CITATION: Arias v. Barbieri, 2023 ONSC 213

DIVISIONAL COURT FILE NO.: DC-22/111

DATE: 20230111

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Nishikawa and O’Brien JJ.

BETWEEN:

Santo Barbieri

Appellant

– and –

Karina Arias

Respondent

Elliott Vine, for the Appellant

Ariel Kirzner and Angela Grant-Lee, for the Respondent

HEARD: November 2, 2022

REASONS FOR DECISION

NISHIKAWA J.

Overview and Background

[1] The Appellant father, Santo Barbieri, appeals the order of Ramsay J. dated January 12, 2022 (the “Order”) dismissing his motion for contempt against the Respondent mother, Karina Arias.

[2] The Appellant submits that the motion judge erred in law in dismissing the motion and that he materially misapprehended the evidence. The Appellant further submits that the motion judge failed to conduct the hearing in a procedurally fair manner, as further detailed below. The Appellant also seeks to appeal the costs order dated February 3, 2022 (the “Costs Order”) awarding the Respondent full indemnity costs.

[3] For the reasons given below, the appeal is dismissed.

The Final Order

[4] The Appellant and the Respondent were married from 1997 to 2019. They have two children, ages 11 and 8. The parties entered into a comprehensive Separation Agreement dated March 30, 2020, the terms of which were incorporated into the order of Lafrenière J. dated November 3, 2020 (the “Final Order.”)

[5] The Final Order resolved all issues between the parties and includes terms relating to non-harassment, parenting, child support, spousal support, medical and dental benefits, life insurance, property, the matrimonial home, and debts. Clause 7 stipulates that the parties shall make important decisions about the children’s welfare together, including decisions about the children’s education, major non-emergency health care, major recreational activities, and religious activities.

The Contempt Motion

[6] The Appellant brought a motion for contempt against the Respondent, alleging that she repeatedly violated various terms of the Final Order.

[7] At an appearance before Chappel J. on May 26, 2021, the Appellant was directed to serve an amended notice of motion because his notice of motion was unclear. The parties were directed to attend a trial scheduling conference to organize how the hearing would proceed. At a trial scheduling conference before Krawchenko J. on August 23, 2021, a Trial Scheduling Endorsement Form (“TSEF”) was completed. The TSEF required that the parties serve all proposed exhibits, among other things, by October 7, 2021.

[8] At the January 12, 2022 contempt hearing, the motion judge advised that he had read the Appellant’s affidavit and directed the Appellant to make submissions as to why his stated facts, if accepted, justified a contempt finding. It is undisputed that the motion judge did not permit the Appellant to make an opening statement and did not allow the Appellant to adduce oral or written evidence on issues that were not addressed in his amended Notice of Motion or affidavit.

[9] The motion judge then dismissed the Appellant’s contempt motion without requiring the Respondent to call evidence. At the hearing, the motion judge ruled that even taking everything to which the Appellant deposed to as true, he had not made out a case for contempt.

[10] The motion judge provided further reasons in his endorsement dated January 12, 2022. The motion judge went through each alleged breach of the Final Order and the paragraphs of the Appellant’s affidavit supporting the alleged breach and detailed why they would not support a finding of contempt. In brief, the motion judge found that:

• The majority of the alleged breaches could not support a finding of contempt because they predated the Final Order; and

• Other allegations, such as those regarding the division of the children’s items, disagreement over appropriate winter dress, and the holding of the existing passports, could not support a finding of contempt.

[11] The Appellant also alleged that the Respondent breached the term of the Final Order requiring that the parties make major decisions about the children’s welfare together by withholding important medical treatment information from him and making significant treatment decisions regarding the children without advising him. On that issue, the motion judge found that the Respondent had arranged doctor’s appointments and then informed the Appellant. The motion judge found that the Appellant had an adequate alternate remedy, which was to consult the children’s doctors himself.

Issues

[12] The issues to be determined in this appeal are as follows:

(a) Did the motion judge err in law in finding that the Respondent was not in contempt of the Final Order?

