Mattalo v. Perri, 2011 ONCJ 899

Sault Ste. Marie COURT FILE No.: 215/08 DATE: 2011-11-30 Citation: Mattalo v.

Perri , 2011 ONCJ 899 ONTARIO COURT OF JUSTICE BETWEEN: ) ) stephanie mattalo ) William Scott, ) for Stephanie Mattalo (mother) ) ) — AND — ) ) ) john perri ) Jaret Moldaver, ) for John Perri (father) ) ) ) ) HEARD: November 16, 2011 Gregson J.: [ 1 ] This is a decision on a notice of motion brought by the Respondent father John Perri located at Tab 26, Volume 1 of the continuing record against the applicant mother Stephanie Mattalo. [ 2 ] The father seeks an order of this court finding the mother in contempt for failure to comply with the court order dated October 4, 2010 which provided him with specified access to his son Montana.

The father seeks a remedy for the contempt pursuant to Rule 31(5) of the Family Law Rules . More specifically, the father seeks to have his access provisions either reinstated or increased by this court and seeks to have the mother pay his court costs on a full and substantial indemnity basis. The father also seeks the re- involvement of the Office of the Children’s Lawyer. [ 3 ] The mother brought a cross motion located at Tab 1, Volume 2 of the continuing record. She seeks an order dismissing the application of contempt on the basis she was justified in suspending the father’s access.

She further seeks a variation of the prior temporary order dated October 4, 2010 for an order that the father have supervised access until such time as the father successfully completes a drug treatment and/or counselling program. The mother also seeks an order for costs on a full and substantial indemnity basis. [ 4 ] The issues are as follows: 1. Did the mother breach the court order dated October 4, 2010; 2. If so, was she justified in breaching the court order or should she be held in contempt; 3. If she is found to be in contempt, what is the best remedy or sanction; 4.

Should any court costs be payable by either party. [ 5 ] I believe there is some merit in outlining the history of the ongoing court application which ultimately led to the parties bringing the above-noted notices of motion.

HISTORY [ 6 ] The applicant mother commenced a court application against the respondent father in September 2008. [ 7 ] Pursuant to the application, the mother was seeking sole custody of the parties’ child namely, Montana Gino Mattalo- Perri, born December 3, 2004 subject to the father having supervised access to Montana or in the alternative reasonable access on reasonable notice to the mother.

The mother also sought an order for child support and a restraining order. [ 8 ] In response to the application, the father filed an Answer making his own claim seeking joint custody of Montana with the child’s primary residence to be with his mother subject to specified access. [ 9 ] The affidavit material suggested these parties were involved in a relationship for six years from approximately June 2002 to April 2008. Montana was born on December 3, 2004.

The parties began living together from February 2005 until their separation sometime between January and April 2008. [ 10 ] Since the parties’ separation, Montana has always resided with his mother and the father has had access pursuant to various

court orders. [ 11 ] Since the court application was commenced three years ago, the parties have filed a number of affidavits replete with allegations of wrong doing against one another. [ 12 ] Despite the fact court orders were made over time to move the parenting issues along, both parties continued to raise prior allegations and concerns in their most recent affidavit material which had been outlined in 2008 and 2009.

Needless to say, the parties have been involved in a bitter and well litigated custody/access dispute. [ 13 ] Once the court application was commenced in September 2008, the mother claimed the father’s behaviour during unsupervised visits with Montana was affecting their son’s emotional well-being. Furthermore, the father allegedly went into a violent rage at his parents home on November 24, 2008. He apparently smashed his mother’s vehicle windshield while Montana was sitting in the rear seat of the vehicle. The mother believed this event was traumatic for Montana.

As a result of the father’s violent behaviour the mother advised the father he could no longer have unsupervised access. [ 14 ] Accordingly, on December 2, 2008, the father provided a letter to the mother which indicated that since he felt the mother had withheld Montana from him for the previous three months, he was now unilaterally taking Montana into his care as he was himself leaving for Vancouver to attend school at the end of the month and wished to spend as much time as possible with Montana.

He stated he had taken Montana out of daycare and would be spending a few days with him at a camp he had rented and the remainder of the time would be spent at his home. The father indicated to the mother he would be back in town in a few days and if the mother wanted to speak to him in a civil manner she could call him upon his return.

