Court of Appeal for Ontario
Date: 20210625 Docket: C68511
Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.
BETWEEN
David Daniel Moncur Applicant (Respondent)
and
Stéphanie Ginette Plante Respondent (Appellant)
Counsel: Michael H. Tweyman, for the appellant Mimi Marrello, for the respondent
Heard: June 11, 2021 by video conference
On appeal from the orders of Justice Robert Pelletier of the Superior Court of Justice, dated February 20, 2020 and May 15, 2020.
Jamal J.A.:
[1] This appeal involves the court’s power to make findings of contempt of court to sanction the breach of a parenting order in a high-conflict family law dispute.
[2] The appellant mother appeals from (1) the order of the motion judge made on February 20, 2020, finding her in contempt of court for four breaches of the final parenting order of Kershman J. made on consent on November 20, 2018 (“parenting order”); and (2) the order of the motion judge made on May 15, 2020, ordering the appellant to comply strictly with the parenting order and to pay the respondent father $2,500 as sanctions for contempt and $10,000 in costs.
Background
[3] The parties married in 2007, had a child together in 2010, and separated in 2015. Parenting issues were resolved through the parenting order in 2018, when both parties were represented by counsel. The parenting order, which runs to 43 paragraphs over 12 pages, governs in meticulous detail the parties’ joint decision‑making responsibility and parenting time, including parenting decisions, their parenting schedule, communication between them, residence, travel, and documents and registrations. It also provides for resolving parenting disputes by negotiation, then mediation, and, finally, binding arbitration.
[4] On November 12, 2019, the respondent appeared before the motion judge seeking an order that the appellant be found in contempt of court for breaching the parenting order 10 times between December 2018 and July 2019. The respondent was represented by counsel and the appellant was self-represented. The respondent alleged that the appellant overheld the child twice, attended the child’s activities and school several times during the respondent’s parenting time, unilaterally changed the date of the child’s First Communion without appropriately advising the respondent, and failed to provide him with a copy of the child’s Social Insurance Number card.
[5] On November 25, 2019, the motion judge held the matter in abeyance until the parties completed an arbitration being scheduled for December 2019 (they had attended two mediation sessions, without success). Noting his “strong sense of dismay” at “the acrimony that permeates the parents’ relationship at this point”, he stated that deciding the contempt motion now “would only serve to harden positions and add further to the atmosphere of mistrust and conflict.” He also ruled that the child’s best interests, which he said “must remain central in these proceedings”, would be best served by allowing the parties to negotiate collaborative parenting solutions. He asked them to advise him of the result of the arbitration and stated that he would then release his ruling on the contempt motion and would seek submissions on sanctions if necessary.
[6] However, the matter did not proceed to arbitration and the parties appeared before the motion judge again on February 3, 2020. Counsel for the respondent explained that the arbitration was at an impasse and that the court was causing more conflict by not releasing the contempt ruling, and asked for the ruling to be released without delay. The appellant expressed concern that the contempt motion was being “weaponized” against her and used to avoid the arbitration. The motion judge advised that he would release his ruling soon.
[7] On February 20, 2020, the motion judge found the appellant in contempt for four of the 10 alleged breaches of the parenting order. He ruled that the appellant had violated the parenting order by unilaterally modifying the child’s schedule with each parent twice, unilaterally changing the child’s First Communion date without effective notice to or consultation with the respondent, and failing to provide the respondent with a copy of the child’s Social Insurance Number card as required under the parenting order. The motion judge ruled that in each case the appellant had “deliberately and defiantly disregarded” the “quite specific and detailed” parenting order “without just cause”.
[8] On May 15, 2020, the motion judge ordered the appellant to pay the respondent $2,500 as a sanction for the contempt and $10,000 in costs. He ruled that a monetary sanction was appropriate “given the extent of the contempt” and “to impress upon the [appellant] her obligation to abide specifically by the [parenting] order, particularly in the context of this case where there is a complete lack of cooperation and flexibility between the [parties].” He also ordered the appellant to comply strictly with the parenting order.
Issues
[9] The appellant claims that the motion judge erred by (1) ruling that the appellant deliberately breached the parenting order and (2) failing to consider discretionary factors before making findings of contempt of court.
Discussion
[10] The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:
For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.
Issue #1: Did the motion judge err in concluding that the appellant deliberately breached the parenting order?
