COURT FILE NO.: 19-0300

DATE: November 12, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SARA BETH MCLEAN Applicant

– and –

KRISTOPHER MALONEY Respondent

Counsel: Natasha Beitman as agent for Michael Swindley, for the Applicant Self represented Jennifer O’Reilly as agent for Victoria Legris, Office of the Children’s Lawyer

Reasons for decision

JOHNSTON J.

[1] These are Reasons for Decision, further to oral Reasons given, on the Applicant/Mother’s motion seeking to find the Respondent/Father, in contempt of various provisions of the temporary Order of myself, made on consent, dated June 17, 2024. In the alternative, mother seeks an Order that father failed to obey the aforesaid Order pursuant to Rule 1(8) of the Family Law Rules. Upon finding of either Contempt or failure to obey the Order, mother seeks the ‘children’ attend reconciliation/reunification counselling with mother, costs be paid by father; or father pay for a parenting assessment and/or the children reside exclusively with mother for at least 120 days, during which the children attend reunification counselling.

[2] I find the moving party, mother, has failed to prove contempt beyond a reasonable doubt. Further, the Court is not satisfied the facts of this high conflict case justify the use of the discretionary powers of contempt. Contempt should be a remedy of last resort, not first resort. This is the first motion for contempt (at least the first time a motion has proceeded).

[3] In the alternative, I am not satisfied on the balance of probability that the Order of June 17, 2024 was the result or even mostly the result of the father’s conduct (although that is a possibility on the balance of probability). Given the circumstances of the case, it is not necessary for the just determination of the case to make a finding under Rule 1(8) and on the balance of probability it is not in the best interest of 13 year old L. M-M (“L.”) to make any of the Orders sought by mother.

[4] Mother’s motion is therefore dismissed. The Court does exercise its overriding obligation to the child L. to make the following Order, notwithstanding the finding that the motion is dismissed.

[5] First, there is no motion to change the existing temporary Order by the father. The Order of June 17, 2024 shall continue in full force and effect. However, given the child’s views and preferences as expressed by OCL, the high conflict nature of the case, the allegations by the child that she feels unsafe with mother, the Order shall not be enforced by the police and shall be subject to the wishes of the child.

[6] Second, the parties shall continue the family counselling as arranged and agreed upon now by mother. The parents shall follow all reasonable recommendations of the counsellor.

[7] Third, neither party shall involve the child further in this litigation and shall not speak negatively about the other parent to the child L.

[8] Four, mother and father shall encourage the child to have meaningful contact with the other parent and use their best efforts to have the children follow the existing Order.

[9] The parties shall only contact one another about issues directly related to the children, parenting time and/or fulfillment of the Order. Unless the matter is urgent, neither party shall initiate contact with the other more than one time per week and then, only for purpose as aforesaid. The parties may in writing mutually consent to other contact.

[10] Father shall encourage the child L. to speak to mother via telephone or social media, or facetime / zoom at least once per week. Such communications shall not be monitored by father.

Analysis

[11] The Order of June 17, 2024, is a temporary Order. It is largely clear and unambiguous. The provision for urine samples by father provides father with a 6 month window to obtain test results. It does not require tests at reasonable intervals. The clear and unambiguous wording is within 6 months. The time allotted has not yet elapsed.

[12] Payment of support and arrears is a money Order and not properly the subject of contempt. Further under Rule 1(8), while father has not complied with the Order, he has at intervals since the Order made lump sum payments. Further, father alleges, and it has not been challenged he was unemployed for a period of time since the Order.

[13] It is accepted by all that mother has not, since August 12, 2024, had parenting time in accordance with the June 17, 2024 Order. The child L. has resided with the father, has not been in the primary care of mother, nor has mother had primary decision making authority over L. The second child, D. M. dob February 7, 2015 (“D.”) has been in mother’s primary care and she had exercised primary decision making. No breach of the Order is alleged with respect to D.

[14] The real issue in this motion is whether father has intentionally undermined L.’s relationship with her mother, whether the child has been alienated and even if the court answers negatively to both questions, whether the father has done enough to encourage the child to comply with the Order. Mother argues at the very least, father has inappropriately involved the child in the litigation and improperly let the child decide whether or not she needs to comply with the Order. Specifically, the father undermines mother’s authority and the child’s trust in her mother. The interference is to the extent the wishes of L. cannot be relied on because they are not her true expressions or her true view. In the end, the best interest of the child requires the court’s intervention now. It will be too late to wait and if found appropriate, intervene at trial which could be a year or more away.

[15] The Court is not satisfied with the evidence presented that father has willfully, intentionally attempted to interfere with mother’s relationship with L. The evidence is not sufficient, even on the balance of probability, and certainly not beyond a reasonable doubt.

[16] The views and preferences of the child are relevant to the issues raised on the motion. The Court considers the factors to consider when determining the weight to accord to a child’s views and preferences as set out by the Ontario Court of Appeal in Decaen v Decaen (2013) ONCA 218, 2013 ONCA 218, 303 OAC 261 at para 42.

