Superior Court of Justice – Family Court

Court File Number: FC2019-50-0002
Citation: Graham v. Desgagne, 2025 ONSC 1115
Date of Judgment: February 12, 2025
Date Heard: February 4, 2025
Location: 59 Court Street, L’Orignal, Ontario, K0B 1K0

Parties and Counsel

Applicant: Samantha Paige Mayer Graham
Applicant’s Counsel: Franck Laveaux

Respondent: Nathan Jacob Desgagne
Respondent’s Counsel: Emma Dupuis

Children’s Lawyer: (Not yet appointed at time of hearing)

Endorsement

1. The parties have two children, who are now 10 and 9. The children reside primarily with the applicant, Mx Mayer Graham, and have parenting time with the respondent, Mr. Desgagne. Despite several court orders, Mr. Desgagne has not had meaningful and consistent parenting time with the children since August 2024.

2. The respondent brings a motion asking that the applicant be found in contempt. He alleges that they failed to facilitate his parenting time from December 21, 2024, to January 4, 2025, in breach of the order of Justice Smith, dated May 3, 2024 and my order of October 28, 2024. The respondent also seeks an order reversing the parenting schedule.

3. The applicant brings a motion to appoint the Office of the Children’s Lawyer (“OCL”).

4. The three motions were heard on February 4, 2025. For the reasons that follow, I find that the applicant is in contempt of the court’s orders of May 3, 2024 and October 28, 2024. I am granting the applicant’s request for the appointment of the OCL and will ask that this be done on an urgent basis. While I am not prepared to reverse the parenting schedule at this stage, I will consider this measure at the sentencing proceeding. In the meantime, the applicant is directed to provide make-up parenting time for the respondent.

Overview

5. The parties were married in 2016 and separated in 2018. The applicant resides in Embrun. The respondent is a member of the Canadian Armed Forces and resides in Winnipeg, Manitoba.

6. In 2019 and 2021, the court issued two final orders addressing parenting and support issues between the parties. These orders provided that the children would reside with the applicant and have parenting time with the respondent. They also set out how the children would travel between Winnipeg and Embrun and who would bear those costs.

7. In the main, the respondent had parenting time in accordance with these orders until 2024, when the issues giving rise to these motions arose. Since May 2024, the respondent has come before the court five times to deal with issues involving his parenting time.

8. At the father’s request, an urgent case conference was scheduled on May 3, 2024. On consent of the parties, Justice Smith rendered an order that same day (“Smith Order”), providing that the respondent have parenting time by phone at three specific times each week. The respondent would initiate calls to the applicant’s number, and the applicant was required to facilitate the calls with the children. The Smith Order also indicated that the respondent would have in-person parenting time over the summer of 2024 and at Christmas, from December 21, 2024, to January 4, 2025.

9. In the spring of 2024, there was a dispute about whether the respondent was required to pay approximately $1,000, either for child support or for travel expenses. In a series of text messages, the applicant indicated they would cancel the father’s in-person parenting time unless he made this payment. On July 11, 2024, the respondent brought an enforcement motion. Justice Kauffman issued an order directing in-person parenting time for the father in accordance with the Smith Order. He also directed the respondent to make the payment, on a without prejudice basis. However, Justice Kauffman concluded that the payment issue was not a basis for the applicant to deny the respondent his parenting time.

10. The summer parenting time took place as ordered, though not without issues. On August 12, 2024, the applicant apparently called the Winnipeg Police Service, claiming the children were in danger. The police attended the respondent’s home, conducted a wellness check, and reported that the children were fine.

11. Between August and October 2024, the respondent was denied any telephone parenting time with the children. On October 18, 2024, the respondent brought another enforcement motion. I issued a temporary order requiring the telephone ordered by Justice Smith and imposed a fine for each missed telephone visit. In addition, my order set out the following directions regarding the respondent’s in-person parenting time in December:

Within one week from today, the Respondent’s counsel shall advise the Applicant of the flights booked for the Christmas visit. The Applicant shall comply with the flight times booked by the Respondent and shall bring the children to the airport at the time of the flight as booked and pick up the children from the airport upon their return. A previous Order by Justice Pelletier stipulates that the cost of this travel is shared equally (50%-50%) between the parties. If the Applicant does not pay their share within 14 days of the respondent booking the tickets, the cost shall be enforced through the Family Responsibility Office.

