COURT FILE NO.: FS-14-19641 DATE: 20240806 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: I.S., Applicant AND: M.S., Respondent
BEFORE: Madam Justice Kristjanson
COUNSEL: Annie Zhuang, Agent for the Applicant Martine Ordon, Counsel for the Respondent
HEARD: February 6 and 8, 2024
Endorsement
[1] The court heard two short motions together on the regular list. The first was a motion by the Applicant mother to temporarily suspend the father’s parenting time with their son, J., or to require supervision of the father’s time. The mother also sought appointment of the Office of the Children’s Lawyer. The second was a cross-motion brought by the father for contempt based on breaches of the parenting time order made by Justice Gilmore on consent on April 25, 2019 (“Gilmore Order”). The mother withheld the child from parenting time with the father in January 2024.
[2] In December 2023 the father argued a contempt motion based on the mother withholding the child from all parenting time with the father from August through December 2023. The day before these motions were argued, Justice Faieta released his decision finding the mother in contempt: I.S. v. M.S., 2024 ONSC 773. The contempt sentencing decision is reported at I.S. v. M.S., 2024 ONSC 4100.
[3] The mother’s motion is dismissed. The father’s motion is granted in part. This court declares that the mother breached the parenting time provisions of the Gilmore Order in January 2024 by intentionally withholding the son from parenting time with his father. The Court issues additional orders under Rule 1(8) of the Family Law Rules, O Reg 114/99.
Background: Court Orders
[4] This is a high-conflict family relationship, in large part because the existence of the 10-year-old son, J., has been kept secret from the father’s wife and children. The respondent is 22 years older than the Applicant, and was married with children during the relationship with the Applicant. The Applicant knew that the respondent wanted their relationship to be kept secret. The parties separated when the mother became pregnant. Their relationship and the child remain a secret, although the father has fought for parenting time with the child despite the mother’s best efforts to undermine that relationship, in part through withholding the child. The parties have been in court almost continuously since 2017.
[5] On October 2, 2015, the parties resolved all matters between them and entered final minutes of settlement and releases constituting a domestic contract under the Family Law Act, RSO 1990, c F.3 (“Agreement”). The Agreement set out certain parenting provisions, including that the father would have reasonable and generous access to the child on dates and times to be reasonably agreed to by the parties, always keeping in mind the best interests of the child. The parties also agreed that maximum contact with the father was in the child’s best interests, and that the mother would not unreasonably withhold or interfere with the father’s access.
[6] In April 2019, the parties consented to the Gilmore Order, which provides the father with parenting time on Wednesdays until 7 p.m., alternating Saturdays from 9:00 a.m. to 4:30 p.m., and Saturday overnights during the first weekend of every month.
[7] I.S. brought a family law application in the Ontario Court of Justice to enforce the Agreement in January 2017. In October 2017, M.S. brought an application to set aside the Agreement under s. 56(4)(c) of the Family Law Act. The father’s corporation commenced a civil action to enforce mortgage remedies against the mother in relation to a house the father had purchased for the mother, and for which the father’s corporation provided an interest-free mortgage.
[8] The family law applications and the corporation’s civil action were consolidated and proceeded to trial: M.S. v. I.S., 2021 ONSC 3715. Nishikawa, J. dismissed both the Respondent father’s motion to set aside the Agreement and the Applicant mother’s claim that the Respondent father had breached the Agreement. The court found that the mother had breached the parenting time provisions in the Agreement. The trial essentially ended the case, upholding the parenting provisions in the Agreement.
[9] On August 11, 2023, at a Case Conference, Justice Akazaki confirmed in his endorsement that there were no pleadings before the court, as the case had concluded with a trial decision of Justice Nishikawa in 2021. Akazaki, J.’s endorsement explained to the self-represented applicant that: (a) the Gilmore Order has no time limit and is the one that defines when the father is to have parenting time with the child, and (b) if either party wished to change an order, they would have to bring a motion to change based on a material change in circumstances. The endorsement emphasized that the only remaining issue was the enforcement of existing orders.
Mother’s Motion to Temporarily Suspend Parenting Time
[10] The father had parenting time with the child on December 30, 2023, and January 3rd, 2024. The mother started withholding the child following the January 3rd visit, based on allegations of harm to the child during the January 3 visit. The mother appended two doctor’s notes to her affidavit to support the allegations of harm. The mother’s affidavit on the one-hour motion was 13 pages long, with 140 pages of exhibits. This breaches the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice.
