COURT OF APPEAL FOR ONTARIO

CITATION: J.D.M. v. T.L.L.M., 2020 ONCA 734

DATE: 20201119

DOCKET: C66885

Fairburn A.C.J.O., Pepall and Roberts JJ.A.

BETWEEN

J.D.M.

Applicant (Respondent in Appeal)

and

T.L.L.M.

Respondent (Appellant)

Michael H. Tweyman, for the appellant

J. Leigh Daboll, for the respondent

Kathleen Bingham, for the Office of the Children’s Lawyer

Heard and released orally: November 12, 2020 by video conference

On appeal from the order of Justice R. J. Harper of the Superior Court of Justice, dated April 8, 2019.

REASONS FOR DECISION

[1] The appellant was found in contempt of a family law order. That order was settled on consent on June 19, 2017. Paragraph 7(f) of the order reads as follows:

The parties shall enroll the children in counselling and both parents shall participate in the counselling as directed by the counsellor. The parties shall advise the counsellor that the goal of counselling is to facilitate effective co-parenting and communication between the girls and both parents and that any issues can be resolved directly with the parent involved.

[2] The motion judge concluded that the appellant was in contempt of this paragraph. He found beyond a reasonable doubt that the appellant “did not facilitate the intended counselling” and that her failure to do so was wilful in nature, in the sense that she “wilfully put multiple road blocks in the way of getting the prescribed counselling.”

[3] The appellant made four broad submissions respecting alleged errors made by the motion judge.

[4] First, she argues that the motion judge made palpable and overriding errors that were material to the contempt finding. We see no such errors. While the motion judge was incorrect when he said that out of the 20 investigations conducted by the authorities into the family’s situation, the mother admitted to being responsible for at least 16 of those investigations, it matters not. The reality is that, while the appellant may not have been responsible for 16, she was responsible for a great many of those investigations, none of which ever resulted in any protection concerns or criminal charges.

[5] The motion judge’s decision did not turn on the precise number of investigations the mother was responsible for. Rather, it turned on the entire contextual picture, much of which extended well beyond those investigations. The record before the motion judge, as set out in his reasons, supports his conclusion.

[6] The appellant also argued that the motion judge erred in finding that the appellant breached para. 7(f) of the order. In particular, the appellant says that the clause is open to different interpretations, including that the parties could each pursue different counsellors for the children. As the appellant was getting counselling for the children, she said that this technically fell into compliance with the order.

[7] We do not agree.

[8] The appellant’s argument defies any reasonable interpretation of para. 7(f). It is entirely clear, addressing as it does the term “counsellor” in the singular.

[9] Even if there had been any ambiguity in the appellant’s mind, which we do not accept, the parties appeared before a judge in December 2018 and an order was made as to which counsellor would be used for purposes of meeting the obligations under para. 7(f). That order was reinforced just over a month later. It is against that context that the motion judge found that the mother took active steps to obstruct the process. This was a finding that was available to the motion judge on the record.

[10] The appellant also argues that the motion judge erred in concluding that the wilful nature of the appellant’s conduct had been proven beyond a reasonable doubt.

[11] This argument is predicated on whether the counsellor was actually available to conduct the counselling. The appellant argues that the counsellor would not get involved with the family because there were outstanding custody issues. She contends that it was incumbent on the respondent to call the counsellor as a witness to resolve this issue.

[12] The counsellor’s terms of reference make clear that she would not become involved in the event that custody issues were still outstanding.

[13] The respondent denies that there were any such issues outstanding. This is evident from the court record.

[14] The motion judge made findings of fact, including that the mother wilfully obstructed the counselling from the start. The record supports that finding of fact. It is not for this court to revisit that issue by reweighing the evidence.

[15] The appellant also says that she was ambushed at trial by an email that the counsellor sent to the respondent concerning her availability to assist the family. While it would have been preferable to produce the email earlier in the proceedings, the reasons indicate that this email was not material to the motion judge’s determination of contempt. Nor was it used for credibility purposes. Rather, read in context, the motion judge’s reasons demonstrate that the email was used only for purposes of acknowledging that the counsellor remained available to assist the family.

[16] In the end, the motion judge clearly and correctly stated the law relating to contempt. He understood that this power should only be invoked in family law proceedings in rare circumstances. He saw this case as one of those rare occasions.

[17] The appeal is dismissed.

[18] Costs will be granted in the amount of $5,000, inclusive of disbursements and relevant taxes.

“Fairburn A.C.J.O.”

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”