ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-10-653-00
DATE: 20120704

BETWEEN:

Bradley Dale Ottewell Applicant – and – Christine Ottewell Respondent

M.A. Cummings, for the Applicant
M. Kowalsky, for the Respondent
G. Mumford, for D. Zeldin

HEARD: March 1, 2012

OLAH J.:

[ 1 ] This matter comes before me for sentencing and the continuation of a motion for contempt brought by the applicant father against the respondent mother.

[ 2 ] On October 27, 2011, I made a finding that the respondent mother be found in contempt of three orders,:

(i) Justice Eberhard's order of June 16, 2011 wherein counselling records or a direction for counselling records be produced. The respondent did not so produce.

(ii) Justice Eberhard’s order of June 16, 2011 regarding the children's attendance at baseball. The mother did not take the children to their baseball practices and games as ordered.

(iii) Justice Gilmore's order of May 13, 2011, pursuant to minutes of settlement of September 16, 2010, with respect to the transfer of ownership of the mini excavator. No such transfer had been provided by the respondent mother.

[ 3 ] At the outset of the sentencing motion, a preliminary matter arose - whether the respondent waived solicitor client privilege arising from the issue of whose responsibility it was for costs, the respondent mother arguing that her failure to disclose/produce rested with her former counsel, Ms. Batstone.

[ 4 ] Accordingly, the sentencing on the three findings for contempt, a review of whether or not the respondent purged her contempt, and the issue of the financial disclosure was adjourned for a full hearing as Ms. Batstone was required to give evidence and be subject to cross examination as requested by the respondent's new counsel, David Zeldin. Ms. Batstone was in attendance at the outset of the motion with all her documentation and correspondence, to rebut the respondent mother's assertions.

[ 5 ] I made the following endorsement: "as Ms. Batstone’s evidence and the respondent mother's reply is crucial to the finding that the respondent mother was wilful in her disregard of the court orders, this aspect of the contempt motion shall be adjourned for a viva voce hearing, as arranged by counsel and the trial coordinator, before me as follows:

(i) evidence of Ms. Batstone and her production;

(ii) cross examination of Ms. Batstone;

(iii) evidence of the respondent mother;

(iv) cross-examination of the respondent mother by Ms. Batstone’s counsel or the respondent's counsel, or both.”

[ 6 ] Also, the outstanding issues for contempt to be dealt with at the adjourned hearing were:

(i) the disclosure of the financial data;

(ii) the arrangements for counselling for the child; and,

(iii) submissions as to penalty on the finding of contempt, if any.

[ 7 ] The respondent mother was given the opportunity to purge the contempt for the breaches found by providing the documentary ownership/transfer and production of all clinical records and notes within 15 days.

[ 8 ] The matter was adjourned for one half-day continuation of the hearing and sentencing to January 13, 2012.

Adjournments

[ 9 ] On January 13, 2012 the motion was not held. Although the parties, counsel for the applicant and Ms. Batstone were present, the respondent's counsel David Zeldin, was not. He had advised his client via e-mail correspondence at 6:50 AM that he would not be attending.

[9] Ms. Batstone attended as she had not received notification from David Zeldin of his request for an adjournment. As her attendance was required by the Respondent’s previous assertion of her culpability for the Respondent’s non production, Ms. Batstone attended. On the other hand, Ms. Cummings, the applicant father’s counsel did receive an e- mail notification of the adjournment request, late on the previous date.

[ 10 ] Accordingly, the issues of the costs of the day, the outstanding motion, the bifurcation of the issues of custody and access from property and financial issues, were adjourned to Barrie for January 31, 2012 peremptory on the respondent mother.

[ 11 ] Mr. Zeldin was put on notice that the costs of the day against him personally would be addressed; as well as, costs against his client, the issue of sentencing on the contempt involving viva voce evidence from Ms. Batstone and Ms. Ottewell, relative to the production issue during the currency of Ms. Batstone’s retainer; and, a further hearing on an alleged fresh contempt by the respondent.

