COURT FILE NO.: FC697/17-01 DATE: 2024/11/05
ONTARIO SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
April Bell Applicant/Moving Party
Alice Van Deven, for the Applicant/Moving Party
- and -
Adam Mallet Respondent/Responding Party, unrepresented
David A. Sandor, for the OCL on behalf of the children H. and W.
HEARD: July 30, 2024
T. PRICE, J.
1The issue in this trial was whether the parenting time of Ms. Bell, the Applicant/Moving Party, with the parties’ younger child, H. [1], age 13, should be expanded and liberalized, with fewer constraints, in accordance with his wishes, or whether it should be subject to greater constraints, in accordance with the wishes of H.’s father, Mr. Mallet, the Respondent/Responding Party, due to Ms. Bell’s acknowledged history of, and continuing lapses into, substance abuse and her admitted mental health difficulties.
Background
2On November 26, 2015, in a child protection proceeding in which both Mr. Mallet and Ms. Bell were Respondents, Justice Gareau terminated a previous order which had placed the parties’ two children, W., then aged 9, and H., then aged 4, in the care of Mr. Mallet. Justice Gareau’s order placed the children in the joint custody of both Mr. Mallet and Ms. Bell, although they would continue to reside with Mr. Mallet. Ms. Bell’s parenting time was specifically detailed in the order.
3On February 20, 2018, as a result of a Motion to Change brought by Ms. Bell, the parenting time provisions of Justice Gareau’s order were varied in an order made by Justice Rady. Under that order, Ms. Bell’s weekend parenting time was extended, subject to some added conditions. A holiday parenting time schedule was added, as was a time-limited, six-month police assistance order.
4For some months, the parties followed the parenting schedule set out in the order of Justice Rady. Shortly after the police assistance provisions in her order expired in August 2018, Mr. Mallet withheld the children from attending their parenting time with Ms. Bell. The withholding continued from August 2018 to March 2019.
5At some point later in 2019, Ms. Bell also withheld the children but that situation was quickly resolved between the parties.
6On May 7, 2019, Ms. Bell commenced another Motion to Change. The relief that Ms. Bell sought in that Motion to Change was varied pursuant to an order made by Justice Sah on June 12, 2024. While also given leave to amend his Response to Motion to Change, Mr. Mallet did not do so.
7In her amended Motion to Change, Ms. Bell sought to continue the term in Justice Rady’s order which granted her parenting time with H. (now age 13) on three out of every four weekends from Friday (or Thursday) to Monday morning. By the time of trial, however, Ms. Bell appeared to have discontinued that claim.
8She also sought to substantially maintain, with some slight variations, the holiday parenting schedule ordered by Justice Rady.
9Additionally, she sought to vary Justice Rady’s order by:
a) adding weekly Thursday parenting time with H.;
b) tying the weekday exchange locations for her parenting time to such location or locations at which she exercises parenting time with two younger children born to her in 2015 and 2019 from a different relationship;
c) reinstating an expired police assistance clause;
d) requiring that Mr. Mallet be required to deliver H. to and pick him up from the exchange location(s) unless the parties agreed otherwise (a condition first imposed by Justice Mitrow in an interim order dated February 22, 2023);
e) removing a requirement that her parenting time with H. be supervised (a condition first imposed by Justice Mitrow in the interim order dated February 22, 2023);
f) adding terms allowing text message communications between her and H. (from an interim order of Justice Leach dated October 18, 2023); and
g) incorporating the penalty conditions imposed by Justice Hassan on October 23, 2023 after she found Mr. Mallet in contempt of the interim order of Justice Mitrow dated February 22, 2023 and an interim order that she made on June 16, 2023.
10In his Response, Mr. Mallet opposed the changes to the order sought by Ms. Bell. He pleaded that the children had been removed from her care and placed into his in 2012 because of her substance abuse and the effects it had on the children. He claimed that if H’s parenting time with Ms. Bell were to be expanded, H. would suffer harm because Ms. Bell had failed to address her addiction and mental health difficulties.
