WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) IDEM: ORDER RE ADULT — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Date: February 22, 2017
File No.: C80648/15
Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1
Parties
Between: Catholic Children's Aid Society of Toronto, Applicant (moving party)
- and - G.H., Respondent (father, respondent in the motion)
Judicial Officer and Counsel
Before: Justice Robert J. Spence
Heard: 21 February 2017
Reasons released: 22 February 2017
Counsel:
- Ms. Rena Knox for the applicant society
- Respondent father in person
Introduction
[1] The Catholic Children's Aid Society of Toronto ("society") has brought a motion seeking to find the father in contempt of court.
[2] Specifically, the society alleges that the father is in contempt of two different court orders. The first order was pronounced by Justice Roselyn Zisman on March 31, 2016. The second order was pronounced by Justice Carole Curtis on August 15, 2016.
Background
[3] The society commenced its protection application ("application") in or about April 2015. The society's protection concerns for the parents' child, who was then 12 years old, arose from the child's exposure to domestic violence within the home.
[4] More specifically, the father had assaulted the mother in the presence of the child. He was subsequently convicted of that assault in criminal court.[1]
[5] On March 31, 2016, the society brought a summary judgment motion before Justice Roselyn Zisman. Justice Zisman made the following order:
The child is in need of protection pursuant to section 37(2)(g)[2] of the Child and Family Services Act ("Act").
The child is placed in the care and custody of both parents, subject to society supervision for six months, with certain specified terms and conditions, including:
a. Father shall attend and successfully complete the PARS program (Partner Assault Response Services) through Partner Assault Response Services of Toronto or The John Howard Society to address his relationship with his partner [the mother], in order to provide him with the tools to maintain a healthy and positive relationship as they will be caring for their daughter jointly, and provide proof to the Society that he has done so.
b. Father shall attend Metro Addiction Assessment Referral Service (MAARS) through the Centre for Addiction and Mental Health and if treatment is recommended, he will follow through with treatment.
[6] Justice Zisman's order was made in the presence of the mother and the father.
[7] In fact, when Justice Zisman made this order, the father protested directly to her, stating that her order was unnecessary because he had taken some sort of similar program on a prior occasion.
[8] Justice Zisman reiterated her order directly to the father, stating:
And that is the order, and if you don't do it the society can do what they need to do, and you know what the consequences may be.
[9] In its contempt motion dated September 2, 2016, the society alleges that the father wilfully and knowingly breached this order.
[10] On August 15, 2015, the matter came back to court, this time before Justice Carole Curtis. The society advised Justice Curtis that the father had not complied with Justice Zisman's order and that it was intending to bring a contempt motion against the father.
[11] Justice Curtis was concerned that because the father had not complied with the existing order, the mother and the child continued to be at risk from the father's untreated aggressiveness.
[12] Accordingly, Justice Curtis added a condition to the already existing supervision order, namely, that father live apart from the mother and the child.
[13] The father and the mother were both present in court when Justice Curtis made this further order.
[14] The society alleges that the father wilfully and knowingly breached the order of Justice Curtis, by continuing to live in the family home. The father did not deny this.[3]
[15] The society issued its contempt motion on September 2, 2016. In that motion it alleged that both parents were in contempt of the subject orders.
[16] On the first return date of the motion, namely, October 31, 2016, the society advised the court that it was withdrawing its contempt motion as against the mother.
[17] The mother attended on that date. The father did not attend. The mother advised the court that the father told her that morning that he was too ill to attend court.
[18] Neither parent had by that date filed any evidence in response to the society's contempt motion.
[19] I decided to adjourn the motion to give the father an opportunity to attend court. And because the father had not filed any evidence, I ordered the father to attend court on the next date and to give evidence either by sworn affidavit, or orally, in response to the society's motion.
