Court of Appeal for Ontario

Date: 2017-02-09

Docket: C62098

Judges: Strathy C.J.O., Weiler and Benotto JJ.A.

Between

Jason Leeming Applicant/Respondent in Appeal

and

Cherie Leeming Respondent/Appellant

Counsel

Martin J. Prost, for the appellant

Jason Leeming, acting in person

Heard and released orally: January 26, 2017

On appeal from: the order of Justice Ramona A. Wildman of the Superior Court of Justice, dated February 18, 2016.

Endorsement

[1] Following a trial, Eberhard J. ordered that the appellant mother and respondent father have joint custody of their two sons born September, 2005 and January, 2008. The mother has primary care of the children subject to a parenting schedule which "may not be varied except by prior agreement in writing between the parents."

[2] Subsequent to this order, the appellant was found in contempt of the parenting schedule contained in the order by withholding the boys from the respondent. She appeals that decision.

[3] At a follow-up hearing the same motion judge held that the appellant had purged her contempt by complying with the order for double make-up time described as a "penalty".

[4] Assuming that we have jurisdiction to hear this appeal, we see no palpable and overriding error in the motion judge's finding that the mother was in contempt of the order of Eberhard J.

[5] The appellant submits that the motion judge erred in going directly to the imposition of a "penalty" for the contempt without giving the mother's counsel an opportunity to speak to that issue and imposing double make-up time. Apart from the motion judge's reasons we have no record of what transpired at the motion. However, inasmuch as the appellant abided by the order made and the period of "make-up time" has taken place, we are of the opinion that the appeal in that regard is moot and should be dismissed.

[6] The appellant further submits that in continuing jurisdiction over this matter until the order had run the motion judge erred. In high conflict cases, which this one was, best practice mandates that the same judge continue to hear subsidiary disputes. We are of the opinion that was what happened here and we do not read the decision in Chan v. Chan 2013 ONCA 478 as precluding this. Accordingly, the appeal is dismissed.

[7] The respondent is entitled to costs of $2,000, inclusive of the attendance before this court and the Divisional Court and inclusive of disbursements and any applicable taxes.

"G.R. Strathy C.J.O."

"K.M. Weiler J.A."

"M.L. Benotto J.A."