Ontario Superior Court of Justice

Court File No.: FC-17-1480
Date: 2025/01/16

BETWEEN:
G.S. (Applicant)
– and –
S.B. (Respondent)

Applicant Counsel: Self-Represented
Respondent Counsel: Tamara Scarowsky and Amanda Martinez

Heard: November 19, 2024

Reasons for Decision on Penalty Phase
Justice Marc Labrosse

Overview

[1] This is the penalty phase of a contempt motion brought by the Respondent mother seeking a declaration that the Applicant father is in breach of several paragraphs of Engelking J.’s final order, dated December 15, 2022 (“Final Order”). The Final Order followed Engelking J.’s trial decision, also dated December 15, 2022. The Applicant’s appeal of the trial decision was dismissed by the Divisional Court on October 10, 2023.

[2] The parties are the parents of an 11-year-old boy.

[3] The Respondent has brought this contempt motion making an excessive number of contempt allegations against the Applicant which can be summarized in the following multiple-incident groupings:

a. He has failed to follow the parenting time provisions of the Final Order;
b. He has not paid outstanding costs awards or child support;
c. He has been disseminating information contrary to the Final Order;
d. He has been contacting the child surreptitiously through chat functions in online video games;
e. He has refused to abide by the parameters for video calls and in-person supervised visits; and
f. He has disparaged the Respondent.

Findings of Breach

[4] In my Reasons for Decision dated August 30, 2024 (2024 ONSC 4619), I made the following findings of contempt as against the Applicant of paragraphs 2(b), 6, 11, 29, 38, 40, 41, 42, 44, 46 and 47 of the Final Order. Those findings of contempt can be particularized as follows:

a. The Applicant failed to comply with para. 44 of the Final Order requiring him to delete all electronic, digital, video, media and photos of a sexual or otherwise compromising nature that he possessed of the Respondent;

b. The Applicant breached para. 46 and 47 of the Final Order by embarking on an online social media campaign about the Respondent and by making disparaging statements about the Respondent to the child’s friends and family from school and to the School Board. The Applicant chose to post personal information about the Respondent and the child on his social media accounts, including photographs and information which could reasonably embarrass the child and be damaging to the Respondent. He also intentionally sought to denigrate the Respondent to friends and to the School Board.

c. The Applicant breached paras. 41 and 42 of the Final Order in the manner that he communicates with the Respondent in Our Family Wizard (“OFW”). The Respondent provided numerous examples where the Applicant does not offer concise messages focussing solely on current issues. To the contrary, the Applicant uses OFW to threaten the Respondent, to the extent that he was charged criminally with harassment.

d. The Applicant interfered with the child’s therapeutic process by making unsolicited requests to speak to the child’s therapist contrary to s. 2(b) of the Final Order. More importantly, he withheld his consent to counselling which resulted in interference with the Respondent’s decision-making authority.

e. The Applicant has either communicated with or attempted to communicate with the child through video games, clearly breaching the Final Order’s parenting time provisions and the prohibition against texting the child. The Applicant has done this surreptitiously and with a clear intention to deceive the Respondent and involved the child in the breaches. In addition, these actions are a breach of the order that the Applicant’s parenting time be supervised.

f. The Applicant breached the document management provisions of the Final Order in paras. 38 and 40 by failing to return the child’s health card and passport.

Purging of Contempt

[5] At the commencement of this contempt motion, the court held a case conference with the parties and addressed the most glaring and obvious breach of the Final Order which was the Applicant’s online media posts. In large part, it would seem that the Applicant has purged his contempt in respect to this breach and did so before the contempt motion was argued. It must be noted that the social media campaign resulted in information about the parties being received by third parties and the removal of the information from the Applicant’s social media accounts could only accomplish so much. In large part, the damage was done.

[6] It must also be noted that the Applicant also provided evidence stating that he had deleted the content of a sexual or compromising nature about the Respondent and he provided evidence about the health card and the passport. Those breaches were purged to the extent that they could be. Regardless, the Respondent had obtained a new health card and has the authority to obtain a new passport without the consent of the Applicant.

