COURT OF APPEAL FOR ONTARIO

CITATION: Balice v. Serkeyn, 2016 ONCA 372

DATE: 20160517

DOCKET: C61354

Rouleau, Pardu and Benotto JJ.A.

BETWEEN

Claudio Balice

Applicant (Respondent)

and

Joanne Serkeyn

Respondent (Appellant)

Stanley P. Jaskot, for the appellant

Mitchell B. Rosenblatt, for the respondent

Heard: May 4, 2016

On appeal from the order of Justice Cheryl Lafrenière of the Superior Court of Justice, dated November 3, 2015.

ENDORSEMENT

[1] This appeal concerns an order made following a contempt finding against the appellant. Among other things, the motion judge’s order made significant changes to the parties’ access schedule to their two children. Those changes were based on her conclusion that 122 days of access should be transferred to the father over a two-year period to make up for the mother’s contempt. For the reasons that follow, we are allowing the appeal.

Background

[2] The parties are the parents of two children, now aged 12 and 14. Their parenting arrangements were the subject of an order by McLaren J. on January 3, 2013. On April 17, 2014, the respondent moved for a finding of contempt against the appellant for not complying with numerous terms of that order. The motion judge agreed and found the appellant in contempt on January 26, 2015. This finding is not in dispute on appeal.

[3] A further hearing was set for July 13, 2015, and it is the disposition of that hearing that is being appealed. The parties disagree about whether the July 13 hearing should be characterized as one in which the appellant’s purging of her contempt was considered, as the respondent describes it, or as a penalty hearing, as the appellant argues.

[4] The motion judge released her decision on November 3, 2015. She found that the appellant had not purged her contempt, and accepted the respondent’s submission that from January 3, 2013 to July 13, 2015 the respondent had missed 122 days of access. The motion judge concluded that an order requiring the appellant to purge her contempt by transferring time with the children from the appellant to the respondent was in the best interests of the children. This was appropriate, in her view, “because the mother has enjoyed more time with the children than the [McLaren] order provided due to the conflict in the parties’ work schedule.”

[5] This appears to be a reference to the provisions in the McLaren order that the access schedule was to be constructed based on the appellant’s work schedule (she is a police officer). Because the balance of the days with the children would not necessarily fit well with the respondent’s work schedule (he is a firefighter), the order provided for a mechanism whereby the appellant was to work with the respondent to ensure that there would be an adjustment for the missed days. This clearly did not occur.

[6] The motion judge’s order provided, among other things:

a) that the appellant was to purge her contempt by giving the respondent more time with the children than provided in the McLaren order “to make up for the time he has missed”;

b) that this “make up time” was to be made up by the appellant giving the respondent between three to five additional overnights each month beyond what was provided for in the McLaren order, and giving the respondent some of the time allocated to the appellant during the children’s school break at Christmas, during the March break and during the summer school break;

c) that commencing December 1, 2015, the access schedule was to be based on the schedule of the respondent and not, as provided in the McLaren order, based on the appellant’s work schedule; and

d) that the parties were to return before the motion judge every six months during the two years within which the appellant had to “purge her contempt”.

[7] The appellant appeals on various grounds including that the motion judge erred by:

a) failing to allow cross-examination on the affidavits at the July hearing;

b) finding that the appellant had failed to purge her contempt;

c) ordering an increase in the respondent’s access and adjusting the schedule set out in the McLaren order without having considered the best interests of the children; and

d) failing to consider proper sentencing principles in imposing the penalty for the contempt.

[8] The appellant also seeks leave to appeal the motion judge’s costs award and to introduce fresh evidence. The proposed fresh evidence sets out events that have occurred since the July 13 attendance and contains expert evidence on whether the November 3 order is in the best interests of the children and evidence of whether it was consistent with the children’s views and preferences.

[9] For his part, the respondent maintains that the order was properly made. He also raises a jurisdictional issue, arguing that the order under appeal is an interlocutory order, whose appeal lies to the Divisional Court, with leave.

Discussion

[10] In our view, the appeal ought to be allowed.

[11] It is unclear from the motion judge’s reasons and the terms of the order whether that order was intended as a penalty for the appellant’s contempt, a variation of the custody order, or a stand-alone order delaying the penalty phase and specifying what the appellant must do to purge her contempt and ordering it to be done within 24 months.

[12] However the order is characterized, it effects substantial changes to the custodial arrangements of the children. It ought not to have been made without evidence of the children’s current circumstances, and careful consideration of that evidence, to determine what was in their best interest. The motion judge’s order that, in effect, the appellant “purge her contempt” by transferring 122 days of her custodial access to the respondent in the ensuing two years simply cannot stand on the record before us.

[13] The McLaren order provided for substantial time being spent with each parent and established a schedule found to be in the best interests of the children. It also provided a mechanism whereby missed days could be made up.

[14] The amount of make-up ordered by the motion judge, however, is well beyond what could have been reasonably contemplated by the McLaren order. It significantly alters the balance established by that order for the two parents’ contact with their children for two years.

[15] The motion judge’s reasons contain only two references explaining why this change was in the best interests of the children: first, a statement that the McLaren order was “in the best interests of the children at the time it was made and continues to be in the best interests of the children”; and, second, the statement referenced earlier in these reasons to the effect that transferring 122 days was in the best interests of the children because the appellant had enjoyed more time with the children over the previous two-and-a-half years.

[16] There is no reference to the evidence led at the hearing on the children’s wishes nor any reference to the children’s current circumstances. The decision appears to be based simply on the premise that each day missed by the respondent must be made up within the following 24 months, without considering the impact that such a large shift would have on the children.

[17] Whether make up time is appropriate in any given case, and in what amount, must be based on a determination of the best interests of the children that takes into account all of the relevant circumstances. The relevant circumstances will invariably include the magnitude of the make up time sought and can, in the appropriate case, include considerations such as the wishes of the children and concerns about alienation of one of the parents.

[18] The motion judge found that the appellant was attempting to undermine the respondent’s relationship with the children. It may be that the children’s best interests require more time with the respondent to offset her efforts and preserve his relationship with his children. But a more detailed examination of the impact of 122 days’ make up time is required to assess the need for such an order and its effect on the children’s best interests.

[19] Because we are allowing the appeal and directing a new hearing based on inadequate consideration of the best interests of the children, we see no need to deal with the other grounds of appeal, nor is it necessary to consider the appellant’s fresh evidence application. We note, however, that this dispute has been ongoing for some time. It is by both parents working cooperatively that the best interests of the children are achieved.

Disposition

[20] Accordingly, the motion judge’s order is set aside and the matter is remitted for a fresh hearing. If either party seeks a variance of the McLaren order, it may well be more efficient, subject to the motion judge’s direction, to have that motion to change made returnable at the same time as the fresh hearing ordered herein.

[21] As the matter is being remitted for a fresh hearing, we also set aside the costs order. In doing so, we should not, however, be taken to disagree with the motion judge’s exercise of discretion in setting the amount of costs, given the finding of contempt on the appellant’s part.

[22] For the appeal itself, we consider it appropriate to make no costs order.

“Paul Rouleau J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”