Court File and Parties

Court File No.: Toronto D31361/04

Date: 26 March 2012

Ontario Court of Justice

Between:

Haidee Soto Peers Applicant

And –

William Poupore Respondent

Before: Justice Curtis

Heard on: 27 February 2012

Endorsement released on: 26 March 2012

Counsel:

• Federico Hernandez, counsel for the applicant
• Respondent unrepresented, assisted at motion by duty counsel

Endorsement

CURTIS, J.:

Background and Procedural History

[1] The father brought a motion for a finding that the mother is in contempt of the order of 18 January 2011 ("the trial order").

[2] There was a 13 day trial regarding custody of and access to the child Rafael, who is now 7 years old. That trial was the second trial regarding Rafael. The first trial before Spence, J. concluded on 12 March 2008. There has been constant conflict between the parents and continuous litigation regarding him since he was born.

[3] The trial order changed custody of Rafael from the mother to the father, with specified and restricted access to the mother. The mother was ordered to have supervised access every other week for two hours at the Supervised Access Centre. She was ordered not to have any other contact with the child. Her husband, Peter Peers ("Mr. Peers"), and the child's four siblings were permitted to attend her access at the Supervised Access Centre. Her husband and all of the other children were ordered not to have any other contact with the child. If Rafael continued to attend the same school as his brother William, the order stated that only William may have contact with Rafael at school. The order contained a police enforcement clause.

[4] The trial decision found that there had been a material change in circumstance since the consent orders of 21 February 2008 (custody to the mother) and 12 March 2008 (specified access to the father). The father's access, although set out in great detail in the consent order, had been repeatedly conflicted and denied. There was very high conflict between the parents. The mother showed no understanding of or ability to meet other than Rafael's very basic physical needs. The mother's behaviour intentionally and repeatedly attempted to undermine the father's role in the child's life (i.e., checking the child for bruises after his visits with the father; changing the child's clothing at the end of his visits so he was not wearing clothes provided by the father; instructing the child to refer to his father as "the guy"; teaching the child to wipe off the father's kisses; teaching the child to falsely tell teachers that the father hit him). The mother repeatedly breached the terms of the first trial access order. The mother was found to be a manipulative and intransigent parent who was blind to the child's interests. Many alternatives to changing custody had already been tried unsuccessfully. The mother had been warned about this behaviour by Spence, J. during the first trial in February 2008, and she did not change her behaviour.

[5] In September 2011, the father brought a motion to change the trial order. The father's motion to change included a claim that the mother should be found in contempt of the trial order. The motion to change and the contempt motion were heard separately.

[6] The motion to change resulted in an order on 6 January 2012 which made further changes to the trial order, including the following:

a) Effective immediately the mother shall have no access to the child. As well, there shall be no access to the child by Mr. Peers, and by the child's siblings, including no contact by electronic means (no e-mail, MSN, Facebook, My Space, other social networking sites or game sites);

b) The father may move the child to a different school, effective immediately. The mother may not attend at that school for any purpose, including for parent-teacher interviews or information sessions. The mother may not register any of her other children at that school;

c) The mother is not entitled to make enquiries or be given information about the health, education and welfare of the child under s. 20(5) CLRA;

d) The father and his partner shall attend counselling with the child to help to assist the child in accepting the changes in his relationships with the mother and her family members;

e) The father and his partner shall attend parenting classes and classes in conflict management, to be completed before 30 June 2012;

f) The police with jurisdiction shall enforce this order; and,

g) All other provisions in the order of 18 January 2011 remain valid and enforceable.

[7] The father also separately brought an application on 10 August 2011 for a restraining order against the mother. The mother filed no Answer and was noted in default on this application. A temporary restraining order was granted on 16 November 2011, and a final restraining order was granted on 30 December 2011. The restraining order provides that the mother is to have no contact directly or indirectly with the child, and is not to come within 500 metres of the child's home, school or day-care or any other place she thinks he is at.

[8] The contempt matter was heard as a motion with affidavit evidence. Neither party asked to cross-examine on the affidavits. Neither party asked for a trial or oral hearing on the contempt matter. There were no material facts in dispute which could not be decided on affidavit evidence.

