Children’s Aid Society of Waterloo Region v. S.L.M.A., 2011 ONCJ 665

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85. —

(3) Idem. — A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Kitchener Registry No. 531/10 DATE: 2011·VI·14 CITATION: Children’s Aid Society of Waterloo Region v. S.L.M.A. , 2011 ONCJ 665 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO, Applicant, — AND — S.L.M.A., Respondent. Before Justice Margaret A. McSorley Heard on 2 June 2011 Reasons for Judgment released on 14 June 2011

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended]. Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended],

section 38. Family Law Act, R.S.O. 1990, c. F-3 [as amended],

section 49. Family Law Rules, O. Reg. 114/99 [as amended], rule 31, subrule 31(1), subrule 31(5), subrule 31(7) Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 [as amended],

section 53. CASES CITED C.(D.) v. Children’s Aid Society of Ottawa et al., , 39 R.F.L. (6th) 387, [2007] O.J. No. 2814, 2007 Cars​well​Ont 4420(Ont. Fam. Ct.). MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048, 199 N.R. 279, 79 B.C.A.C. 135, 22 B.C.L.R. (3d) 201, 129 W.A.C. 135,[1996] 8 W.W.R. 305, 137 D.L.R. (4th) 633, 22 C.E.L.R. (N.S.) 1, 2 C.P.C. (4th) 161, 109 C.C.C. (3d) 259, , [1996]S.C.J. No. 83, 1996 Cars​well​BC 2301. Ricafort v. Ricafort and Ricafort, 2006 ONCJ 520, 35 R.F.L. (6th) 210, [2006] O.J. No. 5332, 2006 Cars​well​Ont 8554 (Ont. C.J.).

Les services aux enfants et adultes de Prescott-Russell c. N.G. et C.M., (ON CA), , 82 O.R. (3d)669, 82 O.R. (3d) 686, 214 O.A.C. 146, 271 D.L.R. (4th) 750, 29 R.F.L. (6th) 92, [2006] O.J. No. 2488, 2006 Cars​well​Ont 3772 (Ont.C.A.). Sharpley v. Sharpley, 2005 ONCJ 483, 21 R.F.L. (6th) 443[2005] O.J. No. 5697, 2005 Cars​well​Ont 7763 (Ont. C.J.). United Food and Commercial Workers International Union Locals 175 and 633 v. Rainy Lake Hotel, , 143 L.A.C.(4th) 135, [2005] O.J. No. 4140, [2005] O.T.C. 855, [2005] CLLC 220-069, 2005 Cars​well​Ont 4695 (Ont. S.C.). United Nurses of Alberta v.

Attorney General for Alberta, [1992] 1 S.C.R. 901, 135 N.R. 321, 125 A.R. 241, 1 Alta. L.R. (3d) 129,[1992] 3 W.W.R. 481, 14 W.A.C. 241, 89 D.L.R. (4th) 609, 9 C.R.R. (2d) 29, 71 C.C.C. (3d) 225, 13 C.R. (4th) 1, ,[1992] S.C.J. No. 37, 1992 Cars​well​Alta 10. John A. Morscher .......................................................................... counsel for the applicant society Grant W. Schafer ....................................................... counsel for the respondent mother, S.L.M.A. Frank D.P.

Carere ................................................ counsel for the Office of the Children’s Lawyer, legal representative for the child Stephen B. Good .................................. counsel for the non-party caregivers for child, M.P. and S.P. JUSTICE M.A. McSORLEY: 1: INTRODUCTION [1] The matter before the court involved a motion for contempt brought by the applicant society against the non-partycaregivers, Dr. M.P. and S.P. for non-compliance with the orders of 22 February 2011 and 18 March 2011. Specifically, the societyalleged that Dr.

M.P. and S.P. did not comply with the terms of the interim supervision order of 22 February 2011 regarding co-operation, or allowing the society workers access to C. at the home on a scheduled and unscheduled basis and did allow unauthorizedaccess to C. by the mother. With respect to the order of 18 March 2011, the society alleged that Dr. M.P. and S.P. did not allow thesociety workers or the lawyer from the Office of the Children’s Lawyer, Mr. Carere, to meet with the child, “at times and placesdesignated by the society and/or Mr. Carere and under circumstances set out by Mr.

