) ) JAMIE ELLEN TELFER Applicant – v. –, 2013 ONSC 6838

CITATION : Telfer v. Alexander, 2013 ONSC 6838 COURT FILE NO.: 4908/08 DATE: 2013-11-05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) JAMIE ELLEN TELFER Applicant – and – SEAN PATRICK ALEXANDER Respondent ) ) ) ) ) ) ) ) ) Jamie Telfer, Self Represented Sean Alexander, Self Represented ) ) ) HEARD: June 11 & 12, September 9 & 10, 2013 REASONS FOR JUDGMENT GRAY J. [ 1 ] There are, in effect, two motions before me to change the order of Lemon J. dated May 6, 2010. The order of Lemon J. was made on consent after a number of days of trial.

A mere 7 months after the order was issued, the Applicant brought a motion, dated December 17, 2010 (Amended on May 15, 2011) to change the order. In his response to the motion, the Respondent made his own request to change the order. [ 2 ] In addition to the motions to change the order, both parties have brought motions alleging contempt of Lemon J.’s order. [ 3 ] In my view, the Court should be reluctant to change orders made on consent, particularly where a change is sought only a short time after the original order was made.

The Court has jurisdiction to change the order only where it can be shown there is a material change in circumstances. That will be difficult to do if the order has had only a short time to operate. [ 4 ] In this case, it is clear that in some respects the order of Lemon J. is not working as contemplated. Accordingly, some changes to the order are appropriate, although not to the extent requested by either party. [ 5 ] As for the contempt motions, they are dismissed. [ 6 ] My reasons follow. Background [ 7 ] The parties commenced living together in May, 2004, and separated in July 2008.

There is one child of the relationship, Riley Brook Alexander, born January 3, 2007. [ 8 ] It is fair to say that the relationship between these parties has been conflictual in the extreme. Having observed and listened to both parties over a number of days of trial, it is evident that they detest one another. There is no spirit of cooperation when it comes to the welfare of their child. [ 9 ] The matter originally went to trial before Lemon J. After eight or nine days of trial, the parties executed minutes of settlement, which were incorporated into a final order dated May 6, 2010.

Some provisions of the order are particularly germane to the issues before me. Those provisions are as follows: 1. The parties shall have joint custody of the child of the relationship, namely Riley Brook Alexander, born January 3, 2007. 2. Riley shall have periods of residence with each parent in accordance with Schedules “A” and “B” hereto,

Schedule “A” dealing with the period prior to Riley being in school on a full-time basis (anticipated to be in September, 2011) and

Schedule “B” dealing with

period after Riley is in school on a full-time basis. ***** 7. The parties shall celebrate special holidays as set out in

Schedule “D” 8. The Applicant Mother may take Riley away for U.S. Thanksgiving every year, provided that she gives advance notice to the Respondent as to the dates of departure and return, and provides the Respondent Father with make-up time if the Applicant needs to use some of the Respondent’s regular time with Riley for this holiday. 9. With respect to Riley’s extra-curricular activities:

a) Riley’s preferences regarding activities and lessons shall be taken into account and given substantial weight;

b) Mutual consent of both parties shall be required for enrolment in any activities that overlap both parent’s time with Riley and such consent shall not be unreasonably withheld. The resident parent shall be responsible for taking the child to any activities that fall during their parenting time;

c) The parents shall provide one another with all necessary information regarding Riley’s activities and lessons regardless of whose time the activity/lesson falls on;

d) The parties shall not

schedule Riley for more than two activities at a time. ***** 11.

a) When a parent travels alone or with Riley, the parent will provide a contact number to the resident parent in case of a child-related emergency and/or if Riley wants to contract the traveling parent.

b) The location(

s) and phone number(

s) of Riley’s whereabouts when traveling with the resident parent out of town shall be provided prior to departure to the non-resident parent in case of an emergency.

