DATE: 20020429 DOCKET: C34784
COURT OF APPEAL FOR ONTARIO
FINLAYSON, LASKIN AND MACPHERSON JJ.A.
BETWEEN:
MALGORZATA MARIE KOPANIAK also known as MARGUERITE KOPANIAK
Respondent
- and -
PETER RODERICK MACLELLAN
Appellant
Malcolm Kronby, for the respondent
Gerald Sadvari, for the appellant
Heard: March 13, 2002
On appeal from the Orders of Justice Janet Wilson dated November 21, 1996, November 29, 1996, December 12, 1996, December 19, 1996, January 17, 1997 and July 28, 2000.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The appeal and cross-appeal in this matter relate to various issues arising out of a contempt proceeding against a custodial parent whose unilateral action in removing a child to Bermuda rendered virtually meaningless the access right of the non-custodial parent. The principal issue on the appeal is whether the custodial parent can appeal the findings of contempt made against him by a motions judge. The resolution of this issue requires a determination of which set of rules, the Criminal Appeal Rules or the Rules of Civil Procedure, governs the question of time limits for the commencement of an appeal in a contempt proceeding arising out of matrimonial litigation.
B. FACTUAL BACKGROUND
[2] The appellant Peter MacLellan (“the father”) and the respondent Marguerite Kopaniak (“the mother”) are both medical doctors. They were married on August 29, 1987. On January 19, 1990, their daughter Jacqueline was born; she is the only child of the marriage.
[3] The parties separated in 1993. A difficult custody dispute followed. In the early stages of the litigation the father was represented by Jackie Stubbs. The matter proceeded to trial before Justice Janet Wilson. On August 26, 1996, the trial judge granted the parties a divorce. She awarded custody of Jacqueline to the father. She ordered supervised access to the mother. On the subject of access, her order provided, inter alia:
THIS COURT ORDERS AND ADJUDGES THAT The Honourable Madam Justice Wilson remains seized of this matter and that under the Divorce Act, the terms of access shall be reviewed by Wilson, J. on the 21st day of February, 1997 at 2:15 p.m. or earlier at the request of Clive Chamberlain, MD.
THIS COURT ORDERS AND ADJUDGES THAT under the Divorce Act, as an incident of custody and access, the parties and the child shall attend for counselling as shall be directed by Clive Chamberlain, MD.
THIS COURT ORDERS AND ADJUDGES THAT under the Divorce Act, Clive Chamberlain, MD, shall appoint an access supervisor who will report to him, as he deems appropriate and he shall coordinate the supervision of access. Clive Chamberlain, MD, shall arbitrate any dispute that may arise concerning access and counselling until the matter is returnable before me. This paragraph shall be applied in accordance with the specified terms given orally this day.
[4] Another provision in the order extended the time to appeal from the judgment to October 18, 1996, presumably to take into account the fact that the trial judge intended to release her reasons for judgment on September 18. In fact, she did release a 75-page judgment on that date.
[5] Shortly after September 18, 1996, the father’s counsel (not Ms. Stubbs, who did not represent him at the trial) urged the trial judge to expedite the process for obtaining the court’s formal judgment in order to assist in the enrolment of Jacqueline at a school in Toronto. The trial judge signed the formal judgment on October 23, 1996.
[6] The next day, October 24, the father declared bankruptcy. Two days later, on October 26, he married Ms. Stubbs, his former matrimonial lawyer. The next day, October 27, without notice to anyone, the father and Ms. Stubbs took Jacqueline to Bermuda where Ms. Stubbs is a citizen. They have lived there ever since.
[7] It took some time for the mother to ascertain what had happened to her daughter. On October 29, the father informed Dr. Chamberlain of his move to Bermuda. He promised to co-operate with respect to access, but declared: “Naturally the access will have to take place in Bermuda from now on”. The father sent a fax dated November 7, 1996 to his counsel:
I write to advise you of the change in my personal circumstances.
As you know, I have recently re-married. My wife is a Bermudian and lives and works in Bermuda. Jacqueline and I have now moved to Bermuda to live with my wife. I have obtained employment here and Jacqueline is attending school in Bermuda. I have made the decision to move to Bermuda, despite receiving advice from you both to the contrary, as I truly believe that it is in Jacqueline’s best interests to live in Bermuda in a stable, loving and supportive family environment with the added benefit of having extended family.