12. On November 29, 2024, the respondent brought a contempt motion, alleging that the applicant was interfering with his phone calls with the children. Justice Champagne found that the applicant was in breach of court orders. However, she held they were not guilty of contempt, having technically complied with the court order because the children spoke with their father. Justice Champagne wrote:

Since Justice Flaherty’s order, the children have called their respondent but have told him they don’t want to speak to him and have complained that he is not respecting their wishes not to speak to him and that he is forcing them to go see him at Christmas.

I cannot find the applicant guilty of contempt as since October 18, 2024, they have technically complied with the court order by having the children call their father. I do however find that they are in breach of the various court orders as they are not complying with the spirit of the numerous court orders requiring telephone contact. Those court orders are meant to establish and promote meaningful contact between the children and their father. That is not happening. The calls are short and angry and the children who are only 9 and 10 tell their respondent they do not want to speak to him. There does not appear to be a reason for this behaviour. I have considerable doubt that the applicant is encouraging the children’s relationship with the respondent. They ignored the respondent’s multiple calls between August and October 2024 to have telephone contact with the children. In September of 2024 they suggested that the respondent surrender all his rights to the children in exchange for a release of his financial obligation for the children.

They even threatened criminal proceedings if he did not do so. Those are not the actions of a parent who is encouraging a relationship between the children and the other parent.

The applicant is required to do more than pay lip service to a court order. They are obligated to ensure that compliance with a court order is meaningful and that it accords with the spirit of the order. If they are unhappy with an order, they can bring a motion to change it. They cannot simply ignore it or give it no substance by their actions or inaction.

13. Justice Champagne granted the applicant leave to bring a motion for the appointment of the Office of the Children’s Lawyer and gave the respondent leave to bring a motion to change the children’s primary residence should he continue to experience ineffective compliance with the court orders.

Events Since November 29, 2024

Telephone Calls Between November 28 and December 21

14. Since the first contempt motion, there have been further and significant issues with the father’s parenting time.

15. Between November 29 and before December 21, 2024 the respondent had telephone calls with the children. The calls continued to be short and angry; as before, the children told the respondent they did not wish to speak to him.

16. The respondent provided transcripts of his calls with the children on December 10 and 19. The transcripts identify a voice in the background, which the respondent says belongs to the applicant. The applicant does not deny this. On the December 19th call, the children repeatedly stated, “We are not going to talk to you, we are not going for Christmas.” The applicant also spoke, telling the respondent that the kids did not wish to visit him.

No Christmas Parenting Time

17. The Smith Order provided for in-person parenting time for the father, from December 21, 2024 to January 4, 2025, and my order provided directions regarding how the children would be exchanged. The respondent shared the flight details for the children’s Christmas visit to Winnipeg as directed. The respondent arranged to travel from Winnipeg to Ottawa to meet the children and travel back with them to Winnipeg.

18. The respondent and his counsel made several attempts to reach the applicant to coordinate the children’s arrival at the airport.

19. On December 11, 16 and 20th, counsel for the respondent emailed the mother, asking them to confirm that they would bring the children to the airport on the morning of December 21. The applicant did not respond to any of these emails.

20. The respondent nevertheless travelled from Winnipeg to Ottawa on December 20th. At 6:30 am on December 21, the respondent texted the applicant to confirm that they would be at the Ottawa airport by 8 am, as the flight was at approximately 10. At 8:26, the applicant responded by saying they were in their vehicle outside the departure area of the Ottawa airport.

21. The parties exchanged a series of text messages between 8:26 and 9:08. These exchanges are compelling: they show the respondent pleading with the applicant and making every effort to locate the children at the airport. The respondent telephoned the applicant, who did not answer their phone. Mr. Desgagne went to the departure area and texted photos showing that the applicant and the children were not there, as the applicant had previously indicated. The respondent sent a pin of his location and asked the applicant to send a pin of their location. He also offered to pay for the applicant to park the vehicle so they could bring the children inside. The applicant replied to the text messages, but their responses were unhelpful and uncooperative. They neither agreed to the respondent’s suggestions nor offered any alternative solutions of their own. They simply repeated that they could not see the respondent from where they were.

