COURT OF APPEAL FOR ONTARIO

CITATION: Rego v. Santos, 2015 ONCA 540

DATE: 20150721

DOCKET: C58282

Hoy A.C.J.O., Epstein and Huscroft JJ.A.

BETWEEN

Victor Rego

Applicant

Respondent in Appeal

and

Claudia Santos

Respondent

Appellant

Milena Celap, for the appellant Claudia Santos

Laughlin J. Campbell and Dilmini Walaliyadde, for the respondent Victor Rego

Heard: July 9, 2015

On appeal from the order of Justice John R. Sproat of the Superior Court of Justice, dated November 20, 2013.

ENDORSEMENT

[1] The appellant mother and respondent father are the parents of a five year-old daughter. They have been involved in numerous custody and access proceedings since the first order was made granting access to the respondent on December 15, 2010.

[2] The respondent brought a contempt motion on October 26, 2012, alleging the appellant failed to comply with the terms of a temporary access order dated August 7, 2012. The motion judge found the appellant in contempt and ordered that she pay a fine of $5,000 to the respondent along with costs of $10,000. These amounts were to be set off against the respondent’s child support arrears, with any balance to be paid by the appellant by August 31, 2013, after which the balance would be set off against the respondent’s ongoing child support obligation at the rate of $200 per month commencing September 1, 2013.

[3] An appeal to the Superior Court of Justice was dismissed by Sproat J. on November 20, 2013. This is the second appeal of the finding of contempt.

[4] The appellant appeals the decision of Sproat J. on the basis that the motion judge erred by:

(1) finding her in contempt of the access order;

(2) concluding that contempt was an appropriate remedy in the circumstances of this case;

(3) ordering her to pay a fine of $5,000 directly to the respondent;

(4) setting-off the costs payable to the respondent against past and future child support obligations;

(5) failing to allow her to purge the contempt.

[5] We reject these arguments.

[6] As Sproat J. noted, the motion judge correctly set out the three-part test that must be met in order for a finding of contempt to be made (G.(N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (C.A.) at para. 7):

(i) the order that was breached must state clearly and equivocally what should and should not be done;

(ii) the party who disobeys the order must do so deliberately and willfully; and

(iii) the evidence must show contempt beyond a reasonable doubt.

[7] We agree with Sproat J. that the motion judge applied the test properly.

[8] The access order clearly and unequivocally sets out the dates and times of the access visits. The order provides sufficient clarity for the appellant to understand the allegations giving rise to the contempt motion.

[9] The motion judge considered the evidence as a whole, including the fact that only two of thirteen scheduled unsupervised visits had occurred, and did not accept the appellant's explanations for the cancelled visits. We note that the parties were represented by counsel and chose to proceed without cross-examination on the affidavits. The motion judge found it inconceivable that the appellant could not facilitate the access order and inferred deliberate and wilful disobedience beyond a reasonable doubt.

[10] As Sproat J. concluded, the evidence justified the motion judge’s finding of contempt “beyond a reasonable doubt”.

[11] The appellant argued in her factum that the motion judge erred in ordering that her fine be paid directly to the respondent but abandoned this position at the oral hearing. This was appropriate, as Rule 31(5) of the Family Law Rules, O.Reg. 439/07 clearly provides that a court may order payment of a penalty to a party. As to the quantum of the penalty, we see no error in the appeal judge’s conclusion that the penalty imposed by the motion judge was “fairly modest in all the circumstances”.[^1]

[12] The motion judge explained her decision to set-off costs payable to the respondent against past and future child support obligations as follows:

[The appellant] delayed paying the retainer for the s. 30 assessment as ordered, thus delaying the investigation into what custody/access arrangement would be in this child’s best interests, and she has been found in contempt of an access order causing the child to be deprived of most of the unsupervised access ordered from July to October 2012. If her costs obligation is not treated seriously it will send the message that she can disregard the court orders with no repercussions.

While it is true that the child will be affected by the set off it is also true that the child will be affected if [the appellant] continues to interfere with the child’s access to [the respondent]. Furthermore the set off can be structured to ensure the child does not suffer unduly adverse economic consequences, given that [the appellant’s] current income is about $54,000 and [the respondent] will be paying child support of $781 per month plus contributing proportionately to the child’s daycare expenses.

[13] The decision to set-off costs payable to the respondent against the respondent’s support obligations is unusual. As the Supreme Court noted in D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 SCR 231 at para. 60, child support is the right of the child. However, the motion judge clearly made the order with the child's best interests in mind. She considered the potential financial effect on the child and determined, not unreasonably, that an incentive for the mother to facilitate access by the father was of greater overall benefit to the child. Moreover, the motion judge was sensitive to the concern that the child should not suffer undue economic consequences and structured the set-off accordingly. Sproat J. did not address the matter, but we see no error in the motion judge's decision to allow the set-off in these circumstances.

[14] Finally, we agree with Sproat J. that there was no error in the motion judge’s decision not to bifurcate the liability and penalty phases of the contempt motion in order to afford the appellant an opportunity to purge her contempt. Although there is good reason to bifurcate contempt proceedings (Boyd v. Carleton Condominium Corporation 145, 214 ONCA 574), given the appellant’s pattern of non-compliance and the consequences to the respondent and their daughter, it was open to the motion judge to impose the penalty immediately.

[15] The appeal is dismissed.

[16] The respondent is entitled to his costs of the appeal. In our view $7,000, inclusive of taxes and disbursements, is appropriate in the circumstances of this case.

“Alexandra Hoy A.C.J.O.”

“Gloria Epstein J.A.”

“Grant Huscroft J.A.”

[^1]: This is the second time the respondent has brought contempt proceedings. The record includes an endorsement by Maresca J. indicating that the appellant was found in contempt of prior access orders, but no penalty was imposed because the appellant complied with the order. The record did not include the contempt order, however, and there is some confusion as to the nature of the prior proceeding. Nothing in this appeal turns on the matter.