Interim Orders
11A number of interim orders had been made in the period between the commencement of Ms. Bell’s Motion to Change in May 2019 and the date of trial. They included:
a) an order of Justice Henderson dated September 18, 2019, which reinstated for one year the police assistance provisions contained in the order of Justice Rady;
b) an order that I made on June 29, 2022, which requested the involvement of the Office of the Children’s Lawyer;
c) an order made by Justice Mitrow on February 22, 2023 which, pending the next return date, allowed Ms. Bell to have parenting time with H. each Thursday at a library in London, supervised by Ms. Bell’s father, and ordered that Mr. Mallet transport H. to and from the visits. Additionally, leave was granted to Ms. Bell to request a police assistance order on the next return date if Mr. Mallet did not comply with his obligation to produce H. for the visits;
d) an order of Justice Hassan dated March 16, 2023, which continued the terms of Justice Mitrow’s order of February 22, 2023 and again put into place a police assistance order for a period of 6 months from March 30, 2023;
e) an order of Justice Hassan dated June 16, 2023, which continued and expanded the parenting time granted to Ms. Bell by Justice Mitrow, added a provision addressing makeup parenting time, changed the exchange location for H., and continued the requirement that Ms. Bell’s father be present for all visits unless the parties agreed otherwise in writing;
f) an order of Justice Hassan dated August 23, 2023 which required Mr. Mallet to deliver H. for a meeting with OCL counsel Mr. Sandor on August 25, 2023;
g) an order of Justice Hassan dated September 6, 2023 changing the exchange location for H. to the location where Ms. Bell was exercising parenting time with her 2 younger children; and
h) an order of Justice Leach dated October 18, 2023 which permitted Ms. Bell to engage in reasonable communications with H. via text messaging, directed Mr. Mallet to not interfere with such communications, and set Ms. Bell’s Motion to Change to an uncontested hearing on May 17, 2024.
12The latter step was taken by Justice Leach after Ms. Bell’s counsel read to the court a “profanity-laden text in which [Mr. Mallet] repeatedly direct[ed] expletive-filled personal and professional insults at [Ms. Bell], [her] counsel and this court’s process,” in which he made clear that he “has no intention of complying with Justice Hassan’s order regarding the payment of costs, desires no further communications from or to [Ms. Bell’s] counsel, and that all those involved in these proceedings can ‘go fuck themselves.’”
13On May 17, 2024, at the request of Mr. Mallet, Justice Sah adjourned the uncontested trial to an expedited trial scheduled to proceed on July 30, 2024, peremptory on Mr. Mallet.
14These Reasons arise from that trial.
Mr. Mallet’s Failure to Attend Trial
15Despite responding to Ms. Bell’s Motion to Change and being aware of the trial date, Mr. Mallet failed to attend to present his case when the matter was called for trial. In fact, on the morning that the trial was to commence, Mr. Mallet contacted Ms. Van Deven, counsel for Ms. Bell, to request that she consent to the trial being rescheduled, reportedly telling her that he had encountered automobile trouble while travelling to London from Barrie. Mr. Mallet’s residence is on the outskirts of London.
16After having heard submissions from Ms. Van Deven and Mr. Sandor, counsel appointed by the Office of the Children’s Lawyer to represent H., and after having reviewed Mr. Mallet’s history of missed court appearances and repeated failures to comply with previous orders, I directed that the trial would proceed in his absence.
Mr. Mallet’s History of Failing to Produce H. and his brother W. for Parenting Time
17Mr. Mallet unilaterally suspended the children’s visits with Ms. Bell in the period between June 2021 and March 2023, a period during which there was no police assistance order in effect between the parties. As a result, Ms. Bell was denied any contact with the children, whether in person, by video chat, or by telephone conversation during this entire period.
18In the period between February 23, 2023 and July 20, 2023, Mr. Mallet failed to produce H. for 10 scheduled weekly visits with Ms. Bell, thus violating the order of Justice Mitrow dated February 22, 2023, as continued by Justice Hassan on March 16, 2023 and June 16, 2023.
19In her June 16, 2023 order, Justice Hassan also provided for make-up parenting time for Ms. Bell, commencing on July 1, 2023. However, Mr. Mallet informed Ms. Van Deven and Mr. Sandor that Ms. Bell had thrown glass bottles at him as he was driving a motorcycle down a public street. He produced no independent evidence of his claim. As a result, he advised that he would not take H. to anywhere “in a five-mile radius” of Ms. Bell. Despite efforts by Ms. Van Deven to persuade Mr. Mallet to bring H. to his scheduled visits, Mr. Mallet continued to fail to transport H. for visits on July 6, 13, 15, and 20, 2023.
20Moreover, he also failed to take H. for his parenting time for the majority of the month of August 2023, continuing his failure to comply with the court orders right up to September 6, 2023, the date on which Justice Hassan heard a contempt motion that Ms. Bell had brought against Mr. Mallet because of his repeated failures to comply with the several orders which required that he produce H. for parenting time.
Justice Hassan’s Contempt Order of October 13, 2023
21On October 13, 2023, Justice Hassan found Mr. Mallet to be in contempt of the February 22, 2023 order of Justice Mitrow, and her order of June 16, 2023.