22. The last text message from the applicant was at 9:08. Assuming they were ever at the airport, the applicant appears to have left around 9:08. In their affidavit, they provided the following explanation:

I phoned the respondent, asked him to come pick up the children at the site where I was not allowed to park for long and eventually had to leave when the respondent told me that he was already in the airport’s control area.

23. Significantly, the applicant’s assertion is inconsistent with the text messages between the parties, which show that the applicant was not available by phone and was not in the departures area. I have considerable doubt that the applicant went to the airport at all.

Telephone Calls since December 21

24. From December 21, 2024, to early January, the respondent continued to initiate calls to the applicant. These calls all went to voicemail and were not returned. Consequently, the respondent had no parenting time between December 21 and January 4, 2025.

25. The applicant resumed facilitating calls on January 4, 2025, after she retained counsel. Since then, the respondent says he has had long and meaningful conversations with the children. He states that they have not expressed any fear or reluctance to engage with him.

Background Information Relied upon by the Applicant

26. The applicant submits that their decisions and actions regarding the respondent’s parenting time must be considered in context, which they say includes:

a. An incident during the father’s parenting time with the children in the summer of 2022. According to the applicant, the Military Police and a social worker contacted them to advise that the children were not safe in the father’s care and would be removed. In response to this, the applicant says they travelled to Winnipeg to collect the children. The respondent denies this. He provided a series of text messages from July 2022, that show the parties had arranged for the applicant to pick the children up early.

b. The applicant’s allegations that the respondent physically abused the children before the parties separated and “at every visit the kids have made.” They refer to an incident at Christmas 2022 when the respondent allegedly “lost it,” and his mother and then partner, Ashley Mannix, had to intervene. The respondent denies these allegations.

27. These concerns date from at least 2022. The applicant had ample opportunity to bring a motion to change the parenting arrangement in light of their alleged concerns. They did not do so. Instead, they began withholding parenting time from the respondent two years later, in 2024. The mother’s concerns do justify non-compliance with court orders.

28. Moreover, the evidence does not substantiate the applicant’s allegations of abuse. Their assertions are inconsistent with the multiple agreements and consents to orders for extensive parenting times at Christmas and over the summer period over the years, as recently as the summer of 2024. Other than the incident in the summer of 2022, the applicant has not referred to any police or social service involvement with the father. They have not provided any documents from police or social services to substantiate their allegations.

29. The applicant’s allegation that urgent intervention was required during the summer of 2022 is inconsistent with text messages exchanged between the parties at that time. The applicant’s allegations are also contradicted by Ms. Mannix, who submitted an affidavit. Ms. Mannix and Mr. Desgagne are now separated, although they have a five-year-old child together. Ms. Mannix states that Mr. Desgagne is an active parent to their child and cares for him when Ms. Mannix works in the evening. Ms. Mannix says she has not observed Mr. Desgagne be physically or mentally abusive towards any of his three children. Ms. Mannix says she spent time with Mr. Desgagne and the three children almost daily during their visit in the summer of 2024.

Analysis

Contempt

30. The leading authority on civil contempt is Carey v. Laiken, 2015 SCC 17. The Court explained that to find contempt, a judge must be convinced of three elements beyond a reasonable doubt:

a. the order alleged to be breached must state clearly and unequivocally what should and should not be done;

b. the party alleged to have breached the order must have actual knowledge of it; and

c. the party allegedly in breach must have intentionally done what the order prohibits.

31. Importantly, a contempt finding is a remedy of last resort. It is a discretionary power that must be exercised cautiously and with restraint as an enforcement tool of last resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Valoris pour enfants et adultes des Prescott-Russell c. K.R. et A.C., 2021 ONCA 366 at para. 41; and Moncur v. Plante, 2021 ONCA 462 at para. 10.

32. When the issue raised on the contempt motion relates to parenting time and children, the paramount consideration is the best interests of the children: Valoris, supra at para. 41; and Moncur, supra at para. 10.

Were the Orders Clear and Unequivocal?

33. There is no dispute that the Smith Order and my order of October 28, 2024, are clear regarding telephone parenting time. They indicate when the calls take place, who initiates them, and the mother’s requirement to facilitate the conversation between the respondent and the children.

34. Counsel for the applicant submitted that the orders lacked clarity about the Christmas parenting time. While they directed the mother to “bring the children to the airport” in time for the flight, the orders did not specify where in the airport the children would be exchanged.