I enclose a copy of an Order of the Supreme Court of Bermuda which grants me custody of Jacqueline and prevents Marguerite Kopaniak and/or her agents from removing Jacqueline from this jurisdiction. The materials should be served on Marguerite within the next few days.
On November 11, 1996, the father’s counsel advised the mother’s counsel of these developments.
[8] On November 13, 1996, the mother brought a motion seeking an order finding the father in contempt of the trial judge’s order of August 26, 1996. On November 21, Wilson J. made an order, inter alia, prohibiting the father from removing Jacqueline from Toronto and insisting on compliance with access in Ontario. The father was served personally with this order. He did not comply. He did not appeal.
[9] On November 29, 1996, Wilson J. made an order affirming her order of November 21, declaring that the Ontario court retained jurisdiction over Jacqueline, and staying the provisions of the August 26 judgment relating to child support and the costs of supervised access. The father was served personally with this order. He did not comply. He did not appeal.
[10] On December 12, 1996, Wilson J. made an order requiring the father to bring Jacqueline before the court on December 19. The father was served personally with this order. He did not comply. He did not appeal.
[11] On December 19, 1996, the matter proceeded. The father did not attend. Wilson J. found him in contempt. She ordered, inter alia:
- THIS COURT ORDERS that in order to purge his contempt, the Respondent shall return the child of the marriage . . . to Toronto, Ontario, Canada forthwith . . . As well the Respondent shall appear before me on January 17, 1997 at 10:00 a.m. so that this matter may be reviewed based on the current facts.
The father did not comply. He did not appeal.
[12] On January 17, 1997, the father did not appear. Wilson J. made a further order declaring that he remained in contempt of the court. She also varied her custody order by granting custody to the mother on the basis that the father’s conduct after the initial decision established that it was not in Jacqueline’s best interests that he continue as the custodial parent. She also ordered “that sentencing of the respondent, Peter Roderick MacLellan, for contempt is adjourned to the further return of these matters upon the child’s or the respondent’s return to Ontario” (para. 1).
[13] By early 1997, the motions judge had conducted five hearings relating to the father’s decision to remove his daughter to Bermuda. The last two decisions made express findings of contempt against him. The father was aware of all the hearings. He attended none of them. He was also aware of all of the motions judge's orders flowing from the hearings. He complied with none of them. He appealed none of them.
[14] Years went by. The father continued to refuse to return Jacqueline to Toronto. During the next three years, the mother saw Jacqueline in Bermuda on two occasions for a total of six hours.
[15] In early 1999, the father brought a motion seeking an order quashing or setting aside all of Wilson J.’s orders dated November 29, December 12 and December 19, 1996 and January 17, 1997. The principal basis for the motion, as set out in the Family Law Case Management Motion Form, was:
- The said Orders were made without jurisdiction as the Judgment had granted custody of Jacqueline MacLellan to the respondent, and the appeal period had run without a Notice of Appeal being properly delivered and therefore the custodial parent was lawfully permitted to change the residence of the child of the marriage.
[16] The motion was heard by Walsh J. on April 13, 1999. On April 21, he dismissed the motion. He was sharply critical of the father’s conduct and supported the motions judge’s exercise of jurisdiction and her conclusions:
It is clear the actions taken by the Respondent were in violation of the judgment rendered by the trial judge in October 1996. At trial, the Respondent undertook, under oath, to encourage and foster the communication between Jacqueline and her mother. I agree with the order of Wilson J. dated December 19, 1996 that the Respondent has, by his conduct breached this undertaking. He has also violated the condition requiring him to attend counselling with his child under the direction of Dr. Chamberlain. There is little doubt the Respondent flagrantly disregarded the judgment of Wilson J. It is clear he acted in bad faith, and against the advice of his counsel. His actions violated the undertakings he gave to the trial judge and completely frustrated the intended goals of the custody order.
I find Wilson J. had jurisdiction to deal with the motions brought before this Court. Justice clearly prevents a custodial parent from avoiding the obligations imposed on him/her by the Court simply by removing the child from the jurisdiction. Deliberate attempts on the part of custodial parents to frustrate the rights and obligations imposed upon them by the Courts cannot and will not be tolerated.
