2003 SKQB F.L.D. A.D. 2002 No. 60 J.C.H. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF HUMBOLDT RESPONDENT Marilyn M. Scott for the petitioner Lynne G. Greenhorn for the respondent FIAT BAYNTON J. January 8, 2003 Nature of the Applications [1] The petitioner father applies for an order pursuant to s. 29(1)(a) of The Children’s Law Act, 1997, S.S. 1997, c. C-8.2 finding the respondent in contempt of court for deliberately disobeying the terms of the August 15, 2002 access order of Koch J. respecting the child of the parties, [A.K.L.], born […], 2000. He seeks a fine and an order that the respondent bring the child to Saskatoon for access visits. The respondent applies for an order varying the terms of that access order. She seeks to restrict access visits to supervised visits in Brandon, Manitoba. [2] At the outset of the applications raised jurisdiction, service and time issues. To avoid an adjournment, counsel for both parties consented to the court’s jurisdiction, the acknowledgement of service and the abridgement of time. [3] The first issue is whether the respondent is in contempt of court and the nature of the appropriate penalty. The second is what disposition should be made respecting ongoing access. Background Facts [4] The parties never cohabited. The child was born from brief sexual encounter. The respondent subsequently married another man on October 19, 2002 and is pregnant with another child. Despite paying child support, the petitioner has enjoyed virtually no access. He was required to bring an application and obtained the supervised access order in issue. But even under that order, he was only successful in obtaining supervised access visits on two occasions, one on October 26, 2002 and the other on November 2, 2002. The supervised access reports indicate that the visits went very well and that [A.K.L.] enjoyed being with his father. [5] The petitioner lives and works in Saskatoon but attends trade school in Moose Jaw for much of the time. His parents live in Bruno, Saskatchewan and are valuable resource to him and to [A.K.L.], their grandson. [A.K.L.] is almost two and one-half years of age. Analysis [6] I am satisfied beyond a reasonable doubt that the respondent deliberately disobeyed the court order by repeatedly refusing without lawful excuse to comply with the terms of the order. Almost without exception, she refused to make the child available for the supervised access visits that were ordered to take place every two weeks over a four-month period from August to December, 2002. She continued to be in contempt when she moved with the child to Brandon, Manitoba without prior notice to the petitioner. She purported to terminate access and refused to return the child for the remainder of the visits that had been ordered. [7] But the respondent did not abduct the child. am of the view that the respondent will not again disobey court orders so that fine is not called for in the circumstances. more appropriate penalty is to award the petitioner solicitor and client costs for the two applications which fix at $1,500.00. Should the respondent be found in contempt for future breach, she will likely be facing fine or even term of imprisonment. [8] The limited access proposal of the respondent is not realistic because it virtually guarantees that the petitioner and his parents will never be able to develop any relationship with his son, child that the petitioner has been supporting financially on voluntary basis since birth. Nor is the access proposal of the petitioner realistic because the respondent does not have the financial ability to bring the child to Saskatoon for access visits. As well, had she applied for variation in the terms of the order before she left Saskatchewan, she likely would have been successful in obtaining an order that would require the petitioner to be responsible to exercise access at his own expense with some reduction in child support to take into account the cost of exercising access. [9] In the circumstances of this case, it is in the best interests of the child that future access visits be unsupervised and as well that they be of sufficient duration so that the significant travel time involved does not from practical perspective thwart the access that is ordered. fix the costs of the petitioner in exercising access at $60.00 per month even though his costs will significantly exceed this amount. have considered the availability and benefit of the extended family of the petitioner to the child during the access visits. have also considered the benefit of telephone access to the child by his mother during the access visits. Due to the present age of the child, it will provide limited communication value, but it will enable the respondent to keep in touch with the child and his whereabouts and activities while he is away from home during the access visits. [10] The application of the petitioner is allowed and the application of the respondent is denied. It is ordered as follows: 1. The respondent is found to be in contempt of court and is ordered to purge her contempt by paying the solicitor and client costs of the petitioner respecting the two applications fixed at $1,500.00 and by obeying the access terms of this order. The petitioner is not entitled to judgment for such costs but may apply the monthly child support toward payment of such costs until they are fully paid. 2. The petitioner shall have access to the child, [A.K.L.], born […], 2000, on alternate week-ends, commencing January 10, 2003, from 4:00 p.m. Friday to 7:00 p.m. Sunday. Access need not be supervised. The petitioner may bring the child to Saskatchewan for such access visits but shall not remove the child from Saskatchewan or Manitoba without the written consent of the respondent. 3. The petitioner shall bear the costs of his exercise of access but shall be entitled to an allowance of $60.00 per month as a partial reimbursement of those costs. He may deduct such sum from the monthly ongoing child support otherwise payable to the respondent. 4. The petitioner shall promptly exercise access on each occasion. He shall give the respondent at least seven days notice each time he is unable to exercise access. If he fails to do so, he shall forfeit the next access date. 5. The respondent shall have reasonable telephone access to the child during each access visit. The petitioner shall provide the respondent on each access date with number where the child can be reached by the respondent by telephone during the access visit. 6. The August 15, 2002 order of Koch J. is vacated.
FIAT. The father applied for an order pursuant to the Children's Law Act s.29(1)(a) finding the mother in contempt of court for deliberately disobeying the terms of the August 15, 2002 access order. He sought a fine and an order that she bring the child to Saskatoon for access visits. He applied to vary the terms of the access order. The Court raised jurisdiction, service and time issues.HELD: 1)To avoid adjournment counsel consented to the court's jurisdiction, the acknowledgement of service and the abridgement of time. 2)The mother was found to be in contempt of court for deliberately disobeying the order by repeatedly refusing, without lawful excuse, to comply with its terms. Almost without exception she refused to make the child available for the bi-weekly supervised access visits. She did not abduct the child. The mother was to purge her contempt by paying the father's solicitor and client costs respecting the two applications fixed at $1,500 and by obeying the access terms of this order. The August 15, 2002 order was vacated. 3)The father was to have unsupervised access on alternate weekends. He may bring the child to Saskatchewan but shall not remove her from this province or Manitoba without the mother's written consent. The father shall bear the costs of access with partial reimbursement in the amount of $60 per month, which may be deducted from ongoing child support. He shall give at least seven days notice if he is unable to exercise access. The mother shall have reasonable telephone access.