The Trial Order and Alleged Breaches

[9] In the trial order, the mother, Mr. Peers and three of Rafael's four siblings (other than William) were to have no contact with him other than the supervised access at the Supervised Access Centre. They were to have no contact with him at the school. The order did not prohibit them from going to the school, as the sibling William was also registered at that school. The order specified that only William could have contact with him at the school.

[10] When the trial decision was released, both parents were represented by lawyers.

[11] Despite the fact that the trial order prohibits the mother and the members of her family from having any contact with Rafael at his school, Rafael has had contact at the school and has been visited at the school by the mother, her husband Mr. Peers, Rafael's sister Maricel (21 years old), and his sister Isabella (2 years old).

[12] There were several instances of contact between Rafael and his mother, Mr. Peers, and his siblings at the school. For example, Rafael's sister Maricel had contact with him at school on the very first day after the order changing custody to the father.

[13] The fact that these contacts took place was communicated to the father by Rafael and by the school principal. Rafael told the father that the mother, Mr. Peers and William had visited him at the school and had taken him to the school Book Fair. Rafael reported to the father that the mother told him not to tell anyone about her visit to the school. The mother did not deny this. This is consistent with the pattern of behaviour of the mother throughout this long litigation. The court has no difficulty finding that she told the child this.

[14] The mother's evidence about the contacts with the child at the school was confusing and not consistent. In places, she did not deny that she went to the school, but there was, she said, always an acceptable explanation for being there. She gave evidence that the contacts at the school were unintentional, unimportant and inconsequential. She says that she did not wilfully breach the court order.

[15] The mother says that there was no abuse and no harm to the child as a result of these contacts.

[16] In other places, the mother denied that she had contact with the child at the school.

[17] The mother also said that she did not understand the court order, and did not know she could not have contact with the child other than at the Supervised Access Centre. She says that her lawyer did not explain the order to her. That explanation is similar to the mother's evidence at the second trial about her breaches of earlier court orders. Her breaches of the consent access order of 12 March 2008 are set out in detail in the trial decision (paragraphs 118 to 123). This explanation (that she did not understand the court order) was not believable at the trial, and it is not believable now.

[18] The mother also said that no mother would obey this court order.

The Law Regarding Contempt

General Principles

[19] Rule 31 of the Family Law Rules, O. Reg. 114/99, as amended, deals with contempt of court in family law cases. These are the relevant sections for the purposes of this case (those sections of Rule 31 dealing with penalty are set out below in the section dealing with penalty):

WHEN CONTEMPT MOTION AVAILABLE

31. (1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available. O. Reg. 114/99, r. 31 (1).

NOTICE OF CONTEMPT MOTION

(2) The notice of contempt motion (Form 31) shall be served together with a supporting affidavit, by special service as provided in clause 6 (3) (a), unless the court orders otherwise. O. Reg. 114/99, r. 31 (2).

AFFIDAVIT FOR CONTEMPT MOTION

(3) The supporting affidavit may contain statements of information that the person signing the affidavit learned from someone else, but only if the requirements of subrule 14 (19) are satisfied. O. Reg. 114/99, r. 31 (3).

[20] The contempt power is to be used with restraint and in exceptional circumstances. It is there to be used in those circumstances where it appears to be the only reasonable means to send a message to a litigant that court orders are not to be flaunted.

[21] Contempt orders are serious business. No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court orders at their whim because in their own particular view it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice: Surgeoner v. Surgeoner, [1992] O.J. No. 299, 6 C.P.C. (3d) 318; Ricafort v. Ricafort, 2006 ONCJ 520, [2006] O.J. No. 5332.

[22] The wilful disobedience of a court order is a serious matter that strikes at the heart of our system of justice: Kassay v. Kassay, [2000] O.J. No. 3373.

[23] The need for the sanction of contempt proceedings is of significant importance in family law. There is an undertone of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and "self-rightness." In this environment it is all too easy for a parent to believe that she "knows what is right," even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated. It is important for the public and family law litigants, in particular, to appreciate that the orders of their courts must be obeyed: Surgeoner v. Surgeoner, [1992].

