Court File and Parties

COURT FILE NO.: FS-22-66 DATE: February 12, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: RENEE DALLAIRE-THÉBERGE and JEAN-MARIE THÉBERGE, Applicants/Moving Parties AND: KASSY COUTURE, Respondent/Responding Party

BEFORE: Justice J.S. Richard

COUNSEL: Paul Mongenais, for the Applicants Sharon Sabourin, for the Respondent

HEARD: February 9, 2024

Endorsement

Motion for enforcement of interim contact order

[1] The Applicants commenced proceedings seeking contact with their two grandchildren on June 1, 2022. On January 11, 2023, they brought a motion seeking an interim contact order.

[2] The motion was delayed for a variety of reasons detailed in the cost order of January 23, 2024, made against the Respondent mother. It was finally heard on November 30, 2023, and decided on December 1, 2023, where the court found that a contact order had to be made urgently to prevent further damage to these children “caught in an ugly war between the Applicants and the Respondent”.

[3] Specifically, on December 1, 2023, on a finding that the Respondent mother was acting against the best interest of the children in having prevented any and all contact with their grandparents for 23 months, the following was ordered:

1. The Applicants, Renée Dallaire-Théberge and Jean-Marie Théberge (the “grandparents” either together or separately), shall have contact with their grandchildren, Eloyze Couture-Théberge, born August 7, 2014 (“Eloyze”), and Kael Couture-Théberge, born January 21, 2017 (“Kael”), collectively the “Children”), at their home, or in another location of their choosing, as follows: a. Week 1: on Saturday, December 9, 2023, for two (2) hours; b. Week 2: on Tuesday December 12, 2023, from after school (or soon thereafter given travel time) to 6:30pm, and on Saturday, December 16, 2023 for three (3) hours; c. Week 3: on Tuesday, December 19, 2023, from after school (or soon thereafter given travel time) to 6:30pm, and on Saturday, December 23, 2023 for four (4) hours; d. Week 4: on Wednesday, December 27, 2023, from 10:00 am to 6:30 pm, and on Saturday, December 30, 2023, from 10:00 am to 6:30 pm; e. Week 5: on January 3, 2023, from 10 am to 6:30 pm, and on Saturday, January 6, 2024, from 10 am to Sunday, January 7, 2024 at noon; f. Week 6: on Wednesday, January 10, 2024, from after school (or soon thereafter given travel) to 6:30 p.m.; g. Week 7: on Wednesday, January 17, 2024, from after school (or soon thereafter given travel) to 6:30 pm., and every Wednesday thereafter; and h. Week 8: on Friday, January 26, 2024, from after school to Sunday, January 18, 2023, at 4:00 pm, and every third weekend thereafter.
2. The schedule may be altered by the grandparents and the Respondent (the “mother”), on consent and in writing;
3. The grandparents shall be responsible for pick-up and drop-offs at the mother’s home;
4. The mother shall ensure that the Children are ready for their pickup, and that they have everything they require for the visit, including homework and medication with instructions. If written instructions are an issue, a voice note or video should be sent via smartphone;
5. The mother shall encourage the Children, and be supportive of the visits;
6. Neither the grandparents nor the mother shall speak negatively about one another, or about their respective extended families, to the children, or within earshot of the children, at any time;
7. Neither the grandparents nor the mother shall discuss the conflict between them with the Children, or within earshot of the children, at any time;
8. The Children shall be able to call or Facetime their grandparents at any time;
9. After February 1, 2024, the parties may file a 14B requesting OCL involvement, which shall be sent to my attention.

[4] This interim contact order, however, is not being followed, and the grandparents now bring a motion requesting that enforcement measures be put in place. Despite being served with a Notice of Motion on January 18, 2024, the Respondent mother did not file any materials whatsoever, including any kind of evidence for this motion.

Facts

[5] The Applicants’ son, Miguel, and the Respondent were married for approximately 9 years. During their marriage, they had two children: Eloyze Couture-Théberge, born August 7, 2014 (“Eloyze”), and Kaël Couture-Théberge, born January 21, 2017 (“Kaël”).

[6] Miguel and the Respondent separated in 2018. Depending on the date of separation, as it is not quite clear to this court, the children were aged about 4 and 1 at the time. A temporary order was granted by Justice C.A. Macdonald on November 18, 2018, dealing with exclusive possession of their two homes, property, the exchange of personal items and other equalization issues. Miguel died before the couple’s family law litigation could be finalized.