Carere and/or the society workers” and furtherdid not sign the consents provided to them as required in paragraph 2 of the said order. 2: BACKGROUND [2] The protection application from which the interim orders and alleged contempt flow are with respect to one child,C.L.E.A. (born on […] July 2001). The child’s mother is Ms. S.A. and the child’s father is unknown. The persons against whom thecontempt motion is brought are the child’s maternal aunt, S.P. and her husband, Dr.

M.P. (hereinafter referred to as the “P.s”). [3] Concerns that led to the initial intervention included substance use and criminal activity by the mother, state of thehome, lack of school attendance by the child, lack of food in the home, inappropriate discipline of the child by the mother, suicidalthreats and mother’s mental health.

[ 4 ] In November 2010, the mother was hospitalized as a result of a suicide attempt. The mother was also consuming alcohol at the time. Because of mother’s potential violence, the child was apprehended and the home of the mother’s friend, Ms. B.G. was designated a place of safety. On the same day as the apprehension, the mother and S.P. attended at the society offices expressing concerns about the placement of C. with Ms. B.G. The society indicated that it would initiate a kin assessment of C.’s aunt and uncle.

On 12 November 2010 an interim interim “without prejudice” order was made placing C. in the care of Ms. B.G. subject to terms of supervision. [ 5 ] On 11 November 2010, C. was interviewed and reported that she wished to stay in the care of Ms. B.G.. She further reported that, when she had previously lived with the P.s, her aunt had chased her with a belt, hit her and yelled at her. The P.s denied all allegations of physical mistreatment of C.. In December 2010, C. attended a supervised visit with the P.s.

She subsequently declined any further visits indicating that the P.s were mean and that her aunt yelled and swore at her a lot. [ 6 ] On 26 January 2011, C. advised her lawyer that she wished to remain with Ms. B.G. and did not want to live with her aunt. On 1 February 2011, the mother also indicated that she did not want C. placed with her sister and Dr. M.P.. On 27 January while C. was being driven to a visit with her mother, she was advised that a visit had been planned with the P.s. C. began to cry and refused to visit with them. [ 7 ] Although initially, C.’s placement with Ms.

B.G. appeared to be going well, concerns arose regarding C.’s frequent absences from school, Ms. B.G.’s inappropriately involving C. in adult conflict, Ms. B.G.’s negatively influencing C. against her mother and the P.s, her lack of co-operation and allowing the mother unauthorized access to the child. In early February 2011, Ms. B.G. requested that C. be removed from her home. At that time, C. was reporting that she wanted to live with the P.s.

On 10 February 2011, C. reported to a worker that she wanted to live with the P.s and recanted all previous allegations of physical discipline and excessive yelling. [ 8 ] The P.s had participated in a kin assessment and were approved as a kinship service home. They agreed to work co- operatively with the society. The mother agreed with the placement of C. in their home. On 10 February 2011, C. was placed in the P. home on an extended access visit with the view to seek placement of her there under a supervision order.

Almost immediately after C. was placed in the P. home, they advised that they would not allow a society kinship service worker to attend at their home or meet with C. nor would they agree to a written kinship service plan regarding their care of C.. [ 9 ] On 22 February 2011, the matter was before the court. At that time an interim interim “without prejudice” order was made placing C. in the care of the P.s subject to terms of supervision. In the endorsement of Justice Sharon M.

Nicklas, it was noted that the P.s were not fully co-operative with the society and that the court, mother’s counsel and the Office of the Children’s Lawyer were concerned about the placement. The court ordered that counsel from the Office of the Children’s Lawyer have access to C. at the home of the P.s on an unscheduled and scheduled basis. Other terms of supervision vis-à-vis the P.s were that they would: (

a) co-operate with the society; (

b) agree to a written kinship service plan; (

c) meet with society workers at the home, agency or in the community as requested by a worker; (

d) allow a worker to have access to the home and to C. on a scheduled and unscheduled basis; (

e) sign releases of information; (

f) advise of any change in address or telephone number; (

g) ensure that the mother had no unauthorized access to the child; (

h) ensure that C. attended school; and (

i) ensure that C.’s medical and dental needs were met. [ 10 ] The matter was then adjourned to 24 February 2011. The P.s were ordered to attend court on the return date. On 24 February 2011, neither of the P.s was present in court. The endorsement of Justice Nicklas on that date indicated that no one had advised the P.s to be present and, as such, they could not be faulted for their non-attendance on 24 February 2011.

