Court File and Parties

Court File No.: FS 16-16844 (Windsor) Date: 2024-10-16 Ontario Superior Court of Justice – Family Court

Between: JANET MARY MACERONI, Applicant And: LEO FRANK MACERONI, Respondent

Before: S. Campbell J.

Counsel: Amy Johnson, for the Applicant Brian Ludmer, for the Respondent

Heard: August 21, 2024

Introduction

[1] The respondent (moving party) and the applicant have been engaged in what can fairly be described as high conflict litigation since 2016. The most recent installment in this conflict is a motion by the respondent seeking a finding that the applicant is in contempt of the order of Munroe J. dated September 13, 2003. The applicant defends the motion but acknowledges non-compliance with the order.

Overview

[2] The parties were married August 19, 2000. There are three children of the marriage, Joseph (born August 18, 2003), and twins, Mark and Sabrina (born April 11, 2007). The parties separated on July 1, 2016, and the applicant left the parties’ matrimonial home on September 1, 2016.

[3] The applicant commenced this proceeding on September 6, 2016, and since then there have been multiple appearances and related orders. A final order was made by Munroe J. on September 13, 2023. That order was made after a 10-day trial which began in November of 2022 and was completed in March of 2023.

[4] Briefly stated, the order of Munroe J. provides that the applicant and respondent share decision making authority for Mark and Sabrina (hereinafter referred to as “the children”). The children were to reside with the parties on an equal time basis with a week about schedule. There was no order with respect to the oldest child, Joseph, presumably because he had attained the age of 18. It is not disputed that since February 24, 2024, the children have not been residing with the respondent in accordance with the week about schedule. Indeed, the respondent has had no parenting time or significant contact with the children since then.

[5] The respondent brought a compliance motion that was heard April 19, 2024 by Gorman J. The applicant responded with a cross motion seeking to suspend enforcement of the shared parenting order and an order that the Office of the Children’s Lawyer prepare a Voice of the Child report. On April 22, 2024, Gorman J. released an endorsement, and thereafter an order was taken out by the parties that provided:

i. The final order of Munroe J., dated September 13, 2023, shall remain in full force and effect;

ii. The parties shall engage a family therapist, not Paula DeVeto, within 30 days; and

iii. The therapist is to be selected by the applicant.

Gorman J. also dismissed the applicant’s motion to suspend shared parenting time and for the appointment of a lawyer to prepare a Voice of the Child report.

[6] In her brief endorsement, Gorman J. noted that “the twins are 17 years old – almost adults, but they are not. The Applicant should have driven them right back to the Respondent’s home.” Gorman J. also observed that the applicant speaks of the need to use her “stronger voice”, but when the children returned to her home, she used no voice at all. She concluded that the children must be required to abide by the court order and the law is not a “toothless tiger”.

[7] Gorman J. declined to impose a financial penalty on the applicant but ordered on a “go forward basis” that the order from Munroe J. be complied with and a family therapist be engaged. The respondent was awarded his costs of the motion fixed at $8,000 inclusive.

[8] After Gorman J.’s order, Mark and Sabrina continued not to reside with the respondent on the week about schedule. As noted, since issues began with the children attending, there has been very little contact between the respondent and Mark and Sabrina.

[9] The respondent, as expected by Gorman J., commenced this motion for contempt. The motion was initially before me on August 19, 2024. There was a request by Jane Stewart, counsel from an organization called Justice for Children and Youth, to adjourn the matter. Ms. Stewart was not able to attend that day because of a medical appointment.

[10] Over the objection of the respondent, I adjourned the matter to a date to be set by the trial coordinator and gave two alternative dates for the matter to proceed. The matter was next before me on August 21, 2024. At that time, I considered the motion by Ms. Stewart for a representation order pursuant to r. 4(7) of the Family Law Rules, O. Reg. 114/99.

[11] I dismissed Ms. Stewart’s motion with brief oral reasons. However, I directed that the respondent’s motion be bifurcated with the initial determination being whether the applicant was in contempt. I further directed that if I found the applicant in contempt, I would hear submissions on the appropriate remedy. At that time Ms. Stewart could consider requesting the court make a representation order for the children.

[12] I then proceeded to hear submissions from the counsel for the respondent and applicant on the issue of contempt.

The Respondent’s Motion

[13] The respondent seeks an order finding the applicant has failed to comply with the terms of Munroe J.’s order dated September 13, 2023 and is in contempt of that order. The details of the alleged contempt are set out in the respondent’s affidavit sworn July 29, 2024. They are more briefly outlined in the motion to be that the applicant has not complied with para. 3 of Munroe J.’s order by failing to ensure that respondent has had equal parenting time with the children on a week about schedule. The motion specifies the dates on which the parenting time did not occur. The respondent further alleges that the applicant failed to apply normal parental authority, including guidance, boundaries, and consequences, to ensure compliance with the final order.

