CITATION: Palacios v. Palacios, 2024 ONSC 5141
DIVISIONAL COURT FILE NO.: DC-23-1398 (Oshawa) DATE: 20240916
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Lococo and Howard JJ.
BETWEEN:
ALEXANDER PALACIOS
Self Represented
Appellant
– and –
KATARZYNA PALACIOS
Richard Glennie, Counsel for the
Respondent
Respondent
HEARD at Oshawa: September 16, 2024
ENDORSEMENT
SACHS J. (orally)
[1] The Appellant, Alexander Palacios, appeals the order of Leef J. dated June 15, 2023, in which she found him in contempt of the order of Hughes J. dated May 18, 2022. Mr. Palacios made the following arguments on this appeal:
The motion judge acted without jurisdiction when, in the context of a contempt proceeding under r. 1(8) of the Family Law Rules, she varied the final parenting order of Hughes J.
The motion judge erred when she made a finding of contempt in relation to Mr. Palacios’ conduct in taking his daughter to a new dentist.
The motion judge erred when she found Mr. Palacios in contempt on June the 15, 2023, since he had strictly complied with the terms of the order of Hughes J. since October 18, 2022.
The motion judge breached Mr. Palacios’ right to procedural fairness by deciding the contempt proceeding on the basis of affidavit evidence alone.
The motion judge breached Mr. Palacios’ right to procedural fairness during the hearing that occurred on June 9, 2023.
[2] I will deal with each of these arguments in turn.
The Jurisdiction Argument
[3] After finding Mr. Palacios in contempt, the motion Judge imposed the following term:
- Until such time as the Respondent [Mr. Palacios] complies with all terms of this order, including but not limited to, the full payment of costs owing to the Applicant, he shall have parenting time with the children every second weekend, from Friday pick up at school until Sunday drop off at Ajax GO Station at 7 pm.
[4] There is no issue that paragraph 8 reduced the parenting time that Mr. Palacios had been granted under Hughes J.’s order. Mr. Palacios submits that the motion judge gave no statutory basis for making this variation and had no jurisdiction to make the variation in the context of a contempt proceeding.
[5] Mr. Palacios relied on two cases from the Ontario Court of Appeal in support of his argument, Chan v. Town, 2013 ONCA 478 and Bouchard v. Sgovio, 2021 ONCA 709. In Chan, the Court of Appeal stated at paragraph 6 that “Custodial arrangements of children cannot be used as a punishment for contempt.” According to Mr. Palacios, the motion judge reduced his parenting time in order to punish him for his contempt.
[6] In Bouchard, a majority of the Court of Appeal accepted that a motion judge can make a temporary parenting order in the context of a motion for contempt under r. 1(8) of the Family Law Rules both because of the broad remedial authority granted under r. 1(8) and because the purpose of the motions judge’s order in Bouchard was not to vary or replace the previous parenting order, but to facilitate compliance with that order.
[7] Mr. Palacios submits that the reasoning in Bouchard does not apply to the case at bar because the motion judge’s order was a final variation, not a temporary one.
[8] We disagree. Paragraph 8 of the order is clear; the variation is only in effect until Mr. Palacios complies with the terms of the order under review.
[9] Further, taken in context, the variation was made with a view to facilitating compliance with Justice Hughes’ order. Thus, pursuant to the reasoning in Bouchard, the motion judge had the jurisdiction to make the order she did.
The Finding of Contempt in Relation to the Dentist
[10] In paragraph 3 of the motion judge’s order, she found that Mr. Palacios “in contempt of paragraph 1 (decision making with respect to medical decisions) of the order of Justice Hughes, in contravention of which the Respondent took Isabella … to a new dentist without the Applicant’s consent”.
[11] Mr. Palacios submits that this finding was made in error because the motion judge in a previous endorsement described Ms. Palacios as having sole decision-making authority in respect of medical decisions and in fact, that authority was joint. In addition, given the history of the parties with respect to medical decisions, this was not a major decision.
[12] Whether Ms. Palacios had sole or joint authority with respect to medical decisions makes no difference when it comes to this aspect of the contempt finding. If Ms. Palacios did not agree with the decision to take Isabella to a new dentist, Mr. Palacios was not entitled to proceed unilaterally.
[13] With respect to whether the decision was a major one, taken in context, there is no reason to set aside the motion judge’s finding that the conduct was sufficiently serious to warrant a contempt finding. This was a case where the motion judge found that Mr. Palacios had a history of acting unilaterally with respect to the children regardless of what position their mother took or what any court order said. To the extent that Mr. Palacios argued that the practice between the parents was that he handled medical matters, there was no evidence before us to support this submission.
The Strict Compliance Argument
[14] On October 18, 2022, the motion judge found that Mr. Palacios’ conduct satisfied all the elements of the test for contempt. She also decided that she would adjourn the hearing to a future date to decide if there should be a finding of contempt. That hearing was conducted on June 9, 2023, and resulted in the order under appeal.
[15] Mr. Palacios submits that since he strictly complied with Justice Hughes’ order between October 2022 and June 2023, he should not have been found in contempt. The problem with this submission is that the motion judge expressly found that he did not comply with Justice Hughes’ order between October 2022 and June 2023.
[16] With respect to the most serious aspect of his behavior, withholding the children from their mother, Mr. Palacios continued to threaten Ms. Palacios that he would withhold the children if she did not do as he wanted.
[17] In short, Mr. Palacios has not established that the motion judge made a palpable and overriding error when she found that Mr. Palacios continued to breach court orders between October 2022 and June 2023.
The Procedural Fairness Arguments
[18] There was no issue that Mr. Palacios had committed the acts that formed the basis for the contempt motion. He did withhold the children; he did take Isabella to the new dentist even though her mother told him not to because Isabella had recently been to the dentist; he did threaten and attempted to enroll the boys in a school without their mother’s consent. Given this, it cannot be said that this was the type of case where there was a need for an oral hearing to determine the matters at issue.
[19] With respect to the hearing on June 9, 2023, Mr. Palacios argued that the hearing was unfair because he had no access to CaseLines during the hearing when the judge and Ms. Palacios’ counsel had access and that after he had hung up the phone (he participated in the hearing by telephone) Ms. Palacios’ counsel addressed the motion judge about correcting an inaccuracy in her previous endorsement.
[20] This submission has no merit. Mr. Palacios is a licensed paralegal, and the motion judge was advised by Ms. Palacios’ counsel that Mr. Palacios had been given directions about uploading his materials on CaseLines and accessing CaseLines. The fact that he did not follow those directions does not create a breach of procedural fairness, especially when there is no suggestion Mr. Palacios did not have all the material that was being referred to. There was also no evidence to support the fact that anyone had done anything to restrict Mr. Palacios’ access to CaseLines.
[21] Mr. Palacios chose to leave the hearing after the motion judge denied his request for an adjournment. He returned to the hearing and then, prior to any indication that the hearing was at an end, he hung up again. The motion judge continued to deal with the issues that were remaining.
[22] If a litigant chooses to leave the hearing before it is concluded, this does not create a breach of procedural fairness.
Conclusion
[23] For these reasons, the appeal is dismissed.
[24] The Respondent is entitled to her costs of this appeal, fixed at $12,000 all inclusive.
Sachs J. ____________________________________ I agree. Lococo J. ____________________________________ I agree. Howard J.
Date of Reasons for Decision: September 16, 2024
Date of Written Release: September 27, 2024