22In her order, Justice Hassan:
a) granted Ms. Bell parenting time with H. each Thursday from 4 PM until 7 PM, at the location where she was to exercise parenting time with the younger children;
b) ordered Mr. Mallet to transport H. to and from the exchange location;
c) ordered that Ms. Bell’s father be present for the exchanges but relieved him of the obligation to fully supervise Ms. Bell’s parenting time;
d) ordered that Mr. Mallet pay a penalty of $60.00 each time that he, without “justifiable reason,” did not deliver H. to one of Ms. Bell’s parenting visits; and
e) ordered that Mr. Mallet be incarcerated for one day for each parenting time visit for which he did not deliver H. without justifiable reason, to be sought by Ms. Bell on a motion for a warrant of commitment.
23Justice Hassan further made clear in her contempt order that the term “justifiable reason” did not include H.’s alleged preference not to attend parenting time with Ms. Bell unless H. expressed that view directly to Mr. Sandor, or H. allegedly being ill, unless that illness was confirmed by a letter from H.’s physician.
24Once Justice Hassan made her finding of contempt and imposed the penalties that she did in her order of October 13, 2023, Mr. Mallet began to comply with his obligations and ensured that H. was transported weekly for his parenting time with Ms. Bell.
25Those are the circumstances that existed when this trial proceeded before me.
Ms. Bell’s Evidence
26In her evidence at trial, Ms. Bell acknowledged that she is a recovering drug user, that she occasionally relapses, and that she struggles with mental health and addiction issues.
27She indicated that her drug addiction began, not with recreational drugs but, rather, with medications taken for pain management after she was physically attacked by two men during a home invasion at her residence in 2020. Fentanyl was her addiction drug of choice.
28She detailed the steps she is and has been taking with respect to treatment and recovery. These include:
a) attending the “HeartSpace” drug treatment program offered through Addiction Services Thames Valley between June 2021 and March 2023, with this resource remaining available to her if necessary;
b) attending the House of Sophrosyne in Windsor for a 5-week residential treatment program in 2022;
c) attending weekly at the drug treatment program offered by the Salvation Army in London, where she meets with a specific counsellor; and
d) meeting weekly with Dr. Diamond, the physician who is overseeing her methadone treatment program.
29When asked whether she is receiving any of her methadone by way of “carries,” she advised that she does not, but said that is by choice. Her preference is to attend the pharmacy daily to interact with staff as part of her drug management program.
30While she testified to a belief that she is doing well in addressing her addiction issues, she also did not hesitate to acknowledge that she continues to irregularly use pain medications. However, she was equally clear that she abstains from using such drugs anytime a visit with her children is imminent.
31Ms. Bell was equally candid in speaking about her mental health issues.
32As she understands it, she has been diagnosed with complex depression and complex anxiety, although she believes that neither diagnosis has an impact on her relationships with her children because she is happiest when she is with them.
33She further advised that the complex depression diagnosis was very recent and said that she intends to speak with a specialist to obtain guidance about how to manage the condition.
34She last spoke with her psychiatrist approximately one month before the trial about the prospect of going on ODSP. She further indicated that she is not taking any medications at this point for her mental health issues.
35Ms. Bell requested that her parenting time with H. be expanded to include more time and that she be afforded reasonable telephone contact with H. both by way of calls and text messages, with a proviso that H. would not be obliged to respond to her if he chose not to.
36This raised the question of whether H. genuinely wants to continue attending parenting time with his mother. According to Ms. Bell, H. tells her that he wants his visits to continue.
37Her evidence on this point was consistent with the instructions that Mr. Sandor informed the court that he had received from H.
38Mr. Sandor further advised, however, that H.’s instructions can be subject to variation, particularly when his father is nearby when H. is speaking with Mr. Sandor, or when H. is being cared for by his paternal grandmother, who is aligned with Mr. Mallet on the issue of Ms. Bell’s parenting time. On those occasions, according to Mr. Sandor, H. is prone to indicate to him that he does not wish to continue his visits with his mother.
39According to Ms. Bell, a typical visit with H. includes a family dinner in the back room of the library, followed by a period when the children spend some time together.
40The uncontradicted evidence of Ms. Bell, corroborated by that of her father, Cameron Bell, is that the visits between Ms. Bell and H. have been without issue, with H. and Ms. Bell readily displaying mutual affection during their visits. H. also clearly enjoys his interactions with his half-sisters.
41During his evidence, Mr. Bell requested that he be relieved of his obligation to supervise exchanges and monitor Ms. Bell’s parenting time. Ms. Bell supported his request by noting that, because her daughters are in the care of the Children’s Aid Society, a Society worker is always present during her access visits with them. As a result, she indicated that an order releasing her father from his obligation to monitor her parenting time with H., or to be available to do so, would be moderated by the Society worker’s presence.
42Based on this evidence, I was satisfied that Mr. Bell’s request was appropriate. As a result, at the end of the trial, I made an order deleting from the existing interim order the obligation that Mr. Bell be present for Ms. Bell’s parenting time with the children.
