ONTARIO COURT OF JUSTICE
CITATION: Sezin v. Sheikh, 2021 ONCJ 637
DATE: December 7, 2021
COURT FILE No.: D-19-31260
BETWEEN:
Laila Salam Sezin Applicant
— AND —
Mohammad Ramadan Sheikh Respondent
Before Justice Roselyn Zisman
Heard on November 30, 2021
Reasons for Judgment released on December 7, 2021
Laila Salam Sezin....................................................................................... on her own behalf
Taheratul Haque and Washim Ahmed................................. counsel for the respondent
Decision on Contempt penalty
Zisman, J.:
Overview
[1] A hearing with respect to finding the Applicant (mother) in contempt of the court’s orders of November 9, 2020 and March 29, 2021 was heard on May 31, June 21 and 30, 2021. A decision finding the mother in contempt was released on July 6, 2021.[^1]
[2] The issue of the appropriate penalty was adjourned in order to provide the mother with an opportunity to purge her contempt.
[3] The court’s expectation, after the strongly worded warning to the mother of the consequences of any further breaches of the outstanding orders, was that the mother would now comply with the orders and the Respondent (father) would be able to exercise parenting time in accordance with the outstanding orders.
[4] The process was somewhat complicated as a trial of the primary issues of the parenting arrangements and support issues were already set for trial. In order not to make an order that might have contradicted or that was incompatible with the trial decision I ordered that the penalty phase of the contempt hearing be adjourned to a date after the completion of the trial.
[5] As outlined below, the mother did not attend the trial, her counsel was removed as counsel of record and information was subsequently discovered that the mother had absconded with the child out of the jurisdiction, The trial proceeded on an uncontested basis and an order made that the child be placed in the care of the father. The mother was subsequently apprehended in Jamaica with the child and arrangements were made for the father to pick up the child. The child is now in the care of the father and the mother is now facing extradition.
Finding of contempt
[6] A summary of the findings of contempt that were made in the decision of July 6, 2021 are as follows:
[88] In summary I find that the mother’s evidence is not credible or reliable. I also find that the various medical notes that she has produced are not reliable and no weight can be placed on them for this motion.
[89] The issue of whether the mother intentionally breached the orders of November 9, 2020 and March 29, 2021 turns on the credibility of the parties. Counsel for the mother chose not to cross-examine the father on his affidavits in support of the contempt motion.
[90] Based on my assessment of the mother’s lack of credibility I find that there is proof beyond a reasonable doubt that the mother has deliberately disobeyed the terms of the order of November 9, 2020 with respect to both the duration of the in person visits and her non-attendance for those visits on the dates set out in the father’s affidavits. The mother also breached the order by not providing make-up time for missed visits.
[91] The mother breached the March 29, 2021 order until the end of May at which time she began to abide by the order.
[92] A parent that would go to the lengths of manipulating and changing a doctor’s note and attaching it as an exhibit to her sworn affidavit simply cannot be believed.
[93] As noted the initial order for virtual access was made on April 27, 2020 and it was not until the November 9, 2020 that the mother even began those visits. In view of the history of the mother’s conduct, I find that the mother’s excuses for not producing the child cannot be believed. I find that the father’s list of the missed virtual access to be accurate as compared to the mother’s list. I find that there is proof beyond a reasonable doubt that the mother did not produce the child for the virtual visits on the dates as set out in the father’s affidavit.
[94] I have considered the law with respect to a finding of contempt should only be exercised sparingly and as a last resort.
[95] The court has attempted to use all other means to enforce the need for the mother to abide by the court orders through conferencing, several court orders, a cost order that remains unpaid, an order reducing spousal support to pay for supervised access and several warnings that the mother may be found in contempt. The court has established mechanisms to protect the mother due to her stated fear of contact with the father by attempting third party exchanges and supervised access. The court has used these means to encourage the mother to permit the father to establish a relationship with this young child. But even when the mother agreed to an order, she then sabotaged that order or found other excuses for not complying.
[96] The mother also relied on the fact that she was exclusively breast feeding the child or that the child is always sick to explain the lack of ongoing visits but these excuses have not been accepted by the court.
[97] The mother has used every possible excuse to prevent the father from establishing a regular consistent parenting schedule so he and the child can develop a close relationship and bond.
[98] have considered if any other alternative or option is available other than a finding of contempt. This court has tried every possible alternative, short of imprisonment or a change of decision-making or primary residence to attempt to require the mother to permit the father to exercise court ordered parenting time.
