CITATION: Abbott v. Leblanc, 2023 ONSC 3903

COURT FILE NO.: DC-22-543-00

DATE: 20230630

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Mark Anthony Abbott, Appellant

- and -

Stephanie Leblanc, Respondent

BEFORE: Backhouse, Nishikawa and Krawchenko JJ.

COUNSEL: Appellant, self-represented

Respondent, self-represented

HEARD: June 20, 2023, at Toronto, by videoconference

BACKHOUSE J.

ENDORSEMENT

Background

[1] The appellant father appeals the decision of Justice Fryer (the “Motion Judge”), dated September 12, 2022, dismissing his contempt motion against the respondent mother (the “Decision”). The appellant had alleged that the respondent was in contempt of court for failing to comply with monthly court-ordered access with their child, L.R. The underlying order came from the parenting decision of Justice Fryer dated July 15, 2019 (the “Final Order”) following a seven-day hearing. The Final Order granted the respondent sole custody and allowed her to move with the child to Quebec. The appellant was granted parenting time.

[2] The appellant appealed the Final Order to the Ontario Court of Appeal. Leave to appeal was denied on October 18, 2022. Since the release of the Final Order, the Motion Judge observed that there have been over 18 motions with the vast majority brought by the appellant. The appellant appealed an interlocutory order of Justice Fryer that also dismissed a motion for contempt against the respondent, which appeal was dismissed by this Court on June 10, 2022.

[3] On this appeal, the appellant argues that the Motion Judge:

(1) erred by failing to properly apply the test for contempt of court;

(2) erred by finding that the parties needed to proceed in Quebec, not Ontario;

(3) erred by giving excessive weight to the trial costs award;

(4) erred by failing to consider and give appropriate weight to critical factors, including the best interests of the child and the maximum contact principle.

[4] The appellant also brings a motion to admit fresh evidence on this appeal regarding further allegations of the respondent’s contempt since the Decision.

[5] The respondent submits that the appellant is engaged in vexatious litigation and the appeal should be dismissed.

The Decision

[6] The Motion Judge set out the test on a motion for contempt, citing Moncur v. Plante, 2021 ONCA 462, and found it was not met. She noted that in her endorsement, dated September 17, 2022 in relation to an earlier contempt motion brought by the appellant, she had pointed out that the precise grounds of contempt must be set out in detail in the Notice of Motion. Notwithstanding this, she found that the appellant failed to do this.

[7] The Motion Judge found that the respondent’s failure to comply with the order was not intentional or willful. While the respondent did not deny the allegations, she could not comply because of the cost of the trips for visitation. The appellant had not paid the Final Order with respect to the costs. He acknowledged before the Motion Judge that he has a job and has made no effort to make payments of costs to the respondent. Further, the respondent’s work commitments have made compliance difficult.

[8] The Motion Judge noted that both parties want changes to the Final Order. The respondent attempted to bring a proceeding in the Superior Court of Quebec prior to the appellant’s Divisional Court appeal of the Final Order. The appellant objected to the jurisdiction of the court and the court in Quebec declined to hear the case due to the outstanding appeal. The Motion Judge found that it would be unfair to hold the respondent in contempt when she has been unable to comply (due to the appellant’s failure to pay costs as ordered) and when she has been in “jurisdictional limbo” while the appellant sought leave to appeal the Final Order in Ontario.

[9] The Motion Judge also noted that there was a jurisdictional issue. The child, L.R., had not been habitually resident in Ontario for over three years and pursuant to s. 22 of the Children’s Law Reform Act, R.S.O.1990, c.C.12, Ontario is not the proper jurisdiction. The parties needed to pursue the changes they were seeking in Quebec “rather than using the vehicle of contempt motions in this jurisdiction”. The Motion Judge found that it was in the child’s best interests for the Final Order to be revisited in Quebec rather than for Ontario courts to continue to consider contempt motions. Finally, the Motion Judge held she would have also declined to consider this motion under r. 1(8)(e) of the Family Law Rules, O. Reg. 114/99, because the appellant was in breach of the Final Order with respect to paying costs.

Standard of Review

[10] The appellate standards of review apply: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 8, 10.

Analysis

[11] There is no merit to this appeal. The Motion Judge properly applied the test for contempt of court and exercised her discretion appropriately. There are no errors of fact or law.

[12] Where the child has lived in Quebec for over three years, there is no error in finding that the appropriate jurisdiction for further child-related proceedings is in Quebec. Several orders have now held that the appropriate jurisdiction is Quebec. On December 1, 2022, the appellant brought a Motion to Change in Quebec so that he is now litigating in two jurisdictions.

[13] There is nothing inappropriate about the Motion Judge referencing r. 1(8)(3) of the Family Law Rules as an alternative basis to decline to consider the motion. It is specious for the appellant to argue that the costs award in the Final Order should not have been an impediment because the Final Order was under appeal at the Court of Appeal at the time the matter was before the Motion Judge. The appellant required leave to appeal the Divisional Court’s dismissal of his appeal (which leave was denied by the Court of Appeal) and the Final Order was not stayed at the time this matter was before the Motion Judge. Notwithstanding the successive levels of courts that have considered the Final Order, the appellant continues to argue on this appeal that Justice Fryer erred in principle in the Final Order when making the costs award.

[14] There is no error, and it was appropriate for the Motion Judge to find that it was in the child’s best interests for the Final Order to be revisited in Quebec, the jurisdiction in which the child has resided for over three years, rather than for Ontario courts to continue to consider contempt motions. The best interests of the child and the maximum contact principle were considered at the time of the Final Order. The Final Order specifically contemplated that there could be a review of both the parenting arrangements and the child support provisions. Both parties say that they want modifications to the terms of the Final Order. For the appellant to ignore the direction and various court orders about the appropriate jurisdiction, and continue to litigate in Ontario, amounts to vexatious litigation.

[15] On the appellant’s motion for fresh evidence, he does not address the test to admit fresh evidence and he does not attach the fresh evidence in an affidavit or otherwise. Moreover, where the appropriate jurisdiction is Quebec, there is no purpose served in admitting fresh evidence on this appeal of further allegations since the Decision on the respondent’s contempt.

Conclusion

[16] The motion to admit fresh evidence is dismissed. The appeal is dismissed. Costs to the respondent fixed in the amount of $3,500.00.

Backhouse J.

I agree

Nishikawa J.

I agree

Krawchenko J.

Released: June 30, 2023