Court File and Parties

COURT FILE NO.: FC-23-00000162-0000 DATE: 2024-12-30

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Joshua McDougall Applicant

– and –

Destiny Paiva Respondent

Counsel: Self-Represented (Applicant) Self-Represented (Respondent)

HEARD: May 17, May 31, July 12, and November 22, 2024

BEFORE: The Honourable Justice J. R. HENDERSON

Endorsement on Contempt Motion

[1] The applicant, Joshua McDougall, brings this motion for a finding that the respondent, Destiny Paiva, is in contempt of court because the respondent permitted their daughter, Amara Elizabeth Luella Paiva, born October 15, 2018, to be in the presence of Jake Isenor (“Jake”) contrary to the final order of Reid J. dated April 4, 2023 (“the order”).

[2] After the parties separated, in approximately 2020, they agreed to a shared parenting arrangement for Amara. In approximately July 2020, the respondent began an on-and-off relationship with Jake that included periods of cohabitation. There is no dispute that Jake has a history of mental health issues and substance abuse problems. In addition, there were at least two incidents of domestic violence in the respondent’s relationship with Jake; Amara was present and witnessed some of that domestic violence.

[3] The applicant commenced this court application in early 2023. The order was made on consent. In his notice of motion for a finding of contempt, the applicant alleges that the respondent failed to comply with paragraphs 4, 6, and 7 of the order.

[4] Paragraph 4 of the order states, “The child, Amara Elizabeth Luella Paiva, born October 15, 2018, shall not be in the presence of Jake Isenor.” Paragraph 6 states that the respondent shall ensure that the child “is not exposed to a violent atmosphere or environment.” Paragraph 7 requires the respondent to “create and implement a safety plan.”

[5] In my view, paragraphs 6 and 7 are general orders that are not well suited to be the basis for a contempt hearing. The real concern is whether the respondent breached paragraph 4. Therefore, for the balance of this decision I will focus on the question of whether the respondent breached paragraph 4 of the order. The applicant alleges that the respondent did so by permitting Amara to be in Jake’s presence on July 12, 2023, and again during the month of December 2023.

[6] The respondent takes the position that she tried her best to comply with the order, but Amara was occasionally unintentionally in Jake’s presence. The respondent testified that she asked Jake to comply with the order, but that he did not always do so.

The Law

[7] Rule 31 of the Family Law Rules, O. Reg. 114/99, governs motions for contempt. In order to prove that the respondent is in contempt of a court order, as discussed in Jackson v. Jackson, 2016 ONSC 3466, and in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35, the applicant must show that:

1. There is a court order that is clear and unequivocal.
2. The respondent had knowledge of the order and has been informed of the particulars of the alleged breach.
3. The respondent did or failed to do something that is contemplated by the order.
4. The respondent intentionally disobeyed the order.

[8] Further, because of the consequences of a finding of contempt, the onus is on the applicant to prove the above-mentioned elements of contempt beyond a reasonable doubt.

[9] In the present case, I find that paragraph 4 of the order is a clear and unequivocal court order, that the respondent had knowledge of the court order, and that the respondent has been informed of the particulars of the alleged breach. The remaining issues in this case are whether the respondent permitted Amara to be in Jake’s presence and whether she did so intentionally.

The July 2023 Incident

[10] In late April 2023, the respondent told the applicant that she and Jake had ended their relationship. The respondent had previously disclosed the domestic violence that had occurred in their relationship. As the respondent had nowhere to live, the applicant permitted the respondent to live in his residence temporarily until she found other accommodations.

[11] On July 12, 2023, the respondent informed the applicant that she was taking Amara to a facility called Sky Zone. However, while the respondent was out of the home with Amara, the respondent posted a picture on Facebook of Jake and her with a caption stating that she and Jake were back together. This post came to the attention of the applicant, and he became concerned. The applicant contacted the respondent, and she informed him that she was with Amara at Pearson Park in St. Catharines, Ontario.

[12] The applicant testified that he drove to Pearson Park where he observed Amara, the respondent, and the respondent’s son, Karson, playing on the swings in the presence of Jake. The applicant intervened, took Amara into his vehicle, and left with Amara.

