NEWMARKET COURT FILE NO.: FC-11-038935 DATE: 20160427 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

SASAN AMID Applicant – and – BEHNAZ HOUDI Respondent

Acting for Self Acting for Self

HEARD: March 30, 2016

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] This contempt motion is brought by the respondent mother (Behnaz) against the applicant father (Sasan) for a finding that the father is in contempt of court because he:

1. Refused to sign a parenting plan arbitration agreement and pay for his portion of the retainer;
2. Refused to follow the residency schedule for regular access, holiday access and summer vacations;
3. Refused to consent to the child’s Canadian passport, Iranian birth certificate and an Iranian passport;
4. Blocked all scheduled access calls;
5. Did not produce proper life insurance documents contrary to Kaufman J.’s final order, dated June 30, 2015.

Facts

[2] The parties were married 2009 and separated 15 months later when the respondent mother was pregnant with their child who was born in March of 2011. Their separation was marked by high conflict and litigation that resulted in a detailed settlement agreement that became the final order of Kaufman J., on June 30, 2015 (“the order”).

[3] Paragraph 4 of the order required the parents to “retain the services of a senior member of the Family Law Bar, who would serve in the role of “Parenting Plan Arbitrator” and whose responsibilities would be solely restricted to the expedient resolution of any disputes arising in the implementation of the parenting plan”. The order sets out several paragraphs (4 to 8) of the parenting plan arbitrator’s responsibilities and authority to expeditiously adjudicate disputes arising between the parents.

[4] The June 30, 2015 order was reaffirmed in an order dated December 18, 2015. In the face of an impasse between the parties with regard to the appointment of a parenting plan arbitrator, Kaufman J. ordered that “by January 5, 2016 the mother shall choose any one from the list of parenting plan arbitrators suggested by Dr. Butkowsky in his letter of December 3, 2015”. Pursuant to that order the mother communicated her choice from that list – Cheryl Goldhart – on January 4, 2016.

[5] The costs of the parenting plan arbitrator were to be divided 75/25 between the father and the mother.

[6] Paragraphs 13 to 14 of the order provide that the child’s principal residence will be in the home of the mother, but the child will maintain a secondary residence in the home of the father in accordance with a two-step progressive schedule.

[7] Summer School Vacation is set out in paragraphs 15 to 18 of the order, and holidays are dealt with in paragraphs 19 to 40.

[8] The child’s Canadian passport is dealt with at paragraph 54 of the order. It requires the parents to “cooperate in obtaining and maintaining a valid passport for [the child] and this passport will remain in the possession of her mother…at all times, with the exception of instances in which [the child] is travelling outside the country with the father…”

[9] The child’s Iranian birth certificate and passport are dealt with at paras. 74 to 79 of the order. These paragraphs set out a detailed process for the father to apply for these documents from the Iranian Embassy.

[10] Paragraph 48 provides that each parent will be permitted one daily telephone call with the child “at a consistent, predictable and mutually agreed upon time, between 7:00 p.m. and 7:30 p.m….on those days that [the child] is in the other parent’s care. Such calls are not to exceed 10 to 15 minutes in length.” There is a protocol for returning missed calls.

[11] Paragraph 73 states that the father will maintain a $500,000 life insurance policy with the mother as trustee and the child as the sole beneficiary. The father was to provide proof if the policy and beneficiary designation within 30 days of the order.

Law of Contempt

[12] Contempt is a serious remedy and is not to be granted lightly: see Fisher v. Fisher, 2003 ONSC 2119, [2003] O.J. No. 976 (S.C.J.). It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. Furthermore, the party alleging contempt has the burden of proof. Often, although not always, a trial is necessary to establish the alleged contempt beyond a reasonable doubt: see Coletta v. Coletta, 2003 ONSC 2412, [2003] O.J. No. 81 (S.C.J.). The cases state that the civil contempt remedy is one of last resort and that great caution must be exercised when considering contempt motions in family law proceedings. Contempt remedies should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order. (See: Prescott Russell Services for Children and Adults v. G. (N.), 2006 ONCA 81792, 82 OR (3d) 686 (ON CA), Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65; and, Children’s Aid Society of Ottawa v. S.(D.), 2001 ONSC 28152, [2001] O.J. No. 4585.

[13] Finally, and as set out Bowman v. Bowman, [2009] O.J. No. 2993 (S.C.J.) at para. 17, to make a finding of contempt, the court must be satisfied as to three elements of the alleged contempt:

(a) the order must be clear and not subject to different interpretations; (b) the acts stated to constitute the contempt must be wilful rather than accidental; and, (c) the events of contempt must be proven beyond a reasonable doubt.