[7] With respect of the online gaming communications, the Applicant states that his efforts to communicate with the child ceased when his video calls resumed. This is disputed by the Respondent, and it is alleged that these actions continued into September 2024. There was no evidence of ongoing or repeated breaches of para. 6 of the Final Order in or about the date that the penalty phase was argued.

Position of the Parties

[8] The Respondent has sought various remedies for the contempt motion. Her Notice of Motion goes so far as seeking that the Applicant be imprisoned. In the context of the social media campaign and breaches of the supervised parenting time provisions, this may have been an option considered by the court. However, as this matter has moved along, it is acknowledged that a number of breaches are now in the past and cannot otherwise be remedied. The goal is to take steps to ensure that they do not happen again.

[9] The Respondent’s position is that the Applicant’s repeated disregard for the findings of the trial decision and the terms of the Final Order warrant that the court essentially re-write the Final Order. As I have previously stated during this proceeding, that is contrary to the case law. Notwithstanding, the Respondent’s draft order seeks the following:

a. A declaration that the Respondent may travel without consent;
b. An order that the Applicant has not met the requirements of Stage 2 of the parenting time provisions of the Final Order;
c. That supervision of the Applicant’s parenting time be with Family Services Ottawa;
d. The suspension or reduction in frequency of video calls with the child;
e. That the Respondent may move with the child within Ontario and not be required to provide their residential address;
f. That the Applicant is prohibited from coming within 250 metres of the child’s school or extracurricular activities without written consent;
g. An order to limit the Applicant’s access to health care information;
h. That the Applicant be prohibited from recording, videotaping, monitoring, tracking or following the child;
i. Moving from the use of OFW to email;
j. A requirement that the Applicant pay a minimum of $10,000 as security for costs before he can schedule any further step;
k. That the Applicant is prohibited from communicating with the Respondent’s counsel with narrow exceptions;
l. A further restraining order;
m. Costs.

[10] It should be noted that the Respondent’s requested relief for this motion has understandably evolved with the status of the Applicant’s contemptuous behaviour. At the outset of this motion, the Applicant was in the midst of the social media campaign, he was communicating with the child outside of supervised parenting time and he had not yet purged certain areas of contempt. In addition, the motion was brought to curb certain interventionist behaviour such as the communications on OFW, interference with professionals and the numerous messages being sent to the Respondent’s counsel.

[11] As for the Applicant, he disputes all findings of contempt. He claims to have done everything to comply with the Final Order except where caused by the Respondent’s breaches. Essentially, the Applicant states that he has been forced to breach the Final Order but that it was always done with the child’s best interests in mind. The Applicant also proposes that this matter can proceed to a Motion to Change, but in the meantime, the Applicant suggests that it would be appropriate to:

a. Reverse custody;
b. Confirm that the Applicant has progressed to Stage 2 of the parenting time provisions;
c. Appointment of a Parenting Coordinator;
d. Request for an OCL investigation;
e. Sanctions for continued non-compliance.

[12] The Applicant has also attempted to put an Offer to Settle before the court to show his efforts to be reasonable. That document is not admissible and will be ignored. He may rely on it as part of costs submissions.

[13] At this stage, both parties have expressed their frustration with trying to operate within the confines of the Final Order. Understandably, the Final Order could never have been drafted in a way to anticipate how things would evolve post-trial. It is clear that the Trial Judge had hoped that the Applicant would benefit from his own therapy and the required parenting course and that his behaviour would change. Also, it was anticipated that at some point, likely after exercising his appeal rights, the Applicant would accept the terms of the Final Order and adjust his behaviour accordingly.

Analysis

[14] In large part, the penalty phase of a contempt motion is meant to find a way to make the contemptuous party comply with the Final Order. At this point, I have little hope that the Applicant will have any ability to work within the confines of the Final Order or even any order that follows the findings and directions of the Trial Judge. It is also acknowledged that most of the contemptuous behaviour is of a nature that cannot be purged. It is for that reason that it is likely that the Final Order needs to be amended to account for the Applicant’s ongoing attitude of justifying his various breaches. He truly believes that he is right, that he has done nothing wrong and that any breaches of a court order are justifiable by him as being in the best interests of the child. At this point, the Applicant appears to be unable to function in any environment that has the Respondent maintaining sole decision-making and primary residence. This needs to be considered when reviewing the terms of the Final Order. In coming to this conclusion, I have considered the various options that are available to the court which range from imprisonment, to making changes to the Final Order myself, to sanctions relating to costs.