[17] The father did not appeal Walsh J.’s judgment.
[18] In May 2000, the father came to Toronto for an education programme. He was arrested and brought before Wilson J. She insisted that Jacqueline be brought to Toronto, in compliance with her earlier orders, before proceeding with the sentencing envisioned in her order of January 17, 1997. After 17 days in jail, the father arranged for Jacqueline to be brought to Toronto. The sentence hearing proceeded. The motions judge sentenced the father to a suspended term of 12 months imprisonment, in addition to time served, subject to conditions. If the father breaches any of the conditions within a period of two years from the date of the judgment, he is liable to be imprisoned for 12 months.
[19] The conditions the motions judge imposed on the father related primarily to financial matters, including funds that would be necessary to support the access and reintegration process with the mother. From the father’s perspective, most of these conditions are not contentious. However, the father does challenge the final paragraph of the motions judge’s order of July 28, 2000 which deals with custody:
- THIS COURT ORDERS AND DECLARES that upon the Father obtaining, on notice to the Mother, a reciprocal Order to this Judgment in Bermuda, with a clause to ensure enforcement if necessary utilizing police powers, and making it clear that there can be no variation of access terms during the period of reintegration established by this Court, the Father may apply, on notice to the Mother, to this Court for an Order varying this Court’s Judgment dated January 17, 1997 and granting the Father custody.
[20] The mother also challenges three of the conditions imposed by the motions judge. In her cross-appeal, she contends that the motions judge erred by lifting the stay she had imposed on the mother’s child support obligations on January 17, 1997 and requiring the mother to pay child support retroactively for the period Jacqueline was in Bermuda (subject to a set-off against the costs owed by the father). The mother also contends that the motions judge erred in applying the Child Support Guidelines as the basis for calculating her support obligation. Finally, the mother submits that the motions judge erred by permitting the father to retire his outstanding costs obligations at $500 per month, rather than requiring that they be paid in full forthwith.
C. ISSUES
[21] The issues on the appeal are:
(1) Can the father appeal the findings of contempt?
(2) If the answer to (1) is ‘Yes’, did the motions judge err by making a finding of contempt against the father?
(3) Did the motions judge err by ordering paragraph 7 as one of the conditions of the 12 month suspended sentence she imposed on the father?
The issue on the cross-appeal is:
(4) Did the motions judge err in the orders she made with respect to the mother’s support obligation and the father’s costs obligations?
D. ANALYSIS
The father’s appeal
(1) Jurisdiction
[22] The mother contends that the father cannot attack the motions judge’s orders of November 21 and 29 and December 12 and 19, 1996 and January 17, 1997 because the Notice of Appeal with respect to these orders was served on August 4, 2000, well outside the 30 day period for civil appeals prescribed by rule 61.04(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[23] The father’s response to this argument is that the matter of contempt is governed by the Criminal Appeal Rules, S.I./93-169, 1993 Canada Gazette, Part II, p. 354. He relies specifically on Rule 4 (2) which provides:
4(2) Where the appeal is from conviction, sentence, or both, the notice of appeal shall be served within thirty days after the day of the sentence.
[24] The father points out that he is appealing both the finding of contempt (the orders of December 19, 1996 and January 17, 1997) and the sentence he received (the order of July 28). Since he served his Notice of Appeal on August 4, just a week after the last of these orders, he is well within the period prescribed by this rule.
[25] I disagree with the father’s submission on this issue, essentially for three reasons.
[26] First, the Criminal Appeal Rules have no application to this appeal, which is made in a civil case. The Criminal Appeal Rules are made by this court pursuant to s. 482 of the Criminal Code. In Martin’s Ontario Criminal Practice, 2002, the authors, Edward Greenspan and Justice Marc Rosenberg, discuss the application of the Criminal Appeal Rules in this fashion, at p. AR/30:
The Criminal Appeal Rules apply to criminal appeals pursuant to the Criminal Code, appeals from the granting or refusal of prerogative relief pursuant to s. 784 of the Criminal Code and appeals from a decision of a summary conviction appeal court pursuant to s. 839 of the Criminal Code. The Criminal Appeal Rules also apply to appeals under the Young Offenders Act (Canada) with the necessary modifications.