(See also: Prescott Russell Services for Children and Adults v. G. (N.), supra; Davydov v. Kondrasheva, 2012 ONCA 488, and Hobbs v. Hobbs, 2008 ONCA 598, [2008] O.J. No. 3312 (Ont. C.A.))

[14] Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed.

[15] Even in cases where a party is in breach of a court order, the court must be satisfied that the breach is wilful, and must consider the explanation for the alleged breach. In Szyngiel v. Rintoul, 2014 ONSC 3298, 2014 ONSC 3298 (SCJ), the court stated (at para. 24):

There are situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order.

A reasonably held belief is one that is both sincere and has some objective basis in fact.

[16] Notwithstanding the court’s reluctance to exercise its contempt powers, it is important that such powers be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip. In Surgeoner v. Surgeoner, [1992] O.J. No. 299, Justice Blair stated (at paras. 6 and 7):

The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness.” In this environment it is all too easy for a spouse to believe that he or she “knows what is right”, even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated.

[17] The availability of a contempt order to enforce a court order is set out in s. 31(1) of the Family Law Rules, O. Reg. 114/99, which provides:

31. (1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.

[18] The court is given extensive remedial powers if a person is found to be in contempt of court. Family Law Rule 31(5) provides:

31(5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just; (b) pay a fine in any amount that is appropriate; (c) pay an amount to a party as a penalty; (d) do anything else that the court decides is appropriate; (e) not do what the court forbids; (f) pay costs in an amount decided by the court; and (g) obey any other order.

[19] Both sections 31(1) and 26(4) of the Family Law Rules confirm that a payment order cannot be enforced by a contempt order: see: Murano v. Murano, 2002 ONCA 49352, [2002] O.J. No. 3632 (C.A.); and Salituro v. Salituro, 2015 ONSC 3010, at paras. 9 to 13. In Dickie v. Dickie, 2006 ONCA 576, [2006] O.J. No. 95 (C.A.), the Court of Appeal explained that the purpose of section 31(1) of the Family Law Rules, like rule 60.11 of the Rules of Civil Procedure, is “to ensure that people are not imprisoned because they have not satisfied monetary obligations” per Juriansz J.A. at paragraph 53. “We no longer imprison people for their failure to pay a civil debt” per Laskin J.A. at paragraph 103. Both provisions have their origin in the Debtors Act, 1869, 32 & 33 Vict., c. 62: see: Forrest v. Lacroix (Estate), (2000), 2000 ONCA 5728, 48 O.R. (3d) 619, at para. 36 [4].

[20] A “payment order” is defined in section 2 of the Family Law Rules:

“payment order” means a temporary or final order, but not a provisional order, requiring a person to pay money to another person, including,

(a) an order to pay an amount under Part I or II of the Family Law Act or the corresponding provisions of a predecessor Act, (b) a support order, (c) a support deduction order, (d) an order under section 60 or subsection 154 (2) of the Child and Family Services Act, or under the corresponding provision of a predecessor Act, (e) a payment order made under rules 26 to 32 (enforcement measures) or under section 41 of the Family Responsibility and Support Arrears Enforcement Act, 1996, (f) a fine for contempt of court, (g) an order of forfeiture of a bond or recognizance, (h) an order requiring a party to pay the fees and expenses of, i. an assessor, mediator or other expert named by the court, or ii. a person conducting a blood test to help determine a child’s parentage, and (i) the costs and disbursements in a case;

[21] Payment orders relating to support orders are enforced by the Family Responsibility Office through the provisions of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

Alternatives to Contempt

[22] The courts consistently describe the civil contempt remedy as a remedy of last resort that is only available in family law cases where no other adequate remedy is available, yet a contempt motion is frequently the first reaction in high conflict family law cases. Bringing a contempt motion as a routine enforcement mechanism or as a pre-emptive strike is a dangerous litigation strategy that can easily backfire. Since the onus is on the moving party to prove the elements of contempt on the criminal standard of proof beyond a reasonable doubt, litigants relying on the court’s contempt power often make their case more difficult than necessary.

[23] Litigants in family law cases should remember that the court has a variety of powers under the Family Law Act and Rules to enforce its orders without recourse to the contempt power. For example, Rule 1(8) of the Family Law Rules provides:

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order.