43Without validating the alleged concerns of Mr. Mallet about the risks that her addiction and mental health issues could play in compromising her parenting time with H., Ms. Bell indicated that she is prepared to cancel any of her visits with H. for which she feels that she is encountering personal difficulties before the visit begins.
Submissions of Ms. Van Deven
44According to Ms. Van Deven, the case is primarily about H.’s right to see his mother in accordance with his views, rather than those of his father.
45She also asked me to pay heed to Justice Hassan’s finding in the contempt motion that Mr. Mallet had been attempting to influence H.’s views and preferences about having parenting time with Ms. Bell.
46She submitted that, notwithstanding those efforts, the evidence clearly demonstrates that H. has indicated to Mr. Sandor, in the presence of his father, that he wishes to see his mother, which she said suggests that H. possesses an independent streak which appears to trouble Mr. Mallet.
47Consequently, Ms. Van Deven also asked that my order “protect” H. from being harassed by Mr. Mallet to cancel his visits with Ms. Bell.
Submissions of Mr. Sandor
48Mr. Sandor indicated that H. instructed him to advise the court that he wants to continue to have parenting time with Ms. Bell and his siblings, despite his occasionally expressed views to the contrary when he is around his father or his paternal grandmother.
49He described his client as a child with strong insight who is in a difficult position—wanting to see his mother while residing with a father who is clearly against him doing so.
50He reflected on Mr. Mallet’s difficulties, particularly his concern that the children are not again exposed to the conditions that led to them being removed from Ms. Bell’s care in the past.
51Against that, he noted Ms. Bell’s progress, calling her insightful and truthful.
52He noted that whenever Ms. Bell suffers a setback, it affects H. who, however, has seen the progress that she has made and continues to make with respect to her addiction and mental health issues.
53Mr. Sandor also drew to my attention an issue of concern to H., for which Ms. Van Deven expressed support on behalf of Ms. Bell. He indicated that H. worried that, if he should miss a visit with his mother for a legitimate reason, such as attending a social or other activity approved of by her, his father might be jailed for failing to comply with the order of Justice Hassan. He asked that I address that concern in my order, if possible.
Discussion
54The first issue to be determined, since this is a motion to change an existing final order, is whether there has been a material change in circumstances since the making of the order that is sought to be changed.
55In Roloson v. Clyde, 2017 ONSC 3642, Justice D. Chappel wrote about the applicable principles identified by the Supreme Court of Canada in a variation proceeding under the Divorce Act and more extensively discussed what was, and what was not, a material change in circumstances. Justice Chappel wrote, in part:
47 … The Supreme Court of Canada held in Gordon [2] that… the judge hearing a variation proceeding cannot simply substitute their discretion for that of the judge who made the existing order. Rather, they must assume that the existing order was correct and consider only the changes in circumstances since the order was made…
48 The Supreme Court of Canada held in Gordon that …the change relied upon should represent "a distinct departure from what the court could reasonably have anticipated in making the previous order" (at para. 12). The question that the court must consider on a variation proceeding is whether the previous order might have been different had the circumstances now existing prevailed earlier….
49 The case-law that has addressed the meaning of the phrase "material change in circumstances" … has also established that a change will only be considered "material" if it is significant and long-lasting…Trivial, insignificant or short-lived changes will not justify a variation…The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal…
56This proceeding was brought because Mr. Mallet repeatedly failed to produce H. for parenting time with Ms. Bell, despite there being an order that he do so. Surely, had Justice Rady contemplated that her order would be blatantly disregarded, she likely would have made changes to it to minimize or eliminate the chance of such behaviour. Accordingly, I find that Mr. Mallet’s repeated and willful withholding of H. from parenting time with Ms. Bell did constitute a material change in circumstances.
57The next issue is what changes, if any, should be made to Justice Rady’s order because of the material change in circumstances that I have identified.
58This proceeding is governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (hereinafter, CLRA), the following sections of which apply to claims for parenting time:
a) s. 20(5), which provides that “the entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child…;”
b) s. 24(1), which directs the court when making a parenting order with respect to a child to “only take into account the best interests of the child” in accordance with that section;
c) s. 24(2), which provides that, in determining the best interests of the child, the court “shall consider all factors related to the circumstances of the child and in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being;” and
d) s. 24(3), which lists the factors related to a child’s circumstances to which the court must give consideration when making an order in the child’s best interests.
59The court has previously determined, as far back as the order of Justice Gareau dated November 26, 2015, that parenting time with Ms. Bell was in the best interests of both H. and his older brother, W. That order granted her parenting time with the children on three out of four weekends, expanding it to include time on some holidays and during the summer. The parenting time to which Ms. Bell was entitled was continued, and slightly expanded upon, in the order of Justice Rady in 2018.