The endorsement went on to state the following: big issues — (1) previous allegations by C. against the P.s that have been recanted now. (2) lack of co-operation by the P.s and allowing accces to mom [ 11 ] The court went on to note that the mother advised the court that her sister and Dr. M.P. had stated they would co-operate and had retained a lawyer. Justice Nicklas noted in her endorsement that she wanted the P.s to attend court to hear their position on how they planned to co-operate.

As such, Justice Nicklas ordered that the P.s attend court on 1 March 2011, on 18 March 2011 for a settlement conference and on 29 March 2011 to have the matter spoken to. On 1 March 2011, the P.s did not appear in court. Their lawyer Mr. Good attended and indicated that S.P. was in Florida working and that Dr. M.P. would be returning the next day. The matter was again adjourned to 18 March 2011. [ 12 ] On 18 March 2011, the matter came before me for a settlement conference. The settlement conference did not proceed because neither the society workers or Mr.

Carere had been able to meet with or talk to C., except for one visit by the kinship service worker who saw C. in the home when she attended on 10 March 2011. The conversation between the worker and C. occurred when Dr. M.P. left the home to speak to his wife on the telephone and C. approached the worker and said ‘hi’. When Dr. M.P. returned to the home, C. went to play. Dr. M.P. then accused the worker of being sneaky for talking to C. while he was out of the room and further accused her of illegal activity because she was not a registered social worker. Dr.

M.P. advised the worker that he would not allow her to talk to C. in private in the future. [ 13 ] On 18 March 2011, a further order was made as follows (emphasis added):

(1) The child [C.E.A.] will be made available to the Children’s Aid Society of the Regional Municipality of Waterloo’s workers and the Office of the Children’s Lawyer, Frank Carere, at times and places designated by the society and/or Mr. Carere and under circumstances set out by Mr. Carere and/or society workers. [Dr. M.P.] and [S.P.] shall not be entitled to refuse to allow C. to meet with workers or Mr. Carere unless she is physically unable to do so. (2) [S.L.M.A.], [Dr.

M.P.] and [S.P.] are to sign consents of information provided by the Children’s Aid Society of the Regional Municipality of Waterloo’s workers and/or Frank Carere related to C.’s health, education and care. [ 14 ] The matter was then adjourned to 3 June 2011 for a settlement conference. The 29 March date was vacated and the P.s were ordered to attend court on 3 June 2011 peremptory. Before the settlement conference could take place, a motion for contempt was brought by the society against the P.s returnable on 17 May 2011.

The P.s were granted leave to file responding material and the matter was set for argument on 2 June 2011. 3: ISSUES [ 15 ] The issues before the court are whether the P.s are in contempt of any of the court orders related to them and, if so, what penalty should be imposed. 4: POSITION OF THE PARIES [ 16 ] The mother took no position on the motion. The society and the Office of the Children’s Lawyer argued that there was no doubt that the P.s have consistently been in contempt of several court orders and indicated that the P.s’ affidavit material acknowledged both past and ongoing contempt.

The society sought a penalty of $20,000 to be paid by the P.s to it. The P.s argued that co-operation must be a two-way street and it is not within their sole power to co-operate with the society, but that co-operation must be mutual and, as such, there can be no contempt on that term. They further argued that the misunderstandings about meeting with C. was more of a “scheduling matter that had gotten out of hand” and the orders should have been better defined. 5: THE LAW [ 17 ] Rule 31 of the Family Law Rules , O. Reg. 114/99, as amended, governs motions for contempt.

Subrule 31(1) provides that 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. Subrule 31(5) provides that, 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. [ 18 ] Subrule 31(7) places restrictions on the terms of imprisonment and fines. If a finding of contempt is made under the

section 38 of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended,

section 49 of the Family Law Act , R.S.O. 1990, c. F-3, as amended, or

section 53 of the Family Responsibility and Support Arrears Enforcement Act, 1996 , S.O. 1996, c. 31 [as amended], the fine and term of imprisonment is limited to $5,000 and 90 days in the first two acts cited and $10,000 and 90 days in the last act cited. However, there is no contempt