The father was aware there was no formal custody order made at that time. [ 15 ] As a result of the above the mother was able to obtain an ex-parte interim order on December 8, 2008 which provided for the return of Montana to his mother’s care forthwith and to have the police locate, apprehend and assist, if required.

The police did assist in the apprehension of Montana on December 8, 2008. [ 16 ] The father brought a notice of motion to deal with access to Montana and in particular to obtain Christmas access to him. [ 17 ] On December 19, 2008, on consent of the parties, an interim interim court order on a without prejudice basis was granted providing the father with specified unsupervised access to Montana including telephone access twice per week. [ 18 ] As a result of the father absconding with Montana, the Children’s Aid Society of Algoma became aware of the parties situation.

Although the affidavit material was not clear why the Society decided to request the parents and Montana be tested for drugs, they did so and both parents agreed. [ 19 ] On January 15, 2009, the results from Motherisk Drug Testing Laboratory at Sick Kids Hospital revealed Montana tested positive for cocaine.

The mother tested negative for this substance while the father tested positive for cocaine. [ 20 ] As a result of the drug test results, the mother brought a notice of motion dated January 16, 2009 seeking to suspend the court ordered access. [ 21 ] In the father’s affidavit sworn January 26, 2009 at paragraph 37, the father stated he believed the outcome of Montana having cocaine in his system stemmed from contact with the mother’s family as he knew he never had drugs around Montana.

Furthermore, he believed the mother was trying to set him up deliberately by drugging Montana to make him look bad. [ 22 ] In the father’s affidavit sworn September 2, 2011 in support of the motion for contempt at paragraph 8, he admitted that he struggled with drug addictions and that he was indeed using drugs during the time Montana was tested in December 2008 however he denied using drugs since January 2009. The father claimed he had never used drugs in the presence of Montana and had never been under the influence of drugs while caring for Montana.

Furthermore, the father suggested he had only had a three hour visit with his son in October 2008 and later saw him on a second occasion for five minutes in November 2008 during the timeframe in which Montana would have been exposed to cocaine. Accordingly, the father believed it was impossible for Montana to be contaminated with cocaine as a result of his minimal contact with him. [ 23 ] As a result of the father testing positive for cocaine, on January 21, 2009, the court suspended the order of December 19, 2008 save and except for telephone access twice per week.

Furthermore, as a result of the drug testing results, the Children’s Aid Society of Algoma forwarded a letter dated January 26, 2009 to the mother to state the Society would have increased child protection concerns in the event the father had unsupervised access to Montana. The Society would need to consider how best to address these increased protection concerns to ensure Montana’s safety and well-being. [ 24 ] Mr. Mike Zuliani was engaged by the Office of the Children’s Lawyer to complete an investigation in this proceeding pursuant to an order of the court dated June 25, 2009.

He filed his report with the court on the 17 th day of December, 2009. [ 25 ] Pursuant to the OCL report it was clear the mother had an opportunity to detail her concerns about the father. She expressed concerns about the father’s drug use and his temper. She also believed the father needed to improve his parenting skills. She was also concerned about the father’s past criminal record and how this could have an impact on the safety of their son. She further stated she was afraid of the father and focused her concerns on the failed drug tests by the father.

As such, she believed the father should have supervised access to Montana. [ 26 ] The father indicated to Mr. Zuliani that he and the mother had both abused street drugs when they were a couple and he was unsure whether the mother was still using. He further admitted that he used cocaine in the past and that he failed the drug test as ordered by the society. However, he stated that he was free of drugs and was willing to participate in drug tests on a random basis. The father stated the mother’s alleged fears of him were not real.

[ 27 ] It was Mr. Zuliani’s impression from his observations of Montana with both his parents that Montana had a strong relationship with both his mother and father and interacted well with both of them. [ 28 ] Mr. Zuliani concluded after reviewing the information gathered during his investigation there did not appear to be a valid reason why the father’s access needed to be supervised. If the society was satisfied with the father’s parenting skills and if they did not conclude Montana would be placed at risk in his father’s care, then the father could regain unsupervised access. [ 29 ] Accordingly, Mr.