[14] Also in his motion, the respondent alleges that the applicant is in contempt of the order of Gorman J. made April 22, 2024. The breaches are again detailed in the respondent’s affidavit but can be briefly stated to be failing to ensure the respondent had equal parenting time with the children and failing to apply normal parental authority.

[15] In addition, a number of procedural orders were requested by the respondent. However, those requests were not addressed at the time the motion was argued.

[16] The motion also requested a substantial number of remedies. However, as I determined the motion should be dealt with in a bifurcated manner, I will not deal with the remedies requested in this endorsement.

Factual Background of this Motion

[17] The core facts in this matter do not appear to be in dispute and can be distilled from the affidavits filed by the applicant and respondent. The affidavits also include argument and disputed conclusions which would have been better left to the parties’ factums or oral submissions.

[18] From the date of separation, the children resided primarily with the applicant. The respondent had limited parenting time with them but sought an arrangement that had the children residing with him more often. At times, the respondent had no time with the children. However, in the spring of 2020, the children began having more regular time with him. By June of 2022 the children were engaged in a week about arrangement with the exchanges taking place on Sundays at 2:00 p.m.

[19] In his reasons, Munroe J. provided a thorough outline of the litigation, including the involvement of Dr. Ashburn (psychological assessment and parenting plan evaluation) and Paula DeVeto (reconciliation therapy). Munroe J. found the path to the shared parenting arrangement that existed at the time of trial was not an easy one. He concluded the parties agreed to this arrangement in or about June of 2022.

[20] Subsequent to the trial, the children continued with the week about schedule until February 24, 2024. Indeed, the respondent deposes that there were no major issues relating to the schedule during that time, although there was a deterioration in the level of the children’s engagement with him.

[21] The respondent attributes that deterioration to the cessation of family therapy. I would note that Munroe J. did not order the therapy to continue post trial. However, there is no explanation as to why the parties did not continue with that therapy on their own initiative.

[22] The applicant deposes that the children have sought and received assistance from the child and youth worker at their school who has also recommended private counselling. She further states that neither parent is involved in the counselling and that the children do not consent to the counsellor speaking with the parents. The respondent takes the position that the counselling was orchestrated by the applicant and is not independent of her.

[23] The respondent states that after the trial, the children attended his home but isolated themselves in their rooms. He states there has been no parenting time since February 24, 2024, and, between that date and August 12, 2024, he has been denied 79 days of parenting time. It is his view that the “cut off” of parenting time began after the children and the applicant learned that he was in a “relationship”, even though he gave his visits with the children priority and exercised parenting time alone.

[24] The applicant states that when the children returned from the respondent’s home on February 18, 2024, they were distraught and withdrawn. They told her they were frustrated and had had an argument with the respondent. In an email dated February 19, 2024, at 9:28 p.m., the applicant told the respondent that when the children came back into her care on the 18th, they were angry and disengaged. She stated the children told her that he was dishonest with them, and they were hurt by his surreptitious actions. She told the respondent that the children were not happy and did not feel safe, comfortable, or respected in his home.

[25] The week about arrangement provided that the applicant would take the children to the respondent’s home on Sunday. After the respondent’s week with the children, he would return them to the applicant’s home. Following the February 18, 2024 visit, whenever the applicant took the children to the respondent’s home, the children did not stay and returned on their own to the applicant’s home.

[26] In communications between the parties, the respondent stated that it is the applicant’s responsibility to ensure a successful “transition”. For example, in an email from the respondent to the applicant on March 24, 2024, the respondent advises the applicant that she is noncompliant with the court order and that she is aware that her obligation does not end with dropping the children off at the door. If the children leave the respondent’s home, it is the applicant’s obligation to return them to his home. For her part, the applicant continued to advise the respondent that she would transport the children to his home with their belongings.

[27] Whatever the reason the children first failed to remain at the respondent’s home on February 24, 2024, they have failed to remain there up to the date the motion was argued. The fact that the applicant took the children to the respondent’s home multiple times does not appear to be disputed. What is disputed is the efforts made by the applicant to have the children stay at the respondent’s home.

[28] The applicant deposes that on February 25 and March 10 the children were delivered, with all their weekly belongings, to the respondent’s residence. She observed the children speaking to the respondent and left. When she returned to her residence, she found the children outside and they refused to return to the respondent’s residence.

[29] At para. 34 of her affidavit sworn August 12, 2024 the applicant deposes that she has prepared a timeline of transitions since February 18, 2024, to and including August 11, 2024. Exhibit L to her affidavit is a copy of that timeline. That timeline describes her efforts to take and return the children to the respondent’s home, sometimes on multiple occasions each week. Some of the notations in that timeline are extensive, some are brief. The exhibit is 27 pages in length and constitutes her explanation of what has occurred over that time period.