section in the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, and therefore no specific limitation on the amount of the fine or term of imprisonment. Further, the society did not request either imprisonment or a fine, but rather sought payment of a penalty by the P.s to the society. According to the case of Sharpley v. Sharpley , 2005 ONCJ 483 , 21 R.F.L. (6th) 443[2005] O.J. No. 5697, 2005 Cars​well​Ont 7763 (Ont. C.J.), the options available to the court under rule 31 are in addition to those available under the Family Law Act . Clause 31(5)(

c) permits the court to order a respondent to pay a penalty to a party, which is distinct from an order to pay a fine or to pay costs. [ 19 ] The case law on the issue of contempt is clear that a finding of contempt of a court order should be used sparingly and only in the clearest of cases. Wilfulness is required and the onus is on the party seeking the order for contempt and the burden of proof required is beyond a reasonable doubt. [ 20 ] In the case of Ricafort v. Ricafort and Ricafort , 2006 ONCJ 520 , 35 R.F.L. (6th) 210, [2006] O.J. No. 5332, 2006 Cars​- well​Ont 8554 (Ont. C.J.), Justice Heather L.

Katarynych indicated that the contempt power is to be used with restraint and in exceptional circumstances to respond to circumstances where it appears to be the only reasonable means to send a message to a litigant that court orders are not to be flaunted. She noted that the point of a contempt order is to bring home to a person shown to be in disobedience to a court order, the importance of obeying it. The evidence put forth to support a finding of contempt must satisfy the court beyond a reasonable doubt of the following: (

a) that there is a court order to be enforced; (

b) that the terms of the order are clear and not open to a variety of

interpretations;

(

c) that a party to the order has been put on proper notice of an application to find him or her in breach of the order, with theparticulars of the alleged breach clearly laid out so that the alleged contemnor is made aware of the case to which he or shemust respond; (

d) that there has been a disobedience of that court order; and (

e) that the party disobeying the order has done so in a deliberate and wilful fashion. Any doubt about any of these elements is to be exercised in favour of the person alleged to be in breach of the order. [21] In the case of D.C. v. Children’s Aid Society of Ottawa et al., , 39 R.F.L. (6th) 387, [2007] O.J. No.2814, 2007 Cars​well​Ont 4420 (Ont. Fam. Ct.), Justice V. Jennifer Mackinnon of the Ontario Superior Court of Justice dealt with amotion by a father to find the society in contempt of a court order when it denied him access to the child in question.

The order had setout specific times of access by the father to the child. The order specified that the child would be in the father’s care from Tuesday, 8May 2007 until 13 May 2007. Before such access could occur, the society served a motion on 7 May 2007 seeking to change the orderto provide the child would stay in society’s care until trial and changing the father’s access back to every alternate weekend from Fridayto Sunday. Notwithstanding service on the father of this motion, the father notified the society of his intent to pick up his child for theaccess as ordered.

The child was kept home from school for three days in order to prevent the father from picking her up at school forhis access and was intercepted in a parking lot so that she would not attend her speech therapy because the father was present andintended to take the child home pursuant to the order. [22] Justice Mackinnon found that there was an operative, enforceable order (dated 19 April) at the time of the allegedcontempt.

She further found that the bringing of the variation application did not prevent the father from alleging contempt of the orderof 19 April that occurred before the motion date of 14 May 2007. [23] Justice Mackinnon distinguished the case of Les services aux enfants et adultes de Prescott-Russell c. N.G. et C.M., (ON CA), , 82 O.R. (3d) 669, 82 O.R. (3d) 686, 214 O.A.C. 146, 271 D.L.R. (4th) 750, 29 R.F.L. (6th)92, [2006] O.J. No. 2488, 2006 Cars​well​Ont 3772 (Ont. C.A.), where the court found the order to be ambiguous. She found in the caseof D.C. v.

Children’s Aid Society of Ottawa et al. that the order was clear and unequivocal that the father was to have access on from 8 to10 May. The court found that the fact the society had a right to monitor the situation and a duty to comply in an ongoing way with itsstatutory obligations did not introduce lack of clarity to the order.

She found that the “good faith” of the society was not a defence to itscontempt and, even where a worker’s intention is to act in the best interests of the child, this was insufficient to justify breaching anorder. [24] This last element is important, because the P.s raised repeatedly in their material and in argument that they did not believeit was in the child’s best interests or physically safe for her to meet privately with workers or with counsel from the Office of theChildren’s Lawyer and it was this “sensitivity” that led them to refuse to allow workers or Mr. Carere to meet and talk to C. in private.