[15] I have been guided by the following principles.

[16] An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available: Family Law Rules, O. Reg. 439/07, s. 1, r. 31(1) (“FLR”).

[17] If the court finds a person in contempt of the court, it may order that the person,

a. be imprisoned for any period and on any conditions that are just;
b. pay a fine in any amount that is appropriate;
c. pay an amount to a party as a penalty;
d. do anything else that the court decides is appropriate;
e. not do what the court forbids;
f. pay costs in an amount decided by the court; and
g. obey any other order: FLR, r. 31(5).

[18] The contempt power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. 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: Moncur v. Plante, 2021 ONCA 462, para 10.

[19] In parenting time cases, when the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo v. David, 2019 ONCA 385, para 19.

[20] Section 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) directs that the court shall take into consideration “only the best interests of the child of the marriage in making a parenting order”. Section 16(3) sets out several factors that the court must consider in carrying out the “best interests” analysis. These factors are well known to the court. In considering these factors, the court is required to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”: s. 16(2).

[21] The relevant factors to consider in sentencing for civil contempt are:

a. whether the contemnor has admitted the breach;
b. whether they have proffered a formal apology to the court;
c. whether the contemnor’s conduct was flagrant, and the level of defiance which they demonstrated;
d. whether the contemnor demonstrates any remorse;
e. how much the contempt has impaired the other party’s relationship with the child;
f. whether there have been ongoing breaches since the contempt motion was served;
g. the number of times that the contemnor has breached court orders;
h. whether the contemnor has previously found in contempt;
i. the outcome of any previous attempts to enforce compliance with the order;
j. whether the contempt can be purged: Sleiman v. Otaki, 2023 ONSC 1216, para 16.

[22] When considering the above factors, it is clear that the contemnor Applicant has not acknowledged any breaches, has not apologized, has involved the child in breaches and has not expressed remorse. Further, his contempt was flagrant, and particularly calculated when considering his online social media campaign and his efforts to circumvent the supervised parenting requirement by making contact with the child through online gaming.

[23] What makes things worse is that the Applicant’s position has remained steadfast. He disagrees with all findings of contempt or justifies his contempt by blaming the Respondent or by saying that he breached in the best interest of the child. All he wants to do is fight, oppose the findings of the court and blame the Respondent or the Trial Judge. What is a court to do with such defiant behaviour?

[24] In the end, it is clear that the Applicant is unwilling to work within the confines of the Final Order. He will continue to look for loopholes to get around the provisions of the Final Order. One example is how he determined that he could attend the child’s karate lessons by relying on the provision of the Final Order which allows him to attend “school events”. In this case, the karate lessons are an after-school activity and not a school event.

[25] My lack of reliance on the Applicant to respect the intent of the Final Order can be seen in his ongoing insistence on including explicit references and photographs of the Respondent in his materials. Rather than accept the blame for his role in doing so, he uses this evidence to point blame on the Respondent. I have no doubt that the Applicant will make every effort to remind whomever he can about the Respondent’s work as a sex worker and this will undoubtedly lead to that information making its way back to the child.

[26] My conclusion is that the purpose of the Final Order and having the Applicant move on to Stage 2 of the parenting time provisions was for this to happen once the conflict had calmed. This would have been after he completed and benefitted from his own therapy and the Parenting Through High Conflict Separation and Divorce Course. My view is that the Respondent has learned nothing from this course and his focus remains on going back in history and focussing on how he has done nothing wrong and that he is the victim of an erroneous legal process. The Applicant has maintained his position that the Respondent was and is an unfit mother, that the Trial Judge was wrong in her decision, that the Divisional Court was wrong in rejecting his appeal and that this Court is wrong in its findings of contempt. According to the Applicant, the only person who is right and who can care for the child is the Applicant and he will not stop until he reaches his goal.