[ 12 ] Ms. Cummings was to fax a copy of the endorsement to Mr. Zeldin, counsel to the respondent mother.

[ 13 ] On January 31 time, 2012, Mr. Manning appeared as agent for Mr. Zeldin who was reported as ill. Mr. Zeldin's office faxed a letter to Ms. Cummings on January 30, 2012, indicating that Mr. Zeldin was experiencing severe health problems. Ms. Cummings alerted Ms. Batstone as no formal letter had been received by Ms. Batstone from Mr. Zeldin advising that Ms. Ottewell waived her solicitor/client privilege to address the issue of production/disclosure as Ms. Batstone's responsibility.

[ 14 ] Once again, the matter was adjourned for hearing to Thursday, March 1, 2012 in Collingwood, peremptory on the respondent mother and the costs of the day were reserved to the next step.

Purging of Contempt found on October 27, 2011

[ 15 ] With respect to the three breaches of orders found on October 27, 2011, it is important to determine whether or not the mother purged her contempt and if she did, when she purged her contempt.

[ 16 ] The respondent acknowledged that she did not produce her own counselling records within the time frame required by my order of October 27, 2011. She did produce some items of disclosure regarding her personal counselling which she admits were limited.

[ 17 ] I find that the respondent mother has not been fully compliant with the requirement to provide authorization and to obtain her counselling records from the Georgian Bay Health Team and Dr. Noble in a timely manner as required by the Order of Justice Eberhard dated June 27, 2011.

[ 18 ] The breach of Paragraph 6 of Justice Eberhard’s Order of June 16, 2011, relative to the children’s baseball attendance, cannot be purged.

[ 19 ] With respect to the transfer of ownership of the mini-excavator, on the return of the motion to determine whether the Mother purged her contempt, her transfer occurred at the actual hearing of this matter.

Further Breaches by the Respondent Mother

[ 20 ] Also, the respondent was required to produce disclosure throughout which she has failed to do. Belatedly, at today’s motion, she agreed to release Ms. Batstone from the hearing, confirming her wilful non-compliance with the order of Justice Gilmore of May 13, 2011, order with respect to disclosure. She was further in contempt of an order of Justice Eberhard dated June 27, 2011 with respect to financial disclosure. Clearly, she did not produce to Ms. Batstone as she previously alleged, causing further delay in these proceedings.

[ 21 ] According, with respect to financial disclosure, I find that she has been in contempt of the orders of Justice Eberhard dated June 27, 2011 and Justice Gilmore dated May13, 2011 by her lack of production.

[ 22 ] With respect to her obligation to produce Dalton’s counselling records, she argues that Justice Gilmore’s Order of May 13, 2011 does not refer to the requirement for counselling. Paragraph 8 of the order states as follows:

The respondent shall arrange counselling for Dalton, as recommended by the Office of the Children’s Lawyer, and the parties shall co-operate with the counsellor as determined by the counsellor. When counselling takes place the parties shall share the cost proportionate to their income.

[ 23 ] It would appear that there is some confusion as to the requirement of Justice Gilmore’s Order that Dalton undergo counselling. In fact, Dalton’s counselling is prefaced by the requirement of the OCL to recommend counselling. The OCL report does not specifically reference or recommend counselling.

[ 24 ] This lack of clarity in the order cannot be the subject matter of a motion for contempt. Accordingly, this aspect of the current motion for contempt is dismissed.

Sentencing

[ 25 ] Despite the respondent’s failure to provide a formal apology for her behaviour in the face of court orders; despite the fact that she has precipitated a waste of court resources, a waste of legal fees and has generated a delay in the court proceedings that may negatively affect her children, her belated attempts to purge must be considered in the sentencing.

[ 26 ] Also, I agree with the respondent mother’s position that the sentencing must strike a balance between restorative and punitive aspects and should correlate with the conduct that produced the event. Respondent’s counsel suggests that the sentencing must be proportional to the gravity of the contempt and that all her breaches were minor in nature.