In the case of D.C. v. Children’s Aid Society of Ottawa et al., supra, the society submitted that its actions in disobeying the access order,keeping the child home from school so that the father could not pick her up for her ordered access and intercepting her before a speechtherapy session, again to thwart the father’s access, were all done in order to protect the child from exposure to conflict anticipated by thefather’s stated intention to enforce the order. The court found that this submission presupposed that the denial of access was justified inthe first place, which the court did not accept.

In looking at the reasons for the contempt, the court found that the decisions and actionsof the society met the requirement of deliberate and wilful disobedience of the order by the society. [25] The P.s are not parties in this proceeding, although the court orders raised on this contempt had specific terms related totheir obligations both to C. and to the court. Although it was not raised as a defence, there is no doubt that the contempt remedy isavailable against non-parties. In MacMillan Bloedel Ltd. v.

Simpson, [1996] 2 S.C.R. 1048, 199 N.R. 279, 79 B.C.A.C. 135, 22 B.C.L.R.(3d) 201, 129 W.A.C. 135, [1996] 8 W.W.R. 305, 137 D.L.R. (4th) 633, 22 C.E.L.R. (N.S.) 1, 2 C.P.C. (4th) 161, 109 C.C.C. (3d) 259,, [1996] S.C.J. No. 83, 1996 Cars​well​BC 2301, the Supreme Court of Canada discussed the distinction between beingbound by an injunction as a party and being guilty of contempt of court by obstructing justice.

While only parties are “bound” by aninjunction, anyone who disobeys a court order or interferes with its purpose may be found to have obstructed the course of justice andhence be found guilty of contempt of court. [26] Finally, in the case of United Food and Commercial Workers International Union Locals 175 and 633 v. Rainy LakeHotel, , 143 L.A.C. (4th) 135, [2005] O.J. No. 4140, [2005] O.T.C. 855, [2005] CLLC 220-069, 2005 Cars​well​Ont4695 (Ont. S.C.), Justice George P.

Smith of the Ontario Superior Court of Justice opined that the courts of this country view breaches oftheir orders very seriously because contempt is founded on the principle that a court must have the power to uphold its dignity and itsprocess. Justice Smith quoted Justice Beverley McLachlin in United Nurses of Alberta v. Attorney General for Alberta, [1992] 1 S.C.R.901, 135 N.R. 321, 125 A.R. 241, 1 Alta. L.R. (3d) 129, [1992] 3 W.W.R. 481, 14 W.A.C. 241, 89 D.L.R. (4th) 609, 9 C.R.R. (2d) 29,71 C.C.C. (3d) 225, 13 C.R. (4th) 1, , [1992] S.C.J.

No. 37, 1992 Cars​well​Alta 10,where she stated: Both civil and criminal contempt of court rests on the power of the court to uphold its dignity andprocess. The rule of law is at the heart or our society; without it there can be neither peace, nor ordernor good government. The rule of law is directly dependent on the ability of the courts to enforce theirprocess and maintain their dignity and respect.

To maintain their process and respect, courts since the12th century have exercised the power to punish for contempt of court. 6: ANALYSIS [27] In reviewing and applying the criteria set out in the case of Ricafort v. Ricafort and Ricafort, supra, there is no doubt thatthere was an operative and enforceable order — in fact, several orders — to be enforced and the P.s were put on proper notice of themotion for contempt.

The dispute between the parties relates to whether the terms were clear and not subject to a variety ofinterpretations, whether there was disobedience of the terms and whether that disobedience was wilful and deliberate. I am convincedbeyond a reasonable doubt that the terms of the various orders were clear, that the P.s disobeyed terms of the orders and that their

disobedience was wilful and deliberate. [ 28 ] The P.s were ordered to attend court on four separate occasions: 24 February, 1 March, 18 March and 29 March 2011. On 24 February, the court noted that the P.s had not been notified of the order and so could not be held in contempt for failure to attend. Similarly, the date of 29 March date was vacated and so no attendance was required. However, the P.s had notice of the court dates of 1 March and 18 March 2011 and did not attend on either of those dates.

The order could not have been clearer and the P.s decided that other activities could and should take precedence over the court process and chose not to attend.