[20] The next return date was scheduled for December 7, 2016. Prior to that date, the society brought a further motion pursuant to section 80 of the Act, seeking an order restraining the father from coming within 100 metres of the family home and having any contact, direct or indirect with the mother and the child.
[21] Both parents attended on this date. However, once again, neither parent had filed any evidence in response to either of the society's motions.
[22] I was reluctant to commence hearing the contempt motion without giving the father an opportunity to place at least some evidence before the court. Accordingly, I held the matter down for an hour or so to permit the father to obtain the assistance of duty counsel and to prepare and file affidavit evidence.
[23] The father failed to provide the court with an affidavit upon his return to court later in the afternoon.
[24] The father told the court he was content to proceed with the motion.[4]
[25] Once again, because I was reluctant to proceed without anything from the father, I gave him the opportunity to take the witness stand and tell the court whatever he wished to say, orally, under oath.
[26] As his evidence unfolded, it appeared that his defence to the non-compliance with both orders was an alleged illness which prevented him from doing what Justices Zisman and Curtis had previously ordered.
[27] He also reiterated what he had previously said to Justice Zisman, namely, that there was no need for him to follow the court order as, on a prior occasion, he had taken a one-day program at the Salvation Army.[5]
[28] The father testified that all of the medical records which would substantiate his claim of illness were at the Scarborough General Hospital. He had not brought any of those records with him to court.
[29] Despite the fact that this proceeding had now been dragging on for a considerable amount of time, I asked the father if he would be prepared to obtain those records were I to grant a further adjournment.
[30] In response, the father undertook to the court that he would take steps to obtain his hospital records and deliver them to the society within 45 days.
[31] I granted the adjournment to permit him to obtain these records. I also ordered him to immediately comply with the orders of Justices Zisman and Curtis.
[32] I set February 21, 2017 as the return date for the contempt motion.
[33] The parents both attended on that date. The father failed to produce any hospital records.
[34] Once again, neither parent filed any affidavit evidence responding to the society's contempt motion.
[35] For its part, the society had, in the interim, obtained the father's Scarborough General Hospital records. The records disclosed that the father attended the hospital only once, on January 5, 2015 to receive medical attention for stiffness and a hematoma to his right eye.
[36] However, when the father took the witness stand again, he then began to talk about going to other hospitals for various illness. He did not bring with him any medical records from those other hospitals. Nor did he previously advise either the society or the court that he had attended hospitals other than Scarborough General.
[37] Furthermore, despite my having ordered him to comply with the outstanding orders of Justices Zisman and Curtis, when he attended court on February 21, 2017, the father still had not complied with those orders.
[38] The father continued with his oral testimony. The mother also gave oral testimony.
[39] Neither parent contradicted the society's assertions about non-compliance with the orders of Justices Zisman and Curtis.
[40] Neither parent produced any evidence which might have supported an argument that illness, or some other intervening event beyond the control of the father, prevented him from complying with the subject orders.
The Law
Elements Necessary for a Finding of Contempt
[41] In Prescott-Russell Services for Children and Adults v. G. (N.) et al, 82 O.R. (3d) 686 (C.A.), at paragraph 27, Blair J.A. set out the test for a finding of contempt of court [my emphasis]:
The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
[42] Jackson v. Jackson, 2016 ONSC 3466, is a decision of Justice Deborah L. Chappel. In that case, Justice Chappel had occasion to consider whether a finding of contempt should be made in the context of a family law proceeding. Justice Chappel made a number of comments about the nature of contempt and the importance of obeying court orders for the proper administration of justice.
[43] Beginning at paragraph 43 of her reasons for judgment, Justice Chappel stated [my emphasis]:
[43] The Supreme Court of Canada emphasized in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 (S.C.C.) that "the rule of law is at the heart of our society; without it there can be neither peace, nor order, nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect." The law of contempt has evolved through the common law as a means of enabling the courts to achieve these objectives. . . .