[ 27 ] Respondents counsel suggest that rather than strike pleadings that the mother be placed on a period of probation during which she is to comply with all orders failing which a penalty be imposed.

[ 28 ] In light of the Respondent’s acknowledged three wilful omissions, namely:

(1) She did not provide the necessary authorization with respect to her counselling records in a timely fashion and only purged her contempt in the eleventh hour.

(2) She did not transfer the ownership to the excavator and only purged her contempt in the eleventh hour.

(3) She did not take the child to the baseball game as required by the schedule. This omission cannot be purged.

[ 29 ] Although, not conceded, the respondent mother did not disclose the financial data as required by two previous orders.

[ 30 ] It is clear that the mother’s behaviours for a period of in excess of a year and a half were to delay the proceedings as much as possible in order to enhance her position with respect to custody and access, relying on an erroneous assumption that the longer she had care and control of the children, the less likely a court would order a transfer of custody to the father. Such a cynical approach to her obligations to produce is unacceptable.

[ 31 ] In my determination of sentencing on the breaches, I keep in mind the principle enunciated in MacMillan v. MacMillan 1999 , 44 O.R. (3d) 139 wherein Justice R.J. Quinn of the Ontario Court (General Division) dated April 6, 1999 states:

Our system of justice cannot and should not tolerate the deliberate disobedience or defiance of a court order. The protection of the administration of justice requires that such conduct be dealt with appropriately.

[ 32 ] In my determination of sentencing on the breaches, I also keep in mind the principle enunciated in Surgeoner v. Surgeoner by R.A. Blair, J. dated January 30, 1992 where at page 4 he states:

...The gravity of this conduct, however, deserves severe censure. It is important for the public and family law litigants, in particular, to appreciate that the orders of the courts must be obeyed. [1]

[ 33 ] Based on the aforementioned principles, the Mother’s behaviours in face of orders must be sanctioned.

[ 34 ] Rather than strike pleadings, I order a financial penalty/fine against the mother, commensurate with the gravity of each of the contempt findings:

(i) The respondent mother shall pay a penalty of $100.00 for the delay in completeness of and production of her counselling records.

(ii) The respondent mother shall pay a penalty of $100.00 for delaying the transfer of the equipment since September 16, 2010.

(iii) The respondent Mother shall pay a penalty of $100 for not taking the boys to baseball as scheduled, such that the father could attend the games.

(iv) The Mother shall pay a penalty for her non disclosure/production in face of 2 orders, the sum of $500.00

[ 35 ] The total penalty/fine in the amount of $800.00 is to be paid by the respondent Mother to the applicant Father within 15 days of the receipt of this decision.

COSTS

[ 36 ] The applicant father’s counsel’s Bill of Costs reflects costs thrown away in the amount of $16,371.25.

[ 37 ] A review of Ms. Cummings’ account identifies one error. Given the fact that costs were awarded on October 20, 2011 in the amount of $500 the full amount of the $1,120 should be deducted from the $16,371.25 claimed for full recovery, such that the claim will reflect the sum of $15,251.25.

[ 38 ] To complicate matters, the issue of the attendances as a result of Mr. Zeldin’s illnesses must be addressed. Mr. Zeldin was given notice to attend to speak to the matter of his responsibility for costs, if any, as a result of his behaviour in this matter. On the return of the matter on March 1, 2012, he retained counsel to make submissions on his behalf.

[ 39 ] The October 20, 2011 endorsement indicates that Mr. Zeldin was retained as counsel by Ms. Ottewell but he was not able to attend nor did he file any responding materials because of his high-religious holiday. As a result, the motion for contempt was adjourned to Thursday, October 27, 2011 peremptory on the respondent with the requirement that she file her material no later than Monday, October 24, 2011 at 4:00 p.m.