60It was Mr. Mallet who unilaterally determined, on multiple occasions and over the course of multiple years, that the court’s decisions about Ms. Bell’s parenting time with the children being in their best interests was not worthy of respect. As a result, he failed to comply with the orders repeatedly, thereby depriving his children of their right to “visit with” their mother.
61He may have thought that he was protecting the children, but he was not. He produced no evidence to suggest that depriving the children of parenting time with their mother was consistent with their “physical, emotional and psychological safety, security and well-being.”
62To the contrary, the litany of court orders, both final and interim, that have come before this trial are all consistent with a finding that ensuring that H. has continued, unobstructed, parenting time with his mother is of benefit to his physical, emotional, and psychological safety, security, and well-being.
63As Ms. Bell’s current Motion to Change made its way through the court process, multiple interim orders were made by different Justices in efforts to compel Mr. Mallet to comply with the previous orders and cease interfering with the rights of his children to visit with their mother.
64It was only when Mr. Mallet was faced with the stark choice of complying with the court orders or being sent to jail each time that he interfered that he finally relented from his obstructionist behaviour.
65The question now before me is, what parenting time order for Ms. Bell is in H.’s best interests?
66While the Motion to Change also seeks relief with respect to the child W., Ms. Bell only seeks a provision that permits him to have parenting time with her in accordance with his wishes, given that he is now 17 years of age.
67Section s. 24(3) of the CLRA lists several factors for the court to consider when assessing what order to make in a child’s best interest. This case, however, is strictly about parenting time. Ms. Bell does not seek to upset the status quo with respect to H’s primary residence. What she seeks is certainty with respect to her right to “visit with and be visited by” H. without the continued obstructionist behaviour of Mr. Mallet. Consequently, in determining what order to make, I have had particular regard to s. 24(3) (e), which requires that I take into account H.’s views and preferences, giving due weight to his age and maturity.
68As to the latter point, Mr. Sandor made clear that H. is an intelligent, thoughtful child. The instructions that he provided to Mr. Sandor were clear and unequivocal. He wishes to continue having parenting time with his mother. That he be able to continue doing so is, and has repeatedly been found to be, in his best interests.
69I have also considered:
a) s. 24(3)(a), finding that H. needs to have in-person time with his mother;
b) s. 24(3)(b), finding that H. has a strong relationship with both parents, and that neither should be sacrificed for the other;
c) s. 24(3)(c), finding that, despite the difficulties she has continued to encounter, Ms. Bell is clearly more supportive of H’s relationship with Mr. Mallet than Mr. Mallet is of H.’s relationship with Ms. Bell; and
d) s. 24(3)(i), finding that, while both parties are able to communicate and cooperate with the other on matters affecting H., in the sense that nothing impedes either from doing so, Ms. Bell is the only party willing to do so.
70While Mr. Mallet did not appear at trial, I was given to understand, both through his Response to Motion to Change and in the submissions of Mr. Sandor, that he is concerned that H. not be exposed to behaviours or actions on the part of Ms. Bell that could expose him to physical or emotional harm.
71Faced with the concerns of the Respondent when deciding whether his repeated failures to produce H. for parenting time with Ms. Bell placed him in contempt, Justice Hassan found that “the parenting time as ordered continues to be in the best interests of [H.], and that it is consistent with his firmly held views and preferences, even in the face of continued attempts by the Respondent to influence those views and preferences.”
72While I can understand his concerns about H., Ms. Bell’s evidence satisfies me that she is working diligently to manage both her addictions and her mental health issues. She has insight into her difficulties, being willing to go as far as cancelling any visit with H. when she might be feeling that she would not be at her best to spend time with him. That suggests to me that she understands that the order she seeks is about H.’s best interests and not her own.
Terms Sought by the Applicant
73Because the majority of the terms set out in the draft order presented by Ms. Van Deven on behalf of Ms. Bell effectively finalize changes made to the order of Justice Rady through a series of interim orders since this Motion to Change was filed, I am prepared to make an order which contains the majority of the terms sought by her.
74Firstly, I note, however, that the draft order presented to me by Ms. Van Deven did not contain a clause which allowed for the continuation of Ms. Bell’s weekend parenting time with H.
75Because Ms. Bell had deposed in her trial affidavit sworn shortly before the trial that she wanted to continue having weekend parenting time with H., I sought to clarify the omission of such a term from Ms. Van Deven’s draft order by having the Family Court Judicial Assistant seek clarification from Ms. Van Deven. Both Mr. Mallet and Mr. Sandor were copied in the inquiry, as they were in Ms. Van Deven’s response, at my direction. Ms. Van Deven advised that the draft order contained the terms that Ms. Bell had instructed her to seek.