[44] Contempt is generally categorized as either in facie (in the face of the court) or ex facie (not in the face of the court). . . . Contempt ex facie involves conduct that occurs outside of the courtroom. Examples include wilful breach of a court order, interference with a witness, counsel or juror, counselling perjury, fabricating evidence and breaching an undertaking to the court.
[45] The common law has evolved to recognize two further categories of contempt: criminal contempt and civil contempt (R. v. Ellis, 1893 CarswellNB 56 (S.C.C.); Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516 (S.C.C.); United Nurses of Alberta, Supra.; Carey v. Laiken, 2015 SCC 17). . . . the remedy of civil contempt exists for the purpose of redressing private wrongs (R. v. Ellis, Supra.; Seaward v. Paterson, [1897] 1 Ch. 545 (C.A.); United Nurses of Alberta, Supra.). Civil contempt encompasses a breach of the rules of court, disobedience of a court order or other misconduct in a private legal matter causing a private injury or wrong (Prescott-Russell, Supra.; Chiang (Re) (2009), 98 O.R. (3d) 483 (C.A); SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, 2009 ONCA 97 (C.A)). Although the civil contempt remedy promotes respect for the authority of the court and the administration of justice generally, this purpose is realized as an adjunct to its main purpose of protecting and enforcing private rights. The primary objective of civil contempt is remedial, with the goal of coercing the offending litigant into obeying the court judgment or order (Kopaniak v. MacLellan (2002), 27 R.F.L. (5th) 97 (Ont. C.A.); Szyngiel v. Rintoul, 2014 ONSC 3298, [2014] O.J. No. 2590 (S.C.J.)). Since civil contempt is not a public law remedy, it cannot be invoked for the sole purpose of punishment and deterrence (Vidéotron Ltée., Supra.). . . . In civil contempt proceedings, punishment and deterrence may come into play at the sentencing stage, in that the sanctions imposed may be geared in part to repairing the damage to the administration of justice and preventing future breaches of the order (Carey, Supra; Chiang, Supra.; Boily v. Carleton Condominium Corp, 2014 ONCA 574, 2014 ONCA 574 (C.A.); S. (G.) v. S.(L.), 2013 BCSC 1725, 2013 BCSC 1725 (S.C.)).
[46] The civil contempt remedy is a mechanism designed to emphasize that court orders cannot be ignored or disobeyed. It reinforces the point that any wilful disobedience of court orders is a very serious matter that strikes at the very heart of the justice system (Kassay v. Kassay, 2000 CarswellOnt 3262 (S.C.J.); Surgeoner v. Surgeoner, [1992] O.J. No. 299 (Gen. Div.); Ricafort v. Ricafort, 2006 ONCJ 520, 2006 CarswellOnt 8554 (O.C.J.)). Civil contempt may morph into criminal contempt if the private wrong is deliberately repeated or escalates to the point that it amounts to a public defiance of the court's authority or a public display of disrespect towards the administration of justice (R. v. Ellis, Supra.; Canadian Transport (U.K.) Ltd. v. Alsbury, 1953 CarswellBC 3 (S.C.C.); Ontario (Attorney General) v. Clark, 1966 CarswellOnt 20 (H.C), aff'd [1967] O.R. 609 (note) (C.A.), leave to appeal refused 1966 CarswellOnt 2 (C.A.), leave to appeal refused, [1966] S.C.R. vii (S.C.C.); United Nurses of Alberta, Supra.; Stupple v. Quinn (1990), 30 R.F.L. (3d) 197 (B.C.C.A.)).
The Father is in Contempt
[44] The three elements necessary for the finding of contempt, as set out in Prescott-Russell, supra, are all satisfied in this case.
[45] Both orders of Justices Zisman and Curtis set out clearly what the father was required to do, or to refrain from doing.
[46] Both orders were made in the father's presence. And in the case of Justice Zisman's order, she repeatedly told the father that he had no choice – he could either appeal her order, or obey it.[7]
[47] The father breached those orders deliberately and wilfully. Although he attempted to raise the defence of illness as a reason for non-compliance, that defence was baseless.
