Court of Appeal for Ontario
Date: 2019-10-07 Docket: C67021
Judges: Sharpe, Hourigan and Jamal JJ.A.
Between
Ting Mei Chong Applicant (Respondent)
and
Timothy John Donnelly Respondent (Appellant)
Counsel
Christopher J. Haber, for the appellant
Ting Mei Chong, self-represented
Heard: October 3, 2019
On appeal from the order of Justice Judy A. Fowler Byrne of the Superior Court of Justice, dated May 1, 2019.
Reasons for Decision
[1] The issue in this appeal is whether the motion judge erred in finding the appellant in contempt of a court order that governed the parties' parenting arrangements in the context of a bitter matrimonial dispute.
[2] The relevant term of the order directed that the children's transitions between the parties were to occur on school days and non-school days as follows:
Transitions on a school day shall take place at the school with the parent whose time with the children is ending delivering the children to the school and the parent with whom the children will be with picking up the children. If not a school day, the parent who has the children will deliver the children to the other parent's residence at 8:00 a.m.
[3] On a school day when the children were to be picked up by the respondent, the appellant advised the respondent by text message that he would pick up the children after school in order to feed them, because he believed the respondent could not do so, and that he would then return them to school to attend school events that evening. The respondent advised the appellant not to do so because the children would be in after-school care and she had arranged for their dinner. The appellant nevertheless picked up the children, fed them dinner, and returned them to school.
[4] The motion judge found the appellant in contempt of the order but dismissed the appellant's motion that the respondent was also in contempt for other alleged breaches of the order. The latter finding was not appealed. We understand that the appellant's motion for contempt was brought first and then the respondent responded with her own motion for contempt.
[5] In finding the appellant in contempt, the motion judge referred to two leading cases on civil contempt, Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35 and Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26, which set out the three elements that must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
[6] The motion judge found that these three elements were established beyond a reasonable doubt: the order was clear, the appellant had actual knowledge of it, and he intentionally did the act that the order prohibited — he picked up the children from school on a day when he was not entitled to do so. The motion judge found the appellant in contempt, but imposed no penalty and awarded no costs. She did, however, encourage the parties to see a family mediator.
[7] We see no basis to interfere with the motion judge's finding that appellant had breached the terms of the order and that the three elements of civil contempt were established.
[8] Having found that the three elements for civil contempt were established, however, the motion judge erred in law by failing to consider whether she should exercise her discretion to decline to make a finding of contempt. It is this last, crucial step that is missing from the motion judge's analysis.
[9] As the Supreme Court of Canada stated in Carey, at para. 36, "[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders". This power should be exercised "cautiously and with great restraint" as "an enforcement power of last rather than first resort". The Court added, at para. 37, that "a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case."
[10] There is no indication that the motion judge considered whether a finding of contempt was a last resort or whether she considered any alternatives to such a finding. Such alternatives might have included the court finding that the appellant had breached the order, while admonishing him that, despite his apparently good intentions in ensuring his children were fed, he should respect the respondent's wishes when the children were with her and comply with the order.
[11] Nor does it appear that the motion judge considered the best interests of the children, which this court has stated is the "paramount consideration" when the issue raised in the contempt motion concerns access to children: Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at para. 19. As this court stated in Ruffolo, it is in the best interests of the children to encourage professional assistance as an alternative to making a finding of contempt too readily. Indeed, here, the motion judge herself encouraged the parties to continue working with a family mediator.
[12] In our view, the motion judge's failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.
[13] The appeal is allowed. There will be no order as to costs.
[14] We would urge both parties to attempt to resolve their parenting arrangements amicably in the future. The contempt motions they each brought reflected poorly on them both and are not in the best interests of their children.
Robert J. Sharpe J.A. C.W. Hourigan J.A. M. Jamal J.A.