(b) Did the motion judge materially misapprehend the evidence regarding the medical decision-making of the Respondent?

(c) Did motion judge fail to provide a procedurally fair hearing to the Appellant?

(d) Did motion judge err in ordering full indemnity costs against the Appellant?

Analysis

The Standard of Review

[13] On appeal, the standard of review on questions of law is correctness. On questions of fact and mixed law and fact, the standard of review is palpable and overriding error, unless there is an extricable legal principle, in which case the standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, at paras. 8, 10 and 36. Issues of procedural fairness are also reviewed on a correctness standard of review: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at paras. 29-30.

[14] The Court of Appeal has stated that “[i]t is well-established that the standard of review in family law litigation promotes finality and recognizes the importance of the appreciation of the facts by the trial judge. An appeal court may intervene only where there is a material error, a serious misapprehension of the evidence, or an error in law”: Ludmer v. Ludmer, 2014 ONCA 827, at para. 14.

Did the Motion Judge Err in Law in Dismissing the Contempt Motion?

[15] The Appellant submits that the motion judge erred in law in dismissing the contempt motion because the motion judge stated in his endorsement that “a court cannot really order parties to make decisions together.” The Appellant takes the position that this is an incorrect statement of the law because parents routinely have joint decision-making authority. As a “statement of law”, these remarks are clearly wrong. However, reasons are to be read liberally, to understand their intended meaning, and not with a view to picking apart any infelicitous expression. Courts cannot compel cooperation in a direct sense. They can, however, require it as a prelude to devising an alternative regime if the parties are unable to act in accordance with the spirit of the requirement. It is best for parents to cooperate sufficiently to make joint decisions on important matters. Where this aspiration is not achieved, the court has tools available to implement alternatives (such as prescribing divided decision-making authority, or granting decision-making authority to one parent). On a first motion to address alleged non-compliance with a requirement to cooperate, it would be a rare case for the court to resort to the contempt power.

[16] Thus, I conclude that the motion judge’s statement was not a pronouncement of the law. It was, rather, an observation about the impracticality of direct enforcement of an order requiring parties in a high-conflict family law proceeding to make decisions together. Moreover, while a party could technically breach such a term, a finding of contempt cannot be made lightly. The motion judge correctly noted that the Court of Appeal has repeatedly emphasized that in family law proceedings, contempt is a relief of “last resort”: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3.

[17] In my view, the motion judge was essentially noting that it would be unusual to find a party in contempt on a first motion brought for failing to comply with a term requiring joint decision-making. The observation was relevant context to the motion judge’s assessment of the alleged non-compliance and whether the evidence warranted that he exercise his discretion to find the Respondent in contempt of the Final Order. Even if the motion judge erred in law in making the statement, he went on to consider the Appellant’s evidence of the alleged breaches, as further discussed below. He found that material breaches were not established, and there is no palpable and overriding error in these findings. As a result, even if the statement was incorrect in law, there would be no consequence to the Appellant.

Did the Motion Judge Materially Misapprehend the Evidence?

[18] The Appellant submits that the motion judge misapprehended the evidence regarding the Respondent’s non-compliance with the terms of the Final Order requiring joint decision-making. The Appellant alleged that the Respondent scheduled medical appointments, obtained referrals to specialists, and decided on a treatment plan without advising the Appellant or obtaining his consent.

[19] This ground of appeal also fails. The motion judge did not misapprehend the evidence. The motion judge considered the Appellant’s evidence and submissions and found that certain of the allegations predated the Final Order and could not constitute contempt. Of the remaining allegations, the motion judge found that when the Appellant inquired about the medical issue in November 2020, the Respondent responded that the specialist had not yet made a diagnosis. The motion judge also found that testing the children for COVID-19 was not the type of medical decision that required joint decision-making. The motion judge concluded that even if the Appellant’s allegations were taken as true, they would not constitute a failure to make decisions together because the decisions did not rise to the level of major decisions, such as surgery.