In short, there is nothing in the Criminal Appeal Rules that covers contempt in a civil proceeding.
[27] Second, it is clear that the Rules of Civil Procedure do apply to civil contempt proceedings. Rule 1.02, which is the application section, states that, subject to certain exceptions that are irrelevant in the present case, the “rules apply to all civil proceedings in the Court of Appeal and in the Superior Court of Justice”. Rule 60.11 then deals comprehensively with the subject matter of civil contempt, including definition, procedure and remedy. It is only logical that appeals from orders made pursuant to rule 60.11 should be governed by the same legislation, in this case rule 61.04(1).
[28] Linking the two reasons I have attempted to articulate is the important fact that criminal and civil contempts are very different matters. As explained by Professors Nigel Lowe and Brenda Sufrin in Borrie and Lowe on the Law of Contempt, 3rd ed. (1996) at pp. 655-56:
Criminal contempts are essentially offences of a public nature comprising publications or acts which interfere with the due course of justice as, for example, by tending to jeopardise the fair hearing of a trial or by tending to deter or frighten witnesses or by interrupting court proceedings or by tending to impair pubic confidence in the authority or integrity of the administration of justice. Civil contempts, on the other hand, are committed by disobeying court judgments or orders either to do or to abstain from doing particular acts, or by breaking the terms of an undertaking given to the court, on the faith of which a particular course of action or inaction is sanctioned, or by disobeying other court orders (for example not complying with an order for interrogatories, etc.). Civil contempts are therefore essentially ‘offences’ of a private nature since they deprive a party of the benefit for which the order was made. The essence of the courts’ jurisdiction in respect of criminal contempts is penal, the aim being to protect the public interest in ensuring that the administration of justice is duly protected. On the other hand, the courts’ jurisdiction in respect of civil contempts is primarily remedial, the basic object being to coerce the offender into obeying the court judgment or order, etc. Reflecting this public/private dichotomy it is broadly true that the prime responsibility for prosecuting criminal contempts is that of the Attorney General or the court, but of the parties themselves in the case of civil contempt.
See also: Jeffrey Miller, The Law of Contempt in Canada (1997), at pp. 13-17.
[29] It is clear that the contempt proceeding before the motions judge involved a true civil contempt.[^1] The proceeding arose at the instigation of the mother because of the father’s ‘offence’ of a private nature in depriving her of the benefit of the access component of the trial judge’s original order in the matrimonial proceeding.
[30] The conclusion I draw from my analysis of the purposes and provisions of the Criminal Appeal Rules and the Rules of Civil Procedure is sufficient to dispose of the jurisdictional issue. It is clear that the father is out of time with respect to his attempt to appeal the first five of the six orders made by the motions judge. However, before leaving this issue, I would mention, albeit briefly, a third reason for finding against the father on this issue.
[31] When the father’s counsel brought a motion before Walsh J. seeking an order quashing or setting aside four of Wilson J.’s orders, including the two which made findings of contempt against the father, he raised squarely all of the substantive arguments against those orders which he seeks to raise in this appeal. Indeed, the father’s factums on the motion before Walsh J. in 1999 and on this appeal are very similar. Walsh J. rejected those arguments and dismissed the father’s motion. The father did not appeal this decision.
[32] More than a year later, when the sentencing hearing proceeded, the father’s counsel specifically informed the motions judge that the father was not challenging any of her previous orders or Walsh J.’s order. He said:
[M]y submissions, Your Honour, are not with respect to the correctness of your decisions or Justice Walsh’s decisions. [The mother’s counsel] is quite correct. Those are done. Those are the law of Ontario.
[33] In my view, the father’s decision not to appeal Walsh J.’s order, which upheld the motions judge’s findings of contempt, coupled with his counsel’s express disavowal in front of the motions judge of any intention to re-open any of the previous orders, precludes his attempt to raise precisely the same issues in this appeal.
[34] For these reasons, I conclude that the appellant father cannot appeal the orders of the motions judge dated November 21 and 29, December 12 and 19, 1996 and January 17, 1997. He can appeal the order dated July 28, 2000.
(2) The findings of contempt
[35] In light of my conclusion in (1) above, this issue does not arise.
