Ontario Court of Justice

In the Matter of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12

Between:

RYAN LABERGE R. Parise for the Applicant

— AND —

MADELEINE ASSINIWE G. Florentis for the Respondent

Heard: Feb 23, 2021

Kukurin J.

[1] Before the court this day is the motion of the Applicant father at Tab 9 first returnable on October 1, 2019 which is over 15 months ago. This motion seeks a finding that the Respondent mother is in contempt of an order of this court. The specific court order is not specified in the motion (ie by date or by which judge made the order) or even what paragraph in the order was not complied with. It should be noted that the contempt motion was brought by the Applicant himself, when he was self represented and did not yet have counsel. Notwithstanding such deficiencies, it became clear from the evidence filed (subsequently by his lawyer) that the order in question was one made by Justice R. Lalande dated May 7, 2012. A review of that order indicates that it was made on consent of both parties and that each was represented by counsel at that time.

[2] The wording of that order is important in the context of a motion for a finding of contempt where the allegation is non compliance with the terms of an order.

[3] The salient parts of that order are:

1. The Respondent shall have custody of the child Journey Assiniwe-Laberge born September 29, 2011
2. The Applicant shall have reasonable and generous access, including but not limited to every second weekend, from Friday at 4:30 pm until Sunday at 4:30 pm
3. The Applicant shall have further access as the parties agree.
4. The Respondent shall have the right to obtain information from the child’s school, religious and health providers.

The Applicant in that order was the father and the Respondent was the mother.

[4] The affidavit of the father (at Tab 11) informs the court of what the mother’s non compliance with the order consisted of. Specifically, he advises (in paragraph 5) that the mother failed to provide access “since April to up October 8, 2019”. He does not say what date in April.

[5] The Affidavit of the father (at Tab 11) also sets out what remedy he seeks in this contempt motion. He says:

“I seek as a remedy compliance with the Order by permitting a return to the past practice, along with compensatory access.”

[6] The past practice to which the father referred was access every second weekend from Friday at 4:30 to Sunday at 4:30, access which he described as “wholly inadequate” but stated that he would address that inadequacy in his “Motion to Change”.

[7] The father continues, in paragraph 6 of his affidavit to say that he seeks access to the child “every Thursday to Monday, starting Thursday October 10, 2019 at 4:30 pm until Monday morning when I would return him to school“ plus an extension to Tuesday if Monday was a school holiday.

[8] And in paragraph 7 of his affidavit, he says “In this manner, I will have compensatory access time with Journey in the weekends …” (my emphasis)

[9] Accordingly, this contempt motion which is brought, incorrectly in my view, in the father’s Motion to Change proceeding, relies on the mother’s failure to comply with one or more (which is unspecified) of the terms of the order of Lalande J. dated May 7, 2012 for the period between an unspecified date in April 2019 and October 8, 2019. The father seeks as a remedy, or more often referred to in the jurisprudence as a “sanction”, the return to alternate weekend access Friday 4:30 to Sunday 4:30 plus compensatory access. By compensatory access he refers to the extra day on Thursday that would be tacked onto his alternate weekend access (and any Monday if the Monday following his weekend was a school holiday).

[10] It is of importance to be precise in contempt motions. I identify the parameters of what is my mandate on this contempt motion because the submissions referred to non compliance during other periods than those set out above. In the responding arguments, were submission that other access was provided that was “compensatory in nature” but was well after the time that the contempt motion was brought (It was filed Sept 16, 2019). In addition, arguments referred to claims in another motion (filed at Tab 20) which I discuss more fully below.

The Law With Respect To Contempt Motions

[11] The Children’s Law Reform Act provides in s. 38 that this court can punish by fine or imprisonment or both any wilful contempt of or resistance to its process orders under the Act, but limits fines to $5,000 and imprisonment to six months. Rule 31 of the Family Law Rules governs contempt of Court and contempt motions. Specifically:

Rule 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).

[12] The Notice of Contempt Motion must be served, together with a supporting affidavit, by personal service.

Rule 31(2) The notice of contempt motion (Form 31) shall be served together with a supporting affidavit, by special service in accordance with subrule 6 (4), unless the court orders otherwise. O. Reg. 114/99, r. 31 (2); O. Reg. 322/13, s. 19.

[13] If a court finds a person to be in contempt, it may resort to a one or more orders. These are the following:

Rule 31(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).

[14] Jurisprudence from appellate courts set out three pre-requisites for a finding of contempt:

• The Order in question is clear and unequivocal;
• The breach of the order must be done wilfully and deliberately; and
• The evidence must establish the contempt on the criminal standard, that is, beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order

See Chong v. Donnelly, 2019 ONCA 799, [2019] O.J. No. 5048 (ONT CA); Prescott-Russell Services for Children and Adults v. N.G., 82 O.R. (3d) 686 (ONT CA); HOBBS v HOBBS 2008 ONCA 598, [2008] O.J. No. 3312 (Ont C.A.)

