Court File and Parties
Court File No.: D56106/12 Date: March 21, 2016
Ontario Court of Justice
Re: Genevieve Sang (Webster) – Applicant And: Claudiu Suteu – Respondent
Before: Justice Roselyn Zisman
Counsel:
- Stephen Gillies - for the Applicant
- Alex Finlayson – for the Respondent
Heard On: February 26, 2016
Endorsement
Introduction
[1] On January 20, 2016, I found the Applicant ("mother") guilty of contempt of my order of September 29, 2015. Specifically I found that the mother breached paragraphs 14, 15, 25 and 26 of that order namely, that she failed to advise the father of the time and location of a blood test for the child and she arranged for the child to be seen at her home by various doctors on six different occasions without notifying the father of the appointments in advance.
[2] The sentencing was adjourned to February 26, 2016 to permit the mother an opportunity to show that she is now prepared to abide by the terms of the court order.
[3] The father took no position on the sentencing of the mother.
[4] Counsel for the mother submitted that either a modest fine or an order that the mother be required to pay the father's costs in a full recovery basis would be an appropriate sanction.
Legislation
[5] Once a finding of contempt has been made the court has a wide discretion with respect to the penalties that may be imposed pursuant to the Family Law Rules 31(5). These are as follows:
(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.
Sentencing Principles
[6] Sentencing in contempt proceedings, in the context of family law proceedings, should be comprised of two components: it should be restorative to the victim 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 reflect a marked departure from those imposed in like circumstances.
[7] In this case, there have already been serious consequences as a result of the mother's behavior in that the child is now in the temporary custody of the father and the mother only has supervised access. The change of custody was ordered as part of an ongoing and very acrimonious custody and access dispute that focused largely on the mother's inability or unwillingness to permit the father a meaningful role in the child's life. The orders that have been made were not made to punish the mother's behavior but rather in the child's best interests.
[8] Therefore, I do not see what terms need to be imposed on these facts that would be restorative to the victim that is, to the father except that the mother obeys the court orders.
[9] In determining an appropriate sentence, the case law has outlined the following factors that should be considered by the court:
a) whether the contemnor had admitted the breach;
b) whether the contemnor has demonstrated a full acceptance of the paramountcy of the rule of law, by tendering a formal apology to the Court;
c) whether the breach was a single act or part of an ongoing pattern of conduct in which there were repeated breaches;
d) whether the breach occurred with the full knowledge and understanding of the contemnor that it was a breach rather than as a result of mistake or misunderstanding;
e) the extent to which the conduct of the contemnor displayed defiance;
f) whether the Order was a private one, affecting only the parties to the suit or whether some public benefit lay at the root of the Order;
g) the need for specific and general deterrence;
h) and the ability of the contemnor to pay.
Application of Principles to Facts of This Case
[10] At the sentencing hearing the mother offered an apology to the court. She stated that she wished to assure the court that the breaches of the court order were not done maliciously, that she acted thoughtlessly, without thinking of the breadth of the court's order or the gravity of her own actions. She further stated that whether or not she has been right or wrong in all of her actions that she acted out of love for her son. She further promised to fully comply with the court orders in the future.
[11] I have considered the following mitigating factors:
a) The mother, as noted has apologized;
b) Although the mother did not have an opportunity to purge her contempt, she did comply with the court order that required she transfer custody of the child to the father;
c) This is the first finding of contempt against the mother; and
d) The mother saved time and expense by agreeing that the contempt hearing proceed based on affidavit evidence only.
[12] I have considered the following aggravating factors:
a) Despite the mother's apology, there is an element of the mother minimizing the breaches of the court order, not recognizing the seriousness of her actions and maintaining that the breaches were not flagrant and at the lower end of the spectrum; and
b) Although this may have only been the first finding of contempt, the mother's breaches of court orders are a long standing pattern of behavior.
[13] I do not find that either a fine or an order that the mother pay the father's costs on a full recovery basis for this motion would serve any useful purpose. The mother is of limited financial means and she has already been ordered to pay substantial costs as a result of the trial in this matter.
[14] The purpose of the sentencing is deterrence both general and specific. The punishment for contempt should serve as a disincentive to both the contemnor and others who are inclined to disobey court orders.
[15] In this case, the mother has breached the court order on numerous occasions. There were at least ten alleged breaches of the terms of the court order. Although I did not find that the evidence met the standard of proof required for a finding of contempt for all of them, nevertheless the mother's behaviour has been consistent throughout. She did not change her behaviour after the motion to change trial. The mother has shown a lack of insight into the importance of the father being involved in the child's life and in the decisions that are made about his health and education. She has shown no insight into how her behaviour is not in the best interests of her son.
[16] It is difficult to fashion a punishment that is appropriate in these circumstances as the child is already in the temporary custody of the father and he has been granted the right to make decisions about the child's well-being. But there are ongoing court proceedings and there will be further court orders that the mother will be required to comply with. An appropriate sentence in this case should be fashioned so that the mother changes her behaviour and recognizes that it is in a child's best interests that both parents be involved in a child's life and that there are not further breaches of court orders.
[17] I therefore make the following order:
The Applicant shall fully comply with all court orders with respect to the ongoing and any further court proceedings regarding the child; and
The Applicant shall provide written proof that she has attended a course of individual counselling with a qualified therapist who has addressed at least the issues of the Applicant understanding of the importance of the Respondent's role in the child's life and the importance of resolving conflict. Within 12 months, the Applicant shall further provide a report from her therapist to the Respondent and the court confirming that Applicant has changed her views about the Respondent's relationship with the child and has attained an ability to work co-operatively with the Respondent.
Date: March 21, 2016
Justice Roselyn Zisman
Footnotes
[1] Cassidy v. Cassidy, 2010 ONSC 2707, [2010] O. J. No. 1927 (SCJ) at para. 18 and cases cited therein; See also Geremia v. Harb, [2007] O.J. No. 3029 (SCJ)