LeGrand v. LeGrand, 2024 ONSC 693

CITATION: LeGrand v. LeGrand, 2024 ONSC 693

DIVISIONAL COURT FILE NO.: 1328/22 (Oshawa)
DATE: 20240202

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, McGee and Cullin JJ.

BETWEEN:

MARC LeGRAND

Appellant

– and –

LORRAINE LeGRAND

Respondent

COUNSEL: M. Stangarone and S. Kirby, for the Appellant Michael H. Tweyman, for the Respondent

HEARD at Oshawa (by ZOOM): September 19, 2023

REASONS FOR DECISION

McGee J.

Introduction

[1] The Appellant father appeals from the Order and subsequent Costs Order of Justice Hughes dated May 31, 2022 (unreported) and April 21, 2023 (2023 ONSC 2427) respectively, that found him in contempt of eight parenting terms within the consent final Orders of March 26, 2019 and July 3, 2019, (the “final Orders”).

[2] Having made the finding of contempt, Justice Hughes imposed two sanctions. First, she suspended the Respondent mother’s obligation to pay child support to the father, including s.7 expenses, for so long as the father remained non-compliant with the parenting terms in the final Orders. Second, she precluded the father from bringing any further proceedings before the court for so long as he remained non-compliant.

[3] To the day of the hearing before us, the father remained in breach of the parenting terms within the final Orders. He asserts that the parties’ daughters, now 16 and 17, are justifiably estranged from their mother. Although the girls are in his exclusive care, he continues to pay child support to the mother because he is precluded from moving to vary the child support terms in the final Orders.

[4] The father argues that the motion judge erred in finding him in contempt because (a) he lacked intent; (b) the motion judge failed to apply the criminal standard of proof and the presumption of innocence; (c) a finding of contempt should be a “last resort” in family law cases, and the matter before her had not reached a point in which a finding of contempt was appropriate; and (d) he was denied procedural fairness when the court refused him permission to file an affidavit that did not comply with the Family Law Rules. In the alternative, the father argues that the motion judge erred by imposing a sanction structured around child support which, in the result, provides an open-ended penalty that is contrary to the best interests of the children and the principles of child support.

[5] The mother argues that this case had reached the point of “last resort” when the finding of contempt was made and that the father should not be permitted to place the blame for his non-compliance on the parties’ daughters. She argues that the finding of contempt is amply supported by the record, and that the sanctions imposed were within the motion judge’s discretion. She asks that this court leave the finding of contempt and sanction undisturbed.

[6] I agree with the mother that it was open to the motions judge to find that the “last resort” had been reached and that a finding of contempt was available on the record. The motion judge did apply the proper standard of proof and the presumption of innocence, and there was no procedural unfairness in the context of the history of the matter. I also agree with the mother that the father’s contempt is clear, on the facts, and cannot be excused on the basis of the children’s views and conduct. I would not disturb the finding that the father is in contempt of court.

[7] I would intervene however, on the issue of remedy. The “last resort” having been reached, a proper sanction in this case should have disposed of the matter with finality and left the family in a position to move forward. The remedies chosen by the motion judge failed to do this. They impose an unreasonable and unbounded sanction that leaves open the prospect that child support will never be structured to meet the needs of the children, including the future funding of any post secondary education.

[8] I therefore leave the findings of contempt undisturbed, but I set aside the two sanctions ordered by the motions judge. Rather than remitting the issue of sanction back to the motions judge, I would order a fixed penalty payable to the mother in the amount of $36,000 pursuant to section 31(5) (c) of the Family Law Rules (“the Rules”) which shall be stayed pending the father’s Rule 15 Motion to Change, which he is permitted to issue upon payment of all outstanding costs, including the costs of this appeal.

[9] Although I would allow the appeal in part, on the issue of remedy, the mother has been substantially successful and is entitled to her appeal costs. I see no basis to interfere with the costs Order below. Therefore, for the reasons that follow, I would allow the appeal in part on the issue of remedy, with costs to the mother throughout.

Background

[10] The parties’ sixteen-year marriage came to an end on August 7, 2017. The father issued this Application in 2018 after extensive efforts to resolve the issues arising from the end of the marriage had failed.