[11] Neither doctor provided an affidavit or expert report. Concerns with hearsay evidence in doctor’s notes attached to a party’s affidavit are summarized by Justice Nakonechny in Lucreziano v. Lucreziano, 2021 ONSC 4106 at para. 49:
Rule 14(19) allows for hearsay only in restricted conditions. The case law identifies potential issues with the admissibility of the doctors’ letters attached to a party’s affidavit. In some cases, courts have rejected unsworn doctor’s letters as inadmissible because the letters contained no evidence as to the doctor’s qualifications and there was no opportunity to cross-examine the doctor. While a doctor’s letter or report will not be excluded solely because it is not in the form of an Affidavit, the Court must be satisfied of the truth of the facts contained in the letter or report: Ceho v. Ceho, 2015 ONSC 5285, Kozak v. Kozak, 2018 ONSC 690.
[12] The mother attended a walk-in clinic with J. on January 5, 2024, two days after the alleged incident. I do not admit the notes of the walk-in clinic doctor into evidence, as they are illegible, and I cannot read them. Nor is there any indication of whether the child spoke independently to the doctor, whether the mother provided the information, and no way to test the reliability of the information contained in the indecipherable notes.
[13] The mother attended with J. at the family physician on January 17, two weeks after the alleged incident. This note is a very short ten lines long, written on a prescription pad. The note contains double and triple hearsay. The family physician relies on the notes of the January 5 walk-in clinic visit. The family physician reports on statements made by the child. It is unclear whether this was based on an independent interview in the absence of the mother, whether the mother was present, whether there was prompting, whether coaching was explored, and potential information interference given the earlier interviews with the police and the children’s aid society.
[14] The family doctor recommends that the father’s visits be supervised, which is outside the scope of a physician’s expertise, is an opinion on the ultimate legal issue, and is inadmissible. Because of the centrality of this issue, the time lag, no indicia as to reliability of the double or triple hearsay, and the obvious highly conflictual relationship between the parents, I do not admit the doctor’s note for the truth of its contents as to the nature of the incident or harm.
[15] The matter was reported to the Toronto Children’s Aid Society (CAST) and the Toronto Police Service (TPS). Both parents seek to rely on certain notes, again attached only as exhibits to the affidavits. That said, since the communications are addressed to both parties, and set out knowledge of the actions of the investigating third parties, I admit them into evidence. On January 17, CAST counsel wrote to both father's counsel and the mother stating:
Finally, please be advised that although CAST has an open investigation involving I.S., M.S., and J., the service team will not be initiating a child protection proceeding or otherwise taking any steps which would result in M.S.’s contact with J. being impacted and supports compliance with any court orders currently in place relating to said conduct.
[16] Similarly, a detective with the TPS wrote to both parties confirming that the case was closed as a non-criminal incident. In a January 19 email to the mother, the detective wrote: “I am not charging [the father] at this time and I think involvement and participation with CAS is the best for the family.” In a January 25 email to the father, which the detective confirmed was also sent to the mother, the detective wrote:
It is important to know that the roles of Police, Children’s Aid Society, and Family Court, are all different and you cannot use one to gain advantage in another. The role of police is to assess criminality and protect victims… family court is a procedural/law based platform to make orders pertaining to custody and parental rights. Just because there is a police or CAS investigation doesn't mean you can choose not to follow Family Court Orders.
[17] The detective also wrote: “I am not interviewing [J.] for a second time as there has been too much information interference and I am not confident that I can get a pure statement.”
[18] Despite being told by both the CAST and TPS (both of whom interviewed the child) that the mother should comply with court orders, including maintaining the father’s contact with the child, the mother continued to withhold the child.
[19] The bulk of the mother’s evidence is inadmissible, being both stale-dated and irrelevant to the only issue here – the safety of the child on parenting visits with his father. Much of the mother’s evidence significantly predates the precipitating incident of January 2024. This includes reports from April 2023 and July 2023 of an educational consultant, not relevant to this motion, and a letter from the child’s social worker in August 2023 which is not relevant to this motion.
[20] Both CAST and the TPS clearly stated that family court orders are to be followed. The mother knew that the Gilmore Order governed parenting time. She was also clear about the risk of flouting family court orders, given that the contempt proceeding before Justice Faieta had been argued mere weeks before the new round of withholding commenced.
[21] The mother's actions here constitute self-help in the face of a final and binding court order, and once again demonstrate that the mother cannot support the son’s relationship with his father. She cannot put aside her anger to act in the best interests of the child. I find no basis for suspending the father's parenting time, or for supervision.