Zuliani recommended the parents share joint custody of Montana with Montana residing primarily with his mother. The father would have parenting times on alternate weekends from Friday after school until Sunday evening eventually increasing to Thursday after school until Monday morning or as an alternative from Friday after school through to Tuesday morning with a sharing of major holidays.

The recommendations of access was subject to the approval of the society and included any required drug testing. [ 30 ] Despite the recommendations made by the assessor, the mother did not consent to implement increased unsupervised access. As such, the father agreed to supervised access on alternate weekends at the Algoma Family Services Access Facility.

Pursuant to a consent executed by the parents, a temporary order was granted by the court on March 19, 2009 providing the father with supervised access to Montana at the Algoma Family Services Supervised Access Facility in accordance with the terms, conditions and availability of the facility.

The mother was also provided interim custody on a without prejudice basis. [ 31 ] On June 8, 2010, pursuant to a consent executed by the parents, the court ordered a graduated and increased access order in favour of the father which commenced with access supervised by either of the father’s parents in June 2010 and unsupervised overnight access to Montana by August 2010. [ 32 ] On October 4, 2010, on consent of the parties, a court order was granted at a settlement conference permitting the father unsupervised access to Montana which included two overnights every other weekend and one mid week access for two hours duration.

The father was also permitted to have scheduled Christmas access to Montana. All such access was not to be exercised at the paternal grandparents’ business establishments namely, Madison’s, Pizza King or Glow during bar hours. All other terms of the court order dated June 8, 2010 continued to be in full force and effect. [ 33 ] It was the mother’s contention the father was not abiding by the October 4, 2010 court order as the father was attending with Montana at his parents’ bars during business hours.

Moreover, the mother felt all contact between the father, herself or her parents had become increasingly more verbally abusive. As a result, a letter was forwarded from the mother’s counsel to the father’s counsel to have the father desist his negative actions and behaviours and to comply with the court order. [ 34 ] In response to these allegations, the father admitted taking Montana to the Glow Night Club but only during the daytime when the club was closed to permit musicians to set up. He attended at Madison’s to pick up dinner leaving the restaurant a few minutes later.

Lastly, he attended Madison’s Restaurant with Montana’s entire hockey team. The father also claimed the mother took their son to similar type establishments. [ 35 ] According to the mother, Montana was returning from his father’s home feeling sick and dizzy during the months of February to March 2011. Montana apparently also disclosed that his father was smoking a pipe that did not smell like normal tobacco but rather like firecrackers.

The mother therefore obtained pictures of pipes used as drug paraphernalia on the internet and Montana identified a crack pipe that he believed his father had used. [ 36 ] In response, the father stated he took Montana to a friend’s camp. They showed Montana some antique tobacco pipes and explained to Montana that in the past people would smoke from the pipe rather than cigarettes. The father stated no one smoked from the antique pipes and was unaware of any smell.

Furthermore the father was adamant he had never used crack cocaine and had been drug free for two and a half years. [ 37 ] As a result of the mother’s suspicions the father was using drugs again, she arranged for Montana to take a drug hair follicle test on March 28, 2011. [ 38 ] In April 2011, the parents attended a court case conference. Through counsel, it was agreed the father would have access on alternating weekends from Friday after school until Tuesday morning and each Wednesday from 5:00 p.m. to 7:00 p.m. The parties also agreed to implement a one week about rotation for the summer months.

It was agreed the mother would create a summer

schedule and produce same to the father. According to the father this never took place. [ 39 ] According to the mother, she received the results of Montana’s hair follicle test on May 5, 2011. It showed that Montana had been exposed to cocaine for the previous 5 months, from late October, 2010 to late March, 2011. The results revealed the cocaine was in trace amounts which meant that Montana had frequent passive exposure to cocaine in his environment transferred through hands and/or clothing.

The mother in consultation with medical professionals believed that Montana’s exposure to cocaine was the cause of him not feeling well after visits with his father. [ 40 ] On May 6, 2011, the father attended at the mother’s home to pick up Montana when the mother handed him a letter indicating access was being terminated and that he would be advised through counsel as to the reason for her actions. The father later learned through his counsel by letter dated May 9, 2011 that the mother had taken Montana for a second drug test and he had tested positive for cocaine.