[11] On March 26, 2019 the parties entered into partial Final Minutes of Settlement which were incorporated into a final Order of the same date. Relevant to this appeal, the March final Order provided that the parties would have joint custody of their daughters, then ages 13 and almost 12. Counselling for the girls was to begin immediately, the mother would have final decision making on medical issues, the father on dental issues and the parents agreed that the girls would continue at their current school where they had always attended.

[12] Discussions between the parents continued. The balance of issues was resolved on consent within a final Order dated July 3, 2019. The second final Order completed the parenting schedule terms with a comprehensive holiday schedule. It also provided for table child support to be paid by each parent to the other parent based on the father’s imputed income and the mother’s actual 2018 income. The result was a Support Deduction Order for a monthly set off payment of $449 from the father to the mother. Spousal support payable to the mother was set at $1 per month and the father settled his arrears of child and spousal support with a payment of $7,500.

[13] If any disputes arose from the terms of the two final Orders, the parents agreed within the July final Order that they were required to jointly retain and use the services of a Parenting Coordinator.

[14] In late August 2019, the girls spent vacation time with their father. On August 29, 2019, citing financial reasons, the father advised the mother by text that he was asking the girls to change schools to the one closest to his new residence. When the mother did not agree, he ignored the terms of the final Orders and unilaterally changed the girls’ school. He proceeded to exclude the mother from all decision making, including medical decisions. No counselling was offered to the girls. A Parenting Coordinator was never retained.

[15] At no time did the father issue a Motion to Change with respect to the final Orders.

[16] The mother’s conciliatory efforts to return to the terms of the Order were spurned by the girls themselves. Over the next few months, the father remained passive in the face of the girls’ wildly disproportionate and cruel rejections of their mother, none of which had occurred prior to the girls vacationing with their father at the end of August 2019.

[17] The mother turned to the court. Her contempt motion came before Justice Hughes on November 16, 2020. In her endorsement released November 27, 2020 (2020 ONSC 6886), Justice Hughes made findings consistent with a finding of contempt against the father and seized herself of the proceeding. Recognizing that contempt is a remedy of last resort, Justice Hughes deferred a formal contempt hearing, and, in its place, she ordered the father to pay costs of $12,000 to the mother pursuant to Rule 1(8) of the Rules, calculated as costs of $1,000 for each month that the father had already been non-compliant.

[18] Justice Hughes then created a pathway to compliance. She stayed the enforcement of the costs on the condition that the father cure his non-compliance by (a) cooperating with the mother to start family counselling and to share the costs on a 50/50 basis, (b) to follow the directions of the family counsellor and to assist in fostering the development of a healthy relationship between the children and their mother, and to support and encourage the reconciliation efforts, and (c) to facilitate the children’s attendance for counselling. In the event that the father breached those terms, the costs of $12,000 were to be enforced through the Family Responsibility Office (“FRO”) as child support.

[19] The matter was to return to Justice Hughes on March 23, 2021 to assess the father’s compliance.

[20] The father did not appeal the November 27, 2020 Order, or the subsequent related costs Order dated January 8, 2021 (2021 ONSC 61) that required him to pay the mother $10,000 in costs, plus HST, to be enforced through the FRO as child support.

[21] The attendance of March 23, 2021 was adjourned to allow additional time for the reunification counselling process. However, by mid summer 2021 it became clear that too much damage had been done to the daughters’ relationship with their mother, and that the counselling was unlikely to succeed. By the end of September 2021, the girls’ rejection of their mother was so advanced that the counsellor discussed with the mother a “goodbye for now” relationship break. The mother saw no other option. The girls had not had face-to-face contact with her since September 2019 and there had been no contact whatsoever since July of 2021. On October 18, 2021 the contempt hearing was adjourned for a final time to February 17, 2022.

[22] On February 17, 2022 the mother sought financial penalties for the father’s contempt on two bases: (i) her relationship with their daughters, soon to be 15 and 16 had broken down irretrievably; and (ii) that for the father, this had all been about money. She urged Justice Hughes not to allow the father to profit from his actions.

