Superior Court of Justice - Ontario

Re: Paul Anthony Barbara, Applicant And: Jennifer Cordeiro, Respondent

Before: Chozik J.

Counsel: N. Denchik, for the Applicant Self-Represented, Respondent

Heard: May 22, 2024

Endorsement

[1] The Applicant brings a motion for a finding that the Respondent is in contempt of court for failing to comply with a final order made by Justice B. Fitzpatrick on February 24, 2021.

[2] The Applicant has also commenced a Motion to Change the final order of Fitzpatrick J., which is not before me. I am advised that a case conference in respect of that Motion to Change is scheduled for tomorrow, May 24, 2024 before a dispute resolution officer (DRO).

Legal Principles – Motions for a Finding of Contempt:

[3] Rule 31 of the Family Law Rules governs contempt motions based on a party’s alleged failure to comply with a court order.

[4] The Court of Appeal in Ontario has clearly stated that in family law litigation, the civil contempt remedy is one of last resort. A contempt order should not be granted where other adequate remedies are available to the aggrieved party, such as a variation of an order or enforcement of one. Great caution should be exercised when considering contempt motions in family law cases. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3.

[5] The contempt power is to be used with restraint and in exceptional circumstances – essentially to respond to circumstances where it appears to be the only reasonable means to send a message to the litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules as a whole to enable a court to deal with a case justly, with particular attention to subrule 2(3) and 2 (4) of the Rules: Teal v. Teal, 2020 ONSC 6395, at para. 37; Ricafort v. Ricafort, 2006 ONCJ 520, at para. 17.

[6] In Ruffolo v. David, 2019 ONCA 385, the court stated the following:

[18] We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:

The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]

[19] Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.

[7] In Chong v. Donnelly, 2019 ONCA 799, the court added:

[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.

[8] In Moncur v. Plante, 2021 ONCA 462, Jamal J.A. set out the general principles governing the use of the court’s power to find a party in civil contempt for breaching a court order, at para. 10:

1. For a party to be found in contempt of court for breaching a court order, three elements 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 had 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: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.

2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.

3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

[9] The contempt remedy is primarily remedial and aimed at encouraging compliance with the court order: Kim v. McIntosh, 2023 ONSC 5121, at para. 23.

[10] In Jackson v. Jackson, 2016 ONSC 3466, at para. 56, Justice Chappel summarized the following principles regarding the use of contempt in family court proceedings:

a) it ultimately remains a matter for the Court’s discretion; b) because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint; c) it cannot be reduced merely to a mechanism for enforcing judgments; d) it should be used sparingly and as a measure of last resort where there are no other adequate remedies available; e) it is typically reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted; f) the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.

[11] The onus is on the person alleging contempt to prove it beyond a reasonable doubt: Antoine v. Antoine, 2024 ONSC 1397, at para. 20; Kim, at para. 16; Snively v. Gaudette, 2020 ONSC 2895, at para. 19. Hearsay evidence is not admissible: Snively, at para. 19, unless it is not disputed: r.14(19). The criminal standard of proof beyond a reasonable doubt applies: Moncur v. Pante, 2021 ONCA 462 at para. 10 (1).

[12] If there is a conflict as to material facts in the affidavits, there should be a viva voce hearing: Fischer v. Milo (2007), 44 R.F.L. (6th) 134 (Ont. S.C.); N.B. v. A.B., 2021 ONSC 3467, at para. 27.

[13] Having regard for the quasi-criminal nature of contempt, the alleged contemnor must be afforded the same protection and procedural safeguards as an accused in a criminal proceeding. This includes the right to a hearing, the right not be compellable as a witness at the hearing, and the right to make full answer and defence, including the right to counsel, to call evidence and to cross examine upon the other party’s evidence: Antoine, at para. 38.

[14] Ultimately, in respect of each of the alleged breaches, the court must make the following findings:

1. That the relevant order was clear and unambiguous;
2. The fact of the order's existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
3. That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
4. That the respondent was given proper notice of the terms of the order.

S.H. v. G.H., 2010 ONSC 5615, at para. 43.

[15] A judge retains an overriding discretion to decline to make a contempt finding even where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order. See: McKinnon v. McKinnon, 2018 ONCA 596, at para. 36.

[16] The order alleged to have been breached must be expressed in clear, certain and unambiguous language. The person affected by the order should know with complete precision what he or she is required to do or to abstain from doing. Implied terms cannot be read into the order. If the order alleged to be breached is ambiguous, the alleged contemnor is entitled to the most favorable construction: Szyngiel v. Rintoul, 2014 ONSC 3298, at para. 20.

[17] Although r. 31 of the Family Law Rules does not prescribe a particular format, contempt proceedings are generally bifurcated with the first phase addressing liability for contempt, and if liability is established, the second phase addressing the appropriate penalty: Antoine, at para 39; Carey v. Laiken, 2015 SCC 17, at para. 18.

[18] If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy. The contemnor’s efforts to purge contempt is a mitigating factor in the remedy to be imposed: Kim, at para. 22.