c) Riley may travel with either parent outside of Canada as per the usual and holiday schedules, with written notice to the other parent as soon as knowledge of travel is available. A full itinerary (i.e., location, airline name and number, times of travel, hotel name and number etc.) shall be supplied at the time written notice is provided.

d) The Respondent Father shall retain Riley’s passport and provide it to the Applicant Mother when required by her to travel outside Canada, and both parties shall sign the Nexus card Application within 30 days hereof and the Respondent Father shall arrange to have same processed.

e) The written notarized consent required by customs/immigration and the necessary documentation required for travel (i.e., birth certificate, passport) shall be provided to the other parent no less than 48 hours prior to departure.

f) Each parent shall keep the other’s name, number and address, along with instruction to notify, in their wallet so that the other parent may be contacted in the event of a child related emergency.

g) The Applicant Mother shall retain Riley’s birth certificate and provide it to the Respondent Father when required by him.

h) Riley’s health card shall travel with Riley at all times, including for regular periods of residence with each parent. 12. Maintaining two residences within a reasonable close proximity is preferable as it enables a smoother implementation of the Parenting Plan and allows frequent access to both parents. No less than sixty days notice shall be given to the other parent(

s) regarding a residential move. ***** 17. This Order is made in contemplation of the Applicant residing in the West Oak Trials area of Oakville and the Respondent residing in the Region of Halton some time in the near future. 18. The child Riley Brook Alexander shall attend an English language school and daycare in the Applicant’s catchment area so long as it is in Burlington or Oakville with the goal of having Riley in full-time school beginning in September 2011, unless the parties agree otherwise, which agreement shall be in writing.

Schedule “D” Christmas Eve, Day & Christmas School Break 1. The break shall be as per the usual

schedule with the parents alternating Christmas Eve from 12:00 PM (noon) until Christmas Day at 12:00 PM (noon) with the father spending time with Riley during this period in even years and the mother spending time with Riley during this time in odd years. 2. The parents shall alternate New Year’s Eve from 2:00 PM until New Years Day at 2:00 PM with the mother spending time with Riley during this period in even years and the father spending time with Riley during this period in odd years. [ 10 ] It was agreed that the Respondent would pay child support which, as of May 1, 2010, was $756 per month pursuant to the

Child Support Guidelines and based on the Respondent’s 2009 income of $84,573.51. It was agreed that the parties would share s.7 expenses proportionate to their respective incomes. [ 11 ] Both parties are gainfully employed. The Applicant has a responsible position with a large corporation, and the Respondent is a full-time firefighter with the Town of Oakville. [ 12 ] The Applicant lives in Oakville. It was clearly contemplated in paragraph 17 of the order that the Respondent would reside in the Region of Halton. However, he has not done so and he lives, instead, in Grimsby.

While there is some dispute in the evidence as to the length of time it takes the Respondent to drive from Grimsby to Oakville and return, there is no doubt that it takes between 35 and 45 minutes each way on average.

This has caused some of the difficulty between the parties. [ 13 ] In her amended Notice of Motion to Change the Final Order of Lemon J., the Applicant seeks an order that she have sole custody of the child; an order that the Respondent have access to the child every second weekend and one evening per week; an order that the Respondent have one half of all holiday time with the child; an order fixing arrears of child support; and an order that the Respondent contribute to daycare expenses. [ 14 ] In his response, the Respondent requests an order that he be given the right to look after the child if the Applicant is unable to do so; an order varying the procedure by which vacations are selected; an order narrowing the time during which the child can be with the Applicant during the American Thanksgiving holiday weekend; an order varying the right of each party to register the child in extra-curricular activities; an order that the Applicant return the child’s passport upon completion of travel with the child; an order that the Respondent be allowed to travel outside of Canada with the child without the need for a travel consent letter; and an order that the Applicant pay the sum of $791 as expenses he incurred in getting the Applicant to sign a travel consent form. [ 15 ] I heard several days of evidence.