[27] The result is that the intent of the Final Order cannot be met within these circumstances. In addition, it is clear that the Applicant cannot simply move on to Stage 2 of the parenting time provisions given his ongoing willingness to be selective as to how and when he complies with the terms of the Final Order. For example, he was well aware that this motion for contempt was being brought and he neglected to bring an end to his social media campaign against the Respondent until his back was up against the wall with this court at the case conference and was told in no uncertain terms that he needed to remove the online material. Furthermore, he continued to make attempts to contact the child via an online gaming platform and involve the child in the breaches although this court made it clear in the contempt decision that it was a breach of the Final Order.

[28] It is also of note that most of the contemptuous behaviour by the Applicant cannot be purged including the social media campaign, misuse of OFW and interference with the child’s therapy. Here, the damage has been done. The Applicant has created online followers and the published material cannot be retrieved from those individuals. They remain on the web and available through different sources.

[29] The court is also very critical of the Applicant who seems to want to find ways to refer to or publish information about the Respondent’s work as a sex worker. A reasonable person would have included the affidavit of Dean Theodossiou without the exhibits to be sensitive of the risk that these photos may find their way into the wrong hands and eventually to the child. However, this is not how the Applicant views this issue and he seems to want to bring this evidence out and rely on it despite the fact that the Trial Judge has already ruled on its relevance.

[30] Another example of the Applicant’s inability to focus on the best interests of the child is his insistence to record the video calls with the child. I have noted that there is no specific provision in the Final Order which prohibits the recording of video calls. However, this is where a parent would exercise judgment and consider if it is in the best interests of a child to have the video calls recorded and the risk that they could be published. The Applicant is focussed on his fight with the Respondent and alleges that the video calls are meant to protect him. I have already stated to the parties that the proper way to deal with improper termination of video calls is to note an objection through OFW. Does the Applicant believe that the judge hearing the Motion for Change will sit and watch hours of recorded video calls? Notwithstanding, the Applicant believes that he is justified in continuing to record the calls. The impact of such a decision will be for the judge who rules on the Motion to Change.

[31] It should also be noted that the Applicant continues to refuse to submit to the supervised access program in order to resume supervised visits with the child. The Applicant is solely focussed on the fight and trying to argue his way to Stage 2 of the parenting time provisions while ignoring the very clearly stated provision of the Final Order that requires that he not otherwise be in breach of the Final Order. The Applicant is focussed on the fight and not the best interests of the child which would be to resume supervised access. He could have been having supervised visits with the child months ago if he had not been so defiant.

[32] In the end, it is clear that the Applicant will do what he wants and will justify his breaches of the Final Order to be in the best interests of the child. At this point, the Applicant has shown himself to be unmanageable and the Final Order must be reconsidered with that reality in mind. The Trial Judge gave the Applicant the benefit of the doubt that he could change. This must now be reconsidered, and the new motion judge must now look at the Final Order through a different lens. The child must be sheltered from all the conflict that comes from the contemptuous Applicant who is responsible for an offensive intrusion on the child’s privacy by having posted all this material online.

[33] This penalty phase must be influenced by the actions of the Applicant. He has failed to admit his breaches or has otherwise justified them by blaming the Respondent, he has failed to apologize to the court and has remained defiant of the court’s rulings, his breaches were flagrant and involved the child, he continues to blame the Respondent and will undoubtedly do so with the child when he has the opportunity, his breaches were ongoing even after service of the motion and there have been multiple breaches. This all leads to the conclusion that if the Applicant were allowed to move on to Stage 2 of the parenting time provisions of the Final Order, he will take steps to undermine the Respondent’s role as the decision-making parent and this court has concerns as to the extent he may go to take the child away from the Respondent by way of alienation or other more drastic measures.

[34] Accordingly, my conclusion is that this matter must proceed to a focussed Motion to Change which will review the Final Order in light of what has transpired in the past two years. I have already expressed my view to the parties that the contempt motion process is not to be used as a Motion to Change. It is not for this court to start tinkering with the Final Order despite the fact that the record before the court provides ample evidence for a judge to proceed with the Motion to Change.