[23] While acknowledging that their daughters’ communications to their mother were truly awful, the father argued that he had done his best and that his non-compliance was unintentional. He did not suggest that any term within the final Orders was unclear or unknown to him. He acknowledged the terms of the Orders and his breach, claiming only that it was out of his hands.

[24] The father used the second contempt hearing to repeat his position that he had little to no control over their daughters. He asked for an Order terminating child support because the situation was now impossible to rectify, and he could no longer afford to pay child support to the mother while covering all the girls’ expenses.

[25] Justice Hughes extensively reviewed the evidence. In detailed and careful reasons released May 31, 2022, she found the father in contempt of six terms of the March final Order and two terms of the July final Order. She found that the written messages exchanged between the parties and the children during the August 2019 summer vacation demonstrated beyond a reasonable doubt that the father’s non-compliance was intentional and motivated by his own financial self-interest.

[26] The May 31, 2022 reasons chronicle the motion judge’s prior efforts to bring the father into compliance by imposing a monetary disincentive to any continued breach within her Order of November 27, 2020. As set out above, she had ordered the father to pay $12,000 in costs to the mother pursuant to Rule 1(8) of the Rules, then stayed its enforcement pending an opportunity for the father to cure his breach through a course of counselling. In her May 31, 2022 reasons, Justice Hughes concluded that the father had been intentionally non-compliant throughout the reconciliation counselling process. She reflected his view, as stated to her, that there was no longer any prospect of compliance with the final Order. As a last resort, she made the eight findings of contempt and imposed the two sanctions.

[27] In her April 21, 2023 costs decision, Justice Hughes also found that the father had intentionally delayed the court proceedings and had acted in bad faith. The father was ordered to pay costs of $16,619.48, and the stay of enforcement on the November 27, 2020 Order for costs of $12,000 was lifted so that those costs could be enforced by the FRO as child support in the same manner as the costs of $10,000 ordered on January 8, 2021 had been enforced.

[28] The father did not appeal the April 21, 2023 Order lifting of the stay on Justice Hughes’ November 27, 2020 costs award of $12,000.

Jurisdiction and Standard of Review

[29] The finding of contempt and sanctions imposed are final Orders, see Mantella v Mantella, 2009 ONCA 194, para 17. This court has jurisdiction over this appeal pursuant to ss. 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[30] An appellate standard of review applies to this appeal: correctness on questions of law, and palpable and overriding error on questions of fact. The deferential standard of review applies to questions of mixed fact and law except in respect to an “extricable question of law” to which a correctness standard applies: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 8, 10. The exercise of discretion as to penalty for contempt is reviewed on a deferential standard unless the court below has proceeded on a wrong principle or has failed to take any or appropriate account of relevant factors on penalty.

The Finding of Contempt

[31] The Appellant argues that the motion judge (i) failed to reference the three elements of contempt in her May 31, 2022 reasons, (ii) failed to apply both the criminal standard of proof and the presumption of innocence, (iii) should not have made a finding of contempt without further recourse to other responses to non-compliance, given that contempt is a “last resort” in family law proceedings; and (iv) denied the father procedural fairness by refusing to permit him to file an affidavit that did not comply with the Rules or the local practise direction.

The Motion Judge Stated and Applied the Correct Test for Contempt

[32] The motion judge’s reasons of November 27, 2020 and May 31, 2022 are to be read as a whole: they are steps in the overall process leading to the findings of contempt. The motion judge stated the essential elements of the three-part test for contempt set out in Carey v. Laiken 2015 SCC 17, 2015 CarswellOnt 5237 (aff’d 2015 SCC 17) in the November 27, 2020 reasons. She found that the test had been met but chose not to make a contempt finding at that time, correctly observing that a finding of and sanction for contempt is a remedy of last resort. The father did not appeal that decision. This was the test for contempt applied by the motion judge throughout the process and it is the correct test. There was no need for the motion judge to repeat the test in each set of reasons.