[99] I find that the mother has willfully and intentionally disobeyed the parenting arrangements in the orders of November 9, 2020 and March 29, 2021. I find that the mother is in contempt of those orders and that this has been proven beyond a reasonable doubt.
[100] The imposition of a penalty is complicated by the fact that a trial in this matter is scheduled in a few weeks. Further, I have concerns that the trial may be derailed as the mother has a history of changing counsel. Mr. Cooper is her fourth counsel. The mother also has been unable to proceed on some court dates as the child was ill.
[101] Counsel for the father submits that a change of residence or increased parenting time is the appropriate penalty. It is submitted that the father with the assistance of the paternal grandmother and his family can meet the needs of the child. The paternal grandmother’s affidavit confirms that she is able and willing to assist the father with the care of the child.
[102] Counsel for the father submits that if the child is to remain in the care of the mother it will be a constant battle for the father to have parenting time with his child. There is much merit in this concern as the father has been attempting to have a regular and consistent parenting schedule since the birth of the child. However, this issue is more properly addressed with the trial judge.
[103] Counsel for the mother submits that the March 29, 2021 order continue and if the mother breached that order that the child’s residence be transferred to the father.
[104] Although there is no evidence that the father would be unable to care for the child for expanded parenting time, overnight or even full-time, the father has through no fault of his own has still only had limited contact with the child.
[105] If this court made any changes to the current parenting arrangements, they could be contradicted by an order after trial.
[106] I have therefore determined that I will adjourn the penalty phase of the contempt motion to be dealt with after the trial is concluded. The issue of costs will also be addressed at that time.
[107] I will require that the parenting provisions of the March 29, 2021 continue. I expect that the mother will comply with the order as that order has a police enforcement clause. The police charging the mother with breaches of the family court orders appear to have had some effect on the mother’s compliance.
[108] If the trial does not proceed during the week of July 19th, counsel may submit a 14B to obtain an early date to address the court on the parenting arrangements pending trial. Otherwise, I am adjourning the penalty phase to October 14, 2021 as I expect the trial decision should be released by that time.
[7] The court then made the following order:
The Applicant mother is found in contempt of paragraphs 2 (includes 1 to 9 c) of the order of November 9, 2020 and paragraphs 1 to 8 of the order of March 29, 2021 in that she willfully and intentionally failed to make the child available for the designated virtual and in person parenting time.
The Applicant mother will comply with the parenting arrangements in the March 29th, 2021 order namely, the child is to be in the Respondent father’s care every Sunday from 10:00 a.m. to 4:00 p.m. Any missed visit is to be made-up on the Saturday of the following week from 10:00 a.m. to 4:00 p.m. The paternal grandmother or the Respondent’s sister-in-law shall continue to supervise the visit. The exchange location can be changed if agreed to by counsel.
The police enforcement clause in the March 29, 2021 order shall continue.
The penalty phase of the contempt motion and submissions as to costs shall be adjourned to October 14, 2021 at 4:00 p.m. If the trial decision is released earlier, a 14B motion to request an earlier date can be submitted.
If the trial does not proceed during the week of July 19th, counsel may submit a 14B to obtain an early date to address the court on the parenting arrangements pending trial.
Events subsequent to July 6, 2021
[8] The mother retained new counsel for the trial who served and filed the required trail documents.
[9] On July 19th, the first day of trial counsel for the mother advised the trial judge Justice Carole Curtis that he had been unable to contact his client for the last 3 days. He advised that she had not responded to his texts or emails. Despite driving to the 2 addresses that he had for her, he was not aware of the whereabouts of the mother or the child.
[10] However, counsel for the mother advised the court that the mother had sent him an email that morning advising that she was unable to attend court as she was ill from an insect bite. The court agreed to adjourn the trial for one day only as there was no medical evidence before the court the mother was too ill to attend the trial that was being conducted by zoom.
[11] Due to concerns about the safety of the child and as the whereabouts of the mother and child were unknown, a temporary without prejudice order was granted that the father and paternal grandmother have joint decision making responsibility and joint residence of the child and that the mother have no contact. Other ancillary orders were made.
[12] On July 20th, the mother did not attend court but through her counsel asked that the order of July 129th be set aside and that the court grant a restraining order. No evidence was presented and the oral motions were dismissed. Both counsel advised the court that the police were actively searching for the mother.