[35] In the meantime, the Applicant’s conduct and contemptuous behaviour merits a finding that it is not in the child’s best interest that the Applicant move on to Stage 2 of the parenting time provisions of the Final Order. His contemptuous behaviour and obvious desire to undermine the Respondent’s role as the decision-making parent must be considered in a Motion to Change prior to the Applicant having unsupervised parenting time. With all that has transpired and the Applicant’s obsession to oppose and be defiant of the limits imposed on his parenting time, is it really in the child’s best interest for the Applicant to have unsupervised parenting time with the child? I will not be the judge to decide the Motion to Change given the numerous findings that I have already made in the contempt process.

[36] While keeping the best interest of the child at the forefront of this analysis, I am persuaded that it is not in the interests of the child’s emotional and psychological safety and well-being to have unsupervised parenting time with the Applicant at this time. There is too much risk that the Applicant will do anything he can to undermine the Respondent’s role as the decision-making parent. Accordingly, the Applicant’s right to move on to Stage 2 of the parenting time provisions of the Final Order is suspended pending the outcome of a decision on the Motion to Change. This is not intended to punish the Applicant for his contemptuous behaviour but more as a consequence of a parent who has failed to comply with court orders and conduct himself in the best interests of his child. A reminder to the Applicant that a Superior Court Judge has determined what was in the best interests of the child as set out in the Final Order and the Applicant has refused to abide it. By not following the Final Order, the Applicant is harming the child and clearly looking to harm the child’s relationship with the Respondent. This is not in the child’s best interest.

[37] However, I do not agree with the Respondent that the Applicant’s supervised access should be limited to the supervised access program. This is an option together with the option of having the Respondent pay the cost of supervised access through a supervision company such as Renew Supervision.

[38] As for the video calls, while I disagree that they are being recorded, I make no order suspending or reducing the frequency. It is the Respondent’s obligation to ensure that they are made available to the Applicant with a monitor.

[39] The Respondent has requested various changes to the Final Order in terms of relocation, changes to the restraining order, changes to communication by OFW, exclusion of medical information, limits on his communications or restrictions relating to the non-payment of costs. These issues are all to be considered as part of the Motion to Change. My view is that until changed, the Final Order must be respected, other than my finding on moving to Stage 2 of the parenting time provisions, given the best interests of the child.

[40] In terms of restrictions on the Applicant’s participation in this litigation and the Motion to Change, the focus is on the best interest of the child, and I am of the view that the Applicant needs to be able to participate in the Motion to Change despite his non-compliance with his child support obligation and the payment of outstanding costs. This issue needs to come to a head and providing security on a property which may not legitimately be for sale is clearly not sufficient. The Motion to Change should possibly consider an order for the court to manage the sale of the Applicant’s home if he is unwilling or unable to meet his financial obligations.

[41] However, but for the Applicant’s participation in the Motion to Change, the restriction imposed by Audet J. that the Applicant not be entitled to commence any further proceedings without leave of the court shall be extended and his participation is limited to a Motion to Change and the eventual costs submissions from this contempt motion.

Conclusion

[42] For the reasons set out herein, the Applicant’s contempt is confirmed, and he is prevented to proceed to Stage 2 of the parenting time provisions of the Final Order until further order of the court. This matter will be scheduled for a Motion to Change on an expedited basis. Justice Labrosse will continue to case manage the file for the purpose of making very specific orders on what material may be filed or relied upon by the motion judge to ensure that motion records are manageable. Justice Labrosse will hold a Case Management Conference with the parties in the near future to properly identify the evidentiary record for the Motion to Change and what new material, if any, may be filed by the parties in addition to a page-limited factum and Notices of Motion.

Costs

[43] The parties are encouraged to resolve the issue of costs. However, if they are unable to agree, they may make written submissions. The Respondent will have 15 days from the date of this Endorsement to provide written costs submissions. The Applicant will have 15 days thereafter to respond. All costs submissions will be no longer than 4 pages plus attachments.

Justice Marc Labrosse
Released: January 16, 2025