It is clear that each party blames the other entirely for any difficulty. Neither party accepts any responsibility for the difficulty. [ 16 ] It was contemplated in the original order that the Respondent would move to Halton Region. He does not now intend to do so. He owns a home in Grimsby, Ontario, and he does not intend to move. He thinks that community is more relaxed, and is better suited to raising a child. He does not think the time to drive from Grimsby to Oakville is a serious concern. [ 17 ] Riley goes to school in Oakville.

It is not surprising that most of her friends will be in the community where she goes to school, although she has managed to acquire some friends in Grimsby. For the most part, however, her centre of gravity is Oakville. [ 18 ] Notwithstanding that Riley’s centre of gravity is Oakville the Respondent has sought to make arrangements for Riley for dental care and extra-curricular activities that are closer to Grimsby. For example, he made an appointment for Riley to see a dentist in Hamilton, and he registered her in soccer in Grimsby.

I am persuaded that the Respondent did not do this out of any particular belief that it was in the best interests of the child, but rather to demonstrate that as a joint custodial parent it was important that he have some measure of control over Riley’s activities. [ 19 ] There has been a distinct lack of communication regarding vacation time. The Applicant has been slow to designate her selected weeks of vacation which has made it difficult for the Respondent to plan his. As is invariably the case, the uncertainties in life have necessitated changes in anticipated holiday and/or vacation periods.

Requests for accommodation have often been ignored or rejected outright. A bone of contention has been Christmas Day.

Schedule D to the order has been drafted in such a way that each parent will have Riley for the entirety of Christmas Day in alternate years. When the parties realised that was the effect of the order, the parties seemed unwilling to make accommodations so that Riley would be with each parent for at least part of Christmas Day in each year. [ 20 ] The order clearly contemplates that while the Respondent would maintain physical custody of Riley’s passport, he is to furnish it to the Applicant if she needs it for travel purposes.

However, he refused to provide it if the Applicant would be taking Riley to the United States. He took the position that Riley would not need the passport in order to travel to the United States. He was also concerned that the Applicant had “lost” the passport once. For her part, the Applicant has been less than cooperative in providing travel consent letters when the Respondent needs them. Sometimes they have been provided at the last moment and sometimes they have not been notarized.

On one occasion, the Respondent had to seek legal assistance to get a consent letter. [ 21 ] Pursuant to the order of Lemon J., the parties were required to sign documentation so that a “Nexus” card could be obtained for Riley in order to facilitate travel to the United States. Ultimately, it developed that the authorities required a particular form of documentation, and required that each party attended personally to furnish it, or provide a letter to other party in order to furnish it.

The Applicant took a very technical approach to what she was required to provide, with the result that a Nexus card has not been obtained for Riley. [ 22 ] During the course of their evidence, the parties filed 56 exhibits, consisting of several hundred pages. They disclose a sad litany of non-cooperation. Each party accuses the other of acting in a manner that is not in the child’s best interests.

In fact, they have both acted in a manner that frustrates the intent of the order of Lemon J. [ 23 ] Motions for contempt were brought by each party, which ultimately were adjourned to me by the respective motions judges. The Applicant alleges that the Respondent is in contempt of the order because he refused to provide Riley’s passport when she needed it to travel to the United States.

The Respondent alleges that the Applicant is in contempt of the order because she refused to provide the documentation required to obtain a Nexus card for Riley. [ 24 ] The Respondent explains that he did not provide the passport because he did not believe that it was required for travel to the United States. He also asserts that on one occasion the Applicant “lost” the passport and refused to even advise the passport authorities of the loss.

Ultimately, the passport was replaced but the authorities advised that if it was lost again it would not be replaced. [ 25 ] The Applicant asserts that she signed a letter authorizing the obtaining of a Nexus card for Riley, and asserts that that was

all she was required to do. She was not prepared to attend personally before the Immigration authorities or provide any other form of documentation, because, according to her, it was not required by the order. [ 26 ] Prior to the trial before Lemon J., an assessment of the needs of the parties’ child was performed by Jacqueline Vanbetlehem. Justice Lemon made some comments during the trial that may suggest that he had doubts as to whether the report of Ms. Vanbetlehem could be admitted into evidence. [ 27 ] Motions were brought before the trial of the matter before me, before Belleghem J.