[13] On July 21st the matter was again before the court. Based on submissions made by counsel, portions of the submissions were sealed and no person including the mother’s counsel was to disclose the contents of the submissions to the mother. Mother’s counsel was permitted to be removed as counsel of record.
[14] An order was also made that the mother could be served using her email address. The trial was then adjourned for a further trial management conference and a date of October 20th was set for the trial to proceed.
[15] On October 3rd at about 2:00 a.m. the father received a call from Global Affairs Canada notifying him that the mother and child had been apprehended at the Montego Bay airport in Jamaica. He was advised that the mother was under arrest and that the child was safe and with authorities. The father and paternal grandmother flew to Jamaica on October 4th and returned to Canada on October 6th. The child has been in the care of the father since that time.
[16] The mother is currently being held for an extradition hearing. Counsel for the father advised the court orally in his submissions that it is his understanding that the mother is not fighting extradition and that she will be brought back to Ontario.
[17] On October 20th the trial with respect to parenting issues proceeded on an uncontested basis as the mother though served did not participate or have anyone attend on her behalf. The father was granted final decision making responsibility and residence with no contact by the mother and various other ancillary orders.
[18] Due to an administrative error, the return date for the contempt motion needed to be rescheduled and was heard on November 30, 2021.
[19] The mother was served by email but did not respond or have an agent or counsel attend.
[20] Counsel for the father relied on his trial affidavit, the trial endorsements and made oral submissions.
Applicable legal principles with respect to sentencing on contempt hearing
[21] Family Law Rules 35 (1) sets out the penalties that can be imposed after a finding of contempt. The relevant sections for these purposes are as follows:
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:
Section 38 of the Children’s Law Reform Act.
Section 49 of the Family Law Act.
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).
[22] 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
- (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).
[23] There is a wide discretion available to the court when it comes to sentencing for contempt, as can be seen from subrule 31(5).
[24] 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.[^2] The court has the widest discretion possible on designing an appropriate penalty.
[25] Civil contempt proceedings are also intended to bring about compliance with past or future orders of the court.[^3]
[26] The sanction imposed upon a finding of contempt must be significant and of such consequence as to ensure the administration of justice is not brought into disrepute.
[27] As noted in Itrade Finance Inc. v. Webworx Inc.[^4] “others who may be tempted to flout an Order of this Court and frustrate its process must appreciate that they cannot benefit from such conduct.”
[28] 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.[^5]
[29] In determining an appropriate sentence in the present case, considerations have included the following:
(a) the available sentences;
(b) the proportionality of the sentence to the wrongdoing;
(c) the similarity of sentences in like circumstances;
(d) the presence of mitigating factors;
(e) the presence of aggravating factors;
(f) deterrence;
(g) the reasonableness of a fine;
(h) the reasonableness of incarceration.
[30] In Surgeoner v. Surgeoner,[^6] Justice R.A. Blair J. stated:
5 No society that believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court’s orders at their whim because in their own particular view, it is right to do so. A society that countenances such conduct is a society tottering on the precipice of disorder and injustice.
The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal that 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 spouse to believe that he or 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.
Application of legal principles to the findings of fact
[31] In this case the mother has demonstrated a flagrant disregard of court orders. There are no mitigating factors. It is difficult to imagine a more egregious case.
[32] It is submitted that were it not for the actions of the police in locating the mother and child in Jamaica and alerting the authorities in Jamaica that the father may never have seen his son again. It is submitted that the mother was located at the airport in Jamaica attempting to leave that country.
[33] Accordingly, the mother not only was in contempt of the orders of November 9, 2020 and March 29, 2021 but she also disobeyed the order of May 7, 2021 that prevented her from leaving the jurisdiction. Further not only did the mother not purge her contempt she took steps to further breach the court orders.
[34] The mother demonstrated a flagrant disregard of the court. There are no mitigating factors.
[35] The aggravating factors are obvious. In this case, the mother was aware that the father was seeking an order that the child be placed in his care pending the return of the hearing of the contempt motion. Instead of purging her contempt she took the ultimate step of simply leaving the jurisdiction with the child.
[36] The mother’s financial circumstances are unknown as there is no evidence as to how she had the funds to leave the jurisdiction and support herself and the child. A fine or penalty would send a message to others who contemplate disobeying court orders that this can be done with some impunity. Nor is there any confidence that any monetary penalty would ever be enforceable.
