COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and Pepall JJ.A.
BETWEEN
Sean Hefkey
Applicant
(Respondent/Appellant in Cross-appeal)
and
Selena Hefkey
Respondent
(Appellant/Respondent in Cross-appeal)
Michael C. Cochrane, for the appellant/respondent in cross-appeal
Geoffrey J. Carpenter, for the respondent/appellant in cross-appeal
Heard and released orally: January 18, 2013
On appeal from the Order of Justice C. William Hourigan of the Superior Court of Justice, dated May 2, 2012.
ENDORSEMENT
1The parties appear today through counsel seeking an order on consent allowing the appeal and dismissing the cross-appeal. We agree with the proposed disposition of the appeal and cross-appeal for the following reasons, and on the following terms.
2First, on this record, we see no error in the motion judge’s ruling that the father’s allegation of civil contempt against the mother was not established to the requisite criminal standard of proof. Indeed, we do not think that the record furnishes the cogent evidentiary foundation necessary to support such a finding.
3Moreover, in our view, the civil contempt remedy should not have been sought in the circumstances revealed by the record. The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed”: see K.(L). v. G.(T), [2006] W.D.F.L. 2571 (Ont. S.C.), at para. 58. See also Fisher v. Fisher, 2003 CanLII 2119 (ON SC), [2003] O.J. No. 976 (S.C.); and Martinez v. Martinez, 1984 CanLII 4792 (ON CJ), [1984] O.J. No. 721 (Ont. Prov. Ct. (Fam. Div.)).
4In this case, clear routes were available to the father to seek to vary the terms of the order of Coates J. dated March 28, 2012 (the “Coates Order”) – the consent access order in question – under s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) or to enforce the order under the Family Law Rules, O. Reg. 114/99 based on the interpretation of the Coates Order contended for by the father. The father ignored both of these remedial routes, instead launching a contempt motion against the mother. In so doing, he essentially sought to obtain indirectly what he chose not to seek directly: a variation of the disputed access order without the necessity of complying with s. 17(5) of the Divorce Act and meeting the evidentiary burden that applies on a variation application. Stratagems of this kind in contentious family law proceedings should not be condoned or facilitated. They advance neither the best interests of the affected children of the marriage, nor the interests of the administration of justice.
5Second, the necessary preconditions to setting aside the Coates Order were not satisfied on the motion before the motion judge. As appears to have been recognized by the motion judge, no finding of contempt having been made, it was not open to the motion judge to set aside or vary the Coates Order under the authority of rule 31(5)(d) of the Family Law Rules.
6Nor, with respect, was it open to the motion judge to set aside or vary the Coates Order based on invocation of his parens patriae jurisdiction. Contrary to the father’s submission before this court, there is no “legislative gap” in the Family Law Rules regarding the circumstances confronted by the father. The Rules permit both variation and enforcement motions. Further, as this court recently observed in Dovigi v. Razi, 2012 ONCA 361, at para. 21, citing E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388, at p. 426, “[T]he court’s parens patriae jurisdiction is ‘founded on necessity, namely the need to act for the protection of those who cannot care for themselves’.” In the circumstances of this case, there was no evidence that a variation or enforcement motion would not afford the necessary and appropriate protection for the child of the marriage.
7For these reasons, the appeal is allowed and the cross-appeal is dismissed. We direct that the Coates Order be reinstated, subject to the following:
the operation of paragraphs 8(b), 8(f) and 16 of the Coates Order is suspended until February 22, 2013 or other order of the Superior Court of Justice, whichever shall first occur; and
until February 22, 2013 or other order of the Superior Court of Justice, whichever shall first occur, the father shall be entitled to exercise access to the child of the marriage on an unsupervised basis during the day only, and only on those days falling within the period contemplated by paragraph 8(a) of the Coates Order.
We note that the parties did not object to or oppose these terms.
8The appellant is entitled to her costs of the proceedings before this court, fixed in the amount of $12,000, inclusive of disbursements and all applicable taxes. The costs of the motion before the motion judge are reserved to the trial judge.
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
“Sarah Pepall J.A.”