[15] The consensus of judicial opinion is that the contempt power:

(a) is discretionary and no sanction is necessary to be applied even if a person is found in contempt (b) has been discouraged by the courts as a routine use to obtain compliance (c) should be exercised cautiously and with great restraint (d) is an enforcement power of last resort, not first resort (e) is quasi criminal in nature, hence the need for proof beyond a reasonable doubt (f) is used more to obtain compliance rather than to punish a contemnor (g) often involves two procedures, the first being a finding in contempt and the second being the choice and imposition of sanction, if any, separated by an opportunity to purge the contempt (h) is not to be used to vary a final court order which is the more proper role of a Motion to Change (i) for an intransigent contemnor, one or a combination of sanctions may be imposed (j) a finding of contempt is a final order

See RUFFALO v DAVID 2019 ONCA 385, [2019] O.J. No. 2427 (OCA); Fisher v Fisher, [2003] O.J. No. 976 (Ont SCJ); HEFKEY v HEFKEY 2013 ONCA 44, [2013] O.J. No. 1697 (ONT CA); Ricafort v. Ricafort, 2006 ONCJ 520 (Ont CJ):

[16] Wilfulness in the actions of the contemnor is required in that the conduct is deliberate and not accidental or unintentional. The offence is the intentional doing of the act which is prohibited by the order. Intention of the contemnor to disobey or flout the order is not essential to a finding of contempt.

Analysis of the Evidence on Contempt

[17] The father provides his evidence as I recount in [4] to [8] above. I believe him in his factual allegations. The reason I do is because the mother does not deny that she stopped his access on alternate weekend. While she states that she did so at an earlier time (Oct 2018 to Jan 2019) than in the period that is relevant to this contempt motion, she also says in her affidavit (at Tab 12) at paragraph 4:

“The Applicant has not had access to our son Journey since May 2019”

[18] This is corroborative rather than contradictory of what the father says is the start time of her noncompliance with the order. He says that he was deprived of his lawful access “since April”. I take that to mean that, in the time period relevant to this motion, he missed access starting on May 1, 2019 to October 8, 2019. The mother does not respond to say how long the deprivation of paternal access lasted so I accept the date of October 8, 2019. The number of alternate weekends during this period is eleven (11). As his weekends of access were two days in duration, that translates to 22 days of deprivation of his access during this a period from May 1, 2019 to Oct 8, 2019.

[19] The mother does not deny this. In fact, she tries to justify her conduct in the context of this contempt motion blaming the father for difficulties that the child was experiencing at school, including being expelled. When the father started his Motion to Change proceeding, to vary the May 7, 2012 order, the mother attended on the first court date which was August 13, 2019 and it was then ordered by Justice Lische that the order of May 7, 2012 was to be complied with. It obviously wasn’t because that day fell within the time period that is relevant to this motion. If that was not enough, on a subsequent court attendance by the mother on September 11, 2019, in the Motion to Change proceeding, the mother was specifically warned about court orders by Justice Buttazoni. Still she withheld paternal access.

[20] The obvious inference is that the mother acted unilaterally, acted arbitrarily and was not intimidated by two judges essentially telling her to obey the existing order.

[21] I find that the mother is in contempt of court for the reason that she failed to follow a valid and existing court order, to which she consented when it was made, that she was well aware of its terms, that she was twice warned by the court to follow its terms, and that she deliberately did not comply with it. Moreover, the terms of the order were unequivocal in terms of the father’s rights of access on alternate weekends. The evidence substantiates her contempt beyond a reasonable doubt.

Consequences of Contempt Finding

[22] So let us see what the father has done. It is mostly procedural but has some significant consequences in this motion. The first thing is that he has brought his contempt motion in the wrong proceeding. Rule 31(1) [see above paragraph 1] provides that the contempt motion shall be brought in the proceeding in which the order was made. The proceeding in which the order was made is not the Motion to Change proceeding. It is the proceeding that took place in 2012 that culminated in the order of Justice Lalande. This fundamental and very logical requirement was clearly overlooked by the father, as well as both counsel in this case. I will deal with this below.

[23] The father was to have served a supporting affidavit with his contempt motion. He did not. He served a sheaf of about twenty text message printouts between him and the mother simply stapled to his Notice of Contempt Motion with no context whatsoever to them. To add to this insult to pleading, he did not number the pages. His supporting affidavit did not get filed until October 3, 2019 over two weeks later. He obviously did not read the part in his Notice of Contempt Motion that said that the evidence against the mother was attached to the motion If he did and it was the evidence, he would not be successful on this motion. I have already adverted to his failure to set out what portion of the order the mother had not complied with, the specific details of the non compliance and the sanction that he sought if the contempt was made out. So, in summary, the father did a pretty inadequate job with his Notice of Contempt Motion. But he was self represented then. My answer is that’s too bad. The law does not have one set of Rules for self represented litigants and another for those who have counsel. Moreover, the father shortly after did retain counsel who basically let the contempt motion ride along, as is, with no real review of it. The lawyer who accepts the retainer of a client who was self represented in a proceeding has an obligation to investigate what the client had done, and take steps to remediate any wrong actions taken.