The Criminal Standard of Proof and the Presumption of Innocence Were Applied

[33] The motion judge is taken to know the law. In this case, the record established an overwhelming case against the father. He was given a chance to remedy his breaches of the consent orders. He did not. His sole defence was that he bore no responsibility for their daughters’ refusal to resume living with their mother or to return to their previous school. This defence was rejected by the motion judge. A motion judge need not explicitly set out the burden of proof or the presumption of innocence for her decision to withstand appellate scrutiny so long as it is clear on the record that she was alive to and applied the law and had a sufficient evidentiary basis for her conclusions.

[34] The fact that the motion judge did not explicitly set out an analysis regarding the burden of proof is not a basis for an appellate court to intervene. As set out in 2363523 Ontario Inc. v. Nowack 2016 ONCA 951, at para 26, a judge is not required to expressly set out the test in his or her reasons. Here, it is abundantly clear that Justice Hughes had informed herself of the relevant principles and was well aware of the tests to be applied when making a finding of contempt. It was also clear what steps were required for the father to purge his contempt.

The Motion Judge Applied the “Last Resort” Principle

[35] The “last resort” principle speaks to whether all other enforcement mechanisms have been exhausted prior to making a finding of contempt, see Moncur v Plante 2021 ONCA 462 at para 19. The father asserts on appeal that the finding was not made as a “last resort,” but he proposes no other enforcement mechanism that could have been undertaken. Nor did he ask for a further period to purge his contempt during the motion heard February 17, 2022. To the contrary, he declared that the girls had voted with their feet, and that there was nothing more to be done about it.

[36] A motion judge may combine the finding and sentencing phases in a family law case, see para 14 of Rego v. Santos, 2015 ONCA 540. Justice Hughes’ decision to address the motion in its entirety on February 17, 2022 was not a denial of the Appellant’s ability to mount a defence, but rather was the inevitable result of his failure to take any meaningful steps to respond to his persistent contempt of the court’s orders after being given multiple opportunities to purge his contempt.

[37] In her Order of November 27, 2020 Justice Hughes created a process by which the father could have cured his breach of the final Orders. There was no dispute about the terms of the final Orders or the pathway to compliance set out in the November 27, 2020 Order. The father had ample time to demonstrate compliance. He failed to do so. There was no need to provide a further opportunity to do so.

The Father Was Not Denied the Right to Make Full Answer and Defence

[38] The father also argued that he was denied the right to make full answer and defence to the contempt allegations because he was refused permission to file an affidavit. I see little merit to this submission.

[39] The original return date of the contempt proceeding was March 23, 2021. That hearing was adjourned twice. On the second adjournment, on October 18, 2021, the hearing date was set four months thence, on February 17, 2022. The Appellant had plenty of time to file responding materials in accordance with the Rules. At the last minute, the Appellant sought to file a responding affidavit that exceeded the permissible page limits without first seeking permission to do so.

[40] The affidavit was refused in accordance with the Rules and the local area practise direction. As described by the motion judge, the father had, to that date, engaged in a pattern of delay in the proceedings, and it was well within her discretion to refuse to excuse the father’s non-compliance with the Rules which would have led to further delay. Moreover, the father did not seek an adjournment of the February 17, 2022 hearing to place the refused affidavit before the court. Having failed to raise the issue at the time, he is now precluded from raising this issue on appeal.

Summary and Conclusions

[41] On November 27, 2020, findings establishing liability for contempt were made in accordance with the test for civil contempt by the motions judge. However, the motion judge declined to make the finding at that time, recognizing that such a finding should be a remedy of last resort. Instead, she imposed remedial Orders designed to encourage compliance with the final Order in a manner that would permit the father to cure his breach.

[42] The motion judge found that the father failed to abide by her remedial Orders and the original non-compliance continued. By the time of the contempt hearing on February 17, 2022, the father had taken the position that the girls’ estrangement from their mother was (a) their choice, not his, and (b) permanent. The mother accepted the advice she had been given by the reunification counsellor that “good-bye for now” was the appropriate way forward and asked the court to make findings and impose sanctions based on the father’s contempt throughout.