[24] The point of a contempt order is to bring home to a person shown to be in disobedience of a court order the importance of obeying it: Ricafort v. Ricafort, 2006 ONCJ 520.

Burden of Proof

[25] The burden of proof rests on the party alleging the contempt: Brown v. Bezanson (2002), 2002 SKQB 148; A.G.L. v. K.B.D., [2009] O.J. No. 1342.

Quasi-Criminal Nature

[26] Civil contempt, under Rule 31 of the Family Law Rules, is a quasi-criminal matter: Fisher v. Fisher, [2003] O.J. No. 976; A.G.L. v. K.B.D..

Standard of Proof

[27] The allegations must be proved beyond a reasonable doubt: Fisher v. Fisher, [2003].

Necessary Findings

[28] The evidence put forth to support a finding of contempt must satisfy the court beyond a reasonable doubt of each of the following:

a) there is a court order to be enforced;

b) the terms of that order are clear and unambiguous;

c) the party was given proper notice of the terms of the order: Brown v. Bezanson (2002); Follows v. Follows, [1998] O.J. No. 3652;

d) there has been a disobedience of that court order;

e) the fact of the order's existence was within the knowledge of the party at the time of the alleged breach;

f) the party disobeying the order has done so in a deliberate and wilful fashion. The party intentionally did, or failed to do, anything that was in contravention of the order: Einstoss v. Starkman, [2002] O.J. No. 4889;

g) a party to that order has been put on proper notice of an application to find her in breach of that order, with the particulars of the alleged breach clearly laid out so that the alleged contemnor is made aware of the case to which she must respond.

Any doubt about those elements is to be exercised in favour of the person alleged to be in breach of the order: G. (N.) c. Services aux enfants & adultes de Prescott-Russell (2006); Ricafort v. Ricafort, [2006]; Hobbs v. Hobbs, 2008 ONCA 598; A.G.L. v. K.B.D., [2009].

Use of Contempt Power

[29] Contempt of court is the big stick of civil litigation. It should be used sparingly and only in the most clear cut of cases. Contempt should be reserved for those serious breaches, which justify serious consequences: Fisher v. Fisher, [2003].

[30] The contempt power is used with restraint and in exceptional circumstances -- essentially to respond to circumstances where it appears to be the only reasonable means to send a message to a litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules as a whole, to enable a court to deal with a case justly, with particular attention to subrule 2(3) and subrule 2(4) of the rules: Ricafort v. Ricafort, [2006].

Intention

[31] It is unnecessary to prove that the alleged contemnor intended to put herself in contempt. However, it must be established that she deliberately or wilfully or knowingly did some act which was designed to result in the breach of a court order: Kassay v. Kassay.

[32] Recklessness can provide the necessary intent to disobey a court order and for a finding of contempt to be made. Wilful intent or malice, i.e. a deliberate intent to defy an order, is not necessary to establish a civil contempt, though its existence may be relevant to penalty. It is enough that a party knew of the terms of the order and intended to do those things that constitute the breach: Morrison v. Charney, [2007] M.J. No. 68, 2007 MBQB 47.

[33] A finding of contempt does not require that the defendant intended to disobey or flout an order of the court: "the offence consists of the intentional doing of an act which is in fact prohibited by the order. The absence of the contumacious intent is a mitigating but not an exculpatory circumstance": Re Sheppard and Sheppard (1976); iTrade Finance Inc. v. Webworx Inc., [2005] O.J. No. 3492.

[34] The standard of intention is knowledge of the reasons for the order and contravention of the order. Direct intention to disobey the order is not required. Wilful disregard is sufficient. "Wilful" is intended to exclude only casual, accidental or unintentional acts of disobedience: Brooks v. Vander Muelen (1999); A.G.L. v. K.B.D..

[35] An individual need not be found in breach of a specific term in a court order. It is sufficient if the actions are "designed to obstruct the course of justice by thwarting or attempting to thwart a court order": Brooks v. Vander Muelen (1999); A.G.L. v. K.B.D., [2009].

Sanctions for a Finding of Contempt

The Law

[36] The sanction for contempt must be proportionate to the nature of the contempt and the mitigating and aggravating circumstances; iTrade Finance Inc. v. Webworx Inc., [2005].