The upshot was that Belleghem J. ordered that an updated assessment be prepared by the same assessor. [ 28 ] Pursuant to s.30(9) of the Children’s Law Reform Act , the report is admissible in evidence. The Applicant testified that as far as she was concerned the assessor was biased against her, and the report should be ignored. [ 29 ] I have reviewed the updated report. I am not persuaded that the assessor was biased against the Applicant. While the assessor is critical of the Applicant in some respects, she is also critical of the Respondent.

Some excerpts from the report that are germane to the issues before me are as follows: “Since the onset of the initial assessment, the conflict between the parents has not abated. In fact, it seems to have escalated as previously unresolved issues have continued to resurface and seep into the current parental relationship. As a result there are frequent disputes over extra-curricular activities, travel, decision making, the regular and holiday schedules, vacation time, and the right of first refusal.

There is evidence to suggest that the parenting concerns have not significantly changed from the initial assessment. Despite the clear findings imparted in the report many of the parental behaviours that were considered to be risk factors to Riley’s post separation adjustment continue to this day. There is very little trust and goodwill between the parents and it is unlikely that either parent will be completely satisfied with any parenting arrangement. This updated assessment report clearly addresses the parental concerns in the context of the best interests of the child.” ***** “Both Ms. Telfer and Mr.

Alexander continue to have a close connection to Riley and she demonstrates an ease of affection and comfort with each of them. Each is involved in her social and academic development and both show involvement in her extracurricular activities. She continues to experience rich relationships with each of her parents’ extended families and friends. With the exception of the father’s family doctor who expressed generally the negative impact of post separation conflict on children, all the collaterals remarked she is a well adjusted and well behaved child.

Riley resides in two child-friendly, comfortable homes and very different, yet complementary, environments with each of her parents. With her father, she resides in a small rural town surrounded by nature, where she is reportedly engaged with the community and has developed peer relationships. ***** “Both parents argue that the other parent does not consult with them with respect to major decisions, such as health related decisions, and day-to-day decisions, such as extracurricular activities.

It is the Assessor’s observation that the father has made decisions that appear to be made in an attempt to assert his parental authority and sense that the mother believes she knows what is best for Riley and doesn’t consider his value in her life. Mr. Alexander acknowledges making decisions around soccer and dental care for Riley that preempted the mother’s initiation of these events and services, such as taking her to a dentist of his choice, knowing that the mother had already scheduled an appointment with another dentist.

The Assessor observes that the father does seem to respond to his sense of being marginalized by the mother. While the mother purports to consult with him, what she does is make a decision with specific criteria she determines is in Riley’s best interests, such as the physician she would like Riley to attend, (the criteria being that it must be the same physician she attends) or the particular attributes of the soccer club she would like Riley to attend (has to be a league as opposed to a skill development program, must be with other children that live near her, and must be outdoors).

She then provides the information to the father, seeking his input, although she has already determined the criteria by which the decision will be made, therefore mandating what the outcome will be. Ultimately the father does not feel his contribution is truly valued.” ***** “While the father has not honoured the spirit of the Court Order or his intention to move closer once Riley started school, there is little evidence to corroborate the mother’s concerns that Riley is exhausted or unable to manage the commute.” ***** “Riley’s connection to her environment and the Grimsby community must also be considered.

In her three years residing in Grimsby she has made friends in this community, she is known in the community and enjoys the nature and animals she sees from her back yard. It would be concerning to uproot Riley from both the environment she is familiar with and from the relationship she enjoys with her father.

Moreover, there is no reason to expect that Riley can not enjoy the benefits available in both of her parents’ communities.” ***** “The father’s reactionary behaviours in response to the mother’s actions, albeit, at times, justified, have become a pattern of behaviour and much more entrenched since the last assessment.