This was wilful and deliberate and clearly contemptuous of the court process. [ 29 ] The second element of contempt argued by the society involved the P.s lack of co-operation with the society workers as required by term (a); lack of co-operation with a written kinship service plan as required by term (b); failure to allow a worker to have access to the home and to C. on both a scheduled and unscheduled basis as required by term (d); and allowing unauthorized access by the mother contrary to term (

g) of the supervision order. The society pointed out that the affidavits of the P.s acknowledged past and ongoing breaches of the order and that they did not deny the factual material set out by the society. [ 30 ] With respect to term (b), C. was placed in the home of the P.s on 10 February 2011. Prior to the placement, they had agreed to meet the expectations of the kin placement.

However, immediately upon C.’s being placed in their care, with the term that they would co-operate with a written kinship service plan, they advised the society that they would not allow a kinship service worker to attend at their home or to meet with Carly, nor would they agree to a written kinship service plan. This was a clear violation of term (

b) of the order and done deliberately and wilfully. [ 31 ] In paragraph 8 of S.P.’s affidavit, she referred to a visit from the worker as a “home invasion” during which the worker “stomped” out of the house when she was told she could not meet or talk to C. in private. S.P.’s excuse was that the order of 22 February 2011 did not indicate that private access to C. was required. [ 32 ] In paragraph 10 of the same affidavit when discussing the failure to follow term (

g) of the order, S.P. stated that Ms. S.A. is her sister and that she has looked after her for 25 years and “to say she cannot see us is crazy”. She went on to say in paragraph 56 that “S.A. is my sister. I will not turn my back on her. I will not deprive her of seeing her daughter while supervised by M. or myself. ” Further in the paragraph, she indicated that Ms. S.A. had been meeting them on Friday evenings at Wilfred Laurier to watch C. and Jordan swim. She noted that Ms. S.A. has a room in their home and that, since the order, Ms.

S.A. has slept over once but because she arrived after C. was in bed and S.P. was up first the next morning, there was “ no unsupervised access at any time ”. She does not deny that there was unauthorized access by the mother. What is truly remarkable about these comments is that they provide proof beyond a reasonable doubt that both the P.s allowed unauthorized access by the mother and intended to continue to do so, thus disobeying term (

g) of the order. [ 33 ] Mr. Carere who represents C. as counsel for the Office of the Children’s Lawyer noted that he had represented her since November 2010. He indicated that, until C. was placed with the P.s, he had no difficulty in interviewing her. He described her as a very intelligent child, engaging and easy to speak with. Since C. was placed with the P.s, Mr. Carere had been allowed to speak to her on only one occasion by complying with terms set by the P.s, specifically by not meeting with her alone. [ 34 ] Mr.

Carere was concerned about some of the messages the P.s were giving to C. while at the same time preventing him from meeting with her privately to discuss issues. In paragraph 36 of S.P.’s affidavit, she noted that “we are forever teaching our children to stay away from strangers and don’t get into situations where they could become vulnerable or prey to danger.” Mr. Carere was not a stranger to C.. He had represented her for at least three months before her placement with the P.s and had met and spoken to her without incident.

The message the P.s were clearly giving C. in refusing to allow her to speak in private to her counsel was that he was a potential danger to her. [ 35 ] In paragraph 9 of Kent Bannister’s affidavit, he deposed that, during a visit to the P. home on 12 May 2011 with worker Heidi Slessor, S.P. asked C. whether she wanted to talk to the “nice lady”. Ms. Slessor had been to the P. home on a number of occasions and was known to C.. When C. indicated she did not really want to talk to Ms. Slessor, S.P. asked C. whether she felt safe or whether she wanted to call 911.

Such a statement was guaranteed to send a message to C. that speaking with these workers was so unsafe that she should feel free to call the police if necessary. Considering C. was in the presence of both of the P.s, Ms. Slessor who she knew and Mr. Bannister, such a statement was both unwarranted and detrimental to the child’s well being. More importantly the refusal of the P.s to allow C. to meet and talk with both workers and with counsel from the Office of the Children’s Lawyer appeared to be an attempt to monitor and potentially limit the information that C. might provide to workers and her counsel.