[48] The society made out its case beyond a reasonable doubt. In fact, the father candidly admitted that he had not done what the courts had ordered him to do.
[49] His repeated attempts on the witness stand to obfuscate or claim not to have understood certain things were, in my view, an exercise in gamesmanship. The father was doing his best to make a fool of the society and, indeed, of the court process itself.
[50] This court gave the father a number of indulgences – to file evidence, to give oral testimony, to obtain documents – all in an effort to ascertain whether there was some conceivable bona fides in the father's position, something which might have enabled the court to avoid making a contempt finding against him.
[51] Finally, this court gave the father a further opportunity to comply with the orders of Justices Zisman and Curtis when the court granted the father an adjournment on December 7, 2016, making it clear at that time – in the father's presence – that
He shall ensure that he immediately complies with the outstanding orders of Justice Zisman and Justice Curtis.
[52] The father made absolutely no attempt to comply with those outstanding orders between December 7, 2016 and the return of the contempt hearing on February 21, 2017.
[53] His flagrant disregard for the court – the orders of Justice Zisman, Justice Curtis and this court – were all made quite evident as the contempt hearing process unfolded.
[54] This court has no alternative but to find the father in civil contempt.
Punishment for Contempt
[55] In its contempt motion, the society sought certain orders upon the finding of contempt, including:
Father to be incarcerated for three days; and that thereafter
With the assistance of the police, he be removed from the family home; and that
He comply with the orders of Justice Zisman made March 31, 2016;
That he not be permitted to reside in the family home until he provides proof of successful completion of the program and testing as provided for in Justice Zisman's order; and
That he pay the costs of the contempt motion in the amount of $500.
[56] I consider these requests by the society to be modest having regard to the deliberate and wilful breaches of the court orders discussed in these reasons.
[57] In fact, had the society asked for a finding of criminal contempt, I might have been inclined to consider such a finding, given the
repeated or escalated [contemptuous behaviour] to the point that it [did arguably] amount to a public defiance of the court's authority or a public display of disrespect towards the administration of justice – per Jackson, supra, at paragraph 46
[58] Despite numerous opportunities given to the father to cure his contemptuous disregard for court orders, the father continued to blatantly ignore those orders, effectively making a mockery of the court system and the administration of justice.
[59] All of that said, I have decided to defer the punishment phase of this proceeding until the father has an opportunity to return to court, having received and hopefully read and thought very carefully about these reasons.
[60] I adjourned the matter to March 30, 2017 at 2:00 p.m.
[61] At that time, I will consider what punishment to impose. I will do so having regard to the following:
My findings as set out in these reasons;
What steps, if any, the father has taken to cure his contempt; and
The degree of genuine remorse, if any, which the father displays to the court on the return of this matter.
[62] As I have done in the past, I strongly encourage the father to attend on the next date with legal counsel by his side. Furthermore, he should immediately consult with counsel upon receipt of these reasons so that he will be better informed as to their implications and the potential penalties which await him on the next date.
Justice Robert J. Spence
February 22, 2017
Footnotes
[1] He was also charged criminally with assaulting the child's older sister. However, the Crown apparently withdrew that charge in exchange for a guilty plea to the assault charge where the mother was the victim.
[2] Risk of emotional harm
[3] Although he testified in this proceeding, "I'm not 'living' [at the home], I just exist."
[4] As it turned out, the society only proceeded with its motion for contempt. While it did not specifically withdraw its motion for a restraining order, its argument was directed only to the contempt issue.
[5] Or through another facility
[6] I have decided to quote extensively from this judgment as I consider the various principles set out in the quoted extracts to be very important – both in terms of how seriously the court looks at wilful breaches of court orders by litigants, as well as the applicability of those principles to the facts of this case.
[7] He did not appeal