COURT OF APPEAL FOR ONTARIO

DATE: 20150327

DOCKET: M44850 M44851 C60037

BEFORE: Huscroft J.A. (In Chambers)

BETWEEN

Grzegorz Jan Nowacki

Applicant

(Respondent in Appeal)

and

Elzbieta Nowacki (Koziel)

Respondent

(Appellant in Appeal)

COUNSEL:

Marek Z. Tufman, for the appellant Elzbieta Nowacki

Michael J. Stangarone and Ryan M. Kniznik, for the respondent Grzegorz Nowacki

HEARD: March 23, 2015

ENDORSEMENT

[1] The moving party (appellant on appeal) seeks to stay a final divorce order by Daley J. Such a stay would necessarily involve a stay of the order of Price J. dismissing the moving party’s motion to set aside the divorce order. The respondent brings a cross-motion seeking an order prohibiting the moving party from proceeding with her motion on the basis that she is in contempt of court and should not be heard until her contempt is purged. Both motions were heard together.

[2] The parties were married in 2009 and their son A was born in 2010. The family travelled to Poland in 2011 and separated while in that country. The moving party refused to return to Canada and kept A with her.

[3] On October 27, 2011, Snowie J. made an order granting the respondent temporary custody of A and requiring the moving party to return the child to Canada and deliver him to the respondent. The respondent’s attempt to have Snowie J.’s order set aside was dismissed by Fragomeni J. on April 3, 2012. On June 19, 2012, Bielby J. ordered the moving party to provide A’s medical records and related information to the respondent.

[4] It is common ground that the moving party has not complied with any of these orders and is in contempt of court.

[5] The respondent brought divorce proceedings in Ontario on March 21, 2013. Divorce was granted by Daley J. on May 22, 2013. The moving party brought a motion seeking to set aside Daley J.’s order. In a decision dated April 1, 2014, Price J. stayed the motion for several weeks in order to allow her to purge her contempt. He held that the divorce order would become final after May 31, 2014 if no further steps were taken, but gave the moving party leave to re-apply to have the court review the divorce order on further evidence before she purged her contempt.

[6] The moving party did not purge her contempt and on February 12, 2015, Price J. dismissed her motion seeking to have the divorce order set aside.

[7] The respondent argues that this court should not hear the moving party’s request for a stay of Price J.’s order while she remains in contempt of court. He cites Paul Magder Furs Ltd. v. Ontario (Attorney General) (1991), 1991 CanLII 7053 (ON CA), 6 O.R. (3d) 188 (C.A.), at para. 14 and Dickie v. Dickie (2006), 2006 CanLII 576 (ON CA), 78 O.R. (3d) 1 (C.A.), at para. 87, per Laskin J.A. (dissenting), rev’d 2007 SCC 8, [2007] 1 S.C.R. 346, in which the Supreme Court adopted the reasoning of Laskin J.A..

[8] Counsel for the moving party submits that the respondent acted fraudulently in failing to inform Daley J. of ongoing divorce proceedings in Poland and that it would be unjust not to permit her to challenge the divorce order. He submits that the moving party intends to use a fraudulently obtained judgment outside of Ontario. He also submits that the moving party should not be in contempt in Ontario for complying with the decision of the Polish courts, which refused to return A to Ontario pursuant to the moving party’s Hague Convention application.

[9] It is clear that this court has the discretion to refuse to hear an appeal by a litigant who has not purged a contempt order in the same proceedings. Following Dickie, it is also clear that this court’s discretion “may also be invoked when the order appealed is closely connected to an order or orders willfully breached”: para. 87 (C.A.). As Laskin J.A. explained, “in each case the court must consider whether hearing the appeal before the breach is cured would abuse the court’s process or impede the course of justice”.

[10] This case involves divorce and child custody proceedings that are intimately connected. The moving party is seeking equitable relief – an order to stay an Ontario divorce – while in contempt of Ontario court orders requiring her to return A to Canada. Should she succeed in staying the final divorce order, she would be free to pursue divorce and child custody/support proceedings on more favourable terms in Poland and then seek to have the order of the Polish courts enforced in Ontario. This would be manifestly unjust.

[11] The decisions of the Polish courts concerning custody of A do not absolve the moving party of her contempt of court. The decisions of foreign courts do not sanction a refusal to comply with orders made validly by Canadian courts: see Hughes v. Hughes, 2014 BCCA 196, 376 D.L.R. (4th) 197, at paras. 104-105, leave to appeal to S.C.C refused, 36020 (December 11, 2014).

[12] Accordingly, the respondent succeeds on the cross motion. I will not consider the moving party’s request for a stay.

[13] If the parties are unable to resolve the matter of costs, they may make brief written submissions within 10 days of the release of this decision.

“Grant Huscroft J.A.”