COURT OF APPEAL FOR ONTARIO
Hoy A.C.J.O., van Rensburg and Pardu JJ.A.
BETWEEN
Angela Vigneault
Applicant (Respondent on Appeal)
and
Stephen Massey
Respondent (Appellant on Appeal)
Gordon S. Campbell, for the appellant
Yanik S. Guilbault, for the respondent
Heard: February 28, 2014
On appeal from the orders of Justice Maria T. Linhares de Sousa of the Superior Court of Justice, dated March 11, 2013 and May 15, 2013.
ENDORSEMENT
1The father, Stephen Massey, appeals a March 11, 2013 order (the “Contempt Order”) finding him in contempt of court and a May 15, 2013 order imposing sanctions as a result of that finding. The respondent mother moves to quash his appeal of the Contempt Order on the basis that he served his notice of appeal out of time.
The Appeals
2The motion judge made the following findings of contempt in the Contempt Order :
By using his mother as a caregiver for his children after school when his work prevents him from caring for them, and not Ms. Laframboise as the children’s regular caregiver, the Respondent, Stephen Massey, is in breach of the court order dated June 13, 2012 and in contempt of this court.
To be clear, the Respondent, Stephen Massey, is not found in contempt of the court order dated June 13, 2012, for the non-payment of the extraordinary child care expenses. He is being found in contempt because his non-payment of those expenses is just one aspect of the evidence leading to the finding that his intention is to frustrate the due execution of paragraph 26 of the court order dated June 13, 2012. The Respondent, Stephen Massey, has behaved in a deliberate and wilful fashion and has not provided any evidence to establish on a balance of probabilities as to having any lawful excuse to wilfully disobey the court order dated June 13, 2012 other that he does not like the caregiver.
3The mother alleged that the father was refusing to comply with paragraph 26 of a divorce order dated June 13, 2012:
- THIS COURT ORDERS THAT the children shall continue to attend their regular daycare at 13 Wiltshire Circle, Ottawa, Ontario with Astrid Laframboise as long as she agrees to continue in that function or as the parties can otherwise agree. Pick up and drop off of the children by either parent shall take place at the daycare provider’s home or at school at the end of the school day, and in case of Friday transfer of the children, at their then residence.
4The divorce order was made following an earlier trial before the motion judge at which the issue of whether Astrid Laframboise should continue to provide daycare was vigorously contested.
5The Notice of Motion initiating contempt proceedings specified that the mother sought a finding that the father was in contempt because:
[You] [h]ave failed to pay your equal share of the special expenses incurred for the benefit of you children since the date of Madam Justice de Sousa judgement issued June 13, 2012.
[You] [h]ave failed to sign the daycare provider’s contract for her services for the period of August 31, 2012 through to the end of August 2013; and,
[You] [h]ave failed to pay the daycare provider for her services rendered in September and October 2012.
6The motion judge and the parties all recognized that contempt was not available to sanction failure to comply with a payment order: Family Law Rules, O. Reg. 114/99, r. 31(1); Forrest v. Lacroix Estate (2000), 2000 CanLII 5728 (ON CA), 48 O.R. (3d) 619 (C.A.), at paras. 68-69.
7The daycare provider’s contract in issue is a two page document initially signed August 20, 2007 by the mother and Astrid Laframboise. It provides for child care from 7:15 a.m. to 5:00 or 5:30 p.m. from Monday to Friday. There are handwritten notations renewing the arrangement for each of the school years from 2009 to 2012, which appear to have been initialed by the mother and the child care provider.
8It does not appear that either the mother or father signed the contract for the period of August 31, 2012 to the end of August 2013, the subject of the contempt motion.
9Neither parent used the daycare provider when he or she was personally available to look after the children. The dispute arose when the father arranged his work schedule so that he could pick up the children from school rather than Ms. Laframboise, and refused to pay one half of the daycare expenses.
10The contempt finding was limited to the use by the father of his mother to care for the children instead of Ms. Laframboise when he was personally not available. The motion judge relied upon the non-payment of the daycare expenses as evidence that the father’s intention was to frustrate paragraph 26 of the divorce order.
11Civil contempt of court is a quasi-criminal proceeding. The following elements must be proven beyond a reasonable doubt:
The order that was breached must state clearly and unequivocally what should and should not be done.
The party who disobeys the order must do so deliberately and wilfully.
The breach of the order must be proven beyond a reasonable doubt.
See Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at paras. 26-27.
12Given the quasi-criminal nature of the contempt proceedings and the potential risk of imprisonment, the motion judge erred by making findings of contempt extending beyond the specific non-monetary breach alleged, the father’s failure to sign the daycare contract. This is sufficient to dispose of the appeal and the other grounds alleged need not be addressed.
13We observe, however, that the divorce order did not clearly and unequivocally state that unpaid family members could not pick up the children after school. Nor is it by any means clear that the father would have been found in contempt solely upon his failure to sign the daycare contract. The father had never in the past been required to sign the contract with the daycare provider, and the divorce order did not require the father to sign the daycare contract.
14In the circumstances, the better course would have been for the mother to move for directions, rather than moving immediately for a finding of contempt.
Motion to quash
15In response to the mother’s motion to quash, the father asks this court to extend the time to serve his notice of appeal of the Contempt Order. The father expressed in writing his intention to appeal the finding of contempt within days of the finding, but received conflicting legal advice as to whether the notice of appeal had to be served within 30 days of that finding, or within 30 days of the sentence, according to rule 61.04(1) of the Rules of Civil Procedure. He served the notice of appeal on June 13, 2013 - within 30 days of the May 15, 2013 order imposing sanctions and costs. As we have determined above, there is merit to the appellant’s appeal of the Contempt Order. There is no evidence of any prejudice to the respondent as a result of the delay in service. If necessary, the time for service of the notice of appeal of the Contempt Order is extended to June 13, 2013.
16The motion to quash the appeal of the Contempt Order as out of time is therefore dismissed.
Disposition
17The appeal is accordingly allowed. The time for service of the notice of appeal of the Contempt Order is extended to June 13, 2013, and the Contempt Order and the order imposing sanctions and costs dated May 15, 2013 are set aside. In the circumstances, there shall be no costs below, or on this appeal.
“Alexandra Hoy A.C.J.O.”
“K. van Rensburg J.A.”
“G. Pardu J.A.”