[24] The reason that a contempt motion is to be brought in the proceeding in which the order was made is not just because of procedural reason. The proceeding in which the order was made has the most information in the court file that is relevant to the contempt motion, in particular when the contempt is based on non compliance with the order that was made in that proceeding. It is abundantly clear that a Motion to Change is a different proceeding than that in which the order sought to be changed was made. A contempt motion cannot stand alone. It must be a motion that is made in a proceeding and the Motion to Change is the wrong proceeding.

[25] That this is so is amply demonstrated by an examination of the Motion to Change proceeding. Two interim variation orders have been made in the Motion to Change proceeding.

(a) the first dated October 8, 2019 by Serre J. maintained the same alternate weekend paternal access as was set in the 2012 order, but corrected what was an obvious mistake in that order by granting the father access to information from service providers to the child rather than the mother. It did add some incidents of access. It was made on consent of the parties. It was an order that was interim, and could only have been made in the Motion to Change proceeding.

(b) the second order, made on October 17, 2019 by Lalande J increased (varied) the alternate weekend access of the father by having it start on Thursdays rather than Fridays, such change to start Nov. 7, 2019. This order is a consent order. It is an order made as an interim order and is made “without prejudice”. There is no motion filed anywhere in the Motion to Change proceeding asking for this relief. One has to ask where does this order come from and in relation to what court process was it made. It clearly varies, admittedly on an interim basis, the paternal access order of 2012. This argues for its being an interim order in the Motion to Change case. On the other hand, it provides precisely the kind of “compensatory access” that the father was seeking in his contempt motion. It seems to be common ground that the father did, after this order, exercise greater weekend access. However, on this contempt motion, there is no concession on either side as to whether this greater access was “compensatory” as the mother contends, or was simply a temporary variation of the 2012 access order and the issue of “compensatory access” still remains to be dealt with, as the father contends. I add that if the contempt motion had not been made in this Motion to Change file, these contradictory and contentious positions would not exist today.

[26] It does not escape me that the Motion to Change is now set for trial on the Running Trial List for early May which is only two months hence. The father has access every other weekend extended by one day at the moment. I do not feel compelled to do anything with the contempt motion that would change the existing status quo, Frankly, whether the paternal access in the 2012 order should be changed, and if so, how should it be changed, are matters that are not only the very subjects of the Motion to Change, but are more suited to that proceeding as it will obviously be a trial format and run two to three days. In short, the question of whether compensatory access has or has not been made I remit to the trial judge in that case.

[27] With respect to the sanction or remedy portion of the contempt motion, in view of the appellate jurisprudential views of the role of such motions as last resorts, in view of the several ways in which the father has not complied with the Rule in bringing this motion, in view of the fact that the father is now enjoying precisely what he sought in this motion, and in view of the fact that the mother is no longer depriving the father of his alternate weekend access, I impose on the mother the sanction of a fine of one cent. I do this mainly to put some finality on this contempt motion that, in my view, was ill advised from the start.

[28] With respect to submissions that the mother withheld access for other periods, that is not what the contempt motion at Tab 9 ever relied upon and it is improper to seek a contempt finding for things not pleaded by rolling them into a motion that was pleaded. He is free to bring separate motions for other times he feels the mother was in contempt.

[29] It is not the function of a court hearing a contempt motion to vary the terms of a final order for access. That is the function of a court hearing a Motion to Change a final access order. So when the father complains that the mother has permitted the bare minimum that the order specifically provided, even though any reasonable reader of the order can infer that the minimum specified was not by any means what the spirit of the order contemplated, the answer to the father is to bring a Motion to Change those inexact provisions. That’s precisely what he did and he was correct in doing so. That’s what the court is for. I might add that the 2012 order was made by both parents, on their mutual consent, with counsel at their side. If the order they agreed to at that time was deficient, or vague, or subject to interpretation, at whose feet should the fault lie?

[30] With respect to the father’s “clarifying motion” at Tab 20, it is before the court on inadequate notice, is not a motion that I was tasked to deal with, has claims that are clearly within the purview of the Motion to Change, and none are so pressing that they cannot await a trial scheduled in two months time. Frankly, I believe that the intent of the motion has been lost on the father. I believe it was intended to set out what sanction or remedy the father wanted if he was successful in obtaining his finding of contempt as he had not set this out in his Notice of Contempt Motion form. However, I may also be wrong. One would have to ask the judge that suggested a clarifying motion what her intention was.

Released: Feb 25, 2021 Signed: “Justice John Kukurin”