[24] Only the last of these powers requires the finding of contempt beyond a reasonable doubt. In many ongoing cases subparagraphs (a) to (f) (which are not exhaustive) provide the court with sufficient scope to impose an appropriate remedy or penalty for failure to obey a court order even if there is no contempt. While the penalties of imprisonment and payment of a fine are exclusive to a contempt order (hence the requirement of proof beyond a reasonable doubt), these penalties are rarely imposed except in the most egregious of cases.

[25] Given the availability of alternatives like Rule 1(8), I am repeatedly puzzled why litigants and counsel prefer to swim upstream and rely on the more onerous Rule 31. With a little imagination effective enforcement is available without recourse to a contempt of court motion. Often the path of least resistance can be the most effective.

Analysis

[26] The mother has filed a detailed affidavit setting out her complaints regarding her allegations that the father has refused to comply with the provisions of the order set out above. I will deal with each in turn.

Refusal to Retain a Parenting Plan Arbitrator

[27] Her first complaint relates to the father’s refusal to retain the services of a parenting plan arbitrator. As indicated above, the mother chose Cheryl Goldhart to act as the parenting plan arbitrator. The father has refused to sign the retainer or pay his share of the retainer. The father indicated that he is concerned that the hourly rate of a senior member of the family law bar was too expensive, and he no longer thought that a lawyer was the appropriate person to act in this capacity. Instead he wants to retain a mediator who can also provide therapy for their child.

[28] While the father appears to be disregarding the order of June 30 and Dec 18, 2015, Rule 2 of the Family Law Rules defines a “payment order” as an “order…requiring a person to pay money to another person, including …(h) an order requiring a party to pay the fees and expenses of an (i) an assessor, mediator, or other expert named by the court”.

[29] In my view a parenting plan arbitrator qualifies as an “other expert named by the court” (Woronowicz v Conti, 2015 ONSC 5247 at para. 63). Accordingly, this clause of the court order qualifies as a payment order under the Rules and is not enforceable by a contempt motion.

[30] The father’s failure to retain the parenting plan arbitrator in accordance with the June 30, 2015 order is not, however, without consequences for the father. By failing to retain a parenting plan arbitrator the father has abdicated major decision-making authority to the mother.

[31] Paragraph 11 of the order provides:

In the event of a dispute in relation to a major decision affecting [the child] that the parents are unable to resolve independently, [the mother] will maintain the final authority to make any such decision, subject to an Appeal by [the father] to be heard by the Parenting Plan Arbitrator …in accordance with the process set out in paragraphs 4 and 5 above.

[32] If the father declines to retain a parenting plan arbitrator, then the mother has final authority in relation to any major decision (defined in paragraph 9 of the order) affecting the child. The father has no right of appeal to a parenting plan arbitrator because he has failed to comply with the court order to retain one. Nor can the father appeal the mother’s decision to the court, because the order provides that such issues will be resolved by the parenting plan arbitrator.

[33] Sub-paragraphs 5 (b) to (d) of the June 30, 2015 order list other responsibilities of the parenting plan arbitrator to resolve disputes between the parties. If the parties are not able to resolve these disputes without the parenting plan arbitrator, it may be necessary, on motion by the mother, for the court to revisit and amend the order to give the mother final decision making authority with respect to all or some of the responsibilities listed in those sub-paragraphs.

Refusal to Follow the Residency/Access Schedule

[34] Access is an important right that the court will not hesitate to enforce through a contempt order if there is evidence that the custodial parent has a demonstrated history or pattern of intentionally frustrating, limiting or terminating access; see: Godard v. Godard, 2015 ONCA 568, at paras. 20 – 21; Rego v. Santos, 2015 ONCA 540, at paras. 9 and 14; Courtney v. Sambray, 2015 ONSC 4872, at para. 17; Carr-Carey v. Carey, 2014 ONSC 5441, at para. 22; and Perna v. Foss, 2015 ONSC 5636.

[35] In the present case, the mother complains that the father ignores the residency schedule and makes plans with their child during her time without confirming with her. She gives as an example the child’s last birthday, when the father planned a birthday party for the child at his house even though the birthday fell on the mother’s weekend with the child.

[36] I have reviewed the emails between the parties with regard to these disputes. Each claims that the other is disregarding the schedule. From my perspective I cannot tell whether the confusion about the schedule is genuine or feigned, and therefore I am not prepared to find that it rises to the level of contempt.

[37] The other complaints appear to relate to the father’s requests to switch dates in the schedule or to cancel his access. These issues commonly arise in many access arrangements. Where the parties can cooperate they are non-issues. I understand that the mother is frustrated by these requests and cancellations, but neither matter should be dealt with in a contempt proceeding.

[38] These are exactly the kinds of issues that could be easily resolved with the appointment of a parenting plan arbitrator, as intended by paragraph 41 of the order.