[43] The motion judge accepted the mother’s argument that the father had instigated the situation by his deliberate flouting of the consent Orders, and that he did so for financial motives. These conclusions were amply supported in the record. The father was afforded procedural fairness throughout and had a period of about two years to address and remedy his breach of the final Orders. The motion judge’s conclusion that matters had now reached the “last resort” and that contempt findings were warranted is unassailable. I would uphold the motion judge’s contempt findings.

The Contempt Sanctions Cannot Stand

[44] In unreported reasons released May 31, 2022, the motion judge (a) suspended the mother’s obligation to pay child support to the father, including s.7 expenses for so long as he remained non-compliant with the final Order, and (b) precluded the father from bringing any further proceedings before the court for so long as he remained non-compliant with the final Order.

[45] The non-compliance began on September 1, 2019 when the father unilaterally changed the children’s school and ceased making joint decisions. The non-compliance continued to the final disposition on February 17, 2022 and continued to the hearing of this appeal in September of 2023. Throughout this period the father has continued to pay to the mother the set off amount of monthly child support ($449) being the amount to which the parties had consented in July of 2019; despite the children residing exclusively with him.

[46] The parties agree that the daughters’ estrangement from their mother is now permanent. The coercive measures to bring about compliance have failed, and neither parent has sought, nor asserted that further coercive Orders will remedy the non-compliance. The result is an ongoing, unbounded sanction that fails to address the parties’ ongoing responsibilities to financially support the children and plan for the costs of their post secondary education.

[47] The Appellant argues that suspending the mother’s obligation for the payment of child support is not an available sanction for contempt; but the focus of his argument is that he ought not be required to pay child support for children who are not in his care. He argues that the combined effect of the sanctions leaves him paying $449 in monthly child support and at the same time, relieves the mother of her obligation to pay child support – both Guideline and s.7 – indefinitely and perhaps permanently.

[48] While appreciating the sentencing challenges facing the motions judge, I conclude that the current sanctions cannot stand for two reasons. First, it was an error in principle to suspend child support as a contempt sanction. Second, it was an error in principle to set an unbounded sanction. A contempt sanction fashioned as a penalty or a fine must be an amount that can be discharged. Each of the two sanctions is set aside.

Suspending Ongoing Child Support is Not an Available Contempt Sanction

[49] Rule 31(5) of the Family Law Rules provides that a court may order a person found in contempt to (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.

[50] Subsection 31(5)(d) confers a broad discretion on the court to fashion an appropriate contempt sanction; but that discretion is not unbounded. When fashioning a contempt sanction in parenting cases, the court must also consider the impact of the sanction on the best interests of the children.

[51] Traditionally, courts have drawn a “bright white line” around ongoing child support, considering it the right of the child, and thus unaffected by any outstanding debts between the parties. For example, it has long been held that the conduct of a custodial (decision making) parent, or a parent exercising parenting time is not relevant to the determination of child support. Court of Appeal Justice Frederick G. MacKay wrote in Carwick v. Carwick (1972) that “[r]eprehensible conduct by the custodial parent of a child respecting access may be the subject matter of removing the child from the custody of the offending parent, but it cannot be the basis of causing the child to suffer financially because of the interference of access rights by the custodial parent.”

[52] In reviewing the history of child support pre-dating both federal and provincial guidelines, the Supreme Court observed in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, that child support is the right of the child, stating at para 14 that a parents’ obligation to support their child is a legal right that exists independently of any court action taken.

[53] That “bright white line” has dimmed over time with respect to child support arrears, which in some cases have been used to offset a debt between the parties, such as an award of costs: S. v. A., 2023 ONSC 4719. In M.A.B. v. M.G.C., 2023 ONSC 3748, Justice Chappel summarized the law respecting the set-off of child support as against costs between the parties, concluding at para 86 that “ [t]he determination of whether it is appropriate to set off costs against child support arrears or an ongoing child support obligation is ultimately a matter of judicial discretion that involves a careful consideration of the facts of each case, and a delicate balancing the interests of the parties involved, the best interests of any children in the support recipient’s care, all of the objectives of costs awards and the importance of ensuring that costs awards are in fact paid.”