76As a result, the order that I am making does not include a provision relating to Ms. Bell’s weekend parenting time with H. I am also not changing that aspect of Justice Rady’s final order dated February 20, 2018.
77I have also not fully removed from the order of Justice Rady the term that, during weekend parenting time, Ms. Bell may not have any overnight guests in her home without the consent of Mr. Mallet.
78While I understand why Ms. Bell might view this clause as a hindrance, I was provided with no evidence about the material change which has occurred which would authorize me to order its removal, or even why Ms. Bell seeks its removal. She did, however, include a request for its removal in her Motion to Change.
79Recognizing that the term was included to protect the children, I am prepared to amend it by removing the involvement of Mr. Mallet, and the references to blood relatives.
Request to Include the Penalty Provisions of Justice Hassan’s Contempt Order and a Police Assistance Order
80Ms. Van Deven also requested that I include in my order both the penalty provisions set out in the contempt order made by Justice Hassan on October 23, 2023 and a police assistance order. I have concluded that, at this time, I cannot do so.
81The penalty provisions of Justice Hassan’s order were imposed in respect of a contempt finding that she had made against Mr. Mallet for willfully failing to comply with the interim orders made by Justice Mitrow on February 22, 2023 and Justice Hassan on June 16, 2023.
82The order that I am making as a result of this trial is a final order. It supersedes the interim orders of Justices Mitrow and Hassan, the violations of which formed the foundation for Justice Hassan’s finding of contempt against Mr. Mallet.
83I find that, before Mr. Mallet could again be made the subject of penalty provisions for willfully failing to comply with terms contained in the order that I am making now, even though they may closely, or identically, mirror the terms of the orders made by Justices Mitrow and Hassan, he must first be found to be in contempt of my order. “There can be no such thing as a rolling liability in contempt from one order to another.” (Bassett v. Magee, [2015] B.C.J. No. 2166, at para. 36 (B.C.C.A.))
84Ms. Van Deven suggested that the language of s. 28(1) (b) of the CLRA is broad enough to allow for the making of such an order. It provides that a court which makes a parenting order “may, by order, determine any aspect of the incidents of the right to… parenting time… with respect to a child.” The submission was that, since Ms. Bell is being afforded parenting time, one incident of that right is that it occur. If it does not, repercussions can be imposed on the person who is charged with the duty of delivering the child to the parenting-time parent. The problem with this submission is that it, again, imposes a penalty without affording the person against whom the repercussion is sought the right to raise a defense.
85The order that is requested in this regard by Ms. Van Deven effectively requires that I anticipate that Mr. Mallet will violate my order and, because of that anticipated violation, impose a penalty against him, without affording him the procedural safeguards attached to a request for a finding of contempt, such as personal service of the notice requesting the finding of contempt and the requirement of proof of the contempt beyond a reasonable doubt. I am of the view that to do so would be improper.
86My view is supported by the language in the following sections of the CLRA, all of which require that, in cases where a parenting order is allegedly being contravened, an “application” be brought to the court for adjudication of the issue:
a) s. 35(1) – restraining orders;
b) s. 36(1) – orders to apprehend children being unlawfully withheld;
c) s. 37(1) – orders to prevent the unlawful removal of a child from Ontario contrary to a court order; and
d) s. 37(2) – orders to ensure the return to Ontario of a child by a person entitled to parenting time or contact who proposes to leave the province and who is not likely to return the child to Ontario.
87Similar to the above, s. 36(2) of the CLRA provides that, before issuing a police assistance order, the court must “upon application” be satisfied “that there are reasonable and probable grounds for believing “ that a child is being unlawfully withheld from a person entitled to, inter alia, parenting time.
88As Justice Mazza wrote at paragraph 10 in Allen v. Grenier, [1997] O.J. No. 1198, “[a] remedy under section 36 of the [CLRA] is an independent and alternative remedy separate from a contempt proceeding.”
89While Justice Mazza also wrote that, before issuing a police assistance order, the court must be satisfied that “a party is unlawfully withholding a child from a person entitled to custody of or access to the child…based on … a pattern of withholding even where that pattern has been interrupted by some resumed access,” his comment was still predicated on a police assistance order being “an order that can only be made once a court is satisfied that a party is unlawfully withholding a child from a person entitled to custody of or access to the child.”
90To that point, anticipatory police assistance orders under s. 36(2) of the CLRA—those that are requested in the event of future non-compliance with a parenting order—have been the subject of criticism and questions about not only their efficacy but also their legality. (Patterson v. Powell, 2014 ONSC 1419 , [2014] O.J. No. 985, at paras. 12, 14–18, 24–26 and 81.)
91The order that I am making is, in effect, a new final order. As a result, I find that, before a new police assistance order in its enforcement can issue in this case, there must be a new wrongful withholding of H. by Mr. Mallet.