[39] Paragraph 41 of the order requires the parties to “communicate annually in late August of each year for the purpose of finalizing [the child’s] schedule of residence for the following year”. The order does not impose a deadline, and the mother complains that she could not get the father’s somewhat ambivalent confirmation of the schedule until October.

[40] In order to prevent this from repeating I will make the following clarification to Paragraph 41 of the June 30, 2015 order: If the father does not respond to the mother’s proposed schedule by September 15 of each year, the father’s silence will be deemed to be consent to the schedule and the mother may proceed accordingly. This clarification remains in force until a parenting plan arbitrator is appointed to resolve any disputes in accordance with paragraph 41 of that order.

Refused to consent to the child’s Canadian passport

[41] Another issue that has arisen is that the father has refused to sign the child’s Canadian passport application. Without going into detail regarding the chronology of events leading to this impasse, the bottom line is that the father takes the position that he will not sign the passport application unless he is the emergency contact person on the application.

[42] The mother wants to put her sister as the emergency contact person. She makes the point that neither the mother nor the father should be the emergency contact person because either one may travel with the child. The emergency contact person should be someone who does not normally travel with the child and will be at home in Canada when the child is travelling outside of the country.

[43] The mother’s position on this issue makes perfect sense and is consistent with the instructions on the Canadian passport application for children under 16 years of age. The application has a space for the names of both parents, and a separate place for “Emergency Contact Information”. The instructions on the application state:

We recommend that you provide the name of someone who would not normally travel with the child. This information is helpful if the child has an accident or becomes ill while travelling.

[44] I do not have to decide whether the father is in contempt of court in this regard because the father may not unreasonably withhold his consent to the passport application. Whether or not his conduct qualifies as contempt, I find that his refusal to sign the application for the reason given is unreasonable, and I order that the mother may apply for a Canadian passport on the child’s behalf and may dispense with the father’s signature on the application form.

Refused to consent to the child’s Iranian birth certificate and Iranian passport

[45] The mother claims that the father has simply failed to comply with the provisions in the court order requiring that he apply for the child’s Iranian birth certificate and Iranian passport (I understand from the material filed that under Iranian law only the father or paternal grandfather can make this application).

[46] The father has provided a letter from his former lawyer, Brian Ludmer, dated October 11, 2015, which sets out the difficulties the father has faced in trying to obtain these documents. At the time that the documents were sought there was no Iranian embassy in Ottawa, and he was trying to obtain these documents from the Iranian embassy in Washington. He was advised by the Iranian embassy in Washington that he would first have to provide a valid Islamic marriage certificate in order to obtain an Iranian birth certificate and passport for the child. The couple did not obtain a valid Islamic marriage certificate when they married. The letter from Mr. Ludmer states that “an Islamic marriage that has been dissolved is considered null and void and cannot be used to apply for a birth certificate”. Accordingly, Mr. Ludmer’s letter concludes that “at this point obtaining an Iranian birth certificate will not be possible…”

[47] The mother argues that the father has not provided any documentation from the Iranian embassy to back up his claims. The document provided from the embassy states (certified translation): “Respectfully we would inform you that as a general rule issuance of birth certificate for child depends on your marriage registration with [the mother]; meanwhile confirmation of exit permit of the spouse is possible by receiving passing code.”

[48] It is not clear to me exactly what this means. It may well be consistent with what Mr. Ludmer writes in his letter. Since this is a motion for contempt, the law requires that the mother prove the contempt beyond a reasonable doubt.

[49] If the requirements set out in Mr. Ludmer’s letter of October 11, 2015, are an accurate interpretation of the import of this letter, then the father is not in contempt because his failure to obtain the Iranian birth certificate and Iranian passport is not wilful. His failure to comply is beyond his control because the Iranian embassy will not recognize a marriage certificate if the marriage has already been dissolved.

[50] In order for the mother to succeed on this part of the contempt motion the court requires some expert evidence (likely from an Iranian embassy official) to indicate that the information in Mr. Ludmer’s letter is not accurate. In the absence of such evidence I am left with a reasonable doubt as to whether the father’s failure to obtain the Iranian documentation is wilful on his part.

[51] Further, since this court has no authority over the Iranian government, I cannot order the Iranian government to provide the birth certificate and passport, or order that the mother may dispense with the father’s signature or consent to obtain these documents.

Blocked all scheduled access calls

[52] The mother alleges that, contrary to paragraph 48 of the order (see paragraph 10, above), she has not been able to contact the child during the father’s access since December 2015. She believes that the father has blocked her number so that it does not ring through. She has provided a number of emails in which she has emailed the father asking him to let her speak to the child in accordance with the court order.