[37] Failure to impose a significant consequence for such conduct would bring the administration of justice into disrepute. Others who may be tempted to flout an order of the court and frustrate its processes must appreciate that they cannot benefit from such conduct. The court should enforce its own process and give the other litigant an effective remedy: iTrade Finance Inc. v. Webworx Inc., [2005].

[38] Sentencing in contempt proceedings, particularly in family law proceedings, should be comprised of two components. It should be restorative to the victim of the contempt and punitive to the contemnor. To accomplish the former requires the sentence to correlate to the conduct that produced the contempt, and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances: Geremia v. Harb.

Contempt Orders

[52] Rule 31 (5) to (12) of the Family Law Rules deals with the penalties available for contempt of court. These are the relevant sections for these purposes:

CONTEMPT ORDERS

(5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order. O. Reg. 114/99, r. 31 (5).

WRIT OF TEMPORARY SEIZURE

(6) The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person's property. O. Reg. 114/99, r. 31 (6).

LIMITED IMPRISONMENT OR FINE

(7) In a contempt order under one of the following provisions, the period of imprisonment and the amount of a fine may not be greater than the relevant Act allows:

1. Section 38 of the Children's Law Reform Act.
2. Section 49 of the Family Law Act.
3. Section 53 of the Family Responsibility and Support Arrears Enforcement Act, 1996. O. Reg. 114/99, r. 31 (7).

CONDITIONAL IMPRISONMENT OR FINE

(8) A contempt order for imprisonment or for the payment of a fine may be suspended on appropriate conditions. O. Reg. 114/99, r. 31 (8).

ISSUING WARRANT OF COMMITTAL

(9) If a party, on a motion with special service (subrule 6 (3)) on the person in contempt, states by an affidavit in Form 32C (or by oral evidence, with the court's permission) that the person has not obeyed a condition imposed under subrule (8), the court may issue a warrant of committal against the person. O. Reg. 114/99, r. 31 (9).

PAYMENT OF FINE

(10) A contempt order for the payment of a fine shall require the person in contempt to pay the fine,

(a) in a single payment, immediately or before a date that the court chooses; or

(b) in instalments, over a period of time that the court considers appropriate. O. Reg. 114/99, r. 31 (10).

CHANGE IN CONTEMPT ORDER

(12) The court may, on motion, change an order under this rule, give directions and make any other order that is just. O. Reg. 114/99, r. 31 (12).

[53] The penalties available regarding the contempt powers of the Ontario Court of Justice are also contained in the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended, s. 38, as follows:

Contempt of orders of Ontario Court of Justice

38. (1) In addition to its powers in respect of contempt, the Ontario Court of Justice may punish by fine or imprisonment, or both, any wilful contempt of or resistance to its process or orders in respect of custody of or access to a child, but the fine shall not in any case exceed $5,000 nor shall the imprisonment exceed ninety days. R.S.O. 1990, c. C.12, s. 38 (1); 2001, c. 9, Sched. B, s. 4 (8).

Conditions of imprisonment

(2) An order for imprisonment under subsection (1) may be made conditional upon default in the performance of a condition set out in the order and may provide for the imprisonment to be served intermittently. R.S.O. 1990, c. C.12, s. 38 (2).

[54] There is a wide discretion available to the court when it comes to sentencing for contempt, as can be seen from subrule 31(5).

[55] The use of "may" in subrule 31(5) indicates that the seven enumerated possible "sentences" do not represent a closed list. As well, the seven sentences are not mutually exclusive and may be levied in any number and combination found to be just and appropriate: Geremia v. Harb.

[56] Clause 31(5)(d) in particular ("do anything else that the court decides is appropriate") appears limitless in scope, affording the court the widest discretion possible in designing an appropriate penalty.

[57] Civil contempt proceedings are also intended to bring about compliance with past or future orders of the court; Rogers v. Rogers, [2008] M.J. No. 178, 2008 MBQB 131.

[58] In determining an appropriate sentence in this case, the considerations include the following:

(a) available sentences;

(b) conditional sentences;

(c) proportionality of the sentence to the wrongdoing;

(d) must the sentence correlate to the contempt?