[30] In addition, during this time, the applicant communicated with the respondent through Our Family Wizard (OFW). In some of her messages, the applicant states that she is seeking the respondent’s assistance. The applicant deposes that the respondent made it clear it was her responsibility to transition the children into his care.

[31] The applicant states that the children have continued to communicate directly with the respondent via cell phone. However, on February 25, 2024, the respondent advised her that he would terminate the children’s cell phone plans. Thereafter, the children secured their own cell phones. The applicant deposes the children paid for the cellphones themselves from money earned from their part-time employment. The respondent has not terminated the children’s cell phone plans and therefore, it appears, they each have two cell phones.

[32] It is clear to me that while the children have communicated with their father after February 18, 2024, they have not stayed at his home. It appears the applicant took the children to his home each date she was required to. Nonetheless, the children did not stay at his home and returned to the home of the applicant. It appears from the material that on some occasions, the children entered the respondent’s home but left shortly thereafter. On other occasions, they never entered the home.

Motion Before Gorman J.

[33] As noted, by motion dated March 21, 2024 and returnable April 19, 2024, the respondent sought an order finding the applicant in breach of Munroe J.’s order and directing that she strictly comply with it. The respondent also sought make up parenting time, a penalty in the amount of $1,000 for each time the applicant failed to ensure the children came into his care, and the re-engagement of Paula DeVeto.

[34] The applicant brought a cross-motion seeking an order that Kristin Hales (a Windsor lawyer) preform a Voice of the Child report and an order suspending enforcement of the shared parenting arrangement ordered by Munroe J.

[35] Gorman J. heard the motion on April 19, 2024 and released her endorsement, to which I have previously referred, on April 22, 2024.

Post April 22, 2024

[36] I have previously referred to Exhibit L of the applicant’s affidavit sworn August 12, 2024. The document also refers to what has occurred since the endorsement of Gorman J.

[37] That timeline describes what efforts she made to have the children reside in accordance with Munroe J.’s order. She details the children’s response to her efforts and at some points the replies of the respondent to her communications.

[38] The first entry after the release of Gorman J.’s April 22, 2024 endorsement is dated April 22, 2024. She noted that the children were advised that if they left their father’s house that she (the applicant) was directed to bring the children back. On that day, she took the children to the respondent’s home, and they got out of her car. As the children were walking up to the respondent’s front door, she drove home.

[39] An hour and a half later, she heard her garage door open and found the children laying on her front lawn. She insisted that the children get back in the vehicle. When they arrived back at the respondent’s home, they refused to get out. She unloaded their belongings and opened the car door. She went to the respondent’s front door to seek his assistance. The respondent refused, insisting it was her duty to transition the children.

[40] The applicant remained at the home attempting to persuade the children to get out of her car and enter the respondent’s home. The respondent continued to state that she had not fulfilled her obligation. As she could not forcefully remove the children from the car, she telephoned the Ontario Provincial Police (“OPP”).

[41] When the police officer attended, they instructed the parties to call their family law lawyers. The applicant notes she was told by police she could leave with the children.

[42] The following day, the children continued to refuse to go to the respondent’s home. The applicant again contacted the police. She explained she was advised she could not forcefully remove the two 17-year-olds from her home and was instructed to stop calling the police.

[43] The applicant contacted the respondent using OFW advising him that she would not be taking the children home from school that day. It was her expectation that the respondent would pick them up from the school. She notes the respondent replied indicating he would not come to the school and collect the children and that she had “parental authority” for the children, not him. The applicant explained that it was routine for the respondent to pick the children up from school on the weeks they were with him.

[44] In her timeline, the applicant notes that throughout the rest of the week, she attempted to have the children go to the respondent’s home. They declined. She attempted to have the respondent assist her and, despite his message, he did attend at the school. However, the children refused to exit the school.

[45] At para. 35 of the applicant’s affidavit sworn August 12, 2024, the applicant sets out what she says have been her consistent and repeated efforts to transition the children to the respondent’s care during his parenting time with their clothes and personal belongings. She acknowledges in her affidavit the difficulties that she has persuading the children to get into her vehicle, go to the respondent’s home, get out of the vehicle at the respondent’s home, and remain at the respondent’s home.

[46] She deposes that the children “willingly accept any punishments, consequences and other disciplinary repercussions for their non-compliance”. The children do not remain at the respondent’s home. However, she does not wait for them in the neighbourhood. The children do not always go to her home, but instead have gone to their grandparent’s home, have contacted their brother, and have gone to a neighbourhood park.

[47] The applicant states that the children on three occasions have “disappeared” for periods of time. The children alerted both parents in a group chat that they were safe but refused to provide further information related to their whereabouts.

[48] The applicant has included in her materials a substantial number of communications between the respondent and the children. She has also included, at Exhibit K to her affidavit, communications between she and the respondent. Those messages demonstrate that the parties are able to communicate but have not found a way to work together.