Not providing the passport to the mother least she doesn’t return it, enrolling Riley in activities after the mother initiates them, and taking her to the dentist of his choosing knowing the mother has scheduled an appointment for her suggests a very immature approach to dealing with his frustrations. Most concerning is that these behaviours impact negatively on Riley and perpetuate the ill will between the parents. Such reactionary behaviours were identified in the initial assessment and from the assessor’s perspective continue to play a role in the inability of the parents to collaborate and cooperate.

Moreover, such behaviours reinforce the mother’s belief that the father fails to consider the needs of the child.”

[30] I have found the report to be useful. While the ultimate decision is for the Court, nevertheless the assessor’s viewsrepresent those of an independent party whose interests reflect the best interests of the child. [31] As noted earlier, the Respondent pays $756 per month in child support based on his 2009 income of $84,573.51. TheOrder contemplates that Guideline child support is to be paid based on the previous year’s income. No adjustment has been made,notwithstanding that the Respondent’s income is now higher. [32]

Section 7 expenses are to be paid proportionately to each party’s income. The Respondent has not paid any portion of thedaycare expenses. Submissions [33] The Applicant submits that the order of Lemon J. should be changed so that she is awarded sole custody of the child. Shesubmits that the Respondent has made it difficult, if not impossible, to have effective decisions made regarding Riley’s welfare. He hasinsisted on making decisions unilaterally respecting dental care and extra-curricular activities, notwithstanding that such decisions are tobe made jointly.

He has insisted that Riley go to a dentist closer to Grimsby and play soccer in Grimsby, simply to demonstrate that hehas control as a custodial parent, rather than taking into account Riley’s best interests. [34] The Applicant submits that the Respondent has frustrated the intent of the consent order by refusing to move to HaltonRegion, and insisting that he live in Grimsby, a considerable distance away.

As a result, Riley must be driven back and forth, which isnot in her best interests. [35] Furthermore, the Respondent has demonstrated through his communications and conduct that he is unwilling to make anyaccommodations that are necessary on a day to day basis, and insists on the strict letter of the agreement even where it would be inRiley’s best interests to make some minor accommodations where necessary. [36] In the result, the Applicant submits that it is necessary to amend the order to allow her to have sole custody of Riley,which will allow her to make decisions in Riley’s best interests. [37] Furthermore, it is necessary to amend the order so that the Respondent will have overnight access to Riley only onalternate weekends, which will minimize the adverse effects of the driving, and will permit Riley to have a normal life. [38] The Applicant submits that the Respondent is clearly in contempt of the order of Lemon J. in that it requires theRespondent to furnish Riley’s passport when needed, and the Respondent has refused to do so. [39] The Respondent submits that the order of Lemon J. needs to be changed in order to allow him to care for Riley duringperiods when the Applicant is unable to do so, and would otherwise have a third party or family member do so.

He asserts that on manyoccasions he has asked the Applicant to allow him to care for Riley during such periods, and she has refused. The Respondent asserts that the order should be changed so as to require the Applicant to make her vacation selections by January 10th of each year, so that theRespondent will be in a position to make his own vacation selections on a timely basis. Because of his work schedule, it is importantthat he have ample opportunity to make his vacation selections in a timely way.

The Respondent asserts that the Applicant has beendilatory in making her selections, which has frustrated the intent of the order. The Respondent also requests an order expanding hisaccess time with Riley. [40] The Respondent asserts that the Applicant has taken the position that she can keep Riley in the United States for whateverperiod of time she wishes during the American Thanksgiving holiday, because the order contains no restriction.

Accordingly, he arguesthat the order should be amended to specify that the time of the Thanksgiving holiday weekend be spelled out. [41] The Respondent argues that the order should be amended so as to allow each party to register Riley in extra-curricularactivities in the location of their residence, without the consent of the other party.

He argues that the Applicant has unreasonablyobjected to the Respondent attempting to register Riley in extra-curricular activities in the location of her Grimsby residence. [42] The Respondent argues that the Applicant has made it very difficult for him to travel with Riley, and argues that thenecessity for a “travel consent” letter be dispensed with.