[20] As noted above, deference is owed to the motion judge’s findings of fact. There was ample evidence in the record to support the motion judge’s finding that the conduct alleged did not constitute a failure to make major decisions together. Moreover, none of the conduct alleged rose to the level that would have warranted a finding of contempt. In the circumstances, where the motion judge found that the Appellant was able to contact the doctors and obtain the information himself, there was no material misapprehension of the evidence. A finding of contempt would have been unwarranted and heavy-handed.

Was the Proceeding Fair to the Appellant?

[21] The Appellant submits that the hearing was conducted in a manner that denied him procedural fairness. Specifically, the Appellant submits that the motion judge rushed and interrupted him and made comments which indicated that he had predetermined that the motion was frivolous. The Appellant further submits that the motion judge denied him the opportunity to make an opening statement; to give any oral evidence; to rely on his exhibit book, which was properly submitted; or to cross-examine the Respondent or adduce any evidence from her.

[22] In my view, the motion judge did not fail to conduct the hearing in a procedurally fair manner. The motion judge had broad discretion to conduct the hearing in the manner in which he, as the judge hearing the matter, saw fit. The jurisprudence accords a great degree of deference to the procedural decisions of the trial judge, especially in the family law context. Moreover, the legislature has accorded the courts a significant degree of discretion to manage cases in accordance with the primary objective in r. 2(3) of the Family Law Rules.

[23] Having reviewed the motion material, including the Appellant’s amended notice of motion, which determined the scope of the motion, and his affidavit the motion judge directed that the Appellant make submissions as to how his evidence, if true, would lead to a finding of contempt. Given the Court of Appeal’s direction that contempt be used as a last resort in family law proceedings, the lack of particulars in the notice of motion, the lack of merit of the motion on the whole and given that contempt must be proven beyond a reasonable doubt, it was open to the motion judge to proceed in this manner. The motion judge gave the Appellant the benefit of the doubt by proceeding on the basis that the allegations were true. The Appellant then made lengthy oral submissions over the course of two hours. The motion judge urged the Appellant to get to the point but did not unfairly curtail his submissions. The motion judge nonetheless found that the allegations would not support a finding of contempt because they either did not constitute a breach of the Final Order or were so trivial that they would not constitute contempt.

[24] On appeal, the Appellant takes the position that the motion judge failed to reasonably accommodate him as a self-represented litigant, as stipulated in the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons (the “Statement of Principles.”) The Appellant submits that the motion judge had an obligation to advise the Appellant that his motion for contempt was ill-conceived as a first response to the Respondent’s alleged non-compliance with the Final Order and that the motion ought to have been treated as a motion for enforcement. The Appellant further submits that the motion judge erred in failing to grant an adjournment to reformulate the motion or to submit further evidence.

[25] The Appellant relies on Moncur v. Plante, 2021 ONCA 462, to argue that the motion judge had a duty to advise the Appellant of alternatives to a contempt motion, such as a motion for enforcement or a declaration of breach. That case, however, does not support the existence of an obligation on the motion judge to convert the Appellant’s motion for contempt to an enforcement or other motion. In Moncur v. Plante, at para. 19, the Court of Appeal held that the motion judge erred in law by failing to consider other alternative enforcement options before finding the appellant in contempt. The Court of Appeal noted the risk that contempt proceedings exacerbate parental conflict to the detriment of the children.

[26] The Appellant also relies on Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 80, in which the Court of Appeal held that the court must provide assistance to self-represented litigants in accordance with the Statement of Principles. The principles that the Appellant relies on are those that require judges: (i) to do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons; and (ii) to ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

[27] While the motion judge could have assisted the Appellant further, in my view, his conduct of the hearing did not run afoul of the above-stated principles. The motion judge provided the Appellant with a full opportunity to explain why the allegations would support a finding of contempt. He did not use procedural or evidentiary rules to unjustly hinder the Appellant’s legal interests. Although, despite case management, the contempt motion was permitted to proceed as a first response to the Respondent’s alleged non-compliance, it was ill-conceived. The Appellant, who had the assistance of counsel at various stages, did not seek any alternative relief in his notice of motion. “Any participant in litigation, including a self-represented party, has a responsibility to familiarize [themselves] with the procedures relevant to the case”: Carpenter v. Carpenter, 2016 ONCA 313, at para. 16.