[22] If the mother starts motion to change, then whether to request OCL involvement would arise. At this time there is simply no case in which the OCL could be involved. The only outstanding issues relate to enforcement of the existing parenting orders.
[23] The mother’s motion is dismissed with costs.
[24] On February 8, I made an Order directing parenting time in accordance with Justice Gilmore’s Order in accordance with a schedule which was a printout of a calendar for the balance of 2024, listing all dates and times of the father’s parenting time. The schedule was consented to by both parties. The mother is directed to follow the schedule based the Gilmore Order unless varied on a motion to change.
Father’s Contempt Motion
[25] In contempt cases involving parenting issues, the three-part civil contempt test is supplemented by a fourth aspect, whether the court should exercise its discretion to not find contempt. The exercise of discretion requires consideration of alternatives to contempt, as well as consideration of the best interests of the child. The four-part test for contempt in family law parenting cases, based on Carey v. Laiken, 2015 SCC 17, [2015] 2 SCR 79 at paras. 33-35 and Chong v. Donnelly, 2019 ONCA 799 at paras. 10-12, requires the court to consider the following:
(1) Does the order state clearly and unequivocally what should and should not be done? (2) Did the party have actual knowledge of the order? (3) Did the party intentionally breach the order through a prohibited action, or omission of a required action? (4) Should the Court exercise its discretion to decline to make a finding of contempt, accounting for alternatives, and the best interests of the child?
[26] As to alternatives, I agree with Justice Kurz in Dephoure v. Dephoure, 2021 ONSC 1370 at para. 131 that “many of those alternatives are found in r. 1(8) of the Family Law Rules. That subrule sets out various remedies short of contempt for a failure to obey a court order.”
[27] In this case, although I am satisfied beyond a reasonable doubt that the mother intentionally violated the existing parenting orders, I exercise my discretion to decline to make a finding of contempt, based on the best interests of the child and considering alternative remedies. I issue a declaration of breach of the Gilmore Order and make ancillary orders.
Does the order state clearly and unequivocally what should and should not be done?
[28] The Gilmore Order clearly and unequivocally provides that the father has parenting time with the child every Wednesday. The Gilmore Order requires that the mother shall not cancel or change access without a court order, or unless the parties agree to the change at least 24 hours before the visit. I find that the father has established beyond a reasonable doubt that the mother violated the Gilmore Order in respect of the January 10, 2024, January 17, 2024 and January 24, 2024 parenting times by withholding the child. These are the only dates contained in the Notice of Motion and draft Order.
Did the party have actual knowledge of the order?
[29] The father has proved beyond a reasonable doubt that the Applicant mother had actual knowledge of the Gilmore Order. Indeed, a contempt motion brought by the father based on the mother’s breaches of the parenting time provisions of the Gilmore Order was under reserve at the time of these breaches.
Did the party intentionally breach the order through a prohibited action, or omission of a required action?
[30] The mother intentionally withheld the child from parenting time with the father after January 3. Her actions follow many earlier instances of withholding. That she chose to withhold the child while the prior contempt motion was under reserve by Justice Faieta (and was argued mere weeks before this period of withholding) indicates the intentionality of the mother’s acts. She has conceded that the withholding was intentional.
[31] Even where a wilful breach is established, the court must consider whether there is a legitimate excuse, which requires a reasonably held belief (both sincere and with objective basis in fact) that there was good reason to disobey the order: Sasan Amid v Behnaz Houdi, 2016 ONSC 2849 at para. 15.
[32] I do not find a legitimate excuse. There is no objective factual basis that justifies the unilateral breaches of the Gilmore Order. The mother did not take urgent steps in light of a well-established concern about the child’s safety. Both the CAS and the TPS had investigated, and both informed that mother that they would not act to interfere with the father’s parenting time. Both informed the mother that Family Court orders must be complied with. Yet even after being informed of this, the mother continued to withhold, pressed her motion, and continued to seek suspension of parenting time or supervised parenting time.
Last Resort/Alternatives/Discretion
[33] I must now consider whether to exercise my discretion not to find the mother in contempt. In discussing the importance of alternatives in parenting contempt motions, Jamal J.A., as he then was, held in Moncur v. Plante, 2021 ONCA 462 at para. 20:
It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.