[49] I have reviewed these messages, they illustrate that:

a) The children communicate with the respondent and at times explain why they are not coming or remaining.

b) The children are told to go to their father’s home.

c) The respondent challenges the children’s veracity and explanations.

d) The children are punished for not going.

e) The children are able to communicate by text with the respondent.

[50] At para. 33 of her affidavit, the applicant describes additional resources she has sought to assist her. She has involved a private social worker that is paid for through her family benefits plan and facilitated the Canadian Mental Health Association’s BounceBack program for the children to help them manage their depression, anxiety, and stress. She has had contact with her own social worker. As of August 14, 2024, she was set to begin family therapy with Rita Burgoyne.

[51] The evidence of the parties is contradictory. However, many of the contradictions are related to interpretations of non-contentious facts. Neither party sought to call oral evidence or to cross-examine the other on their affidavit materials. The principal allegation that the children are not attending for their parenting time with the respondent is undisputed. What is disputed is what each party has done to rectify that situation and who is responsible for the children’s non-attendance.

[52] The respondent states that the applicant conceded that she should have insisted upon respectful, cooperative, and polite behaviour forcing the children to comply with the parenting plan. At trial, the applicant conceded in cross-examination that she was responsible for the state of the children’s relationship with the respondent.

[53] The respondent generally disputes the applicant’s evidence of how the situation has come about, her efforts to have the children reside with him, and her efforts to rectify the situation. He alleges that the applicant is angry and dismissive of him in the presence of the children. She allowed the children to read the decision of Munroe J. which, he believes, has impacted their attitude towards him. The respondent further states that the applicant has tried to shift responsibility to him for “successful transitions” despite her being the only one with parenting control. He generally denies the applicant’s assertion that she has attempted to comply with the order.

[54] The example the respondent gives of the applicant’s insincerity is the engagement of a counsellor for children. the respondent states the counsellor the children were using prior to the motions for compliance and contempt was either controlled by or associated with her. The applicant denies this. The respondent also states the applicant was very slow to engage the family therapist (Ms. Burgoyne) as ordered by Gorman J.

[55] The respondent states that the applicant appears to believe that the transition is successful if she has dropped the children off. He adds that they do not have their personal belongings with them when they are dropped off. The applicant denies the latter. Since the order of Gorman J., the applicant has failed to transition the children to his residence successfully. He states she simply delivers them to his home and drives away. The applicant has utilized her parents and the parties’ son Joseph to harbour the children. The respondent asserts that the applicant is delegating to the children the ability to set their own consequences.

[56] Conversely the applicant states she has made significant efforts to have the children maintain the parenting schedule. I would add that the applicant emphasizes that since the order of Gorman J., she has intensified those efforts. However, the children, who are otherwise described as compliant, refuse to comply with the parenting arrangement.

[57] Both parties refer to an incident that occurred July 31, 2024. On that occasion, the children both had dental surgery and were sedated. After some discussion, the applicant allowed the children to travel to the respondent’s home in the respondent’s vehicle. However, shortly after the children arrived at his home, they left. The applicant became reengaged with the children and the applicant was able to get Sabrina to go into her car, although she was refusing to go to the respondent’s home. The applicant and the respondent describe the incident involving the children’s trip to the dentist quite differently. Nonetheless, it is the respondent’s evidence that this is an example of how the applicant is able to exercise parental control when she chooses.

Position of the Respondent

[58] I was provided with factums from both parties which were supplemented by oral submissions. I will endeavour to set out the parties’ positions as briefly as possible.

[59] The respondent argues that it is well settled that what is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor had notice. Counsel referred to Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79. In Carey, the Supreme Court of Canada provided a three-part test for finding civil contempt which must be established beyond a reasonable doubt.

[60] However, when the factors establishing contempt are made, a judge retains an overriding discretion to decline to make a contempt finding where it would be unjust to do so or where the alleged contemnor has acted in good faith. The test for contempt as set out in Carey has been followed in family law cases, including Prescott-Russell Services for Children and Adults v. G. (N.), 2006 ONCA 81792, 82 O.R. (3d) 686 (C.A.). However, in the matter before the court, there have been multiple breaches and such breaches are inconsistent with the defence that the behaviour was inadvertent.

[61] The respondent asserts the mental element to establish contempt does not require proof that the contemnor willfully and deliberately disobeyed the order. What is required is an intentional act or omission that breaches the order. This issue has been the subject of significant judicial comment. By way of example, counsel referred to Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at para. 27. The intent relates to the act, not to the disobedience.