In the correspondence, the father was advised not to cut his hair and to immediately proceed to have a hair follicle test conducted on himself and his girlfriend, Lauren Elizabeth Lewis. According to the mother, the father’s hair at that time was at least three to four inches long. [ 41 ] The father’s counsel had serious health issues and as a result, the father had to retain new counsel and did so on May 24, 2011. Shortly thereafter, the father attended in Toronto for drug testing done on June 7, 2011.

The results dated July 5, 2011 showed a negative result for cocaine as per the first two centimetres of his hair closest to his scalp collected by the laboratory as the father had short hair for the testing. According to Motherisk Laboratory, an adult’s hair grows at the rate of 1cm per month. It would therefore

stand to reason that the father’s drug testing results would apply to the months of April and May, 2011 respectively. As stated earlier,Montana’s exposure coincides with the months of October through to March 2011.

Therefore, it is impossible to know conclusivelywhether the father was indeed consuming cocaine or attending environments with cocaine use during the fall and winter months, 2011although he was the parent who had previously tested positive for this substance. [42] Once the father’s negative drug test results were provided to the mother, she continued to state she would not permit accessunless it was supervised at all times. The father refused to reinstate supervised access.

The mother suggested the father waited fiveweeks to have the drug testing occur and purposefully cut his hair between the time he was advised about Montana’s drug test and thetime he attended for his own testing to manipulate the drug results. The father agreed there was a lapse of time but it was as a result ofhim having to retain new counsel.

He also denied cutting his hair stating he always kept his hair short during the late spring and summerseason. [43] As a result of Montana testing positive for cocaine, the mother stated she consulted with the Children’s Aid Society ofAlgoma, Sault Ste Marie City Police and her legal counsel. [44] The mother reported the society was supporting her decision of denial of access, although no proof has been documented tothis effect in any of the affidavit material.

The police apparently advised the mother they would not take any action against her if she wasin contempt of a court order in light of Montana testing positive for cocaine.

However, the mother confirmed the police suggested to herthat the court should deal with the matter. [45] It can only be presumed that the mother’s legal counsel advised her that she was well within her rights to deny or withholdunsupervised access from the father despite the existing court order which specified unsupervised access terms. [46] As a result of the advice received by professionals and the father’s past use of drugs, the mother no longer wished to allowunsupervised access to the father as she felt Montana was no longer safe in the father’s care and wanted to protect her son.

In themeantime, according to the mother, she was diligent with permitting telephone calls between the father and Montana, which was quitecontrary to the father’s recollection. She also provided the father with Montana’s

schedule for extra-curricular activities and noted thefather only attended three soccer games. [47] The father is currently living with his current girlfriend Lauren Lewis who is expecting their child. He indicated Ms. Lewisdoes not use drugs and they live in a drug free home. The father is a bar manager and works for his parents. [48] The mother is currently an unemployed teacher. Until she secures employment in her profession, she has been working at alocal restaurant/bar. [49] The father received information that the mother’s current boyfriend is an alleged drug user.

The father believed the motherpossibly orchestrated this scenario and caused Montana to be contaminated with cocaine or in the alternative that Montana inadvertentlycame into contact with the substance through the mother, her boyfriend or others who are associated with the mother. The fathersuggested the mother’s brother used cocaine and attempted to cast some wrongdoing on him also. For these reasons, the father suggestedthe mother, her boyfriend and her brother all be tested for drugs.

The mother wished to have the father and his partner tested for drugs.The court does not have jurisdiction to order third parties to be drug tested. If these individuals underwent drug testing of their ownaccord it would certainly assist to eliminate them as a possible source for contamination. [50] As a result of the above, the father has not visited with Montana since May 2011 save and except for seeing Montana onthree occasions at sporting events.

The father also suggested the mother has reduced his telephone contact in an effort to alienateMontana from him. [51] The father provided affidavit material in support of his motion for contempt which provided some new facts but alsoregurgitated numerous allegations against the mother in an attempt to discredit her character and to outline the mother’s campaign ofparental alienation against him. [52] The mother provided affidavit material in support of her cross-motion for supervised access which also rehashed allegationsagainst the father in an attempt to discredit his character and to demonstrate the father had attempted to take the law into his own handsin December 2008 and had not complied with the terms of the court order dated October 4, 2010 when he was bringing Montana tovarious bars.

