[207] The father shall provide a separate daily ledger/journal of food fed to V and T, with photographs of ingredients and food provided, including restaurant receipts on a weekly basis when the children are with him. This ledger it to be provided by the father to the mother no later than 8:00 p.m. on the same day as the children return to the mother’s care.

[208] On an interim, without prejudice basis, the mother may continue to provide meals for V for school during the father’s weeks.

[209] This court declines at this junction to make a finding that the father’s actions have caused the mother emotional distress.

[210] Subject to recalculation at trial, on a without prejudice basis, arrears of s.7 expenses from January 1, 2019, to September 30, 2023, are fixed at $25,916.73, to be repaid at a rate of $500.00 per month by the father, commencing June 1, 2024, until paid in full. This payment shall be enforced through FRO.

[211] On an interim without prejudice basis, commencing June 1, 2024, the father shall pay $300.00 per month to the mother for the children’s ongoing s.7 expenses. The mother shall provide receipts of any expenses incurred by her for the children’s benefits within 7 days of same. The father’s consent for any new expenses shall first be obtained, but the father’s consent shall not be unreasonably withheld. This payment shall be enforced through FRO.

[212] The father shall produce to the mother, within 7 days, a copy of his Record of Employment from Moneris.

[213] The father must provide the mother, within 60 days, a copy of all the disclosure set out in the order of October 23, 2019, by Desormeau J., above, even if this means duplication of any evidence. He is also ordered to provide within 60 days, attached to an affidavit:

a. Evidence of having given the mother the password information and login details for 1(a)(vi); as well as disable the two factor authentication;

b. notices of assessment (and re-assessment, if any) for Deja Technologies for 2016, 2017, 2018;

c. an accounting for rents received;

d. regarding 1(f), the July 2018 Visa statement; and

e. Complete July 2018 VISA Statement outstanding.

[214] In addition, the father is ordered to provide the mother, within 60 days, attached to an affidavit, the following additional disclosure:

a. Details of any investments in tax shelters, including summary of amounts reported on personal income tax returns, and actual cash flows related thereto;

b. Details of any estates or trusts under which the spouse is a trustee or beneficiary, including trust settlement agreement, trust income tax returns, and financial statements since inception;

c. Details of all barter transactions during 2017 to 2021;

d. Details of any other sources of income not reported on the father’s personal income tax returns during 2017 to 2021 (i.e. lottery winnings, gambling income, unreported cash sales, capital dividends, disability policy income, etc.);

e. Bank account statements, and cancelled cheques for 2017 to 2021;

f. Details of all vehicle purchases including the wrapped vehicle and the truck from during 2017 to 2021;

g. Details of all loans, including personal loans, from Richard Verdun and his companies outstanding during 2017 to 2021, including loan repayments;

h. Pursuant to the father’s Form 13.1, he owned 100% of the shares of Coristine Law Inc. As such, confirmation of any interest in same from 2017 to 2021; as well as Financial statements for Coristine Law Inc. for 2017 to 2021, if the father owned shares in the company during 2017 to 2021;

i. Brief description of each of the father’s company’s history and operations;

j. Organization chart outlining the father’s corporate interests;

k. List of shareholders, including identity and relationship to other shareholders, number of shares owned, and rights attached to each class of shares and any shareholder agreement or shareholder registers; and

l. Financial statements for Deja Technologies for 2019 to present; federal and provincial corporation income tax returns from 2016 to present.

[215] The father shall sign, within 30 days, new consent forms to be drafted by the mother’s counsel, which shall contain the property identifier numbers for their two rental units.

[216] Even if it has already been provided, the mother is ordered to provide the following disclosure within 60 days, attached to an affidavit:

a. Personal and corporate T1 Income Tax Returns with schedules including T4s and T5s for 2021, 2022 and 2022, 2023;

b. Proof of current income from all sources;

c. Agreement of purchase and sale for new residence on Georgina Drive;

d. Bank and credit card statements from date of separation to present; and

e. Joint line of credit statements for HELOC on matrimonial home.

[217] Counsel for both parties are urged to discuss and confirm what has already been provided, and they may together agree not to duplicate any disclosure. Failing any agreement however, all the above disclosure is to be provided within 60 days of the release of this judgment.

[218] The father’s claim to readjust child support is dismissed.

[219] On an interim without prejudice basis, commencing April 1, 2024 and on the first day of each month thereafter, the father shall continue to pay child support to the mother for T, born April 22, 2015, and V, born December 10, 2012, in the amount of $1,000.00 per month for V and T, until further court order or agreement of the parties. This amount is an interim without prejudice amount pending determination of the father's income from all sources.

[220] If the parties are unable to settle the issue of costs between them, they may provide written submissions to me. Submissions shall not exceed 3 pages, excluding bills of costs, offers to settle, and case law. The mother’s shall be delivered within 30 days, and the father’s shall be delivered within 45 days, with ten days to reply by the mother.

Madam Justice H. Desormeau Released: May 31, 2024