[62] The respondent accepted that the burden of proving the elements of contempt is on the party seeking the contempt order. However, once the person seeking the contempt order has met the burden, the alleged contemnor may respond with evidence to demonstrate justification or otherwise rebut a finding of contempt. This is a shift of the evidential burden, not a shift of burden of proof: Schitthelm v. Kelemen, 2013 ABQB 42, [2013] A.J. No. 154, at para. 54, citing Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 SCC 29, [1992] 2 S.C.R. 1065, at p. 1079.

[63] Counsel argued that in the custody and access context, parents must demonstrate compliance with custody access orders by indicating what incentives they have offered and consequences they have imposed on the children. Counsel acknowledged that contempt is typically reserved for the most serious cases where it appears that it is the only reasonable means of sending a message to a litigant that court orders cannot be ignored.

[64] Counsel referred to Godard v. Godard, 2015 ONCA 568, [2015] O.J. No. 4073. It was argued that Godard stood for the proposition that a pattern of non-compliance with a court order may support a finding that other alternative remedies would be inadequate.

[65] It was submitted that the law of contempt safeguards a child’s right to a relationship with both parents. That decision cannot be left to the child. The job of a parent is to parent, and children must respect court orders. A parent has a positive obligation to ensure a child who allegedly resists contact complies with the court order. A parent cannot abdicate their responsibility to the child. A parent, through permissiveness and submissiveness, empowers a child. It was argued that is what has occurred in these circumstances. This proposition applies even when the children are teenagers.

[66] The respondent argued that the court could infer deliberate and willful disobedience in these circumstances. The affidavit evidence of both the respondent and the applicant should cause the court to conclude that there is no reasonable explanation for the children to not attend with the respondent. It is therefore likely that the applicant is evading the order. She has acknowledged in the past that she had not done what she ought to do to facilitate the relationship with the children.

[67] The respondent argued that the issue of non-compliance was previously determined by Gorman J. The applicant could not deny she was not in compliance. The only issue is related to intent.

Position of the Applicant

[68] The applicant acknowledged that the children have not be attending at the home of the respondent pursuant to the provisions of Munroe J.’s order. She argued that since the non-attendance began on February 24, 2024, she was endeavoring to ensure that the children were following the parenting order. However, after the order of Gorman J., she redoubled her efforts and made stronger efforts to ensure compliance. These included punishments involving no electronics, no extra-curricular activities, and no socializing with friends. Despite this, the children continue to refuse to attend.

[69] The applicant also submitted that the respondent is not undertaking appropriate efforts to ensure the parenting time occurs. He will not assist her in removing the children from the car. He will not assist her in finding alternate arrangements for transportation. He has simply left it to the applicant to ensure “successful transitions”.

[70] The applicant accepted that the test for finding a civil contempt is set out in Godard and Prescott-Russell. The party who disobeys the order must do so deliberately and willfully and the evidence must show contempt beyond a reasonable doubt.

[71] The applicant accepts that a direct intention to disobey is not required. Willful disregard is sufficient. However, evidence of contempt in family matters should be clear and unequivocal. If a custodial parent can show that he or she acted at all times in the best interests of the children, not with the intention of disobeying the court’s order, and not out of self-interest, the court should be reluctant to make findings of contempt.

[72] The applicant argued that the respondent has failed to prove the essential elements of contempt beyond a reasonable doubt. Here, the applicant delivered the children to the respondent’s home. When she was criticized by Gorman J. for not doing enough to return them, she tried more and various strategies. All of these have failed. Notwithstanding her efforts, the applicant is unable to make two 17-year-olds stay in the respondent’s home and therefore she should not be held in contempt.

[73] The applicant also argued that there are limits to a parent’s ability to force a teenager to go if he or she does not want to. This has been recognized by the courts in Warren v. Binette, 2022 ONSC 4218, [2022] O.J. No. 3303, at para. 26, and Funnell v. Jackscha, 2012 ONSC 4234, [2012] O.J. No. 3955, at para. 12. Counsel also referred to Supple (Cashman) v. Cashman, 2014 ONSC 3581, [2014] O.J. No. 2800, in which the court said, at para. 17, “[i]t is a simple reality that, despite a court order, teenagers are likely to seek out residency as it suits their desires and to ‘let their feet do the talking’”.

[74] Additionally, counsel referred to Fraser v. Logan, 2012 ONSC 4078, [2012] O.J. No. 3201, a case that involved boys 13 and 16 years of age. There, the court held that the mother could not expected to physically force the children to go with the father. That decision was upheld by the Court of Appeal (Fraser v. Logan, 2013 ONCA 93, [2013] O.J. No. 625).

Issues

[75] The issue to be determined is singular. Is the applicant in contempt of the order of Munroe J., made September 13, 2023, by failing to ensure the respondent has had equal shared parenting with the children for the time periods set out in the respondent’s motion dated July 29, 2024? The issue may be singular, but it is not simple.