(e) similarity of sentences in like circumstances;

(f) aggravating factors;

(g) mitigating factors;

(h) deterrence, denunciation and integrity of the legal system;

(i) appropriateness of a fine; and

(j) appropriateness of incarceration.

Geremia v. Harb.

Available Sentences

[59] Subrule 31(5) provides for a wide variety of dispositions following a finding of contempt. Thus, sentences may be crafted to respond to the frequently-unique circumstances of each case: Geremia v. Harb.

Conditional Sentences

[60] Conditional sentences are available in instances of purely civil contempt: Airst v. Airst (2000), [2000] O.J. No. 2461. Clause 31(5)(d) of the rules provides the necessary jurisdiction to craft a conditional-like sentence (to include such things as house arrest), as long as the sentence is one that has a reasonable prospect of being monitored and enforced: Geremia v. Harb.

Proportionality

[61] A sentence, to be fit, must be proportional to the gravity of the wrongdoing. Contempt can reflect degrees of wrongdoing. In other words, not every instance of contempt is equally blameworthy: although all are serious, some are more serious than others: Geremia v. Harb.

[62] The mother repeatedly and openly breached the 2011 court order. This is far from the first time she has breached court orders (see the trial decision, paragraphs 118 to 123, where the court found breaches of 18 clauses in the consent order of 12 March 2008). The wrongdoing here is very serious.

Must the Sentence Correlate to the Contempt?

[63] Ideally, a sentence for contempt in family law should be comprised of two components: one, restorative (to the victim of the contempt), the other, punitive (to the contemnor). To accomplish the former requires that the sentence correlate to the conduct that produced the contempt. While such dispositions serve to placate the victim of the contempt, they do not address the damage done to the administration of justice: that is where the punitive component enters the picture: Geremia v. Harb.

[64] In this case there have already been many very serious orders made as consequences of the mother's behaviour. Custody was changed to the father (18 January 2011). Supervised access only was ordered for the mother (18 January 2011). A restraining order was made preventing the mother from having contact with the child (30 December 2011). The mother's access to the child was stopped altogether (6 January 2012). The contact between the child and his four siblings or Mr. Peers was stopped (6 January 2012). These orders were all made as part of the on-going, long-standing and intractable custody and access dispute between the parents. The orders all addressed the best interests of the child. None were intended as punitive orders to the mother, yet she may see these orders as punishment. None of these orders were in response to the motion for contempt.

[65] In this case, the nature of the contempt is such that it does not permit a correlative punishment or sentence. The restorative component, therefore, cannot be satisfied: Geremia v. Harb.

Similarity of Sentences

[66] A sentence should not reflect a marked departure from those imposed in like circumstances. In the area of sentencing for civil contempt, because the reported and unreported decisions are heavily fact-driven, it is difficult to identify a meaningful range of sentence appropriate for the case at bar. Geremia v. Harb.

Aggravating Factors

[67] These are the primary aggravating factors to be considered.

a) Lack of Remorse: The mother was not apologetic or remorseful. In fact, she was dismissive about her breaches of the court order. Her evidence expressed her view that any breaches were insignificant and inconsequential. It seems to be her view that the order was of no consequence. She even said that no mother would obey that order. This comment made it clear to the court that she fully understood the order, although she tried to suggest otherwise. The entire contempt exercise seemed to be wasted on her. It is possible that the only way in which a court could impress upon her the seriousness of her actions is to impose a jail sentence.

b) Multiple Breaches: The multiple breaches of the order are aggravating factors.

c) Telling the child to lie about the contact at the school: Telling the child to lie about the contact at the school is an aggravating factor. Involving the child in this way is actively harmful to the child.

d) No apology for the behaviour: The mother did not apologize to either the court, or to the father, for her breaches of the order.

e) Involving the other family members in the behaviour: The mother breached the court order by having contact with Rafael at the school, and so did Mr. Peers, her daughter Maricel and her daughter Isabella.

f) Consequences for Rafael: One of the consequences for Rafael of the mother's on-going behaviour is that the child's school was changed, and that her access to him, and the access of his four siblings and of Mr. Peers, has been stopped. This will have an impact on Rafael, no doubt.