(3) The contempt sentence
[36] The father appealed virtually all aspects of the sentence imposed by the motions judge, including quantum and conditions. By the time the appeal was argued, he conceded, fairly, that much of his appeal against sentence was moot. He had complied with the conditions relating to financial matters and the process of access and reintegration of Jacqueline and the mother. In turn, the mother conceded, fairly, that in light of the father’s compliance with these conditions, she was not seeking, contrary to what was argued in her factum, that they be extended beyond their expiration in July, 2002.
[37] In oral argument, the father’s counsel stated that at this juncture the only problem his client had with the sentence was paragraph 7, which I set out earlier. The father is concerned about the obligation this paragraph imposes on him to obtain a reciprocal order in Bermuda to the motions judge’s order as a condition to obtaining a formal custody order from the motions judge. Moreover, he expresses the concern that if he complies with his obligations under this paragraph, the mother might still oppose a formal court order in Ontario granting him custody of Jacqueline.
[38] I see no merit in these concerns. It is speculative to suggest that the father will have any difficulty obtaining a reciprocal order in Bermuda. Indeed, the record establishes that he has had no trouble obtaining several orders from the Bermuda courts when he has brought various matters relating to Jacqueline before them. With respect to the father’s second concern, the mother’s counsel stated that the mother recognized that the process of access and reintegration with Jacqueline had worked and was continuing to work and that she would not oppose a formal order granting custody to the father as envisioned and structured by paragraph 7.
[39] Accordingly, in my view, no good purpose would be served by dealing with the appellant’s appeal relating to the contempt sentence. It is moot.
The mother’s cross-appeal
(4) Financial matters
[40] The mother’s cross-appeal relates to three of the financial components of the motions judge’s contempt sentence.
[41] First, the mother contends that the motions judge erred by lifting the stay of child support she had imposed more than three years earlier and requiring the mother to pay support retroactively for that period.
[42] I disagree. The mother’s obligation to pay child support did not end when the father was found in contempt of court. The stay of child support was imposed to encourage the father to return the child to Ontario. Once the contempt was purged, the motions judge was entitled to reinstate the obligation, including retroactive payment of support if this was in the best interests of the child.
[43] Second, the mother contends that the motions judge erred in retroactively applying the Child Support Guidelines which increased the amount she owed from $565 per month in the original order to $733 per month.
[44] I disagree. The original Judgment in the divorce action, which required the mother to pay child support of $565 per month, also required her to provide tax returns annually “to adjust support if necessary”. Moreover, the same Judgment required the father to pay the costs of supervision of access up to $565 per month. In short, there was a direct set-off in the Judgment.
[45] Almost four years later, when the motions judge turned to the matter of sentencing the father for his contempt, there was still a mix of financial matters for her to address, including the bankruptcy of both parties, huge costs obligations and legal fees, and new information about incomes and expenses. Importantly, there was information about the mother’s current income and her income from the previous three years. I cannot fault the motions judge for relying on this information to assist in calculating the retroactive support obligation of the mother, particularly since any amount she chose would be set-off against the substantially greater amount owed by the father to the mother. I cannot say that the motions judge’s analysis and conclusion on this issue were not faithful to the intent of the original divorce judgment which presaged the need “to adjust support if necessary”.
[46] Third, the mother contends that the motions judge erred by allowing the father to pay the balance of the costs he owed over time at a rate of $500 per month.
[47] I disagree. The motions judge was in the best position to determine how the allocation of various financial obligations could be achieved fairly and with an eye to the overarching consideration of Jacqueline’s best interests. I cannot say that she erred in her treatment of the father’s outstanding costs obligations.
E. DISPOSITION
[48] I would dismiss the appeal and the cross-appeal. Since success is divided, I would make no order as to costs.
RELEASED: April 29, 2002
“J. C. MacPherson J.A.”
“I agree G. D. Finlayson J.A.”
“I agree J. I. Laskin J.A.”
[^1]: Indeed, the father appeared to acknowledge this point expressly through his counsel’s submissions to the motions judge at the sentence hearing on June 19, 2000. The very first words in his oral submission were:
Your Honour, this is, as you well know, a matter of civil contempt. I submit that the arguments that have been made both orally and in writing by Dr. Kopaniak’s counsel have treated this as if it were a criminal matter, and it may be in their minds, but it is not in the eyes of the law. No charges have been laid.