Application:

[19] In this case, counsel brought the contempt motion without having taken any other step to enforce the final order. Counsel scheduled the contempt motion on the regular motion list in Milton. The motion confirmation states that the argument of the motion would require 40 minutes of court time (20 minutes for the Applicant and 20 minutes in response).

[20] In my view, proceeding in this fashion is entirely unreasonable. It fails to recognize the extraordinary nature of a contempt motion.

[21] At the hearing, the Applicant tried to argue that this was not really a contempt motion. The Applicant took the position that this motion was really a motion to compel the Respondent to comply with the 2-2-3 parenting schedule ordered by Fitzpatrick J. when negotiations outside of court failed.

[22] I do not accept this argument. This is clearly a motion for contempt.

[23] The Notice of Motion is in Form 31 “Notice of Contempt Motion”. The Notice of Motion clearly sets out that the Applicant seeks a finding that the Respondent is in contempt for failing to comply with that final order by:

a) Denying him overnight visits with their child and denying him a 2-2-3 parenting scheduled; b) Entering his property without his consent; c) Refusing to provide him with information about the child’s doctor and consent to access the child’s medical records; d) Refusing to provide him with copies of the child’s government documents including copies of her birth certificate health card and passport; e) Refusing to reconcile s.7 expenses, and provide her notices of assessment and income tax returns for 2021 and 2022.

[24] The Notice of Motion expressly sets out that if a finding of contempt is made, the Respondent is liable to imprisonment, a fine, seizure of her property and costs being awarded against her.

[25] Having brought a motion for contempt, the Applicant must comply with the procedures and legal principles that apply to contempt motions.

[26] The Applicant has taken no other steps to try to enforce the order. Contrary to the very clear principles articulated by the courts that it is a remedy of last resort, the Applicant brings the contempt motion as his first step to enforce the order.

[27] The material facts in respect of the alleged contempt are very much in dispute. The Respondent denies many of the alleged breaches and takes the position that a 2-2-3 schedule is not required under the final order given the Applicant’s own failings to meet the requirements of that order. The 2-2-3 schedule was part of a ‘step-up’ approach to parenting time. Her submissions lead me to question whether the terms of the order are unambiguous. Since there is conflict as to the material facts, the Respondent is entitled to a viva voce hearing in respect of the alleged contempt. She is entitled to hear the evidence against her viva voce and to cross-examine the witnesses, and to testify in her own defence if she choses. She is also entitled to remain silent. She need not file any evidence in response to the allegations of contempt. The Applicant must prove her contempt beyond a reasonable doubt.

[28] A viva voce hearing obviously cannot take place on a regular motion list in Milton, where 12 to 14 matters of up to 59 minutes in length are routinely scheduled before one judge in a 6-hour court day. The maximum time allowed for the argument of a regular motion is 59 minutes. A contempt motion requires directions, and a bifurcated hearing. It cannot be scheduled to a regular motion list.

[29] The contempt motion in this case should not have been brought. There is a case conference scheduled for tomorrow in respect of the Motion to Change which deals with the same issues. That is an appropriate first step to clarify or seek enforcement of the final order.

[30] In all of the circumstances, the Applicant’s contempt motion is dismissed.

Costs:

[31] As the successful party, the Respondent is entitled to her costs of responding to the motion for contempt. She has provided a bill of costs outlining that she incurred costs of approximately $3,500 for a lawyer to assist her in preparing for this and the Motion to Change.

[32] The costs of the Motion to Change are reserved to the that step of the proceeding. I am dealing with the costs of the contempt motion only.

[33] The Applicant’s lawyer submits that her costs in preparing the contempt motion was $4,000. Hence, I am of the view that $3,500 for legal fees to prepare for both litigation steps are very reasonable.

[34] Deducting what the Applicant reasonably incurred for the Motion to Change to date, I find that costs of $1,750 plus HST to respond to this contempt motion are fair, proportionate and reasonable in the circumstances. The Applicant shall pay these costs ($1,750 plus HST) to the Respondent forthwith.

14B Motion for the Appointment of the Office of the Children’s Lawyer:

[35] At the hearing of the motion, counsel advised that a 14B Motion had been filed with the court on May 3, 2024 seeking an Order appointing the Office of the Children’s Lawyer on consent. The parties are awaiting a decision on that 14B motion. I indicated that I would deal with that 14B Motion in chambers after the hearing.

[36] I have now reviewed the materials filed on the 14B motion. A draft order was not included with the 14B Motion. It was also not filed on the portal, as required. The court office has indicated that in the regular course, it would reject the filing for non-compliance with the practice directions on 14B motions.

[37] I directed that the 14B motion materials be dealt with by the staff in accordance with the usual practices in respect of 14B motions.

[38] However, I have heard from both parties before me. They agree that it would be in their child’s best interests to request that the OCL take on this matter to determine the child’s views and preferences in respect of parenting time.

[39] Having reviewed all of the materials in respect of this motion for contempt, as well as the materials filed on the 14B motion, I am satisfied that such an order is in the interests of justice.

[40] An Order requesting the appointment of the OCL shall issue as per the draft I signed yesterday.

Chozik J. Date: May 23, 2024