Mitigating Factors

[68] The mother has four children other than Rafael, at least two of whom are young children, who are dependant and still in school (William, now 12 and Isabella, now 3). She is the primary caregiver in her household. She is at home with the children full-time and Mr. Peers works to support the family. There would be consequences for these children if the mother were to be sent to jail.

[69] The court was not able to identify any other mitigating factors.

Deterrence, Denunciation and Integrity of the Legal System

[70] One purpose of sentencing in contempt proceedings is deterrence: both general and specific. The punishment for contempt should serve as a disincentive to those who might be inclined to breach court orders. Deterrence is not achieved merely by the act of getting caught, and the simple purging of the contempt usually is an inadequate punishment. Here the contempt cannot be purged: Geremia v. Harb.

[71] However, the primary purpose of sentencing in contempt proceedings is the preservation of the integrity of the administration of justice. Our legal system is wounded when court orders are ignored. A sentence must be one that will repair the wound, denounce the conduct and deter the contemnor and others from similar conduct. A strong element of denunciation is necessary when dealing with the breach of a court order: Geremia v. Harb.

Fine

[72] A fine is a punitive sentence. And, the ability to pay a fine is a crucial consideration in determining its size. A small fine for a wealthy person is not a punishment. Deterrence is not achieved unless fines are levied in meaningful amounts. A fine must be a punishment, not a nuisance. Where a fine is imposed, it must, in all of the circumstances, reflect the seriousness of the contempt: Geremia v. Harb.

[73] Here, the mother has no financial means of her own. She does not work outside the home and her husband Mr. Peers supports her and her children. There is also already a large unpaid costs order against her from the first trial. A fine will not serve any useful purpose in this case.

Incarceration

[74] Incarceration has been said to be is reasonable only where no other less restrictive sanction is appropriate: Geremia v. Harb.

[75] However, the court is not obliged to look to jail only when all other possible penalties have been canvassed and rejected. There are cases for which a jail sentence is the most suitable, and indeed the only suitable penalty.

Analysis Regarding Contempt Finding

[39] In the final analysis, each case must be decided upon its facts in accordance with the plain wording of the relevant rule and the principles set out, and subject to an overriding judicial discretion which will best serve the interests of the child and assist the parties to achieve as normal a state of relations as is possible. Genua v. Genua. The goal of assisting the parents to achieve as normal a state of relations as is possible is a very high goal in a case such as this. It is increasingly unlikely that the court can ever accomplish this.

[40] The order was not issued and entered after the trial decision was released on 18 January 2011. This is surprising as both parents were represented by lawyers at the trial. The order was finally issued and entered by court staff on 23 January 2012, as a result of the court's direction in an endorsement. This issue was not raised by either of the parties. The trial decision, however, was detailed and specific, particularly regarding access. As well, paragraphs 147 to 160 of the trial decision are clearly identified as the orders made. Courts cannot fail to enforce, or be restricted in their enforcement of, their own orders merely because the typed, signed, issued and sealed version of the order was not available. That would result in a Wild West environment regarding a party's need to follow court orders, where parties would be free to disobey a court order that had not been typed, signed, issued and sealed. That would be inconsistent with respect for the administration of justice.

[41] The mother disputed that she understood the terms of the order. She said that her lawyer did not explain it to her, or that she did not know the order prevented her from having contact with the child anywhere else other than at the Supervised Access Centre. This is not credible. The order is clear and unambiguous on its face. As well, the mother is a very experienced family law litigant, over many, many years, regarding Rafael.

[42] The mother does not dispute that she was given proper notice of the terms of the order, other than as described above. In other words, she does not dispute that she had notice of the order.

[43] The mother does not deny that she breached the order. She says that she was aware of the order during the time of the alleged breaches, but that the breaches were inadvertent, unintentional and of no consequence. A rather interesting defence, that, as it suggests she believes the order is of no consequence.

[44] However, the court finds there were multiple breaches by the mother, and all resulting from behaviour over which she had control. Her behaviour regarding the trial order is consistent with her long-standing pattern of behaviour that the trial order was, in fact, crafted to address. Multiple breaches are inconsistent with her defence that her behaviour was inadvertent.