[37] Counsel for the father will be submitting his cost submissions as they were not ready on the date of this hearing. As the successful party it is presumed that the father is entitled to costs, so there will be a financial consequence in any event.
[38] The child has already been placed in the care of the father with no parenting time to the mother, so ordering a change in the residence is not necessary.
[39] The most important sentencing principle in this case is deterrence. It is important that parties understand that breaching a court order in this way by removing a child from potentially any contact with one of their parents is not acceptable and will be met with the harshest penalty.
[40] There are several cases where a jail term has been imposed but the jail term was suspended on condition that the parent comply with the terms of the court orders or probation order[^7].
[41] However, in this case the mother was already given the opportunity to comply with the outstanding court orders on multiple times even before the finding of contempt. I find that the mother’s actions are so severe that to simply impose a jail sentence and then suspend it will not send the appropriate message to others. In any event in this case, the child has already been placed in the care of the father so that the mother can no longer comply with the outstanding court orders as they no longer exist.
[42] I find that the only appropriate sentence is a term of incarceration.
[43] The only case that is somewhat similar in the case of Sanders and Aerts[^8] a decision of Justice Hardman. In that case the mother was to deliver the child to Canada and take out a mirror order in Switzerland with respect to the father’s access. Instead the mother obtained an order suspending the father’s access. The court held that a fine was not appropriate as the mother’s family would pay it nor would she be responsive to a conditional jail order as the mother was not prepared to take the steps to rectify her actions. A term of 90 days was imposed in the hope that such a sentence would “coerce” her to comply.
[44] The mother has never acknowledged any wrongdoing for the many breaches of the court orders. She has never shown any remorse or insight into the effect on this young child of not being able to have a relationship with his father.
[45] The mother simply believes that she has the right to ignore court orders as she believes she is right and everyone else is wrong. In the past she simply ignored the court orders or made multiples excuses as to why she could not comply. After the finding of contempt, she took the ultimate step of simply absconding with the child. Such behaviour cannot and will not be tolerated.
[46] The mother has not considered the consequences of her actions and how detrimental they are to this young child. It was clearly not in the best interests of the child to be removed from his familiar surroundings, taken to Jamaica a country where he has no connection and then it appears that the mother was prepared to remove him again to another country when she was apprehended. Now because of the mother’s actions, she is in jail and the child has no contact with her. Given the rash nature of the mother’s actions, it is unclear if she will even be permitted supervised parenting time with the child in the short term.
[47] I find that in this case an incarceration term of 90 days, the maximum permitted under section 38 of the Children’s Law Reform Act is the only appropriate sentence.
[48] There will be an order as follows:
The Applicant Laila Salam Sezin shall be incarcerated for 90 days.
Earned remission or any truncating of this sanction pursuant to the applicable laws for criminal sentences does not apply to this term of incarceration.
A warrant of committal shall issue.
This order is effective as of today without the court order being issued and entered.
Counsel for the Respondent shall immediately prepare this court order and submit it to the court with a completed CPIC form. Approval by the Applicant as to the form and content of the order shall be dispended with.
Released: December 7, 2021
Signed: Justice Roselyn Zisman
[^1]: 2021 ONCJ 399 at paras. 88-108 [^2]: Geremia v. Harb, 2007 30750 (ON SC), [2007] O.J. No. 3019, 40 R.F.L. (6th) 362, 2007 CarswellOnt 4956, 79 W.C.B. (2d) 679, 172 A.C.W.S. (3d) 426 (Ont. Sup. Ct.), para. 11. [^3]: Rogers v. Rogers, [2008] M.J. No. 178, 2008 MBQB 131, 166 A.C.W.S. (3d) 243, 77 W.C.B. (2d) 773, 227 Man.R. (2d) 118, 52 R.F.L. (6th) 281, [2008] 10 W.W.R. 111, 2008 CarswellMan 247 (Man. Q.B.), para. 119. [^4]: [2005] O.J. No. 3492 at para. 20 (SCJ)at para. 20 [^5]: Germia v. Harb, supra [^6]: (1991), 6 C.P.C. (3rd) 318 (Ont. Gen. Div.) [^7]: See Gemia and Harb, 2007 30750 (ON SC), [2007] OJ No. 3019 (SCJ); Skalitzky and Skalitizky, [2014] OJ 728 (SCJ); Stuyt and Stuyt, [2009] OJ 2475 (SCJ). [^8]: [2014] OJ No. 20 (OCJ)