[7] Miguel passed away on December 21, 2021, due to complications related to Type 1 diabetes. Eloyze was 7 years old at the time, and Kaël was almost 4 years old. It is uncontested that although Miguel did not exercise all of his parenting time, he did so regularly. More specifically, the children spent a weekend with Miguel at least once or twice per month, some weeknights, as well as during holidays and the summer for extended periods of time. It is also admitted and uncontested that Miguel usually exercised his parenting time with the Applicants in their home.

[8] As detailed in this court’s decision of December 1, 2023, after Miguel’s death, a conflict between the Applicant grandparents and the Respondent mother ensued, which was largely based on the Respondent mother’s displeasure and disapproval of how the Applicant grandparents dealt with his estate.

[9] In support of her position contesting the Applicants’ request for a court order, the Respondent filed her own affidavit as well as a plethora of affidavits sworn by her family and friends, asserting that Eloyze and Kaël do not need the Applicants in their lives, and that more importantly, they do not want them in their lives either. Specifically, the Respondent mother deposed:

My children are aware that the Applicants stole their possessions, and they aren’t interested in seeing them.

[10] Eloyze is 9 years old, and Kaël just turned 7.

[11] After the order was released, counsel for the Applicants reached out to the Respondent’s counsel to discuss visit details, and to invite the exchange of information. No response was ever provided.

[12] When the Applicant grandparents arrived at the Respondent mother’s home to pick up the children for their first visit on December 9, 2023, which had been ordered for a duration of 2 hours, the Respondent’s friend stepped outside with Eloyze who appeared fearful. When the Applicant grandmother told Eloyze that next week they would be going to a restaurant of their choice, she yelled “No!” and ran back inside the Respondent mother’s home.

[13] Kaël was more responsive and jumped into the Applicant grandfather’s arms when the grandfather asked him if he could have a hug. After that, he returned inside the home, and the visit did not take place.

[14] When the grandparents showed up for their second visit on December 12, 2023, which was scheduled for 3 hours, the mother’s friend stepped outside and advised the grandparents that the children did not want to go to the restaurant. He then went into the house to get the children and the grandparents spoke with the grandchildren for 30-45 minutes, with the grandparents leading the conversation with questions, and then, the children returned inside the home.

[15] On December 16, 2023, the Applicants were to have a 4-hour visit, but the interaction with the children lasted no more than 30 minutes. When the grandparents showed up at the mother’s home, the children came out to say hello. Eloyze left with a friend and then came back to say goodbye. Kaël returned inside the home, and then came out to tell his grandparents:

My mom says I can say no, and I say no. I’m not going to the restaurant and I’m not going in the truck with you.

[16] The Applicant grandmother mixed up the dates, which caused them to miss the next visit. She expressed deep regret for her mistake in her affidavit evidence.

[17] Prior to the visit of December 23, 2023, the Applicant grandmother texted the Respondent mother’s friend and asked him if he could bring the children to a restaurant of their choice for the visit. He responded that the children did not want to go to the restaurant, and advised that Kaël was sick.

[18] With the exception of a few Facetime calls with the children, which were described by the Applicant grandmother as not containing much interest expressed by the children, the Applicant grandparents had no further contact with the children.

[19] On December 26, 2023, the Applicant grandparents spoke with the police. An officer contacted the Respondent mother. He then advised the Applicant grandparents not to go get the children as ordered for December 27, 2023, advising that “it won’t go well.” The police report was entered into evidence by the Applicants in support of this enforcement motion.

Issues

1. Adjournment request

[20] The Respondent mother appeared in court with counsel of record, Ms. Sabourin. At the outset of the hearing, Ms. Sabourin advised the court that she and the Respondent mother had terminated their solicitor-client relationship approximately three weeks before the hearing, which would have been around the time the Notice of Motion was served, that she had no instructions, and that she could therefore not proceed with the motion. The Respondent mother advised that she was looking for a new lawyer, but had been unsuccessful. An adjournment request was therefore made.

[21] No Notice of Change in Representation was filed, however, and Ms. Sabourin remains counsel of record.

[22] Each party made submissions, and for reasons detailed in the cost order made against the Respondent mother on January 23, 2024, and for additional reasons delivered orally, the adjournment request was denied, as yet another delay tactic would run contrary to the children’s best interest.

[23] A short recess was offered, and the Respondent and her counsel had an opportunity to have a private discussion, after which time the Respondent informed the court that she would make her own oral submissions.

[24] The Respondent mother made her own oral submissions in seeking to have the Applicant grandparents’ enforcement motion dismissed. Her counsel remained present throughout the hearing.