[34] Other courts have held that the mother withheld the child and failed to act in the child’s best interests. Following the trial in 2021, Justice Nishikawa found that I.S. breached the provision in the Agreement requiring that she “not withhold or interfere with M.S.’s access to J. unreasonably.” Nishikawa J. held at M.S. v. I.S., 2021 ONSC 3715 at para. 146 that M.S.’s access to J. was reduced to less than what was initially contemplated by the Agreement, and that M.S. had to seek the court’s assistance to have his access restored and increased, as contemplated by the Agreement. Nishikawa J. held at para. 156:
The evidence shows that I.S. interfered with M.S.’s access … because she was consumed by M.S. not telling his family about J. and her conviction that the secrecy was harmful to J. In the Agreement, however, she agreed not to disclose the relationship to his family unless M.S. had done so first. As is evident further in these Reasons, I.S. had significant difficulty with this requirement. Her resentment of the situation led to constant conflict and interfered with J. having maximum contact with M.S, contrary to J.’s best interest.
[35] On the December 2023 contempt motion, Justice Faieta also found that the mother withheld the child from all parenting time with the father from August to December 2023, and failed to act in the child’s best interests. Faieta J. held in I.S. v M.S., 2024 ONSC 773 at para. 48:
…I am satisfied that the Applicant mother has intentionally withheld the Child from parenting time with the Respondent father. The Applicant mother’s anger with the Respondent father is palpable and, as a result, she has failed to comply with the parenting time requirements of the Gilmore Order in a good faith manner and in the Child’s best interests as required by the Nishikawa Order.
[36] The mother argues that she tried to purge her contempt through a January 24 email inviting the father to have parenting time in her home, with the babysitter present, stating that she would be “out of the way” if the father wanted. This is not the parenting time with the father which the Gilmore Order requires. It amounts to supervision by a babysitter (and the mother) in the home of the mother. It constitutes intentional flouting of the Order. It in no way demonstrates compliance with the Gilmore Order.
[37] The materials filed on these motions demonstrate the mother’s anger that the father has not acknowledged his child, and that she is punishing the father by withholding the child contrary to the child’s best interests. I am concerned with the mother’s resort to both the police and the CAS: she has made similar complaints in the past. It is not in J.’s best interests to keep making unfounded complaints. It harms children to expose them to unnecessary involvement with the police and children’s aid societies, where the real issue is the mother’s inability to make decisions in the child’s best interests, and the mother’s decision to use the child as a pawn to punish the father.
[38] But reflecting proportionality, this is not a case of last resort that requires a finding of contempt. The breach here involves three occasions. The parties cooperated to set out a schedule for the balance of 2024 in accordance with the Gilmore Order. So long as the mother does not withhold the child again, and complies with the Gilmore Order, I find that it is not in J.’s best interests at this time to find the mother in contempt for the three missed parenting time visits.
[39] I exercise my discretion to make a declaration that the Applicant has breached the Gilmore Order by denying parenting time to M.S. on January 10, 2024, January 17, 2024, and January 24, 2024. In so doing, I implement a staged approach. These breaches may be considered as aggravating factors if there is any further withholding or denial of parenting time.
[40] The parties cooperated in setting a visiting calendar in accordance with Justice Gilmore’s order following the February 6 attendance. Justice Faieta has ordered that the parties prepare a similar calendar for 2025: I.S. v. M.S., 2024 ONSC 4100.
[41] Rule 1(8)(e) provides the court with jurisdiction to deal with a party’s failure to obey an order by ordering that a party is not entitled to any further order from the court unless the court orders otherwise. I make such an order. The mother may not bring any further motions or seek any other orders without leave, except that she may commence a motion to change based on material change in circumstances. But no interim orders may be sought on the motion to change without leave of the court.
[42] Finally, if the mother makes any further allegations that the father has physically harmed the child during his parenting time, she must take the child to the Suspected Child Abuse and Neglect (SCAN) Program at Sick Kids Hospital, rather than the family physician or a walk-in clinic. The mother must provide a full report of SCAN’s findings to the father or his counsel immediately after any attendance at SCAN.
[43] Although I do not grant the father’s contempt motion, I found that the mother breached the Gilmore Order three times, and I set out terms designed to ensure future compliance. I find that the mother acted in bad faith in pursuing this motion, and under both Family Law Rule 1(8) and Rule 24(8), I order that the mother pay full indemnity costs.
[44] The father’s full indemnity costs are $9,537.20, inclusive of HST. The hourly rate of $400 is reasonable, and time spent (20 hours) is reasonable.