The material also provided some new facts in an effort to justify the mother’s non-compliance with the October 4, 2010court order. LAW [53] A review of the case law dealing with issues of contempt including the Ontario Court of Appeal decision of Prescott-Russell Services for Children and Adults v. N.G. (2002) (ON CA), 82 O.R. (3d) 686 at page 27 suggests that threecriteria must be met before a person can be found in contempt of court, including in family law proceedings, which are as follows: (

a) The order that was breached must state clearly and unequivocally what should and should not be done; (

b) The party who disobeys the order must do so deliberately and wilfully; and (

c) The evidence must show contempt beyond a reasonable doubt. [54] Obviously, once a court order has been made by the court, it is expected that parties will abide by the order of the court,until such time as the order has been terminated or varied by further order of the court. Otherwise, it would undermine the administrationof justice.

[ 55 ] In family law proceedings, Rule 31 of the Family Law Rules deals with contempt of court motions brought by a party. In the event the court finds that a party is in contempt, Rule 31(5) of the Family Law Rules states the court may order that person to: (

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. ANALYSIS [ 56 ] It is clear from the affidavit evidence and by the mother’s own admission that she indeed breached the access terms in the court order dated October 4, 2010. The order was not ambiguous and the terms of access for the father were clearly set out therein. [ 57 ] The key question is whether the mother was justified in breaching the order. Clearly the mother was aware the father had abused drugs in the past.

In fact, as far as she was concerned, the father was the reason why Montana tested positive for cocaine in December 2008. [ 58 ] Despite the fact the father attempted to suggest he could not have been the one to expose Montana to cocaine in the fall of 2008, the father admitted he was indeed consuming cocaine in the fall of 2008 and he was the parent who tested positive for cocaine. [ 59 ] However, over the course of time, the father’s access began to increase, in particular in light of the positive OCL recommendations in his favour.

By October 2010, despite all of the history in this court proceeding and past concerns, the parents executed a consent temporary order providing the father with ongoing unsupervised access to Montana. [ 60 ] Thereafter according to the mother, the father’s behaviour became increasingly more verbally abusive towards her and her family. Montana furnished information which suggested his father might be abusing drugs again and Montana was returning from visits with his father stating he was not feeling well.

As a result, the mother decided to have Montana tested for drugs to alleviate her worst fears that the father was once again exposing their son to drugs. [ 61 ] The mother’s suspicions were confirmed with Montana’s positive drug test. Knowing she was not abusing drugs and believing no one in her family was abusing drugs, the mother on the advice from her legal counsel withheld Montana from his father on May 6, 2011. [ 62 ] The father eventually received a letter dated May 9, 2011 explaining Montana had tested positive for cocaine and was provided an ultimatum.

If he wanted access to be reinstated he was to immediately obtain a hair follicle test to show he was not abusing drugs. [ 63 ] Unfortunately, it took some time for the father to retain new counsel and although it was not court ordered, the father did attend for drug testing, albeit several weeks after he had received the letter from the mother’s counsel which had also outlined the time frame of the drug exposure to Montana. [ 64 ] Once the mother received the results of the father’s drug test indicating he was negative for cocaine use, the mother continued to assert her belief that any and all access had to be supervised as she believed the father had manipulated the testing by waiting several weeks to test his newly cut hair.

Considering the father had to seek new counsel and obtain legal advice from them, it is not with certainty that the father surreptitiously waited for time to pass before having his hair tested. [ 65 ] The father eventually brought a notice of motion for contempt dated September 2, 2011 and the mother filed a cross-motion dated November 11, 2011. [ 66 ] Frankly, if the mother believed circumstances had changed regarding the father which were not in Montana’s best interests, in my view, she had a positive duty to apply to amend the existing court order.

If she felt that an interruption of the father’s access was required until further investigation into the matter, she should have immediately applied to the court to vary the order even on an ex-parte urgent basis. [ 67 ] In all likelihood, the court would have suspended the father’s unsupervised access until such time as the father provided the results of his hair follicle drug testing which would have been court ordered.

Thereafter, I can only surmise that the issue of the father’s ongoing unsupervised access could have been dealt with by this court in the late summer of 2011 at the court’s insistence once the results of the father’s drug test would have been received. In my view, the mother’s conduct in waiting for the father to bring a contempt motion before she brought a cross-motion to vary was inappropriate. [ 68 ] It was clear the mother was aware of the existence of the court order dated October 4, 2010 which provided the father specified unsupervised access.