[28] Converting the motion to a motion for enforcement could have resulted in unfairness to the Respondent, who had made the decision to give oral testimony and had not submitted an affidavit on the motion. Moreover, converting and/or adjourning the motion to a future date would have resulted in additional costs. It does not appear that the Appellant requested an adjournment. In any event, appellate courts should not interfere with denials of adjournments by a trial judge unless the judge exercised their discretion unreasonably “such that the decision is contrary to the interests of justice”: Gionet v. Pingue, 2016 ONCA 1040, at paras. 19-34.

[29] In addition, a motion for enforcement would likely have been as unsuccessful as the motion for contempt. Many of the alleged incidents predated the Final Order and others were trivial or frivolous.

[30] The Appellant also takes the position that the motion judge did not conduct the hearing in accordance with the TSEF and that the motion judge erred in finding that the Appellants Request to Admit was not properly served.

[31] As noted above, these matters are procedural decisions that were well within the discretion of the motion judge. “[A]ny pretrial directions given regarding the conduct of a trial ultimately are subject to the discretion of the judge presiding at the trial”: Abrams v. Abrams, 2010 ONSC 2703, at para. 82. While the Appellant objects to the motion judge’s refusal to admit his Request to Admit, it was not properly served. In any event, the TSEF provided for an agreed statement of facts, as opposed to requests to admit.

[32] The TSEF permitted the Appellant to submit additional evidence but only to support the existing claims of contempt. The Form 31 Notice of Contempt Motion explicitly requires that the moving party make their case by stating the reasons for the contempt motion and providing the supporting evidence in an affidavit. The opportunity to adduce further evidence would not have assisted the Appellant because he could only have given evidence on the allegations made in the amended notice of motion, which the motion judge found could not support a finding of contempt. He would not have been able to raise new or additional grounds.

[33] One error the motion judge made was his refusal to allow the Appellant to speak to evidence that had been submitted by October 7, 2021, as required by the TSEF. There appears to have been some confusion as to what documents the Appellant was referring during the hearing. However, on appeal, the Appellant has not argued any prejudice arising from this error or that any particular finding turned on such evidence.

[34] Accordingly, the Appellant’s procedural fairness grounds also fail.

Did the Motion Judge Err in Ordering Full Indemnity Costs Against the Appellant?

[35] The Appellant did not seek leave to appeal the costs decision. As a result, the Costs Order is not properly before this court on appeal.

[36] Given that the appeal of the Costs Order is not properly before this court, the supplementary record submitted by the Respondent on the issue of costs is inadmissible.

[37] In any event, costs awards are highly discretionary. The motion judge no doubt ordered full indemnity costs because he found that the Appellant’s motion for contempt was a high-handed manner of addressing the Respondent’s alleged non-compliance with the Final Order. The Appellant brought a motion for contempt as a first, rather than a last, resort. I see no reason to interfere with the Costs Order.

Conclusion

[38] Accordingly, the appeal is dismissed.

[39] The Respondent is entitled to her costs of this appeal, which I would fix at $10,000, inclusive. This award does not affect the costs of the motion before Sheard J., for which the Respondent was ordered to pay $3,500 to the Appellant. In the event that the Respondent has not yet paid those costs, the amount may be deducted from the $10,000, in which case, the Appellant is required to pay $6,500 in costs. If the $3,500 costs award was paid, the Appellant shall pay the Respondent’s costs of the appeal in the total amount of $10,000.

“Nishikawa J.”

I agree: “D.L. Corbett J.”

I agree: “O’Brien J.”

Released: January 11, 2023

CITATION: Arias v. Barbieri, 2023 ONSC 213

DIVISIONAL COURT FILE NO.: DC-22/111

DATE: 20230111

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Nishikawa and O’Brien JJ.

BETWEEN:

Santo Barbieri

Appellant

– and –

Karina Arias

Respondent

REASONS FOR DECISION

Nishikawa J.

Released: January 11, 2023