[45] There was no issue raised by the mother as to whether she had been put on proper notice of the motion to find her in breach of that order, or whether the particulars of the alleged breach were clearly laid out so that she was made aware of the case to which she must respond.

[46] The court makes the following findings, and is satisfied beyond a reasonable doubt that:

a) the mother knew there was a court order to be enforced;

b) the terms of that order are clear and unambiguous;

c) the mother was given proper notice of the terms of the order;

d) the fact of the order's existence was within the mother's knowledge at the time of the alleged breach;

e) there has been a disobedience of that court order;

f) the mother disobeyed the order in a deliberate and wilful fashion, and she intentionally did things that were in clear contravention of the order; and,

g) The mother was put on proper notice of the motion to find her in breach of that order, and the particulars of the alleged breach were clearly laid out so that the she was aware of the case to which she must respond.

[47] The court is satisfied beyond a reasonable doubt that the mother knew there was an order in place, knew the reasons for the order and that she intended to do those things which were contraventions of the order. It is not believable that her behaviour was unintentional.

[48] This child is very young. These parents are among those who cannot manage to put aside their differences, to communicate and consult for the mutual benefit of their child. They are among those who must continue to live by and under the terms of a court order. It is essential that they be made to understand that those orders are to be respected, complied with, and when appropriate, changed in a timely way on proper application and with persuasive evidence. One parent cannot simply be allowed to do as she pleases.

[49] Too great a reticence to deal with breaches like this will only serve to diminish respect between parents and for the orders of the court. It will only breed contempt. When an order is made in the interests of a child, it should be respected. If a parent believes that the order is not in the child's interests when made, it should be appealed. If the order was once in the child's interests but is no longer, it should be changed, on a proper request to the court. It should not be ignored.

[50] Since the trial order, the mother has conducted herself as a person who will understand what she wants to understand, the way she wants to understand it. She will do what she wants, when she wants, without regard for the consequences she visits on others -- be it the child, or the father, or now, herself and her husband, and her four other children.

[51] The mother is found in contempt of the court order of 18 January 2011.

Analysis Regarding Penalty for Contempt

[76] The mother did not acknowledge that she breached the court order. Nor did she apologize for breaching the court order. To be clear, neither an acknowledgment nor an apology from her, nor both, would have substantially changed the outcome in this matter. However, it is indicative of the way in which she views court orders, and the way in which she sees their affect on her. The mother still has an insufficient appreciation for the seriousness of the predicament in which she now finds herself.

[77] It is obvious from her behaviour that the mother thinks she is right and everyone else is wrong. The mother lacks insight into her own behaviour. She lacks judgment. She has no capacity to understand her own circumstances.

[78] The number of breaches, the duration over which they occurred, the effects they have had on Rafael's relationship with the father and with his own siblings, the complete lack of remorse, the mother's dismissive attitude to the breaches, puts the wrongdoing here at the most serious end of the scale.

[79] A sentence for contempt in family law ought to have some regard for the best interests of the child involved. Putting one parent in jail may not be in the short-term interests of the child, but neither can it be said that either the short or long-term interests of Rafael have been served by the mother's conduct thus far. It will be in the short and long-term interests of children generally, and this child specifically, that their parents understand the importance of complying with court orders.

[80] The period over which the mother has repeatedly and without remorse breached the order, as well as the effect of that conduct on the child warrants a jail term. The mother needs to understand the personal responsibility she bears for compliance with court orders. It is also important that she understands these choices, as they have always been, are within her power to make. To emphasize the point, it is also appropriate should the mother choose to breach an order in the future, that she bear the responsibility for having jailed herself.

[81] It is in the short and long-term interests of Rafael that his mother starts to comply with orders of this court.

[82] The mother is sentenced to a period of incarceration of 30 days. This sentence is suspended on condition that for a period of three years from the date of this endorsement she shall not breach an order of this court (past, present or future) made in this case.