[13] The respondent testified that she took Amara to Sky Zone and then took her to Pearson Park. She testified that she wanted Karson to visit with Amara, and therefore, the respondent contacted Jake and asked him to bring Karson to the park. The respondent does not deny that both Amara and Jake were in the park at the same time.

[14] However, the respondent testified that she believed that Amara and Jake did not see each other. She said that Amara was playing on the swings when Jake arrived in his car with Karson. The respondent said that she did not think that Jake was going to get out of his car, but when he exited his car, the respondent left Amara at the swings and walked toward Jake. She said that she met Jake before he arrived at the swings and told him to leave the park, which he did.

[15] I do not accept the respondent’s evidence on this point. Her evidence as to the details of what occurred at the park was muddled and contradictory. She initially said that she left Amara on the swings by herself and that she met Jake and Karson as they approached. However, she later said that somehow Karson was on the swings with Amara when she started to speak with Jake.

[16] Further, in a text message to the applicant, the respondent said that Jake came up to talk to her “at the swings.” In court, she testified that Jake never arrived at the swings. She was unable to explain this inconsistency.

[17] Even if I accept that the respondent’s inconsistent statements were innocent errors, I find that the respondent’s credibility is completely shattered by the simple fact that she invited Jake to come to the park to meet with her while Amara was in her presence. By inviting Jake to the park, in these circumstances, the respondent was ignoring the terms of paragraph 4 of the order and encouraging Jake to act in breach of the order. I find that the respondent’s inconsistent statements about these events were simply attempts to excuse her behaviour.

[18] I found the applicant to be a credible witness. I believe that the applicant presented his evidence in a consistent and fair manner. For example, he did not immediately conclude that Jake and the respondent were in the same location, but he acknowledged that the Facebook post made him suspicious. He was concerned about Amara’s welfare given the history of the respondent’s relationship with Jake and the existing court order.

[19] The applicant took a photograph from his vehicle that depicts the respondent, Jake, and Karson together at the swings at the park. Another child is partially visible, but that child is obscured by a telephone pole. The applicant testified that the child who is partially visible is Amara, and I accept that to be true.

[20] Therefore, I find that Jake met the respondent and Amara at the swings shortly after he arrived at Pearson Park. I accept the applicant’s evidence that Amara was in Jake’s presence at or near the swings when the applicant arrived at the park.

[21] I find that the respondent wanted to socialize together with Jake and her children, and she was intent on doing so regardless of the terms of the order. I find that at all times, the respondent intended to breach the court order, but that the respondent planned for Jake to move to another part of the park if any person familiar to her arrived at the park. That is, it was the respondent’s plan to breach the order, but to take steps to avoid being caught.

[22] For these reasons, I find that the applicant has proved beyond a reasonable doubt that the respondent intentionally breached paragraph 4 of the order by permitting Amara to be in Jake’s presence on July 12, 2023, at Pearson Park.

The December 2023 Incidents

[23] The respondent vacated the applicant’s home after the July 2023 incident. Thereafter, the respondent lived at a women’s shelter and/or with friends. As of early December 2023, the respondent moved to a rental unit at a motel known as the Caravan Inn on Cataract Avenue in Niagara Falls, Ontario.

[24] The parties agreed that the respondent would have parenting time with Amara at the motel for the Christmas season on December 23 overnight to December 24, and on December 30 overnight to December 31.

[25] When the applicant picked up Amara from the motel on December 31, I find that Amara told the applicant that she had seen Jake. This revelation caused the applicant to contact the respondent who informed him that Jake lived at the motel with her, but that he leaves when Amara visits.

[26] As a result of those conversations, the applicant retained a private investigator, Lucine Tchakerian (“Lucine”) to review the recordings from the motel’s surveillance cameras.

[27] Lucine testified, and I accept, that the camera recordings show that the applicant dropped off Amara at the motel at approximately 2:00 p.m. on December 23 and picked her up at approximately 3:40 p.m. on December 24. During that time, Amara apparently remained with the respondent in the rental unit at the motel.

[28] The recordings show that Jake left the motel on December 23 at 1:55 p.m. and returned to the motel at 2:30 a.m. on December 24. Jake left the premises again at 12:50 p.m. on December 24.