Procedural Background to this Motion
[45] The mother brought a motion on short service to suspend parenting time. The father brought a cross-motion for contempt on January 17. By Justice Kraft’s Order of January 18, 2024, February 6 was set for the hearing of the two motions. On January 24 the Applicant amended her Notice of Motion to provide specific details related to parenting time including no overnight parenting time and the details of the supervision sought. For the first time, the mother sought an order for the appointment of the Office of the Children’s Lawyer.
[46] Justice Faieta’s decision finding the mother in contempt was released February 5. At the start of the hearing on February 6, counsel both confirmed that they had received the decision, and neither party requested an adjournment.
[47] Argument proceeded on the mother’s motion. I dismissed the mother’s motion on February 6. I directed parenting time to continue under the Gilmore Order.
[48] The father’s counsel then completed submissions on the father’s contempt motion. In response, the mother’s counsel began her argument. She argued that the mother had purged her contempt. Applicant’s counsel then raised a procedural issue, that contempt could not be found because of lack of personal service. Lack of personal service was not raised as a procedural issue before the Respondent’s arguments. The Applicant’s materials are hundreds of pages long, exceeding permissible limits under the Consolidated Practice Direction.
[49] The mother filed a supplementary affidavit on January 24, after service of the father’s contempt motion. She filed a factum 7 days after the contempt motion was served. At no point was lack of personal service raised. The failure to raise a foundational procedural issue such as service until responding argument is to be strongly discouraged, and normally warrants costs sanctions. It wastes the court’s time and the time of the parties since the usual remedy is an adjournment to arrange for personal service. It is not in keeping with the primary objective of the Family Law Rules.
[50] I immediately adjourned the balance of the Applicant’s submissions, to ensure that her client was personally served. The mother was personally served with the contempt motion in proper form on February 7, otherwise identical to the January 17 materials. I am confident that the mother understood the jeopardy and nature of a contempt motion. That is because in December 2023 the parties argued a contempt motion based on the Applicant’s failure to comply with the Gilmore Order. Indeed, Justice Faieta’s ruling on contempt was under reserve during the period relating to the withholding in issue here. The contempt motion was continued on February 8. I find that this method of proceeding is consistent with the primary objective, and was the fairest method of proceeding given the importance of reinstating parenting time, efficiency, and cost effectiveness. The mother’s agent agreed to proceed this way.
ORDER
THIS COURT ORDERS THAT:
The Applicant I.S.’s motion is dismissed, with costs.
Service of the Respondent, M.S.’s Motion for Contempt returnable February 6, 2024, and continued on February 8, 2024, is validated, nunc pro tunc effective January 17, 2024.
This Court declares that the Applicant I.S. breached the Order of Gilmore, J. dated April 25, 2019 (“Gilmore, J., Order”) by withholding the child J. from parenting time with his father on January 10, 2024, January 17, 2024, and January 24, 2024. These breaches may be considered as aggravating factors if there is any further withholding or denial of the Respondent M.S.’s parenting time.
The Applicant, I.S. shall, commencing February 7, 2024, reinstate the Respondent M.S.’s parenting time with the minor child, J.S., pursuant to the Gilmore, J., Order and she must abide by the terms of the Order unless the Gilmore, J., Order is varied or set aside by further Order of this Court.
Paragraphs 2, 3, 3 (incorrectly duplicatively numbered), 4 through 22, 25-56, 57 except the last sentence, 59-67, 71, and 87 and Exhibits A, D to O and Q to R are struck from the Applicant's Affidavit sworn January 12, 2024.
If the Applicant I.S. makes any further allegations that the Respondent M.S. has physically harmed the child during his parenting time, she must take the child to the Suspected Child Abuse and Neglect (SCAN) Program at Sick Kids Hospital, rather than to a family physician or a walk-in clinic. The Applicant I.S. must provide a full report of SCAN’s findings to the Respondent, M.S., or his counsel immediately after any attendance at SCAN.
The Applicant, I.S., shall not seek any further relief from the Court without first obtaining leave, except that the Applicant I.S. may commence a Motion to Change based on a material change in circumstance without leave. No interim orders may be sought by I.S. on any Motion to Change commenced by her unless she has obtained leave of the court.
The Applicant I.S. must pay full indemnity costs of both the motion and the cross-motion to the Respondent M.S. in the amount of $9,537.20, inclusive of HST, within 30 days.
“Justice Kristjanson”
Date: August 6, 2024