[53] The father takes the position that this paragraph of the June 30, 2015 order was superseded by paragraph 6 of the December 18, 2015 order that prohibits the parties from “directly or indirectly” contacting or communicating with one another at their place of residence or employment other than through written communication. This order states; “Parties will only telephone one another in the event of an emergency concerning their daughter”. He argues that the mother may no longer contact the daughter at his house, and that she is in breach of the December 18, 2015 court order when she does so.

[54] At this point I must give the father the benefit of the doubt and accept that his failure to comply with the June 30, 2015 order is based on his misinterpretation of the relationship between it and the December 18, 2015 order. To be clear: The father and mother must both comply with paragraph 48 of the June 30, 2015 order. Since those telephone calls are made at a specific, predictable time (between 7:00 p.m. and 7:30 p.m.) and the child can answer the phone at that time, there is no reason for either parent to answer the phone or speak to the other parent. The December 18, 2015 order was not intended to amend or supersede paragraph 48 of the June 30, 2015 order. The parties are expected to comply with both orders.

[55] To ensure that the order is being complied with I am asking the mother to keep a diary for the next three months of the precise time and date that she calls the child in accordance with paragraph 48 of the order and whether she is able to speak to the child for the 10 to 15 minutes provided in the order. The father is responsible for ensuring that the child has access to the phone at the set time. If the mother is of the view that the father is deliberately frustrating or preventing these calls she may return to court with a contempt motion and rely on the diary as evidence.

[56] Again, this is the kind of confusion that could have been easily resolved without court intervention if the father would have complied with the court orders related to the appointment of the parenting plan arbitrator.

Failure to produce proper life insurance documents

[57] On September 29, 2015, the father’s former lawyer wrote to the mother’s former lawyer to advise that the father had complied with paragraph 73 of the June 30, 2015 order by obtaining a $500,000 life insurance policy with the mother as trustee and the child as sole beneficiary. The father provided the mother with a policy information notice dated September 16, 2014. This notice does not indicate the name of the beneficiary or the mother’s name as trustee. The mother was also sent a Beneficiary Change Request Form dated October 6, 2015, but it was improperly completed (it does not specify that the mother is to be the trustee) and there is no confirmation that it was received by the insurer.

[58] It is not clear to me whether or not the father has complied with paragraph 73 of the order. It is possible that he has. It is also possible that the change request form was never delivered to the insurance company. Accordingly, I will not make a contempt order at this stage.

[59] This is, however, an appropriate circumstance to exercise the court’s authority under Rule 1(8) and this court orders that within 30 days after the release of this decision the father shall provide the mother and the court with a copy of documentation from the insurance company to confirm that the father has complied with paragraph 73 of the order and has obtained a minimum $500,000 life insurance policy with the child as the sole beneficiary and the mother as trustee.

Conclusion

[60] For the reasons stated the mother’s motion for contempt is dismissed, but the court makes the following orders:

1. Paragraph 41 of the June 30, 2015 order is clarified as follows: If the father does not respond to the mother’s proposed schedule by September 15 of each year, the father’s silence will be deemed to be consent to the schedule and the mother may proceed accordingly. This clarification remains in force until a parenting plan arbitrator is appointed to resolve any disputes in accordance with paragraph 41 of that order.
2. The mother may apply for a Canadian passport on behalf of the child, Parinaz Amid, d.o.b. March 26, 2011, and may dispense with the father’s signature on the application form.
3. The father and mother must both comply with paragraph 48 of the June 30, 2015 order. The December 18, 2015 order does not amend or supersede paragraph 48 of the June 30, 2015 order. The parties are expected to comply with both orders.
4. Within 30 days after the release of this decision the father shall provide the mother and the court with a copy of documentation from the insurance company to confirm that the father has complied with paragraph 73 of the June 30, 2015 order and has obtained a minimum $500,000 life insurance policy with the child as the sole beneficiary and the mother as trustee.

Costs

[61] While the mother was not successful on her contempt motion, she was successful in obtaining relief with respect to most of her claim. I also find that the father was acting unreasonably in refusing to sign the child’s Canadian passport application, and in refusing to retain the parenting plan arbitrator in accordance with the court order of December 18, 2015. Accordingly, pursuant to Rules 1(8)(a) and 24(1), and considering the factors listed in Rule 24(8), the father will pay the mother costs in the amount of $500.00 payable forthwith.

Justice R.E. Charney

Released: April 27, 2016