This is supported by the letter of the P.s’ lawyer, Mr. Good dated 2 March 2011 where he indicated that the P.s had concerns about unsupervised access to C. by either the mother or the Office of the Children’s Lawyer because C. had made damaging statements about the P.s in the past on the instruction of her mother. [ 36 ] In a subsequent letter of 8 March 2011, Mr. Good advised the society that C. could meet with her counsel but only if a third party was present to ensure that the line of questioning Mr.

Carere used was appropriate. [ 37 ] As a result of the difficulties experienced by the society workers and the Office of the Children’s Lawyer in meeting with C., I made the order of 18 March, set out in paragraph [13] above. The order was clear that C. was to be made available to both society workers and to counsel from the Office of the Children’s Lawyer a t times and places designated by them and under circumstances set out by them.

The order also required the P.s to sign consent of information provided by the society or by counsel from the Office of the Children’s Lawyer relating to C.’s health, education and care. The order was clear that the Office of the Children’s Lawyer and the society workers could set the time, place and circumstances of any meeting with C.. [ 38 ] Notwithstanding this order, the P.s continued to refuse to allow the society workers or the Office of the Children’s Lawyer to meet with C. in private. On 25 March 2011, Mr. Carere wrote to Mr.

Good indicating that he intended to arrange a number of interviews and set out the order of those interviews. He further indicated that his assistant would be arranging the interviews directly with the P.s and asked that those arrangements be confirmed as soon as possible. Mr. Carere also requested that the releases provided to

the P.s be signed and returned as soon as possible. [ 39 ] On 26 April 2011, Mr. Carere sent a letter to the society, with copies to Mr. Good, Ms. Slessor, Mr. Thompson (social work assist) and Mr. Schafer, mother’s counsel. In that letter, he indicated that the P.s had not provided the signed consents to his office, had not agreed to the interviews suggested, but had agreed that C. could be interviewed by him and Mr.

Thompson at Cardinal Counselling, but that this would be the last interview that intefered with C.’s attendance at school, notwithstanding suggested weekend meetings, and that the interview would be limited to two hours. [ 40 ] On 1 May 2011, Dr. M.P. sent an e-mail message to Mr. Carere indicating that he would not allow Mr. Carere to interview C. at school and that he would not sign consents for release of information unless reasonable grounds for seeking such consents and what information was being sought and from whom, was set out on the forms. Dr.

M.P. then went on to state that he was open to scheduling private interviews between C. and Mr. Carere provided the following conditions were met (for the safety of C.): 1. there would be an independent third party present in the interview room; 2. the room in which she was to be interviewed had a window so that others could see inside; and 3. the door to the room was to remain open at all times. [ 41 ] On 28 April, Ms. Slessor wrote to the P.s indicating that she had left a message on S.P.’s phone two days earlier seeking a private meeting with C. and had not heard back from them.

She suggested a meeting with C. on 12 May at 6 p.m. and requested that the P.s get back to her. [ 42 ] In S.P.’s affidavit at paragraph 46, she deposed that she and her husband read the order of 18 March and, when Ms. Slessor asked to speak with C. in private, they said “no”. Later during the same meeting, Ms. Slessor again asked to speak to C. in private, and again the P.s refused. In Mr.

Bannister’s affidavit of 12 May 2011, he deposed that there were three distinct requests for a private meeting with C. on 12 May 2011 and all the requests were denied. [ 43 ] In addition to preventing the child protection worker from doing her mandated duty under the Child and Family Service Act , the P.s prevented C. from speaking privately and candidly to her own counsel. The Office of the Children’s Lawyer has a duty to represent its clients in the same manner as any other counsel.

Conversations between the Office of the Children’s Lawyer and its clients are subject to the same solicitor-and-client privilege that adults have with their counsel. Mr. Carere noted that there had been allegations of inappropriate behaviour toward C. by the P.s and their son. Yet it was impossible to discuss these allegations with C. because the P.s are insistent that the line of questions be appropriate from their point of view. Their actions lead to a suspicion that they have something to hide. Additionally, Mr. Carere has a mandate to provide information as to C.’s views and preferences.

He needs to obtain those views and preferences without fear that C. is being coerced, influenced or threatened by the people who are providing for her care. He and the child protection workers must be permitted to perform the duties that they are mandated by law to perform. Dr. M.P. and S.P. have prevented that despite the court order. [ 44 ] The P.s were aware that they had been ordered to be in court on at least two separate occasions. Attending court on those occasions was not convenient for them and so they ignored those orders.