[11] The appellant asserts that the motion judge erred in concluding that the appellant deliberately breached the parenting order in four respects.
[12] First, although the appellant admits she breached the parenting order by overholding the child in the week of June 28, 2019, when the child was to be with the respondent, she says she was justified in doing so because the respondent had not told her which camp the child would attend the next week. I do not agree. I see no error in the motion judge’s conclusions that the respondent “was not required to comply with the [appellant’s] pre-conditions for the exchange to take place” and that the overholding was “unnecessary, unjustified and in deliberate defiance of the [parenting] order.”
[13] Second, although the appellant admits that she overheld the child on July 27, 2019 by registering him in a camp during the respondent’s parenting time, she says she told the respondent about this when she booked the camp but received no response from him. However, the respondent did object, through his counsel. Again, I see no error in the motion judge’s conclusion that the appellant’s conduct was in “strict violation” and “deliberate defiance of the [parenting] order”.
[14] Third, the appellant says she unilaterally changed the date of the child’s First Communion only to avoid traffic congestion from a large event in the city that weekend and says she emailed the respondent beforehand but used an old email address. Again, I do not agree that the motion judge erred. The motion judge was entitled to find that the parenting order required the appellant to notify the respondent of this change using “Our Family Wizard”, a co-parenting app, not email, and that this was “more than an inadvertent lapse, and therefore a deliberate violation of the order.”
[15] Finally, although the appellant admits that she did not provide the respondent the child’s Social Insurance Number card, even though the parenting order requires her to share “all of the child’s government issued identification documents” with the respondent, she says the Social Insurance Number card is not government identification and in any event the respondent already knew the number. Once again, I disagree with her submission that the motion judge erred. I see no basis to interfere with the motion judge’s conclusion that the parenting order “requires the timely exchange of governmental information held by the mother” and that “[t]hat obligation was clearly not met” by the appellant failing to provide the respondent with the child’s Social Insurance Number card. The motion judge was entitled to find in the circumstances that the appellant’s conduct “demonstrate[d] a level of control by the [appellant] which the [parenting] order set out to specifically prevent.”
[16] I thus see no basis to interfere with the motion judge’s ruling that the appellant intentionally breached the parenting order in four respects.
Issue #2: Did the motion judge fail to consider discretionary factors before making findings of contempt of court?
[17] The appellant asserts that the motion judge failed to consider relevant discretionary factors before making findings of contempt of court, namely, the best interests of the child and whether a contempt finding was a remedy of last resort.
[18] I see no basis for the suggestion that the motion judge failed to consider the best interests of the child. The motion judge expressed concern for the child’s best interests throughout the proceedings:
- In holding the matter in abeyance to allow the parties to proceed to arbitration, the motion judge highlighted that the child’s best interests “must remain central in these proceedings” and would be “best served by allowing the parents to arrive at collaborative solutions to the challenges they face”.
- In ruling on the contempt motion, the motion judge emphasized that the larger issue was “the well-being of a 9-year-old boy who has had to endure the very toxic and hostile relationship between his parents”, which over time would have a “devastating effect on [him]”.
- The motion judge repeatedly stressed his concern for the child’s best interests during the hearings, which, despite the parental acrimony, he presided over with laudable patience, sensitivity, and decorum.
[19] I do, however, agree with the appellant’s argument that the motion judge did not appear to consider whether a declaration of contempt was a remedy of last resort or whether there were alternative enforcement options, such as a declaration that the appellant had breached the order or encouraging professional assistance. Without considering any alternative options, he appears to have proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt. Although the motion judge had earlier properly held the contempt ruling in abeyance to allow the parties to arbitrate their parenting conflicts, and offered to help the parties resolve their issues, his reasons do not suggest that he considered other enforcement options in lieu of ultimately making his declarations of contempt. The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court. In fairness to the motion judge, such other options do not appear to have been raised by the appellant, who was self‑represented, or by the respondent. Even so, I conclude that it was an error of law not to have considered such options: Chong, at para. 12.
[20] It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.
Conclusion
[21] I would allow the appeal. I would set aside the findings of contempt of court and the sanctions imposed and replace them with declarations that the appellant intentionally breached the parenting order in the four respects found by the motion judge.
[22] In all the circumstances, I would make no order as to costs, here or in the court below.
Released: June 25, 2021 “J.M.F.” “M. Jamal J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Harvison Young J.A.”