35. I do not accept this argument. The degree of specificity is not required for an order to be clear and unambiguous. The applicant knew they were required to bring the children to the Ottawa airport and understood what was required of them.

Did the Applicant have Knowledge of the Orders?

36. The applicant does not dispute that they had knowledge of the Smith Order and my order of October 28th. The applicant attended the case conference and consented to the terms of the Smith Order. They received copies of the endorsements and orders from the court. They also attended the contempt motion on November 29, 2024, during which both orders were discussed.

Did the Applicant Intentionally Breach the Orders?

37. Dealing first with telephone parenting time, there is no dispute that from December 21 to January 4, the applicant did not accept the respondent’s calls and did not facilitate his telephone parenting time with the children. Their explanation for this was that the children did not wish to speak to their father.

38. As Justice MacKinnon explained in Dunn v. Shaw, 2021 ONSC 8286 at paras. 20 to 22, deliberate and willful disobedience may be inferred if a party does not take concrete measures to apply normal parental authority to have the child comply with a parenting order. Parents cannot simply leave the decision about participating in parenting time up to the child. Instead, the parent has an obligation to do all they can to require the child to comply with the parenting order. Although the onus of proof beyond a reasonable doubt remains throughout on the moving party to the contempt motion, the other party has both a parenting responsibility and an evidentiary onus in responding to the contempt motion.

39. In this case, the applicant provided no evidence to show that they applied parenting authority or did anything at all to require or encourage their children to speak to their father. Significantly, the applicant did not even accept or return the respondent’s calls from December 21 to January 4. The applicant provided no explanation for this, other than to say the children did not wish to speak with their father.

40. Justice Champagne’s ruling had previously put the applicant on notice that they needed to do more to ensure meaningful compliance with court orders. However, rather than do more to ensure compliance with the orders, the applicant did less. It is not possible to facilitate telephone parenting time if you do not even answer the phone.

41. In some respects, this case is similar to Godard v. Godard, 2015 ONCA 568, where the Ontario Court of Appeal upheld a finding of contempt. In that case, the parent had also been put on notice that they were required to do more to ensure the children complied with the parenting order. Yet Ms. Godard provided no evidence to show that she had done anything more than encourage the children, effectively leaving the decision concerning compliance up to them. The Court of Appeal held that, in these circumstances, the motion judge had properly concluded that deliberate and willful disobedience was established beyond a reasonable doubt.

42. In the case before me, I am satisfied beyond a reasonable doubt, that the applicant deliberately breached the Smith Order. Their wilful disobedience can be inferred from their failure to take steps to ensure the children’s compliance with the parenting order. Moreover, their decision to not accept the respondent’s calls between December 21 and January 4th actively prevented the respondent from reaching the children. It was a willful and deliberate breach of the orders.

43. Turning next to the Christmas parenting time, I find that the mother’s behaviour was egregious. Knowing the respondent was travelling from Winnipeg to meet the children, the applicant refused to confirm they would deliver the children to the airport until after they were asked to be there. The text messages between the parties show that the applicant made no reasonable effort to bring the children to the airport, so they could catch their flight.

44. It is not clear that the applicant went to the airport at all. However, I cannot make that finding beyond a reasonable doubt. Even assuming the applicant did travel to the airport with the children, the evidence shows that they paid only the barest of lip service to the requirements of the October court order. The applicant did not bring the children to the airport in a meaningful way. They were late, they refused to cooperate or assist the respondent in his efforts to locate them, and the respondent’s photos show that they were not where they said they would be. The applicant effectively led the father on a wild goose chase in the minutes leading up to his return flight.

45. Again, the applicant’s willful disobedience can be inferred beyond a reasonable from their failure to take meaningful measures to comply with the court’s order. The order required the applicant to bring the children to the airport on time for their flight to Winnipeg. They failed to do this in any meaningful way.

Judicial Discretion and the Availability of an Adequate Alternate Remedy

46. Several steps have already been taken to address the applicant’s non-compliance with court orders:

a. the court has repeatedly declared that the applicant is in breach of court orders;

b. the applicant has been directed to pay costs and fines; and

c. the court has ordered specific terms to ensure compliance, including a detailed telephone parenting schedule and detailed steps to be followed for Christmas parenting time.