[ 40 ] On the return of the motion for contempt on October 27, 2011 Ms. Batstone was required to attend as a result of the determination of whether or not the respondent had waived her solicitor/client privilege by raising the issue of the responsibility for costs. The matter was adjourned to a full hearing as Ms. Batstone was required to give evidence as requested by the respondent’s current and new counsel, Mr. Zeldin. The endorsement notes as follows:

It would appear that the respondent’s argument which is in fact a contempt of the court order to disclose/produce, rests with her former counsel, Ms. Batstone-Lyons. Further, as she waived solicitor/client privilege, she wishes to cross-examine Ms. Batstone-Lyons.

Ms. Batstone-Lyons attends today with all her documentation, correspondence to rebut the respondent mother’s assertions.

As Ms. Batstone-Lyons’ evidence and the respondent mother’s reply is crucial to the finding that the respondent mother was wilful in her disregard for the court orders, this aspect of the contempt motion shall be adjourned to a viva voce hearing as arranged by counsel and the trial co-ordinator before me.

[ 41 ] The matter was then adjourned for a one-half day continuation and hearing and sentencing to January 13, 2012 as well as to December 8, 2011 for trial management conference.

[ 42 ] On December 8, 2011 the trial management conference was not held and costs of the day were reserved to the next step. The endorsement notes Mr. Zeldin’s comments to the court as follows:

Applicant mother’s counsel suggested this matter will not be ready for trial in May 2012 because:

1. He is the respondent mother’s third counsel;

2. He needs further production/disclosure;

3. He needs a forensic investigation of the applicant father’s income assets.

[ 43 ] On January 13, 2012 the motion was not held, the endorsement indicates:

Counsel and parties paged at 10:49 a.m. Mr. Zeldin was not present. Mr. Zeldin called his client at 6:50 a.m. advising that he would not be attending today. Ms. Batstone attended and she received no correspondence from Mr. Zeldin. Ms. Batstone’s evidence, if any, was required because Ms. Ottewell previously advised that the reason for her delay in production lay at the feet of Ms. Batstone. Ms. Ottewell was required to produce to purge her contempt. She has not done so. The request for the continuation of the motion for contempt was to confirm whether the production ordered, had, in fact been produced by Ms. Ottewell to her then counsel, Ms. Batstone. Ms. Batstone did not receive the letter to Ms. Cummings sent January 12, 2012 at 4:52 p.m. and was not cc’d to Ms. Batstone. This letter is produced to me as exhibit A and filed. The issue of the costs of today is adjourned to Barrie for January 31, 2012 at 9:30 peremptory on Ms. Ottewell.

[ 44 ] A review of Mr Zeldin’s email to Ms. Cummings on January 12, 2012 at 4:52:27 p.m. inter alia, makes no reference to illness as the basis for the requested adjournment.

[ 45 ] Accordingly, given the fact that his client had not produced on that date, the costs of January 12, 2012 date vis á vis Ms. Cummings will be borne by equally by the respondent and Mr. Zeldin, or ½ of $1,912.

[ 46 ] On January 31, 2012 the matters before me were the following:

a. the ongoing contempts;

b. further contempts;

c. the necessity of Ms. Batstone to attend;

d. the conferencing requirement with respect to (a) failure to pay parenting co-ordinator; (b) bifurcation of property from child issues; (c) disclosure of data and (d) arrangements for counselling.

[ 47 ] Mr. Manning appeared as agent for Mr. Zeldin who was reported as ill. The endorsement reads as follows:

Mr. Zeldin’s office faxed a letter to Ms. Cummings on January 30, 2012 indicating that Mr. Zeldin is experiencing severe health problems. Ms. Cummings alerted Ms. Batstone as per letter attached as exhibit D. No formal letter has been received by Ms. Batstone indicating that Ms. Ottewell waives her claim, that her lack of production/disclosure is Ms. Batstone’s responsibility.

[ 48 ] The matter was adjourned to Collingwood, for Thursday, March 1, 2012 at 2:15 p.m. peremptory on the respondent mother and Costs of the day were reserved to the next step

[ 49 ] Mr. Zeldin’s letter to Ms. Cummings identifies that:

he continues to experience severe health problems, is now under doctor’s orders to refrain from working... Extensive medical testing is ongoing...If Mr. Zeldin’s health does not improve by that time (adjournment date) so as to permit him to work, then we will be advising our client to retain new counsel...