2. Enforcement of the order of December 1, 2023

[25] This hearing was not a rehearing of the November 30, 2023 motion. This court had already determined what was in the children’s best interest under the circumstances:

[47] The evidence overwhelmingly shows that the Respondent’s decision to sever Eloyze and Kaël’s relationship with the Applicants was based on her intense displeasure and disapproval of the Applicants’ handling of their son’s estate, as well as her disappointment with their son’s disregard of his financial responsibilities. In her submissions, she explained that it was not about the money, but about the Applicants’ integrity and judgement in how they handled the passing of their only son, which traumatized her and the children. As a result, she embarked on a horrendous and disappointing campaign to attack the Applicants before the court, the details of which will not be repeated in these reasons, and sought to punish them by terminating their relationship with their grandchildren.

[48] Even if the Respondent had been able to substantiate her allegations, which continue to be unsupported at this stage, her decision is arbitrary. This is not an estates matter, and the Applicants are not financially responsible for Eloyze and Kaël. Her decision was arbitrary, and contrary to the children’s best interest. This court must, therefore, step in immediately.

[26] The Applicant grandparents request that additional time be granted in lieu of the missed time, that additional details be added for pick-ups and drop-offs, that a “black-out” period be considered to reduce interference and influence by the Respondent mother, that a police apprehension mechanism be added, that another date be set by the court for a follow-up, that the mother be forced to communicate with the grandparents, that this matter be case-managed, and that costs be granted against the Respondent mother.

[27] It is worth mentioning that during the hearing, counsel for the Applicant grandparents reiterated that his clients would love nothing more than to rebuild their relationship with the Respondent mother. They have invited her, and even her friend, to the restaurant when they have visits with the kids. This was in their sworn evidence. They continue to be open to group counselling, to mediation, and to essentially any mechanism that would help the Respondent come to terms with issues that are in the way, so to speak. The Applicants have not made any submissions or materials to the court disparaging the mother.

[28] As mentioned, the Respondent mother did not file any responding materials or evidence for this motion. In oral submissions, she took the position that the children’s wishes should be respected, and that although she is not in any way preventing them from following the order, the order made on December 1, 2023, in her view, is contrary to their wishes, and therefore contrary to their best interest. She indicated to the court that she is doing her job as a parent, which is to support and protect her children, meaning that she will not force them to do something they do not want to do.

Analysis

[29] This court does not need to list all the cases where Canadian courts have consistently and unequivocally stated that though the children’s wishes ought to be considered in determining their best interest, it is but one factor of the many listed at s.24 of Ontario’s Children Law Reform Act, R.S.O. 1990, c. C.12. It is not the driving factor, and it is certainly not up to the children aged 9 and 7 to drive this bus, as the expression often goes. This is especially true in this case, where it was determined by this court in the decision of December 1, 2023, specifically at paragraphs 33 and 42, that these children have been influenced in forming a new opinion of their grandparents after the passing of their father.

[30] Just as parents are expected to act in their children’s best interest by forcing them to go to school, or to medical and dental appointments, parents are also expected to follow court orders that were made in their children’s best interest, even if that means forcing them.

[31] Thus, once again, this court has no choice but to step in and add more aggressive measures to ensure that the Respondent mother, who is outright refusing to follow a court order, does what she is legally obligated to do.

[32] It is very unfortunate that the court now has no choice but to add a police enforcement clause to protect the best interest of these children. The parties are warned, however, that involving the police is a last resort, and that they should explore all possible avenues before relying on them for assistance.

[33] Involving the police will likely have a lasting impact on the children. It is not the court forcing police involvement, however. Police involvement can be avoided if the court order is followed. The parties are, therefore, urged to follow this order so that police involvement, and thus, even more unnecessary stress on Eloyze and Kaël, can be avoided.

[34] Accordingly, this court orders the following:

1. An order requesting the involvement of Office of the Children’s Lawyer shall be made, and the parties shall cooperate and complete the intake process within the required deadlines;
2. The Applicants, Renée Dallaire-Théberge and Jean-Marie Théberge (the “grandparents” either together or separately), shall have contact with their grandchildren, Eloyze Couture-Théberge, born August 7, 2014 (“Eloyze”), and Kael Couture-Théberge, born January 21, 2017 (“Kael”), collectively the “Children”), at their home, or in another location of their choosing, as follows: a. Family Day weekend, from Friday, February 16, 2024, after school (or soon thereafter given travel time), to Monday, February 19, 2024, at 5 p.m.; b. On Thursday, February 22, 2024, after school (or soon thereafter given travel time), to 7:30 p.m.; c. From Saturday, February 24, 2024, at 10 am, until Sunday, February 26, 2024, at 5 p.m.; d. On Wednesday, February 27, 2024, from after school (or soon thereafter given travel time) to 7:30 p.m.; e. From Saturday, March 2, 2024, at 10 am, until Sunday, March 3, 2024, at 5 p.m.; f. On Wednesday, March 6, 2024, from after school (or soon thereafter given travel time), to 7:30 p.m.; g. During the first half of the March Break, from Friday, March 8, 2024, from after school (or soon thereafter given travel time) to Wednesday, March 13, 2024, at 5 p.m.; h. On Wednesday, March 20, 2024, from after school (or soon thereafter given travel time) to 7:30 p.m.; i. On Friday, March 22, 2024, from after school (or soon thereafter given travel time) to Sunday, March 24, 2024, at 5 p.m.; j. On Wednesday, March 27, 2024, from after school (or soon thereafter given travel time) to 7:30 p.m.; k. On Wednesday, April 3, 2024, from after school (or soon thereafter given travel time) to 7:30 p.m.; l. On Friday, April 5, 2024, from after school (or soon thereafter given travel time) to Sunday, April 7, 2024, at 5 p.m.; m. On Wednesday, April 10, 2024, from after school (or soon thereafter given travel time) to 7:30 p.m.; n. On Wednesday, April 17, 2024, from after school (or soon thereafter given travel time) to 7:30 p.m.; o. From Friday, April 19, 2024, from after school (or soon thereafter given travel time) to Sunday, April 21, 2024, at 5 p.m., and every second weekend thereafter with those same exchange times, unless ordered otherwise by the Court; p. On Wednesday, April 24, 2024, from after school (or soon thereafter given travel time) to 7:30 p.m., and every Wednesday thereafter at those same times, unless otherwise ordered by the Court;
3. The contact ordered is expected to take place even if the Children are not feeling well, or if they have social or extracurricular commitments/activities, such that the grandparents will take care of them, and/or such that they will take them to their social or extracurricular commitments/activities that may coincide with the above schedule;
4. No less than 24 hours before the grandparents’ contact time is to take place, the grandparents shall advise the mother, or her friend Peter Lamothe, by text message or other written messaging platform, where they would like the Children delivered for the ordered contact time. The mother, or a third party of her choosing, shall then deliver the Children to the grandparents, at their home, or at another location of the grandparents’ choosing, per their 24-hour notice, for the contact time;
5. The mother shall ensure that the children are ready for the visits with the grandparents, that they have everything they require for the visits, including homework and medication with instructions. If written instructions present difficulties issue, a voice note or video should be sent via smartphone;
6. The contact time ordered herein shall only be altered by court order, or by written agreement between the parties;
7. If the Children are more than one hour late to the visit, and if the mother or her third party has not communicated a valid reason for being late, such as road closures or dangerous road conditions, the police shall enforce this order. Wording required by the O.P.P. or any other regional or municipal police agency to ensure enforcement powers shall be incorporated into this Temporary Order;
8. The mother shall not contact the Children at any time while they are in the care of the grandparents;
9. The Children shall not contact their mother at any time while they are in the care of their grandparents;
10. The grandparents and the mother, or the mother’s friend Peter Lamothe, may, and should, communicate with each other while the Children are in the care of the grandparents, and the grandparents shall immediately contact the mother in the event of an emergency.
11. The mother shall immediately cease all discussions relating to these court proceedings with the Children;
12. The mother shall encourage the relationship between the Children and their grandparents, and she shall be supportive of the visits;
13. Neither the grandparents nor the mother shall speak negatively about one another, or about their respective extended families, to the Children, or within earshot of the Children, at any time;
14. Neither the grandparents nor the mother shall discuss the conflict between them with the Children, or within earshot of the Children, at any time;
15. The Children shall be able to call or Facetime their grandparents at any time;
16. A court date shall be scheduled, for one hour, which shall be used as a case conference, a Rule 1(8) motion hearing, or a Rule 31 contempt motion hearing, if one is necessary, and parties are expected to file materials within timelines set by the Rules;
17. The Respondent, Kassy Couture, shall pay costs of this motion, in the amount of $1,500.00, all-inclusive, to the Applicants, Renée Dallaire-Théberge and Jean-Marie Théberge, within 30 days;
18. Approval of this Order as to form and content is dispensed with.

It should be noted that the court adhered to the request of the Applicant grandparents to limit costs to $1,500, but that the cost consequences could have been much greater, pursuant to Rule 1(8), and that they will be so if another enforcement or a contempt motion is required.

The date to be set per paragraph 16 herein shall be set before me.

Justice J.S. Richard Date: February 12, 2024