Court of Appeal for Ontario

Date: May 9, 2019 Docket: C65636

Justices: Doherty, Rouleau and Brown JJ.A.

Between

Franco Ruffolo Applicant (Respondent)

and

Michelle Anne David Respondent (Appellant)

Counsel

Valois P. Ambrosino and A. Voss, for the appellant

Ravinder Sawhney, for the respondent

Heard: May 1, 2019

On appeal from: the order of Justice Peter A. Douglas of the Superior Court of Justice, dated April 8, 2016.

Reasons for Decision

Introduction

[1] The appellant appeals from the motion judge's decision finding her in contempt of three access provisions. These access provisions were among a lengthy list of custody and access terms agreed to in minutes of settlement reached by the parties in January 2011. The minutes of settlement were incorporated into a court order in September 2015 and the respondent subsequently brought contempt proceedings against the appellant.

[2] The motion is only one of many, in what has proven to be a very bitter and ongoing dispute. The parties were both representing themselves on the motion, which, together with the ongoing conflict between the parties, made the judge's task in addressing this motion somewhat more difficult.

[3] The respondent sought contempt findings with respect to 37 alleged breaches of 10 different access provisions of the order.

[4] The motion judge dismissed almost all of the allegations. He did, however, make three findings of contempt, as follows:

1. The appellant failed to provide the children's summer activity schedule by May 1, from 2012 to 2015;

2. The appellant did not allow the respondent to have access to the children during the Easter weekend in 2015; and

3. The appellant denied the respondent access to his son, Michael, on his birthday in October 2015.

Procedure to be Followed

[5] The finding of contempt was made on April 8, 2016. For reasons that are not apparent from the record, the court has not yet held the sanction hearing. Although the appeal from a finding of contempt is governed by the timelines set out in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (see Kopaniak v. MacLellan (2002), 212 D.L.R. (4th) 309 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 263), the appeal is usually not heard until the sanction has been imposed. The appeal of the sanction, if one was imposed and is under appeal, is then joined with the contempt appeal. As explained by Sharpe J.A. in Sabourin and Sun Group of Companies v. Laiken, 2011 ONCA 757, 286 O.A.C. 273, at para. 9, a contempt proceeding has only come to a final conclusion once the sanction has been imposed. Until the motion judge has disposed of the motion, including the sanction, the appeal court will not know how serious the motion judge considered the contempt to be or how the judge intended to bring about compliance or punish the contemnor. In the words of Sharpe J.A., "[t]hese are elements integral to the nature and character of the contempt proceeding and essential to an appellate court's full appreciation of the disposition under appeal": at para. 9.

[6] Despite the fact that the hearing in relation to sanction has not yet proceeded in this matter, the parties urge this court to hear the appeal. Since the finding of contempt is now over three years old and there is no indication that the sanction hearing will proceed soon, we conclude that it is appropriate for this court to exercise its discretion and hear the appeal in this instance.

[7] Our decision to proceed with the appeal notwithstanding the sanction has not been imposed should not be taken as an indication that this is the appropriate or usual procedure.

[8] In our view, civil contempt proceedings should generally not be heard until the sanction has been determined. Motion judges may, for good reason, decide to delay the sanction phase after a finding of contempt. In such a case, or for some other valid reason, a party found in contempt may consider that the interest of justice requires that the appeal of the contempt finding be heard even though the sanction has not yet been determined. In such a case, the appropriate procedure would be to bring a motion in this court seeking such relief.

[9] We now turn to the merits of the appeal.

Merits of the Appeal

[10] The reasons of the motion judge are extremely short and his findings appear to be based, at least in part, on statements made by the appellant in the course of submissions, and not on any sworn testimony. The motion judge did not address important background in his decision, namely the appellant's explanation that the respondent had not regularly exercised his access rights for years. This is significant, as there would not have been strict compliance with the terms of the order for much of the period between 2011 and 2015.

[11] In our view, the record before the motion judge did not support his findings of contempt.

First Finding: Summer Activity Schedule

[12] With respect to the first finding, the order required the appellant to provide the respondent with the children's summer activity schedule by May 1 of each year. The respondent, who was entitled to two vacation weeks with his children each summer, was to advise the appellant by May 8 if he intended to take the children for a third week. He also had to identify the weeks he proposed to take the children. The motion judge found that the appellant was in contempt of the provision, as she failed to provide the schedule.

[13] In her submissions, the appellant had explained that she did not schedule any summer activities until after May 8 to avoid any conflict with weeks that the respondent might choose. She therefore understood that, since no activities had been scheduled, there was no activity schedule to provide. The language of the provision in the order relating to the summer activity schedule is, in our view, ambiguous, and allows for the appellant's interpretation.

[14] Further, there is no suggestion in the materials that the respondent complied with his obligation to notify the appellant of his choice of weeks by May 8 each year, nor that he was unable to secure any particular week because the appellant had scheduled activities prior to May 8.

Second Finding: Easter Access

[15] With respect to the second contempt finding, concerning Easter access, the motion judge stated that there was no evidence that the appellant complied with her obligations to make the children available on that weekend. This appears to be based on the fact that she did not confirm by email that she would in fact make the children available.

[16] There is, however, no evidence that the appellant prevented the respondent from picking up the children at school in order to exercise his access rights on the day before the weekend, as provided for in the order, nor that she otherwise blocked access. At best, the appellant did not provide a timely response to the respondent's emails and she may not have agreed to a different arrangement. The appellant maintains that the children were available for pickup by the respondent, that the respondent never attempted to collect the children in the manner provided by the order, and that he was not otherwise prevented from doing so.

Third Finding: Birthday Access

[17] The third finding was that the appellant breached her obligation to make Michael available to the respondent for two hours on his birthday. When the respondent attended at Michael's school on his birthday, Michael refused to go with him. The appellant had told Michael, before he went to school, that he was to go on an access visit with the respondent. She had added that, ultimately, it would be his decision. There is no suggestion that the appellant counseled Michael not to attend, nor was the appellant present at school when the respondent presented himself there to pick up Michael. She was not aware of her son's refusal to leave with the respondent and was therefore not in a position to facilitate access. In our view, in the circumstances, the fact that Michael did not spend two hours with the respondent on his birthday does not amount to an intentional failure to comply with a court order.

General Principles on Contempt

[18] We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:

The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, "a court's outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect." As this Court has affirmed, "contempt of court cannot be reduced to a mere means of enforcing judgments." Rather, it should be used "cautiously and with great restraint". It is an enforcement power of last rather than first resort". [Citations omitted.]

[19] Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court's assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.

Disposition

[20] For these reasons, the appeal is allowed and the findings of contempt are set aside. The appellant is awarded costs fixed in the amount of $7,500, inclusive of disbursements and applicable taxes.

"Doherty J.A."

"Paul Rouleau J.A."

"David Brown J.A."