The order of 18 March was clear that C. was to be made available to meet with social workers and the Office of the Children’s Lawyer at times and places and under whatever circumstances were prescribed by the workers and the Office of the Children’s Lawyer. Requests for meetings in private were made and options given for times and dates and despite those requests, that order was not followed either. Instead, the P.s attached their own conditions to their compliance. Their own material makes it clear that they were not prepared to follow the court order unless the order met with their approval.

Their rationale for refusing to allow C. to meet with workers or the Office of the Children’s Lawyer privately has been that they do not feel it is safe for her to do so. [ 45 ] However, the decision in D.C. v. Children’s Aid Society of Ottawa et al. , supra , makes it clear that believing a breach is in the best interests of a child or belief that one is acting in good faith is insufficient defence to the finding of contempt. Dr. M.P. and S.P. wilfully and deliberately disobeyed the order of 18 March and had no right or legitimate excuse to do so.

They also disobeyed orders to attend court and disobeyed a supervision term by allowing the mother unauthorized access to C.. There is no doubt in my mind that the P.s are in contempt of the court orders. [ 46 ] As indicated in the case law, the court has a duty to uphold its dignity and process. The rule of law is dependent on the ability of the courts to enforce their process and maintain their respect. To ignore the contempt by the P.s would put the administration of justice into disrepute and would send a very dangerous message that court orders can be ignored and that no consequences will ensue.

Parties subject to court orders are not permitted to choose which orders or parts of orders they will obey. Court orders are made after careful deliberation of all the facts presented to the judge and, unless overturned on appeal, are considered correct. The court does not take its duty lightly and neither should a party take a court order lightly. Persons who wilfully and deliberately disobey a court order show contempt not only to the court but to the entire legal process and the law.

To allow such contempt to go unnoticed and unpunished would result ultimately in a breakdown of order and government. [ 47 ] Of further concern to the court are statements made by counsel during argument and on the following morning when the matter was spoken to that confirmed for me that the P.s are only prepared to remain involved in this matter and provide care for C. if it is on their terms. Mr. Good stated during his argument that the P.s would make C. available for a meeting with workers and the Office of the Children’s Lawyer so long as it was in a public place.

Once again, even though several comments were made during argument about how the P.s had been in contempt, they continued to set the conditions and parameters of their compliance. The next morning, Mr. Good advised the court that the P.s did not wish to be found in contempt and that they would now agree to private meetings between C. and the Office of the Children’s Lawyer and the workers. This was after a further interim order had been made, setting out that workers could pick C. up at the P. home and deliver her to meetings with workers and Mr. Carere.

He then indicated that the P.s were not prepared to have the society or the Office of the Children’s Lawyer in their lives going forward and that, if such interviews could not be completed to the satisfaction of the Office of the Children’s Lawyer and the society by 21 June 2011, they would be “giving C. back to the society” at the end of the school year. Although they are free to make this decision, it is certainly not very child focused and shows no concern for C..

[ 48 ] Having found the P.s in contempt, the court must turn its thoughts to what remedy should be imposed. The remedies are set out in paragraph [17] above. Although in its motion the society sought imprisonment, during argument it sought the imposition of a penalty payable to them in the amount of $20,000. 00. Although the amount appeared high, the society argued that the P.s were persons of substantial means. Dr. M.P. is an oral surgeon and S.P. raises and shows horses.

The society argued that the penalty should be a stinging one to have any impact on the P.s and to send a message to other persons who think to disobey a court order. I am inclined to agree. [ 49 ] However, the court is also permitted to suspend the ordering of a penalty to determine whether the course of events can be changed. I am anxious to see whether C. is made available to counsel and to society workers and whether the P.s are prepared to keep C. in their care subject to a supervision order with which they must comply.

Therefore, I am going to suspend the passing of a penalty until after the settlement conference scheduled for 10 August 2011. I expect the society and the Office of the Children’s Lawyer to provide specific details as to compliance by the P.s at the settlement conference. [ 50 ] Therefore for reasons set out above the following order to issue:

(1) Dr. M.P. and S.P. are found to be in contempt of the orders of 22 February 2011 and 18 March 2011.

(2) The decision on the appropriate penalty is adjourned until after the settlement conference on 10 August 2011.