[54] In Rego v. Santos, 2015 ONCA 540 (C.A.) which builds on the reasoning in D.B.S. v S.R.G, the Ontario Court of Appeal upheld a set-off of child support arrears against a penalty ordered as a contempt sanction, owed by a mother to the father. The court acknowledged that, although it was unusual to do so, they were prepared to uphold the motion’s judge decision because he considered the evidence as a whole: including the amount of parenting time that had been withheld, the mother’s unreasonable litigation behaviour and the need to treat the breaches seriously, while keeping the children’s bests interests foremost in the analysis. At paragraph 14 the court found that the motion judge “was sensitive to the concern that the child should not suffer undue economic consequences and he structured the set-off accordingly,” see paragraph 14.

[55] The “bright white line” has not been dimmed with respect to ongoing child support. Ongoing child support is not a fixed debt between the parties that can be measured. It is a dynamic amount that is based on the payor parent’s income in real time. Ongoing child support and section 7 obligations change as the parents’ incomes change.

[56] It is not in a child’s best interests to lose their independent right to ongoing support from a parent within a court sanction purposed to coerce their parent’s compliance with a past court Order, or a court sanction fashioned to deter and denounce a parent’s wrongful behaviour for two reasons.

[57] First, as set out in D.B.S. supra, the child’s legal right to financial provision exists independently of any court action taken between their parents, or guardians, or a child protection society. It is a right that can be asserted by the child herself.

[58] Second, the purposes of child support and a contempt sanction are incompatible. As set out in the objectives of the Federal Child Support Guidelines the purposes of table child support are to (a) establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[59] A contempt sanction is a penalty imposed in response to a finding that a party has deliberately disobeyed or disrespected a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. As summarized in Kronberger v. Kudrocova, 2023 ONSC 2326, at paras. 44-49, the applicable sentencing principles for contempt of court in the context of family law proceedings include:

Sentencing should be restorative to the victim and punitive to the contemnor. To accomplish the former requires that the sentence 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: Cassidy v. Cassidy, 2010 ONSC 2707, 85 R.F.L. (6th) 148, at para. 10 [Cassidy].

The primary objective in sentencing civil contempt is to coerce the offender into obeying the court judgment or order: Cassidy, at para. 12; Kopaniak v. MacLellan, 2002 CarswellOnt 1309, [2002] 212 D.L.R. (4th) 309, (O.C.A.) at para. 28, citing Nigel Lowe and Brenda Sufrin, Borrie and Lowe on the Law of Contempt, 3rd ed. (1996) at pp. 655-56, and Jeffrey Miller, The Law of Contempt in Canada (1997) at pp. 13 - 17.

Punishment must be in proportion to the breach or breaches of the order. The court must consider aggravating or mitigating factors: Carroll v. Richardson, 2013 NSSC 187, 331 N.S.R. (2d) 129, at para. 20 [Carroll].

Deterrence and denunciation are also important objectives of sentencing: Carroll, at para. 21. The purpose of penalties is not to compensate the wronged party, per se. It is to punish the wrongdoer: Roby v. Roby, [2003] 48 R.F.L. (5th) 389, at para. 30 [Roby].

[60] Even when the sanction to be determined concerns access to children, the paramount consideration remains the best interests of the children: see Moncur v. Plante, 2021 ONCA 462, at para. 10, Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at para. 19 and Valoris pour enfants et adultes de Prescott-Russell c. R. (R.), 2021 ONCA 366, at para. 27.

[61] Here, there was no consideration of the children’s best interests in suspending the mother’s obligation for child support, nor was there an adequate record on which to attempt such an analysis. The July 3, 2019 final Order was resolved on 2018 disclosed and imputed income. There was no evidence before the motion judge as to the parents’ current incomes.

[62] In summary, while it was open to the motion judge to fix a penalty with a view to the financial circumstances of the parties, it was not open to her to make a potentially indefinite order suspending the mother’s ongoing obligation for child support.

A Contempt Sanction of a Penalty or a Fine Must be a Certain Amount

[63] It is not clear from the motion judge’s reasons whether she intended that the father continue to pay the set-off amount of child support to the mother. Nonetheless, that has been the result of the term precluding him from bringing a motion to vary the July 3, 2019 final Order. This is an error because there is no basis in law for a primary care parent to pay child support on an ongoing basis to a parent with whom the children are not resident.