[ 50 ] It should be noted that the Court, Ms. Cummings and Ms. Batstone did not receive a medical report as to Mr. Zeldin’s condition.

[ 51 ] Further, once again, Mr. Zeldin’s office failed to inform Ms. Batstone of her need to attend.

[ 52 ] As there was no confirmation by January 31, 2012, confirming Ms. Ottewell’s purging the contempt previously found, the costs of the attendance on January 31, 2012 vis á vis herself and Ms. Cummings will be solely borne by the respondent.

[ 53 ] It is clear that Ms. Batstone was not informed by Mr. Zeldin’s office directly and she would have been censured by the court had she not attended in the event that the respondent did not withdraw her insistence that Ms. Batstone attend. It was only on March 1 and after a further consultation, that the respondent finally relented and absolved. Ms. Batstone of any wrongdoing with respect to the delay in the production and disclosure as required by the previous orders.

[ 54 ] Accordingly, Ms. Batstone’s costs from October 27, 2011 to and including March 1, 2012, shall equally be borne by Mr. Zeldin and the respondent Mother in the amount of $975 each.

[ 55 ] The Respondent mother’s behaviour and her need to delay this proceeding has been unacceptable. The purpose of the Family Law Rules and the Family Law Act is to deal with matters justly and expeditiously with a view to saving time and savings costs for all involved. At each attendance costs were reserved. Further, the respondent Mother was given opportunities to rectify her tactics of delay and non-disclosure on three occasions with three lawyers, namely, Ms. Batstone, Mr. Zeldin and now Mr. Kowalski. Unfortunately, for the children and for the father, this delay of one year and a half can never be rectified.

[ 56 ] The respondent Mother’s breaches of court orders are indicative of bad faith. As indicated by Justice McKinnon in her decision in Hunt v. Hunt (2001) O.J. No. 5111 at para. 9 :

Further, intentional breach of a court order with a view to achieving another purpose does constitute bad faith. In deciding the motion, I ruled that it was against the policy of the law to allow the mother to create a status quo in violation of a court order and then to rely upon that status quo is establishing the requisite material change in circumstances to support a change to the existing order.

[ 57 ] The Respondent’s mother’s behaviour is indicative of bad faith and is sufficient to attract an award of full recovery costs within the scope of the Family Law Rules 24(8).

[ 58 ] Accordingly, the respondent mother shall pay costs for these proceedings on a full recovery basis to the Applicant father the total amount of [$15,251.25 - $956 (½ of 1912 for January 13, 2012)] $14,295.25 within 15 days.

[36] The respondent Mother shall pay to Ms. Batstone her costs of $975 within 15 days.

Counsel Costs

[37] The fact of the matter is that Mr. Zeldin’s non-attendance on several of the return dates have not only caused a delay in the determination of custody and access, but have increased the costs to all parties. Despite his reported illnesses, he failed to properly advise opposite counsel, or to retain a substitute counsel for his client. Such practice of poor or no communication must be discontinued by Mr. Zeldin, especially in custody/access cases where delays have a significant impact on children.

[37] Mr. Zeldin shall pay to the Applicant father ½ of costs of January 13, 2012 motion in the amount of $956 within 15 days.

[38] Mr. Zeldin shall pay to Ms. Batstone her costs in the amount of $975.

Penalties

[ 59 ] The total penalty/fine for the breaches in the amount of $800.00 is to be paid by the Mother to the Applicant Father within 15 days of the receipt of this decision.

Conclusion

[ 60 ] The above costs orders and penalties are made to impress on Ms. Ottewell that court orders are to be obeyed. Unless appropriate penalties and costs are awarded orders are rendered meaningless.

OLAH, J.

Released: July 4, 2012

[1] [1992] O.J. No. 299