Future Litigation

[83] In contempt proceedings, it is invariably the conduct of the contemnor that is held up to the light. At times that can leave the impression that the other parent has played no role of significance as life's events unfolded, or that at times they have not contributed to or exacerbated the situation. That is not the case here. Both parents have made contributions to where they are now. Both have behaved in ways which contribute to the on-going litigation and the on-going hostility.

[84] Since the trial decision in January 2011, the father has brought many motions regarding the child. The father has been unrepresented since the trial concluded. Several of his motions were dismissed. Some of these motions were frivolous; some were inappropriate (e.g., his request that the mother's current lawyer prepare, issue and enter 13 previous court orders, most of them temporary orders, from 2005 to 2011, and that the mother's current lawyer prepare, issue and enter all orders present and future in the case; and his request that the custody order be amended to read "sole custody to the father to remain unchanged"); some were outside the jurisdiction of the court (his request to change the child's surname on all court documents and orders retroactively, in order to remove any reference to the mother's surname as part of the child's name); and some were just petty.

[85] The mother has been clear in her material that she intends to regain custody of Rafael and intends to take steps to do so. The trial decision set out requirements regarding counselling for the mother and for Mr. Peers that had to take place before the mother could bring a motion to change the trial decision. That counselling has not happened.

[86] In considering her behaviour in the future, and particularly in the near future, the mother may wish to carefully consult with her lawyer about the possible effects of her behaviour on any future claims she might want to make in this matter. She may also wish to consider the possibility that this court will not hear from her with respect to other matters presently pending or future applications she may bring. Dickie v. Dickie, 2007 SCC 8; Ontario (Attorney General) v. Paul Magder Furs Ltd.; Innovation and Development Partners/IDP Inc. v. R..

[87] Rule 2 sets out detailed requirements for the court dealing with family law cases.

PRIMARY OBJECTIVE

2. (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

DUTY TO MANAGE CASES

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5).

[88] The court must deal with cases justly (Rule 2(2)). That includes ensuring fairness in procedure to all, saving expense and time, and dealing with cases in a proportional way, that is, in proportion to the importance and complexity of the case (Rule 2(3)(a), (b), and (c)).

[89] As well, courts must measure the use of resources of any given case, and weigh and balance that against the demands of other cases for those resources (rule 2(3)(d)).

[90] The court is required to apply the Family Law Rules to promote the prime directive of the rules, to deal with cases justly (Rule 2(4)).

[91] Both parents have had more than enough access to the courts over the years regarding their dispute over Rafael. In fact, they have had too much access to the court. The court does not exist only for them, to use as part of their long-standing and on-going conflict. These parents are still in a relationship, although a hostile and dysfunctional one, and the court is part of their relationship. That is not appropriate, and it must end.

[92] At some point, it is time for the parents to resolve their disputes in other ways. There are many other families who need access to the court. The family law justice system is a precious and expensive resource. This family has had more than its fair share of it. It is time to put restrictions on their access to the courts.

Court Orders

[93] Except as specifically changed by this order, all the provisions of the orders of 18 January 2011, 30 December 2011 and 6 January 2012 are in full force and effect.

[94] The mother is found in contempt of the court order of 18 January 2011.

[95] The mother is sentenced to a period of incarceration of 30 days. This sentence is suspended on condition that for a period of three years from the date of this endorsement she shall not breach an order of this court, made in this case.

[96] The mother shall obey all the court orders made in this case, including, but not restricted to this order, and the orders of 18 January 2011, 30 December 2011, and 6 January 2012.

[97] Neither parent may bring a motion to change or any other case to court regarding any aspect of custody of, access to or support for the child Rafael, except as follows:

a) The parent must first obtain permission from the court;

b) Permission may be sought using a Form 14B motion. The supporting material for the request may not be longer than two pages. The motion asking for permission shall not be served on the other parent, unless the court orders service after reviewing the request;

c) Permission is to be sought from the trial judge Curtis, J., and from no other judge, unless she is unavailable, and there is urgency;

d) The provisions of the trial decision regarding actions required by the mother before she can move to change custody of or access to the child (paragraph 155 of the trial decision) remain in full force and effect;

e) The requirement for permission does not apply to a motion for a finding of contempt.

Released: 26 March 2012

Justice Carole Curtis