92That noted, I am also of the view that, given the history of this file and the repeated violations of previous orders by Mr. Mallet, the problem of any future wrongful withholding of H. by him can be addressed by granting leave, in advance, for Ms. Bell to obtain a police assistance order by means of an urgent, ex parte, Form 14B motion.
93In my view, the withholding of H. by Mr. Mallet in violation of my order would satisfy the requirement of Family Law Rule 14(14)(a) that, to obtain an ex parte order, Ms. Bell would have to show that it would be unreasonable to require that she give notice of her motion, at least initially, to Mr. Mallet. Any such order would be capable of being reviewed by the court in short order, [3] after Mr. Mallet had been served with the order, given an opportunity to respond and, perhaps, had H. removed by the police for parenting time with Ms. Bell.
94I wish to be clear. The terms of my order closely mirror the terms of the orders that Justice Hassan found that Mr. Mallet knowingly and willfully violated, and of which he was in contempt by his actions. Consequently, I fully expect that, should Mr. Mallet not fully and completely comply with the terms of my order, he will likely be faced with a new police assistance order and another contempt motion. The first is likely to be granted without notice to him. If he is again found to be in contempt, the Justice who makes the finding will have the right to impose either the same penalty as was imposed by Justice Hassan or, possibly, an even greater penalty. The best way for Mr. Mallet to avoid those possibilities from becoming realties is to comply with the terms of my order as if he would be subject to the penalty imposed by Justice Hassan in her contempt order for similar behaviour.
95Because of my finding that I cannot make an anticipatory contempt order, I have included a term in my order which attempts to address only one aspect of the concerns raised by Mr. Sandor about H. not attending parenting time.
96The request that he made on behalf of H. that my order include a provision that would avoid the automatic incarceration of Mr. Mallet imposed by Justice Hassan if H. does not attend parenting time for valid reasons of his own desire is more appropriate for consideration should Mr. Mallet once again be found in contempt for refusing to deliver H. for parenting time with Ms. Bell.
Order
97Accordingly, for the reasons cited herein, I make the following order:
The Applicant, April Suzzana Eleanor Bell (the Applicant), shall have parenting time with the child, H.M. [4], born MM DD, 2011 (hereinafter, H.): a. each Thursday from 4:00 p.m. until 7:00 p.m., subject to change in the event that the Applicant's access visits with her daughters, W.S.E.B. (hereinafter, W2) and H.M.S.B. (hereinafter, H2), changes to a different day and time, in which case, the Applicant's parenting time with H. shall occur on that day, as well, and overlap with that time; b. Pick-ups and drop-offs of H. for the purposes of parenting time shall occur at the London Public Library, East Branch, 2016 Dundas Street London, or at the Applicant's home at 35-975 Railton Avenue, London, Ontario, or at any other location in accordance with the pick-up and drop-off location of the Applicant's access with W2 and H2; c. The Respondent, Adam Mallet (the Respondent), shall deliver H. to, and pick him up from, the exchange location as set out above or as otherwise agreed to by the parties. For greater clarity, the Respondent shall not, at any time, fail or refuse to comply with the obligation set out in this paragraph without a justifiable reason which, for the purpose of this paragraph, shall not include: 1. The views and preferences of H., unless they are expressed through the child's counsel, David Sandor; or 2. A claim that H. is ill, unless the Respondent provides the Applicant, within 24 hours of having made the claim of illness, a letter from H.’s doctor confirming the illness. d. The exchanges of, and the Applicant’s parenting time with, H. shall be unsupervised; e. The Applicant shall notify the Respondent through H. or her father, Cameron Bell, via text message, of any changes to the parenting schedule, including notice if the Applicant is unable to attend. The Respondent shall provide Applicant's counsel, Ms. Alice Van Deven, with H.’s current phone number; and, f. Upon arrival at the exchange location, the Respondent shall remind H. to confirm to him whether or not the Applicant is present, and he shall wait until H. does so.
H. may miss a parenting time visit with the Applicant if: a. he has alternate plans; b. he has spoken to the Applicant about those plans in advance; and c. the Applicant has specifically told H. that he may miss a parenting time visit because of those plans. In that case, the Applicant shall ensure that the Respondent is informed that she has consented to H. missing a parenting time visit under the terms of this paragraph.
The child, W.M., born MM DD, 2006, is at liberty to attend H.’s visits with the Applicant if he wishes.
The Applicant and H. shall be entitled to reasonable communications with each other via telephone, text messaging sent to or from H.’s phone, or on the SnapChat application, on condition that: a. Such communication shall not interfere with H.'s school or sleep schedule; and b. H. may or may not respond, in accordance with his wishes.