47. Notwithstanding all of this, the applicant continued a pattern of non-compliance. Until recently and despite the court’s interventions, the applicant’s non-compliance became increasingly flagrant. They went from paying lip service to telephone parenting time, to being told to do more, to not answering the respondent’s calls at all. Their behaviour leading up to the Christmas parenting time was particularly egregious. Moreover, the applicant has shown little insight into their behaviour.

48. I have considered the remedies available under section 1(8) of the Family Law Rules. Many of these measures have been attempted, others do not readily apply to the applicant’s circumstances.

49. As the hearing of this contempt motion approached, the mother began meaningfully complying with the order for telephone parenting time. The applicant now states that they are fully committed to complying with court orders.

50. The respondent submits that little weight should be given to this: it is too little too late. Moreover, this is part of a pattern where the applicant complies with orders in the face of imminent proceedings, but their non-compliance resumes once court proceedings conclude.

51. I have considered this carefully. While the applicant demonstrated compliance with telephone parenting time since early January, I have little confidence that their compliance will continue. They have shown no insight into the impact of their behaviour. Instead, they have attempted to justify it, relying on implausible arguments and inconsistent evidence.

52. In considering whether a finding of contempt is appropriate in this case as a last resort, I have been guided by the best interests of the children. The children have been placed in the center of their parents’ conflict and the applicant has used them as pawns. Clearly, this is not in their best interest and it must stop. Until at least early January and in the face of multiple court orders, the applicant’s non-compliance became increasingly egregious. The children have endured the fallout.

53. Given the applicant’s pattern of troubling behaviour and considering the children’s best interests, I believe a finding of contempt is necessary. I have no confidence that alternative measures would bring a stop to the applicant’s egregious behaviour and their non-compliance with court orders.

The Office of the Children’s Lawyer

54. The applicant seeks to appoint OCL so that the children’s wishes can be heard and considered. The respondent objects to the appointment, not because he does not wish for the children’s views to be considered, but because he believes they have been influenced and manipulated by the applicant to the point that their real views cannot be discerned. Also, he does not wish to cause further delays in what has already been a lengthy series of proceedings.

55. I agree that these are concerns. However, in the circumstances and given the significant remedies the respondent is seeking, it will be important to have information about the children’s views. The OCL is appointed on an urgent basis. In assessing the children’s views, it will be important for the OCL to consider the extent to which they have been influenced by the applicant.

Reversal of the Parenting Arrangement and Make-Up Parenting Time

56. The respondent submits that it is in the children’s best interests that their primary residence be reversed due to the applicant’s chronic lack of compliance with court orders and inability to support the father’s relationship with the children. While I have serious concerns about the applicant’s behaviour and lack of insight, I am not prepared to reverse primary residence at this time. However, I will consider this issue further at the sentencing stage.

57. In the meantime, in addition to his scheduled telephone parenting time, the father is entitled to make-up parenting time with the children. That parenting time will take place as follows:

a. The respondent may have two consecutive weeks of in-person parenting time with the children in Winnipeg. The respondent may select the weeks, but at least one week must be the children’s school spring break.

b. The applicant will bear the entire cost of travel for this visit, including the cost of the children’s tickets and the cost of the respondent’s trips to and from Winnipeg to accompany the children.

c. The applicant is required to deliver the children to the respondent at the Ottawa airport at a time designated by the respondent. To be clear, the applicant must arrive at the airport with the children at the designated time, they must park their car at their own expense, and must meet the respondent inside the airport, at a location of the respondent’s choosing.

d. When the children return to Ottawa, the applicant must be at the airport at the scheduled time of their arrival, they must park their car at their own expense, and meet the respondent and the children inside the airport at a location of the respondent’s choosing.

e. The applicant must be available to the respondent by phone and/or by text throughout the three hours prior to the children’s travel.

Disposition and Next Steps

58. For the reasons provided, I find the applicant in contempt of two court orders. The OCL is asked to act for the children on an urgent basis.

59. A return date will be scheduled in early April to receive an update regarding the OCL and to set a date for sentencing. The parties and their counsel may attend virtually.

60. The parties made cost submissions at the hearing of the motion. In the circumstances and given the finding of contempt, the applicant is ordered to pay the respondent’s costs of this motion on a substantial indemnity basis. Payment is to be made within 60 days.

Flaherty