[64] The consequence of these two errors is that the father has overpaid child support. For the period of September 1, 2019 to the hearing of the appeal, the overpayment was $21,552 ($449 per month x 48 months.) As every month passes, this total is increased by $449.

[65] The amount of a penalty or a fine payable imposed pursuant to Rule 31 (b) and (c) of the Rules can be substantial, provided that it is reasonable and proportionate to the nature of the contempt and its mitigating and aggravating circumstances.

[66] At the same time, it must not markedly deviate from a sanction imposed in like circumstances, see Stone v. Stone, 2019 ONSC 3214. In Cassidy v. Cassidy, 2010 ONSC 2707, starting at para. 13, the court sets out the principles of sentencing in on a finding of civil contempt in a family law proceeding as a consideration of (a) the available sentences, (b) the proportionality of the sentence to the wrongdoing, (c) the similarity of sentences in like circumstance, (d) the presence of mitigating factors, (e) the presence of aggravating factors, (f) deterrence, (g) the reasonableness of a fine, and (h) the reasonableness of a proposed period of incarceration.

[67] The Ontario Court of Appeal has since emphasized the additional principle of restraint in sentencing, see Gagnon v. Martyniuk, 2020 ONCA 708, at para. 25, and that judicial discretion in sentencing be informed by the best interests of the child(ren): Moncur v. Plante, supra, at para. 10, Valoris pour enfants et adultes de Prescott-Russell c. R. (R.), supra, at para. 27; Chong v. Donnelly, supra, at para. 11; and Ruffolo v. David, supra, at para. 19.

[68] The effect of the second term of the motion judge’s contempt sanction – that the father is precluded from bringing a further proceeding before the court while he remains non-compliant – created a sanction that was unbounded.

[69] An unbounded contempt sanction is an error in principle when the effect is to create a penalty or a fine that can never be discharged. Moreover, it renders the sanction unmeasurable and immune from an analysis of proportionality.

[70] This is not to say that a coercive penalty cannot accrue over time. The motion judge imposed such a remedy initially ($1,000 per month, to a total of $12,000). That order was not appealed, and it does not disclose an error in principle. See, for example, King v. Cameron, 2020 ONCJ 548, where Parent J. ordered graduated access with a fine against the mother of $500 for every missed visit during a specified period of adjournment.

Fixed Penalty Imposed of $36,000

[71] The parties deserve finality on this appeal and a result that limits the further expense and delay inherent in litigation. I see no benefit to the parties in remitting the issue of the contempt sanction back to the motion judge.

[72] I substitute in the place of the contempt sanctions imposed by the motion judge, a term that the father shall pay a penalty to the mother of $36,000 on the terms set out below. I calculate this amount by adopting the $1,000 per month penalty for noncompliance set by Justice Hughes in her November 27, 2020 Order and fixing it for the period of September 1, 2019 to August 31, 2023, (48 months) less the period of December 1, 2020 to November 30, 2021 (12months) that has already been sanctioned. The result is $36,000 being 36 months at $1,000 per month.

[73] In my view, this fixed penalty answers the seriousness of the father’s contempt in a manner that is reasonable and proportionate. It is a sufficient denunciation of his conduct, consistent with Justice Hughes’ findings within the first and the second contempt hearings.

Costs of the Second Contempt Hearing

[74] Costs decisions are discretionary and attract significant deference. They should only be set aside on appeal if the court below “has made an error in principle or if the costs award is plainly wrong”: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27; and Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271, at para. 247. As set out in Fielding v. Fielding, 2015 ONCA 901, costs in a family law matter attract even greater deference given the enhanced desire to promote finality.

[75] Here, the motions judge applied the considerations set out in Rule 24(12) in her April 21, 2023 endorsement, made a finding of bad faith pursuant to Rule 24(8), which permits a full recovery of costs, and she referenced comparative costs decisions to satisfy herself that the amount sought by the mother was reasonable and proportionate in the circumstances of the case. I see no basis to disturb the award of costs.