Analysis

[76] Rule 31(1) of the Family Law Rules provides that “[a]n order, other than a payment order, may be enforced by a contempt motion made in a case in which the order was made, even if another penalty is available.” While there is a specific family law rule governing contempt, both parties accepted the failing to comply with a family court order attracts a civil remedy and the procedure is civil in nature.

[77] Counsel both referred the court to the Supreme Court of Canada’s decision in Carey. There, the court stated, at para. 32:

Civil contempt has three elements which must be established beyond a reasonable doubt. These three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases. [Citations omitted.]

[78] The court then set out, at paras. 33-35, the three elements which I would summarize as:

a) The order alleged to have been breached must state clearly and unequivocally what should and should not be done.

b) The party alleged to have breached the order must have actual knowledge of it.

c) The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.

[79] At para. 38 of Carey, the court considered the required intent and concluded that what is required is to establish proof beyond a reasonable doubt of an intentional act or omission that is a breach of a clear court order. The mental element does not require a contemnor to intended to disobey the order.

[80] However, in Carey, the court reminded us that contempt power is discretionary and noted courts have consistently discouraged its routine use to obtain compliance with orders. This is enforcement power of last, rather than first resort (see para. 36). The court in making those comments referred to the Ontario Court of Appeal decision in Hefkey v. Hefkey, 2013 ONCA 44, [2013] O.J. No. 1697.

[81] Both counsel also referred the court to Godard. In that decision, the Ontario Court of Appeal reiterated the three-part test for contempt as outlined in Prescott-Russell. In Godard, the court specifically considered whether the appellant had deliberately and willfully breached the access order.

[82] I would note that in Godard, the court observed that oral evidence is not a pre-condition of a finding of contempt. The court noted that in the matter before them, no findings of credibility were made, nor were they required. However, in that matter, there was no conflict in evidence in the affidavits relevant to the disposition of the motion.

[83] In Godard, the appellant (alleged contemnor) argued there was insufficient proof that she willfully disobeyed the order. The court, at paras. 26-27, rejected the appellant’s argument that once the motions judge accepted that the child did not want to see the respondent (moving party) and that the alleged contemnor was making some efforts to encourage the child to see the respondent, it was inconsistent to find a deliberate and willful disobedience beyond a reasonable doubt. In other words, even if the children do not want to see the moving party and the alleged contemnor has taken some efforts to adhere to the court order, this is not enough – the alleged contemnor must do all that they reasonably can to not be found in contempt (see para. 33).

[84] In Godard, at paras. 28-29, the court stated:

… Ontario courts have held consistently that a parent ‘has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order’.

No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. [Citations omitted].

[85] In Greenberg, a subsequent Court of Appeal decision, the court considered the issue of the required intent. At para. 27, the court stated:

The question is not whether the alleged contemnor wilfully and deliberately disobeyed the relevant order. Rather, what is required is an intentional act or omission that breaches the order. ‘The required intention relates to the act itself, not to the disobedience; in other words, the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order, is not an essential element of civil contempt.’

[86] All three elements must be established beyond a reasonable doubt. However, the intent does not relate to intentionally disobeying the order but acting or failing to act in accordance with the order. In this matter, the question is whether the applicant deliberately and willfully chose not to allow or facilitate the children having parenting time with the respondent.

[87] In Godard the court stated, at para. 11, that the three-part test included a requirement that a party who disobeys the order must do so deliberately and willfully. The court notes in its analysis, at para. 28, that once a court has determined access is in the best interest, a parent cannot leave the decision to comply with the order with the child. Rather, Ontario courts have held that a parent has “some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”.

[88] At para. 29 of Godard, the Court of Appeal observed that the motion judge “inferred deliberate and willful misconduct of the order from the appellant’s failure to do all that she reasonably could do”. The court referred to the alleged contemnor’s failure to take concrete measures and to apply normal parental authority.

[89] The respondent argued that there was a shift of the evidential burden once the moving party has proved the elements of the contempt. Upon that occurring, the alleged contemnor may respond with evidence to demonstrate justification or to rebut evidence that would otherwise lead to a finding of contempt. It was submitted this was a shift of the evidentiary burden, not a shift in the burden of proof.

[90] In the Alberta Court of Appeal decision of Envacon Inc. v. 829693 Alberta Ltd., 2018 ABCA 313, [2018] O.J. No. 1134, at paras. 49-50, the court referred to Schitthelm decision. The court found there was not a shifting of a burden. Rather, they found alleged contemnor advancing evidence is a tactical decision. The court noted there is no burden placed on the alleged contemnor at all.

Elements of Contempt

[91] In considering the elements of contempt in this case, there is no question that:

a) The order that is alleged to have been breached clearly and unequivocally states what should and should not be done.

b) The applicant has full knowledge of the order.

The sole issue is whether the respondent has proven beyond a reasonable doubt that the applicant had the requisite intent.