The Respondent shall ensure that H. has complete privacy and shall ensure that no other party interferes with H.'s communication with the Applicant. H. is at liberty to share with the Respondent the details of his communication with the Applicant, including SnapChats, at his sole discretion. The Respondent shall not pressure H., nor allow any other person to pressure H., into sharing details of his communications with the Applicant.
The Respondent shall provide any updated phone number for H. to the Applicant if H.’s phone number changes.
H. may, if he wishes, communicate or visit with his half-sisters, W2 and H2, anytime they or either of them are visiting with the Applicant.
The Applicant shall have holiday parenting time with H. as follows, which parenting time shall be in addition to the regular Thursday parenting time set out herein; a. Mother's Day: from 10:00 a.m. until 7:00 p.m.; b. Christmas/Boxing Day: in even-numbered years, on Christmas Day from 12:00 noon until 7:00 p.m., and in odd-numbered years on Boxing Day (December 26th) from 12:00 noon until 7:00 p.m. If H. wishes to stay overnight with the Applicant, the return time shall be at 10:00 a.m. the following morning after either Christmas Day or Boxing Day, as the case may be; c. Easter Sunday/Easter Monday: in even-numbered years, on Easter Sunday from 10:00 a.m. until 7:00 p.m., and in odd-numbered years on Easter Monday from 10:00 a.m. until 7:00 p.m. If H. wishes to stay overnight on Easter Sunday with the Applicant, the return time shall be 10 a.m. the following day (Easter Monday); d. Thanksgiving: in even-numbered years, on Thanksgiving Sunday from 10:00 a.m. until 7:00 p.m., and in odd-numbered years on Thanksgiving Monday from 10:00 a.m. until 7:00 p.m.; e. Such further and other holiday parenting time as H. may request.
The Respondent’s obligations under paragraph 1(c) continue to apply with respect to the Applicant’s holiday parenting time.
Both parties may attend any of H.’s school and extracurricular events notwithstanding that the activity in question occurs outside of their parenting time.
Both the Applicant and the Respondent may make inquiries and be given information by H.’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with H.
If the Respondent fails at any time to comply with his obligation to ensure that H. is delivered to the Applicant for the purpose of allowing her to exercise her parenting time with H., the Applicant is hereby granted leave pursuant to Family Law Rule 14(12)(a) to file an urgent, ex parte, Form 14B motion seeking an ex parte order pursuant to section 36(2) of the Children's Law Reform Act directing the London Police Service, or any other police service having jurisdiction in the place where a police officer acting pursuant to this order has reasonable grounds to believe that H. is located, to locate, apprehend, and deliver H. to the Applicant, April Suzzana Eleanor Bell, for the purpose of allowing her to exercise her parenting time with H.
Upon an ex parte order being made in accordance with paragraph 12 hereof, for the purposes of locating and apprehending H. in accordance with this order, pursuant to section 36(5) of the Children's Law Reform Act, a member of a police service, with such assistance and such force as are reasonable in the circumstances, may enter and search any place, at any time, where he or she has reasonable and probable grounds for believing that H. may be located.
Paragraph 1(4)(a)(ii) of the order of Justice Rady dated February 20, 2018 is changed to read as follows: “The Applicant shall not permit any overnight guests in her home, other than her other children, during her weekend parenting time.”
Paragraph 2 of the Order of Justice Rady dated February 20, 2018, requiring exchanges at Merrymount, is hereby vacated.
The costs payable by the Respondent, Adam Mallet, pursuant to paragraph 7 of the Order of Justice Hassan, dated October 13, 2023, shall be paid by the Respondent to Legal Aid Ontario.
If she wishes to claim costs on behalf of the Applicant, Ms. Van Deven shall, no later than November 19, 2024, file with the Family Court Judicial Assistants at London written submissions not exceeding three pages, at 1.5 line spacing, in Times New Roman 12-point font, together with any offers to settle.
If the Respondent or Mr. Sandor wish to respond to Ms. Van Deven’s costs submissions, they shall do so no later than November 29, 2024. The responding submissions shall not exceed three pages, at 1.5 line spacing, in Times New Roman 12-point font.
If no costs submissions are received from Ms. Van Deven by November 19, 2024, there shall be no order as to costs.
The requirement that the Respondent approve the draft order before it is issued is hereby waived.
Justice T. Price
Released: November 5, 2024
COURT FILE NO.: FC697/17-01 DATE: 2024/11/05
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: April Bell Applicant/Moving Party
- and - Adam Mallet Respondent/Responding Party REASONS FOR JUDGMENT T. PRICE, J.
Released: November 5, 2024
1I have used initials in place of the names of any children in these Reasons, to protect their privacy.
2Gordon v. Goertz, , [1996] 2 S.C.R. 27.