Court of Appeal for Ontario

Date: 2017-02-22 Docket: C61952

Judges: MacFarland, van Rensburg and Huscroft JJ.A.

Between

Shavinder Ralhan Respondent/Applicant

and

Jaswinder Singh Appellant/Respondent

Counsel

Lance Carey Talbot for the appellant/respondent

No one for the respondent/applicant

Heard and released orally: February 14, 2017

On appeal from: the order of Justice S.R. Goodman of the Superior Court of Justice, dated March 8, 2016.

Endorsement

[1] The appellant appeals from the order of Goodman J. which dismissed his appeal from the order of Spence J. of the Ontario Court of Justice finding him in contempt in relation to an earlier access order.

[2] Justice Spence has been the case management judge on this matter for a considerable period of time and was well familiar with the dynamics of this particular dispute.

[3] The appellant appeals both the finding of contempt and the penalty imposed. The contempt finding was based on the appellant's failure to comply with the order granting the respondent access to the children on two consecutive occasions. This matter has a lengthy history. The events which gave rise to the motion before Spence J. and the appeal from that order are detailed in the reasons of the respective judges.

[4] On the finding of contempt, the appellant was disbelieved on his explanations for why he prevented the mother from seeing the children. While it might be argued that the respondent mother jumped the gun in proceeding directly to a contempt motion in the circumstances, on the factual findings Spence J. made, we would not interfere. As for the penalty, this is a matter for the discretion of the presiding justice to determine an appropriate remedy in all the circumstances of the particular case.

[5] The trial judge ordered that the appellant pay costs of $10,000. This is a significant sum for the appellant to pay. He is a single father with full custody of the two boys and receives no child support. He is of modest means and works as a taxi driver. However, the mother's costs exceeded $15,000 and the motion judge reduced that amount to reflect the appellant's means.

[6] The order further provided that the appellant, respondent and children engage in counselling and that the appellant co-operate fully with all recommendations made by the counsellor, including with respect to the involvement of Mr. V., the mother's current partner.

[7] The record is replete with allegations of abuse perpetrated by Mr. V. against the appellant, the respondent and their two children. The access order which is the subject of this proceeding contains a restraining order that Mr. V. is not to come within 500 metres of where the respondent is exercising her access to the two children.

[8] In making this term neither the motion judge nor the appeal court considered the best interest of the children in relation to the order involving Mr. V. in the counselling. Further, it was in our view an error of law to order counselling that involved Mr. V. in the face of an order that restrains his ability to be anywhere near the children.

[9] Accordingly, we would set aside subparagraph 4 of the order of Spence J. found at paragraph 27 of his reasons for decision and replace it with the following: "The father shall attend and co-operate with the counselling process". In all other respects, the appeal is dismissed.

[10] The appeal is allowed in part in accordance with these reasons.

[11] Costs to the appellant fixed in the sum of $4,000 inclusive of disbursements and HST.

"J. MacFarland J.A."

"K. van Rensburg J.A."

"Grant Huscroft J.A."