[92] The applicant argues that the facts demonstrate that she has taken reasonable steps to ensure the children attend for the parenting time with the respondent. Indeed, she argues that after she received the endorsement from Gorman J., she redoubled her efforts. To use the respondent’s words, if Gorman J.’s endorsement can be seen as a direction for her to try harder, she did.

[93] The respondent argues that the applicant is merely stating that she attempted to ensure that the children spend time with their father by delivering them to his home. Indeed, he alleges there is no evidence to establish the applicant took what the court stated in Godard to be the necessary steps to avoid a contempt finding. Her behaviour failed to fulfill her “positive obligation to ensure a child who allegedly resists contact with access parents complies with the access order” (Godard, at para. 28). The respondent argues the applicant has simply made bald statements and did not provide details of what she has done or lead evidence to support her contention that she has made the necessary effort to ensure the children reside with their father at the times that have been ordered.

[94] Respectfully, I disagree. In her affidavit, the applicant provided, at Exhibit L of her affidavit, a “timeline”. That timeline covered the period from February 17, 2024 to August 11, 2024. The timeline is quite lengthy, and I will refer only portions of it by way of examples of what the applicant says are the efforts she has made to ensure compliance with the parenting schedule. I would summarize her efforts as follows:

a) Communicating to the respondent a message addressing the twins’ concern surrounding an argument that occurred on February 18, 2024.

b) Taking the children to the respondent’s home. When they returned to her home, attempting to get the children back into her vehicle so she could return them to the respondent.

c) Taking the children to his home for subsequent parenting time and staying in front of his home until she saw the children communicating with the respondent.

d) Encouraging the children on multiple occasions to spend parenting time with their father including explaining the importance of the parenting time.

e) Verbally reprimanding the children for not staying at their fathers and assigning additional chores for non-compliance.

[95] After the release of Gorman J.’s decision, her efforts included:

a) Explaining to the children that she must abide by the court order and that the children had to be returned to the respondent’s home until there was a successful transition.

b) Taking the children to the respondent’s home, placing their belongings on his front lawn, and insisting the children get out of her car and go to the respondent. She left only after she saw them walking up to his front porch. However, the children returned to her home that day. When they returned, she would not let them back into her house and the children were laying on the front lawn (April 22, 2024).

c) On that same date, she was able to get the children, and their belongings, back into the vehicle. When she got to the respondent’s home, the children refused to exit. She remained on his porch for approximately 20 minutes and moved the children’s belongings to the porch. She sought the assistance of the respondent, and he declined advising it was her duty to transition the children.

d) On that date (April 22, 2024) after approximately two hours, she made a third attempt to have the respondent assist her. When he declined and the children refused to get out of the car, she contacted the OPP which attended and instructed her this was a family law matter and advised her to leave with the children.

e) Contacting the OPP on the day following the initial contact to the OPP to obtain their instructions and being advised not to call the police (April 23, 2024).

f) Messaged the respondent advising him that she would be taking the children to school and asking that he attend at the school so that the children would go home with him. The respondent declined to attend at the school (April 24, 2024).

g) On that following day (April 25, 2024), putting their clothing in backpacks in her vehicle and taking away their cell phones. When the children refused to exit her residence, she imposed the consequences of prohibiting Mark from rowing and assigning additional household chores to Sabrina.

h) She continued to reprimand the children and attempt transitions every day that they refused to go (April 22-April 28).

i) On April 27 and 28, after the children left the respondent’s home after she saw the children interacting with the respondent, she returned home. She subsequently learned that the children were not at either residence. Joseph located the children at 12:40 p.m. She returned the children to the respondent’s home. They refused to exit the vehicle. She spent the night with the children in the vehicle outside the respondent’s home. During this time, she messaged the respondent advising him what was going on. The following morning, the children did appear to enter the respondent’s home.

j) Upon being advised the children were not at the respondent’s home, she would drive the neighbourhoods looking for them. When found, she would encourage the children to return to the respondent’s home.

k) She continued to provide consequences and punishments, although in the timeline she did not specify what those were.

l) On May 19, 2024, she insisted the children enter his home and they did. The children left after 45 minutes and travelled to her parents’ home. She went to the parents’ home, but the children refused to exit.

m) On multiple occasions, she returned the children to the respondent’s home only for them to leave almost immediately.

n) She punished the children by taking away electronics and adding additional chores.

o) She attempted to gain the respondent’s cooperation with respect to a rowing competition and the respondent declined.

p) She attempted to transition the children from dental surgery to the respondent’s home.

q) On multiple occasions, when the children appeared to enter the respondent’s home but stay briefly, or did not actually enter, she attempted by persuasion to have the children return.

r) Encouraging the children to participate in counselling to discuss their issues including parenting time with the respondent.

s) On August 2, 2024, using incentives to transition the children from her home to the respondent’s by granting the use of their phones, time with friends, attendance at activities, driving privileges, use of the pool etc. She took the children to the respondent’s home. He was not there.

