J. 2002 SKQB 457 A.D. 1999 No. 518 J.C.R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: JAMES GUSTAV FYSTROM and ROSALIN GERALDINE FYSTROM RESPONDENT J.J. Vogel for the petitioner E.F.A. Merchant, Q.C. for the respondent FIAT WILKINSON J. November 18, 2002 [1] The father applies to have the mother cited for contempt for denial of access. By fiat of October 4, 2002, Matheson J. transferred custody to the father and directed the mother to “give viva voce evidence in response to the allegation of contempt”. [2] The mother had filed an affidavit in response to the father’s motion. In Comet Products U.K. Ltd. v. Hawkex Plastics Ltd., [1971] W.L.R. 361, Denning M.R. stated that respondent who chooses to give evidence voluntarily cannot, as of right, refuse to be cross-examined. Accordingly, any jurisdictional or procedural objections on the mother’s part are obviated. [3] The specific grounds relied on by the father are as follows: The Respondent, Rosalin Geraldine Fystrom deliberately denied access and intentionally refused to comply with the access provisions contained in paragraph 4(d) of the Judgment of the Honourable Mr. Justice J.R.O. Archambault granted on September 1, 2001 when she refused to turn Colton over for access on August 19, 2002 at 4:00 o’clock p.m. and August 16, 2002 at 1:00 o’clock p.m. and on August 30, 2002 at 1:00 o’clock p.m. confined my inquiry to those grounds. The father was to have access for the weekend of August 16 to August 19, for the week of August 19 to August 26, and the weekend of August 30, 2002. [4] The recurring problem is that the child fusses and does not want to go. The mother only tells him five minutes beforehand so he will not be upset. Although the mother claims she warns the child 45 minutes in advance of access visits, this was expressly contradicted by the testimony of the maternal grandmother. In July, 2002 the child was to spend 11 days with his father. The mother misrepresented the situation to the child, telling him he will not be gone long and that “Mummy would see him in couple of days”. She bribed him to go with promises of special treats. To the child, one can logically assume this reinforces the belief that: (i) visit with Dad is nasty and unpleasant experience; (ii) Mum lies to him about how long he will be gone; and (iii) if he creates enough fuss he will get reward for his behaviour. [5] On August 16, 2002 at 1:00 p.m. the father attended at the mother’s house for access. He had travelled from Regina where he resides to the mother’s house in Saskatoon. The child had only five minutes warning regarding the upcoming access. Undoubtedly he was able to recall that the last time he went, his mother lied to him about how long he would be gone. His mother and grandmother were present. The child made fuss and did not want to go. The mother took the child next door to call the police but the neighbours were not home. The tension was palpable and the maternal grandmother called 911. Harsh words were exchanged between the father and mother and the father and grandmother. The police arrived and the father spoke alone with the child who reiterated he did not want to go. No one was willing to carry the recalcitrant child to the car. The father left. [6] It is unclear what occurred leading up to the August 19 to August 26 visit, other than that the father’s lawyer wrote to the mother’s lawyer on August 19 saying access had been denied and asking the mother to transport the child to Regina so the father could have him for the remainder of the week, which he had taken off work. The mother claims she had the child ready to go but he was upset and could not be physically forced out the door. It is not established whether the father was there to pick him up or just assumed there was no point. There were discussions between the lawyers regarding further involvement by Dr. Greenough who had done custody/access assessment. The discussions went nowhere because of dispute as to whether custody should be revisited. [7] On August 30, 2002 the father attended at the mother’s home in Saskatoon for access. The father says that the mother came to the door and told him she had phoned the police. He says the police attended but he was not allowed to take the child. The mother basically confirms the same version of events, except she says the father was half-way across the street when she said the child did not want to go and she was calling the police. The mother states she tried to bribe the child to go by saying she would take him to Toys ‘R Us, but he started crying. The grandmother, on the other hand, says the child was not crying at the time, but the child fought them when they tried to put his outerwear on. The mother called the police so they could see that the child did not wish to go. [8] On the next visit, September 10, 2002, with the added impetus of an order specifically directing the Saskatoon City Police to locate the child and assist the father in exercising access, the mother carried the fussing child to the father’s car. The father’s affidavit indicates the September 13, 2002 visit was happy and uneventful. He says the child was crying when he picked him up but they were soon talking and joking around in the car. The child likewise cried when he had to leave his father’s home. [9] On the last visit before this application, the child was apparently fine but the mother says she told him it would be short visit and the child said okay, but he would miss his mother. [10] The mother acknowledges that of all these incidents the one on August 16 was the worst. She states perhaps the father has done something since to make things better. Since August 30 she has avoided going to the door when the child is exchanged. She acknowledges she has no difficulty controlling her son when faced with opposition in other areas, i.e. eating, going to the doctor or going to bed. It was admitted by the mother in an earlier assessment by Dr. Greenough that the child was somewhat spoiled and prone to temper tantrums. [11] The parents are older