Court of Appeal for Ontario

CITATION: Sickinger v. Sickinger, 2009 ONCA 856

DATE: 20091203

DOCKET: C50584

BEFORE: Doherty, Moldaver and Epstein JJ.A.

BETWEEN:

Penelope Kay Sickinger

Applicant (Appellant)

and

Ralph Thomas James Sickinger

Respondent (Respondent in Appeal)

COUNSEL:

Jeffrey Wilson and Rui Alves, for the appellant

Gary S. Joseph and Brian Ludmer, for the respondent

Heard and endorsed: December 1, 2009

On appeal from the order of Justice Susan Greer of the Superior Court of Justice dated June 2, 2009.

APPEAL BOOK ENDORSEMENT

[1] In the circumstances, it was open to the motion judge to conclude that significant aspects of the complaint made by the father were outside the scope of the dispute resolution clauses. Accordingly, the motion judge did not err in proceeding with the hearing.

[2] It was further open to the motion judge to proceed with the matter, despite the mother’s request that it be stayed by virtue of the father’s failure to comply with his financial commitments. The motion judge saw this as an urgent matter involving “high conflict between the parties” in which the daughter had allegedly been alienated from the father for a period of approximately eight months. Although the motion judge did not address the stay request specifically, it is implicit in her reasons that she considered and rejected it. In our view, she did not err in exercising her discretion as she did.

[3] Turning to the contempt finding, the mother did not seek to cross-examine on the affidavit material presented; nor did she seek to lead viva voce evidence. On the contrary, she was content to proceed on the material filed. It does not lie with her on appeal to challenge that decision. Nor, in our view, was it necessary in these circumstances to have a trial in order to justify a finding of contempt.

[4] Turning to the finding itself, in our view, there was ample non-hearsay evidence upon which the trial judge could base her finding of contempt, including the mother’s oral evidence in which she admitted to doing nothing to encourage the child to have a relationship with the father. In addition, there was ample original evidence upon which the motion judge could find that the mother took active steps to discourage the child’s relationship with the father and his extended family.

[5] In short, there was ample evidence supporting the finding of contempt and in our view, the motion judge did not err in coming to the conclusion she did.

[6] In oral argument, counsel for the appellant acknowledged that the contempt finding was the only part of the order with which the appellant took issue.

[7] Accordingly, the appeal is dismissed. In these circumstances, as we have been able to decide the appeal without consulting the fresh evidence, the motion in that regard is dismissed as moot.

[8] Costs to the respondent fixed at $10,000 inclusive of G.S.T. and disbursements.