[29] Therefore, I find that Jake left the rental unit at the motel shortly before the applicant dropped off Amara. Jake then returned to the motel in the early hours of December 24 and entered the rental unit that was occupied by the respondent and Amara. Jake remained in that unit in the presence of Amara until he left on December 24 shortly before the applicant picked up Amara.

[30] Lucine further testified, and I accept, that the camera recordings show that the applicant dropped off Amara at the motel on December 30 at 11:15 a.m. and picked her up again on December 31 at approximately 2:20 p.m. Again, Amara apparently remained in the rental unit during that time.

[31] The camera recordings show that on December 30 at approximately 9:30 p.m. Jake arrived at the motel and entered the rental unit. He left about 30 minutes later. Then, Jake returned to the rental unit on December 31 at approximately 2:08 a.m. and he did not leave the motel until approximately 10:00 a.m. that day.

[32] Therefore, I find that Jake was in the rental unit at the motel in the presence of Amara briefly for approximately a half hour on the evening of December 30, and again for approximately eight hours on the morning of December 31. I find that Jake left the rental unit before the applicant returned to the motel to pick up Amara.

[33] When the respondent was confronted with this evidence on the witness stand, she testified that she did not intentionally breach the order. She said that on December 24 she was asleep between the hours of 2:00 a.m. and approximately 12:00 p.m., and therefore she was not aware of Jake’s presence in the rental unit.

[34] She does not deny that Jake could have used his key to enter the rental unit, but she claims that she did not know he was in the rental unit until she woke up at approximately noon. At that time, she testified that she saw Jake at the door to the room.

[35] Similarly, the respondent says that she was asleep from at least 2:00 a.m. until after 10:00 a.m. on December 31. She was not aware that Jake was in the rental unit during that time.

[36] Again, I do not believe the respondent’s testimony. The motel room was rented in Jake’s name and Jake had a key to the room. On December 31, when she was questioned by the applicant, the respondent texted that Jake lived with her at the motel. Moreover, the respondent acknowledged that the motel room consisted of one room with 2 beds and a washroom.

[37] In my view, it is inconceivable that the respondent would not notice that her partner had returned to her small motel room in the night. Further, it is inconceivable that she would not notice that, after he had returned, he remained in the motel room with her for several hours. I find that the respondent has intentionally distorted her evidence in order to attempt to excuse her behaviour.

[38] On the witness stand, while discussing the events of December 2023, I find that the respondent provided some evidence that I accept. She testified that she had been living with friends and/or at a women’s shelter, but as of December 2023 she had nowhere to live. Jake offered to help her by renting a motel room that they would share.

[39] I find that the respondent accepted Jake’s offer of assistance because she needed a place to live and because the motel room would provide a place where she could have parenting time with Amara. However, by entering into this arrangement with Jake, the respondent chose to ignore the terms of the order. She agreed to an arrangement that she should have known would result in a violation of the order.

[40] Therefore, I find that the respondent intentionally permitted Amara to be in Jake’s presence on these two dates in December 2023. The respondent was living with Jake at the rental unit at the motel, Jake could come and go as he pleased, and the respondent intended to have parenting time with Amara at the motel room.

[41] Furthermore, I find that the respondent planned for Jake to leave the premises just before the applicant dropped off Amara, and to return just after the applicant picked up Amara. Again, I find that the respondent planned to breach the order, but she took steps to avoid being caught.

[42] For these reasons, I find that the applicant has proved beyond a reasonable doubt that the respondent intentionally breached paragraph 4 of the order in the evenings of December 23/24 and December 30/31 by permitting Amara to be in Jake’s presence at the motel.

Conclusion

[43] For all of these reasons, I find that the respondent is in contempt of court. She intentionally breached the terms of paragraph 4 of the order on July 12, 2023, in the evening of December 23/24, 2023, and in the evening of December 30/31, 2023.

[44] The parties are hereby directed to contact the trial co-ordinator at the St. Catharines courthouse to arrange to appear before me to make oral submissions as to the appropriate penalty that should be imposed by this court. If the parties wish to present written submissions or introduce documents at the penalty hearing, they are directed to serve the submissions and documents on each other and upload same to Case Centre at least seven days prior to the hearing.

J. R. Henderson J. Released: December 30, 2024