He argues that the Applicant should be required to pay the sum of $791, whichis the amount it cost him to finally get a travel consent letter signed by the Applicant, and it was necessary for him to do so through theservices of his lawyer. [43] The Respondent argues that the Applicant is clearly in contempt of the order of Lemon J. in that she refused to provide thedocumentation necessary to secure a Nexus Card for Riley. Analysis [44] The first issue is whether there has been a material change in circumstances, so as to allow this Court to vary the order ofLemon J.

It is clear that there must be a material change in circumstances, otherwise the Court has no jurisdiction to vary the order: see Litman v. Sherman (2008), 2008 ONCA 485 , 52 R.F.L. (6th) 239 (Ont. C.A.); and Persaud v. Garcia-Persaud (2009), 2009 ONCA 782 , 81 R.F.L. (6th) 1 (Ont. C.A.) [45] The Court must proceed with care before varying a final order. A motion to vary an order is not an appeal in disguise. The fact that one party or the other, or both, may have second thoughts about the order is not sufficient.

Neither is it sufficient that theorder may not work as well as they anticipated, particularly if it has been in operation for only a short period of time.

[46] The Court must be particularly cautious in my view, where the original order was made on consent. A consent orderrepresents a bargain, where trade-offs were undoubtedly made. The wording of the order was negotiated by the parties and their counseland it must be assumed that they carefully considered the implications and ramifications of each paragraph. [47] However, that is not to say that a consent order can never be varied. Where the order involves the best interests of a child,the underlying assumption is that the parties will act in the child’s best interests.

Where one or both parties do not do so, and it is clearthat they will not do so, then that underlying assumption has not been realised. In that circumstance, it can readily be concluded thatthere has been a material change in circumstances. [48] In this case, it is apparent that neither party is willing to act at all times in the child’s best interests. Each partyundoubtedly believes that he or she is acting in the child’s best interests, but objectively it is clear that they are not doing so. Instead,both parties are acting in their own best interests.

The child’s best interests appear to be secondary. [49] The Respondent has insisted on making unilateral decisions regarding dental care and extra-curricular activities. In myview, he has done so simply to demonstrate that he has control as a custodial parent. This is not in the child’s best interests. [50] It is clear to me that one parent or the other must have the unilateral right to make decisions. Joint decision-making isdoomed to failure. The difficult issue is to decide which parent will have the right to make decisions. After considerable reflection, Ihave decided that it must be the Applicant.

As a practical matter, the child’s centre of gravity is with her mother. That is wheredecision-making must reside. [51] I should make it clear that this is a close call. I could just as easily have decided in favour of the Respondent. Myexpectation is that the Applicant will consult with the Respondent and take his input seriously.

If she does not, she should not assumethat this cannot be revisited. [52] I order that the following be added to paragraph 1 of the order: “The Applicant shall make all decisions regarding medical and dental care (save and except in emergencies), education, religion, andextra-curricular activities for the child subject to consultation with the Respondent, which shall occur at least 1 week prior to anydecision being made. This shall be operative notwithstanding paragraph 9 of this Order.” [53] I decline to alter the access arrangements. It is important that the child have maximum contact with each parent.

I am notconvinced that the distance between Grimsby and Oakville is such that a reduction in Riley’s time with her father is required. While notideal, the distance between the parties is manageable. I am not persuaded that Riley cannot reasonably live with the driving that isnecessary, and in any event a reduction in the time with her father would not be in her best interests. However, I am not persuaded that Ishould increase the Respondent’s access time as he requests.

As far as Christmas Day is concerned, if the parties are unwilling to makea reasonable accommodation they must live with the Order as drafted. [54] I order that the following sentence be added to paragraph 5 of the Order: “The vacation weeks for the calendar year shall be chosen before the end of January in that year.” [55] I am not prepared to require that the Respondent be given a “right of first refusal” to care for Riley if the Applicant isunable to do so. An access arrangement does not simply require that a child be in the physical presence of one parent or the other.