[96] The respondent’s position is that the applicant is insincere in her efforts or indeed is not being truthful with the court as to what she has attempted. He argues that in either circumstance, it has been established the applicant is willfully allowing the children not to attend for parenting time. This, he submits, is an appropriate case for a finding of contempt.

[97] It is clear from the timelines that not all transitions or attempts at transitions were done on the proper time. This appears to flow from a combination of the children’s recalcitrance and their work and extracurricular activities. I acknowledge that the respondent disputes much of what the applicant says she has done, and he deposes that the things she has done were not sincere efforts. In effect, she was going through the motions. It is difficult to assess an individual’s sincerity and motivations in an untested affidavit. Nonetheless, what she has described in her affidavit materials are substantial efforts, although unfortunately unsuccessful efforts.

[98] Counsel for the respondent also argued that the court should have regard to the broader societal concerns of a motion for contempt and urged the court to consider the chilling impact that finding the applicant was not in contempt would have on the family justice system in Ontario. Respectfully, motions such as this are fact specific. I acknowledge compelling compliance with parenting orders is a challenge for the courts. Unfortunately, I doubt my decision in this specific case will solve that challenge.

[99] The applicant acknowledges that a parent cannot hide behind the supposed position of the children. However, the applicant argues that she has gone further. She has had numerous discussions with the children. She has expressed the importance of parenting time with their father. She has attempted to communicate with the respondent about the difficulties she is having only to be met with the response that she is lying and putting on a show. She has punished the children repeatedly by removing access to technology, activities, and friends. The children have said that they will accept whatever penalty or punishment she imposes but they will not attend.

[100] In Warren, Somji J. was considering a contempt motion involving children 13 and 15 years of age. At para. 26, the court stated:

… it is important to note that even if there were conditions for the mother to take certain steps to facilitate the father’s parenting time as suggested above, there are limitations on what either parent can do when a teenage child does not wish to go to another parent’s home. Neither parent wishes to manhandle a child into a car …

[101] Counsel for the respondent referred the court to Jackson v. Jackson, 2016 ONSC 3466, [2016] O.J. No. 2870. In that decision, Chappel J. stated, at para. 63:

In the case of access orders specifically, the custodial parent’s obligation in regard to access goes beyond simply accommodating it, making the child available for access and encouraging the child to comply. Rather, the parent must require that access order occur and actively facilitate it.

[102] Later in her decision, at para. 63, Chappel J. stated, in determining whether appropriate measures are taken, the court should consider whether the parent responsible took steps, including:

a) Engaging in a discussion with the child to determine why the child is refusing to go.

b) Communicating with the other parent, or other people involved, about the difficulties and how to resolve them.

c) Offer the child an incentive to comply.

d) Articulate clear disciplinary measures should the child continue to refuse to comply.

[103] In my view, the applicant has explained in her timeline and in the exhibits to her affidavit that she engaged in discussions with the children and communicated with the respondent. That communication with the respondent is detailed in the OFW messages appended to the applicant’s affidavit. The applicant has stated that she offered an incentive to the children. She has also stated she has provided discipline to the children including removing access to technology, friends, and activities.

[104] The respondent, in effect, argues that the issue of noncompliance is raised judicata and should result in a finding of contempt. Gorman J. found the applicant to be noncompliant. In my view, a determination of contempt does not flow from simply following non-compliance. As stated clearly in Prescott and Godard, there are three elements to consider before determining if a party is in contempt of a court order.

[105] The applicant acknowledges that Gorman J. made it clear that Munroe J.’s order was to remain in full force and effect and that she was to try harder. She states that she has done that and failed. She has now moved to the next stage of seeking to amend the original order.

[106] In my view, the decision of Gorman J. does not make the issue of contempt raise judicata. Gorman J.’s brief, but helpful, endorsement confirmed the children were not attending for their parenting time with the respondent. However, she did not conclude that there had been a contempt. Indeed, she anticipated further application.

Conclusion

[107] In the end, I am left in a state of doubt as to whether the applicant has intentionally done or failed to do the acts the order compels her to do. As stated more positively, it appears to be on the evidentiary record I have that the applicant is aware of her positive obligation and has taken steps to fulfill her obligation. However, she is only required to do that which she reasonably can. It appears to me that she had gone beyond mere encouragement.

[108] Therefore, in the circumstances, I decline to make a finding that the applicant is in contempt and the motion is dismissed. However, the April 22, 2024 order of Gorman J. remains in place; as does the order of Munroe J.

Costs

[109] If the parties are unable to agree on costs, the applicant may make written submissions to me in writing within 30 days. The respondent shall make submissions to me within 30 days of receipt of the applicant’s submissions. The submissions are limited to three pages in length exclusive of any costs outline.

Justice S. Campbell

Released: October 16, 2024