in comparison to most first-time parents (now 46 and 42 years of age). This is their only child. Neither parent appears to possess much practical education or experience in dealing with issues of separation anxiety, problem not uncommon with children of the age of four, or, indeed, with first-time parents. Had either taken the time to be involved in parent education sessions that are readily available, they would have received some useful information and the benefit of practical techniques to cope with the child’s anxiety (or the mother’s); the first being that children need to be prepared well in advance of visits, not five minutes beforehand. Children of this age do not switch gears easily. This can be assisted by having the child draw pictures for Dad, helping him pack his favourite articles, and giving the child easily understandable information about when he is returning (two sleeps, three sleeps, etc.). None of this occurs here. The mother acknowledges she sends nothing with the child when he goes. The child is apt to mistrust any information given to him about when he is returning, given past experience. Another practical requirement is ensuring the child understands he has his mother’s full permission to go. It is one reason both parents are often requested to share transportation of child for access when there is geographical separation. By involving the mother, it offers concrete example to the child that she supports the father’s access. No four-year-old enjoys confinement in vehicle and if the father is responsible for all of the transportation he may be perceived as the villain. Children of this age also need the reassurance of hearing the other parent’s voice during absences from them. If telephone access is not readily available because of high conflict between parents, then tape recordings can be sent back and forth this can be as simple as the absent parent reading story on tape that the child can play before bedtime. [12] In circumstances such as have arisen here, it is not necessarily the child who needs to be investigated, but the parents. These parents demonstrate little understanding of the effects of conflict on child. The child is merely reacting to the unpleasant behaviour of his two primary role models. Many problems would disappear by the simple expedient of exchanging the child in civil fashion, and by creating an atmosphere whereby the child can express his affection for both parents without fear of repercussion. In this regard the parents have been an abject failure. The mother is too absorbed with her own needs and is letting her own anxiety translate into the child’s. The father, not content with having achieved what would seem to be the ultimate objective of this sorry exercise transfer of custody in his favour is nonetheless pressing to have the mother punished further. Both parents’ motivations are gravely open to question. [13] The mother is quite good at conveying an air of puzzlement and abstract confusion as though this entire situation is beyond her comprehension and she is merely acting as any devoted mother would in the same circumstances. If that bemusement is genuine, it speaks to lack of the intent requisite to finding of contempt, but equally to serious inadequacy in the fundamentals of good parenting. [14] The law regarding contempt (particularly in relation to access orders) is not one of those grey areas. Contempt must be proved beyond a reasonable doubt. Even in contempt proceedings, the court cannot ignore the best interests of the child and neither fine nor imprisonment should be ordered unless consistent with those best interests. (See: Frame v. Smith (1987), 1987 CanLII 74 (SCC), R.F.L. (3d) 225 at 262 (S.C.C.)). finding of contempt is usually considered the ultimate sanction and thus the remedy of last resort. In this case, contempt application follows an order transferring custody to the father, (a type of order sanctioned by the Supreme Court of Canada in M.P. v. G.L.B., 1995 CanLII 53 (SCC), [1995] S.C.R. 592) but the additional sanction now sought is of dubious merit. For this mother, whose anxiety has engendered great deal of problems, the enforced separation from the child is likely the ultimate sanction that could be imposed in all of the circumstances. Unless incarcerating parent would put an end to the present conflict and give the child respite from police interventions, court applications, repeated involvement by social workers, psychologists, custody and access assessors and all of the other societal resources that are invariably consumed in these situations, there is little point to the exercise. more effective sanction has effectively been achieved by the transfer of custody. [15] I therefore dismiss the father’s application, but without prejudice to any subsequent reliance on these events in the event of a future application for contempt. [16] I exercise the discretion given to me under The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 and direct the parents to complete the parent education program and file a certificate of completion within sixty days. I ask counsel to explore the possibility of conducting future exchanges of the child through the supervised exchange program. [17] Costs will remain in the cause.
FIAT. The father applied to have the mother cited for contempt for denial of access. Custody was transferred to the father by fiat October 4, 2002 and the mother was directed to give viva voce evidence. HELD: The application was dismissed. Discretion was exercised under Queen's Bench Act to direct the parents to complete the parent education program and file the certificate of completion within 60 days. Counsel were to explore the possibility of conducting exchanges through the supervised exchange program. Contempt must be proven beyond a reasonable doubt. Neither fine nor imprisonment should be ordered unless consistent with the best interests of the child. A finding of contempt is usually considered the ultimate sanction and thus the remedy of last resort. Costs in the cause.