During times when a child is under the care and control of one parent, it is important that the child be in that parent’s “space” even if theparent is not there. A right of first refusal, particularly where the parties are separated by a long distance, is impractical. [56] I am not prepared to vary the order so as to specify the time during the American Thanksgiving holiday weekend thatRiley will be with her mother. I am simply not persuaded that this is practical problem. [57] I am not persuaded that I should vary the order with respect to the child’s passport or travel consent letters.

However, theparties should harken to what I have to say on this subject in a moment. In the circumstances, I will not require the Applicant to pay$791 as the costs of obtaining a particular travel consent letter, but the Applicant should understand that she may very well be required topay the next time. [58] The Respondent should be paying Guideline child support based on his 2012 income, and a retroactive adjustment isrequired. This should be straightforward. If the parties are unable to agree, I will do the calculation for them. [59] The Respondent should be contributing to s.7 expenses.

I think a reasonable retroactive contribution is $4,000, andeffective December 1, 2013, I order that he contribute $150 per month. [60] This leaves for consideration the contempt motions. [61] As stated by the Court of Appeal in Hefkey v. Hefkey (2013), 2013 ONCA 44 , 30 R.F.L. (7th) 65 (Ont. C.A.) atpara. 3: “The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequateremedies are available to the allegedly aggrieved party.

The courts have repeatedly stressed that great caution must be exercised whenconsidering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly, and as wehave said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed”.” [62] In this case, it is clear that both parties have violated the order of Lemon J. The Respondent had no excuse forwithholding Riley’s passport from the Applicant. Whether or not Riley could travel to the United States without the passport, travel isclearly facilitated with the passport.

As far as the Nexus application is concerned, the clear intent of the order was that a Nexus card be

obtained for Riley. The exact form of documentation required to obtain a Nexus card is dictated by the Immigration Authorities, and not by the parties.

It was not sufficient, in my view, for the Applicant to take the position that she had signed a particular form of letter and the order did not require her to do anything more. [ 63 ] I am satisfied that the order in each respect was sufficiently clear; that each party disobeyed the order deliberately and wilfully; and that the violation of the order has been shown beyond a reasonable doubt. [ 64 ] Having made these findings, however, I am not persuaded that it is appropriate to make formal findings of contempt.

As stated by the Court of Appeal in Hefkey , supra , findings of contempt should be made sparingly and as a last resort. Having said that, however, the parties should be in no doubt that the next time the Court will not be as charitable. A court order is not a polite suggestion or an invitation. It is a direction, and it must be obeyed. Where a finding of contempt is made, it is a serious matter. Significant penalties may be imposed including fines, or imprisonment, or both.

Disposition [ 65 ] For the foregoing reasons, an order will issue adding a provision to paragraph 1 of the Order of Lemon J., as set out in paragraph 52 of these Reasons, and to paragraph 5 of the Order, as set out in paragraph 54 of these Reasons. The Order shall also be amended to require a retroactive contribution by the Respondent towards s.7 expenses of $4,000, and requiring him, effective December 1, 2013, to pay $150 per month towards s.7 expenses. His obligation to pay Guideline child support must be amended retroactively and prospectively as reflected in paragraph 58 of these Reasons.

If the parties are unable to agree on the calculation, I will do it. [ 66 ] In all other respects, the motions, including the contempt motions, are dismissed. [ 67 ] I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a costs outline. The Applicant will have five days to file her submissions, and the Respondent will have five days to respond. The Applicant will have three days to reply. Gray J. Released: November 5, 2013 CITATION : Telfer v.

Alexander, 2013 ONSC 6838 COURT FILE NO.: 4908/08 DATE: 2013-11-05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JAMIE ELLEN TELFER Applicant – and – SEAN PATRICK ALEXANDER Respondent REASONS FOR JUDGMENT Gray J. Released: November 5, 2013