Appeal Costs

[76] The parties have agreed that the costs of this appeal in the all-inclusive amount of $5,000 shall go to the successful party and be payable by the unsuccessful party. Because the mother has been substantially successful in having the contempt finding upheld and a substantial penalty imposed, she shall have her appeal costs of $5,000, inclusive, payable within thirty days.

Variation Motion

[77] One of the difficulties faced by the motion judge, and by this court on appeal, has been the unsatisfactory state of support arrangements for the long period during which the Appellant’s non-compliance with the final Orders has been before the courts.

[78] Child support was set in the final Orders on the basis of offsetting child support obligations, and spousal support appears to have been set considering that offsetting child support was in pay. It is understood that when there is a sudden and unapproved change in residential arrangements for the children, support may not be varied immediately. Situations are dynamic. But it has been over four years since the children began living exclusively with their father, and he has been bearing the entire cost of their upbringing. The Respondent has paid no child support and has been in receipt of $449 per month in child support throughout this period.

[79] The Appellant sought variation of these support arrangements but was not permitted to proceed with that motion while the contempt proceedings were outstanding. Then, when the contempt issues were before the motion judge, no record was adduced that would have enabled her to deal with both the issue of the contempt sanction and of retroactive variation of child and/or spousal support so that she could craft a holistic solution to all outstanding financial issues. The sanction imposed the existing support arrangements, to the father’s prejudice, by precluding him from bringing a variation motion.

[80] This court cannot fix the resulting problem. We do not have a record on which to address child and spousal support issues going back to September 2019.

[81] As stated throughout this decision, the suspension of child support is not an appropriate penalty for contempt in family law proceedings. However, setting off a contempt sanction against an accrued support obligation may be appropriate in some cases, and is certainly appropriate here. The Appellant has already overpaid child support substantially, has not received any child support, and will almost certainly be entitled to some kind of retroactive award.

[82] Balancing all of the issues, I conclude that the Appellant ought to be required to pay outstanding costs awards (to the extent that he has not already done so) before he may move to vary the support terms of the final Orders, but I would allow the penalty of $36,000 to remain unpaid until any child and spousal support variation issues are resolved, provided the Appellant brings any variation motion reasonably promptly.

[83] To be clear, this court is not finding that there should be a mechanical set-off of all the child support paid by the Appellant to the Respondent since September 2019. It will be for the court below to assess any motion for retroactive variation of support and to decide that issue. However, the court below may not include in its analysis some amount as a punitive sanction for the father’s conduct, because this court has already settled that issue. All of the other factors that would normally be considered when assessing a motion for retroactive variation can be considered by the court below in deciding these issues.

[84] Finally, this court will not impose deadlines for proceedings below, other than a deadline for the father to commence a variation motion, but I do wish to emphasize that these matters should be concluded promptly. It will be for the court below to fashion schedules and deadlines in light of all the circumstances of the case, including the scheduling constraints facing the court below.

Disposition and Order

[85] The finding of contempt is confirmed. The sanctions are set aside and replaced by a penalty of $36,000 payable from the father to the mother.

[86] The father may move to vary the final Orders, including a request to terminate the monthly set off child support of $449 and to determine the amount that may be owed by the mother in child support since September 1, 2019, upon payment of the prior three costs awards of $12,000, $10,000, and $16,564.11, and the costs ordered herein of $5,000.

[87] It remains open to the mother to move to vary the amount of spousal support set out in the final Order upon establishing a material change in circumstances, which could include termination or other variation of the child support provided in the final Orders.

[88] The father’s obligation to pay the $36,000 penalty is stayed pending final disposition of his anticipated variation motion, provided (a) the father commences his variation motion no later May 1, 2024, and (b) pursues that motion with reasonable diligence.

[89] The court below may vary or lift the stay ordered by this court, on such terms as may be just, if the father fails to comply with the terms of this order.

[90] The appeal from the costs order of Hughes J. is dismissed.

[91] Costs of this appeal of $5,000, inclusive, are payable by the father to the mother within thirty days.

“McGee J.”

I agree: “D.L. Corbett J.”

I agree: “Cullin J.”

Date of Release: February 02, 2024