[17] The Court finds the wishes of L. are to remain in the care of father. Her views are clear and unambivalent. Her expressions are informed, strong and relatively speaking, longer held. The child met with OCL worker on 5 occasions since August, 3 times alone, twice at father’s via zoom, but no one else in the room. She has been consistent through the visits. She turned 13 years of age in October. She detailed to the OCL the high conflict nature of the parents’ relationship, the feeling of unease she has with mother, her expression of fear of mother as opposed to her feeling of safety at father’s. The overall context of the case is the parties have been involved in litigation involving the children over a prolonged period.

[18] The child wishes to reside with father but leaves open the possibility of on-going contact with mother, including dinners regularly, contact at other times, such as both attending sporting events for D. Longer term, she expressed to OCL a belief she would be open to weekend parenting time with mother, although not in the immediate future. This suggests the child has thought through her position, considered her options and recognizes the importance of some type of relationship with mother.

[19] The issue of father’s influence on L. is difficult to assess. On the evidence before the Court now, there is insufficient evidence to establish L.’s wishes are overcome by father’s intention to denigrate the relationship with mother. Father has done some things that certainly raise concern. He has in the past said inappropriate things to mother and likely the child. On the other hand, father deposes in his affidavit, and it is not challenged, that on August 31st he drove the child to the mother’s in an effort to facilitate mother’s parenting time. He claims the child simply refused to get out of the car and go to the mother’s.

[20] Mother acknowledges the child’s views and has not insisted the police enforce the existing Order, notwithstanding the clause allowing for police enforcement. Mother in doing so acknowledges the child opposes going to her and it would not be positive for the child to be dragged by the police away from father and to mother. This speaks to the practicalities of the situation. It is counterproductive to force the child to go with mother where her views seem strong, consistent and honestly held. In fact, involving the police could cause more long term harm, than good.

[21] Mother argues father cannot ‘get away’ with breaching an Order. There will be no incentive to comply with orders in the future. The Court in part accepts the argument that Court Orders must be enforced, otherwise they become meaningless. However, the overriding concern must be the child’s best interest. Children ought to have meaningful relationships with both parents, unless the best interest test, proves otherwise. That said, the facts of each case must be assessed on their own merit.

[22] In this case, there are reasons to question the child’s motives for refusing visitation. But father has allowed D. to have parenting time in accord with the Order. While it is possible a parent interferes with parenting of one child and not the other, it seems less likely in the case at bar. Father has done more than simply leave the final decision of contact with mother to L. The evidence at this stage is inconclusive.

[23] The positives in this case include the following:

1. Despite their disagreement, the parents have agreed to attend family counselling and the identity of the counsellor (notwithstanding father rejected mother’s proposal for counsellor).
2. D. has parenting time in accordance with the Order.
3. L. has stated she is open to some contact with mother, also to participating in counselling. Further she may in the future be open to longer parenting time with mother. This suggests father has either not succeeded in total alienation from mother, or father is to be taken at his word, that he is not engaged in such conduct.
4. Perhaps having heard the Court on the various issues, the parties will be able to each look within themselves and chart a new course forward for L. If not, both are given stern warnings as to possible consequences. Knowing the Court is watching, this may encourage the parents to be ‘on their best behaviour’.
5. If the matter is not settled at the Settlement Conference, I assign myself as case manager. High conflict cases benefit from case management. No further step to be taken without either: direction from the Settlement Conference Justice, or the matter coming back before me on short notice to be spoken to for 15 minutes or as directed (maybe via zoom). A copy of the Settlement Conference endorsement shall be directed to myself.

[24] The Court is of the opinion based on the evidence and more specifically the lack of evidence on the balance of probability, the best interest of the child can be achieved through professional assistance of a counsellor. The needs of this family and child in particular are beyond the scope of what a Court can offer. The solution requires patience, understanding of all sides and most importantly professional counselling and direction. The problems presented are complex and likely multifaceted.

[25] The powers of Contempt, or even the powers under Rule 1(8) of the Family Law Rules are blunt instruments that often do not fashion positive results. The goal in the case at bar is for L. to have a meaningful and productive relationship with both her mother and father. The Orders sought today will not advance the goal of meaningful relationships.

[26] Neither party should be emboldened by the Court’s decision on this motion. The conduct of each parent raises issues and concerns. Neither should feel vindication. L. is at risk by the on-going parenting conflict. Each parent can and must play a role in ‘lowering the temperature’ of the conflict and seeking meaningful solutions.

[27] It was not helpful to proceed with a contempt motion in the face of Settlement Conference set for November 20, 2024. All of these issues could have been addressed at the conference, if necessary, at the conclusion, permission sought to proceed with motion.

[28] Given the result and the Court’s comments about both parents, there shall be no order as to costs.

The Honourable Mr. Justice J. M. Johnston Released: November 12, 2024

COURT FILE NO.: 19-0300 DATE: November 12, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SARA BETH MCLEAN Applicant

– and –

KRISTOPHER MALONEY Respondent

REASONS FOR DECISION ON MOTION FOR CONTEMPT

Johnston J.

Released: November 12, 2024