The mother was also aware that by withholding supervised access to the father she was indeed breaching the order of the court as she in fact reviewed her actions with police. Accordingly, her actions were both deliberate and willful.

[ 69 ] Although the mother knowingly and willfully declined to permit the father ongoing court ordered access as she believed she was protecting her son, she did so on the advice of the Children’s Aid Society of Algoma (although no formal proof has been provided) and her legal counsel. [ 70 ] Although the mother’s legal counsel did suggest to the father that he could exercise supervised access, he should have followed up this offer with an immediate motion to vary knowing full well his client was now in breach of an order.

Or at the very least, counsel for the mother should have brought a motion to vary in June 2011 when it became clear to him the mother did not wish to reinstate visits even though the father produced a negative drug test. [ 71 ] Although the mother may have felt she was well within her rights to withhold access considering the father had also breached the court order himself by taking Montana to bars and she wished to protect her son, unfortunately, she should not have made a decision to amend the court terms without the approval of this court. [ 72 ] Despite the bitterness between the parties as reflected in their affidavit material, I do not believe the mother acted out of malice or spite when she withheld access as she merely wished to ensure her son’s safety.

Nevertheless, the mother’s actions were not justified in disobeying the court order for the past six months. The evidence supported contempt beyond a reasonable doubt. [ 73 ] Accordingly, I find the mother to be in contempt for breaching the access terms as outlined in the court order dated October 4, 2010. [ 74 ] It would serve absolutely no purpose to imprison the mother or to impose a sanction which would interfere with her parenting of Montana. Decisions for Montana by this court are still mandated by

section 24 of the Children’s Law Reform Act and must be in his best interests. [ 75 ] Since the father did test negative for cocaine for at least the months of April and May 2011 and he is willing to attend for random drug testing, I am satisfied that all terms of the temporary order dated October 4, 2010 should continue in full force and effect, save and except with the following additions: 1. The mother shall attend for a hair follicle test for cocaine in the next 14 days and provide the laboratory with hair samples to obtain a minimum of five month history.

In the event the father tests positive for his drug tests in April and/or September, 2012, the mother shall also present herself for drug testing during those same months. 2. The father shall attend for a hair follicle test for cocaine in the next 14 days, between April 1 st and April 10 th , 2012 and between September 1 st and September 10 th , 2012 and provide the laboratory a hair sample to obtain a five month history of drug use. Each party shall pay for the costs of their own drug tests. 3.

The father shall further enjoy Montana for the following times during the Christmas holidays, over and above his usual access times, from December 25 th at 4:00 p.m. to December 27 th at 4:00 p.m. 4. A police enforcement clause shall be included to enforce the access and custody terms. 5.

An OCL order is granted to investigate the issues of custody and access in this matter. [ 76 ] In my view the father’s motion was successful and should be entitled to some payment of court costs. [ 77 ] The father’s counsel provided this court with a bill of costs totalling $27,000.00 and sought payment of these fees by the mother. [ 78 ] In my view the bill of costs seemed rather exorbitant considering the fees was for legal work from the end of May 2011 until November 2011 all in preparation of the motion for contempt with supporting material.

The bill of costs did not even include counsel’s travel time and expense to attend from Toronto to Sault Ste Marie for the hearing of this motion. [ 79 ] Although the father could have retained local counsel and legal fees could have been substantially less considering the father has claimed he only earns about $20,800.00 gross per annum, he is well within his rights to retain counsel of his choice whom he feels will provide him with the best legal representation. [ 80 ] Despite the above, the mother has minimal income to support her son and only receives the sum of $172.00 per month in child support from the father.

Any payment of costs against the mother will have a direct and financial impact on Montana. On the other hand the mother must have a financial penalty imposed upon her in light of her actions and the lack of success of the father’s motion. [ 81 ] Accordingly, the mother shall pay court costs to the father in the amount of $2,000.00 forthwith payable to Teplitsky, Colson LLP in trust. Released: November 30, 2011 ________________________________________ Justice Nathalie Gregson, Ontario Court of Justice