ONTARIO SUPERIOR COURT OF JUSTICE

PETERBOROUGH COURT FILE NO.: 316/07
DATE: 20120801

BETWEEN

Melissa Jean Ivan
Applicant

— and —

Eric Jacques Leblanc
Respondent

COUNSEL:
W. Clark, for the applicant
C. Lawton, for the respondent

HEARD: July 17, 2012

McKelvey J.

ENDORSEMENT

Introduction

[ 1 ] This is a motion for contempt in a family law matter. It is brought by the respondent father of Mitchell Ivan who was born on June 3, 2004. The parents had a brief relationship starting in 2003 and were not residing together at the time of Mitchell’s birth. On April 20, 2005 a temporary order was taken out on consent by the parties. In this order was a provision that the applicant and respondent shall have joint custody of the child and that his primary residence was to be at the home of the applicant mother. Another section of the order dealt with access by the respondent and specifically noted that, “The parties anticipate requiring adjustments to this schedule as the child gets older”.

[ 2 ] The order further provided as follows:

“Should either parent intend to move outside of the city of Kawartha Lakes, they will give at least 60 days notice in order to re-negotiate this agreement if necessary”.

[ 3 ] On September 14, 2005 the parties took out a consent order which provided that the order of April 20, 2005 was a final order with the exception of the access provisions which were changed so that the respondent father would have time with the child every Monday at 5 p.m. to Wednesday at 7:45 a.m. and every other Saturday at 4:30 p.m. to Monday at 7:45 a.m. commencing Saturday September 24, 2005.

[ 4 ] Subsequent to the final order being taken out the parties resumed cohabitation. They resided with each other from early 2006 to February of 2010 except for another period of separation from April 2007 to October 2007.

[ 5 ] During their further period of cohabitation the couple had another child named Christian Ivan-Leblanc who was born on March 20, 2007.

[ 6 ] The parties separated again on February 2010. There have been no further reconciliation attempts or cohabitation. It appears that the parties have been able to deal with access and custody issues on a consensual basis until recently. There have been some changes to access from time to time based on employment issues affecting the respondent. In particular the respondent took a job which required him to spend significant time in Sudbury. However he has continued to exercise his access to both children on a regular basis.

[ 7 ] The circumstances leading to this motion relate to a decision by the applicant mother to move from the City of Kawartha Lakes to Keswick. She notified the respondent of her intention to do so on March 12, 2012. Having been advised of the respondent’s intention to move with the children to Keswick the respondent wrote an email on the following day, March 13, 2012 objecting to the proposed move. The applicant refused to re-consider her decision and moved to Keswick sometime around the end of March, 2012.

[ 8 ] The respondent brings this motion for contempt. The breaches alleged by the respondent relate to the fact that the applicant has unilaterally moved Mitchell Ivan to a new school in the Keswick area in breach of the agreement for joint custody and failed to give 60 days’ notice of her intention to move. By failing to give this notice the respondent takes the position that he has been deprived of the opportunity to bring a motion in a timely manner to challenge the applicant’s decision to move the residence of the child. The respondent also takes issue with the fact that his access to the child has been significantly reduced without his consent as a result of the move.

[ 9 ] Requirements for a finding of contempt:

Rule 31 of the Family Law Rules provide that an order may be enforced by a contempt motion. The case law has established that in order to be successful on a motion for contempt the following criteria must be satisfied:

(1) The order that was breached must state clearly and unequivocally what should and should not be done.

(2) The party who disobeys the order must do so deliberately and wilfully.

(3) The evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person alleged to have breached the order.

Position of the Parties

[ 10 ] The respondent notes that no party brought a motion to change the final order dated April 20, 2005. It is asserted that the order continues in force and that the actions of the applicant mother in taking the child, Mitchell Ivan, to Keswick and enrolling him in a new school there without consultation with the respondent breach the above-noted provisions of the final order of the court. As a result the respondent is not able to attend school activities as he used to. It is also asserted that behavioural issues that pre-existed the move have escalated and the child’s performance at school has declined. The respondent seeks an order to return the child to this jurisdiction. The respondent is also seeking an order for access to the child on an alternating weekly basis.

[ 11 ] The applicant argues that there has been a material change in circumstances and that the parties no longer are expected to follow the final order issued in 2005. It is also argued that the younger child, Christian, was never subject to the order. It is argued that the parties did not follow the terms of the order following their final separation in February, 2010. The applicant therefore takes the position that the order is no longer enforceable against her and that it ceased to have any effect after the parties resumed cohabitation in 2006.

Analysis

[ 12 ] The first issue which I need to decide is whether the final order of September 14, 2005 remains in effect. In my view the order remains in force. Although the parties resumed cohabitation no step was taken to either vary or terminate the order. There is no provision in the order that it will no longer be in force if there is a reconciliation followed by a further separation. Rule 15 of the Family Law Rules provides that a party who wants to ask the court for a change to a final order or agreement is required to bring a motion to change. No such motion has been brought. There is nothing in the applicable legislation which would support a conclusion that resumption of cohabitation would put an end to a final order of this court. There is considerable support in the case law to support the conclusion that reconciliation does not put an end to a final order. Counsel for the respondent has referred me to the decision of Justice Mazza in Fitzell v. Weishod (2005), 2005 5356 (ON SC) , 11 R.F.L. (6 th ) 239 (Ont. S.C.J). This case involved a motion to change brought to terminate child support for the children. In that case the court considered the effect of reconciliation on a support order. In that case the court stated,

“I find therefore that it is clearly in the child’s best interests for a child support order to survive an attempt at reconciliation by the parents. Forcing the recipient parent to return to court for a new order after failed reconciliation attempt would not only discourage reconciliation but would also unduly disrupt the consistency of the support (and possibly the standard of living) available to the child. Although I agree with the case law that would suggest that the conduct of the parties is an important consideration for the court in determining the status of a child support order upon reconciliation, since the facts may indicate the parties’ common intention to consider the order terminated, that particular set of circumstances must be supported by the facts”.

[ 13 ] A more recent authority on this issue is the decision from the Supreme Court of Nova Scotia in Clarke v. Gale , 2009 N.S.S.C. (). That case involved a final order dealing with custody and child support which was issued in March, 2005. Shortly after the order was issued the parties reconciled until the Spring of 2007. The court had no difficulty in concluding that the court order remained valid and stated,

“The parties reconciled for a substantial time after the 2005 order issued. Unlike an agreement, a court order does not become a nullity because of reconciliation….a court order can only be varied by a further court order. Parties cannot vary an order by agreement or by virtue of a common understanding. I accept this reasoning. Therefore the 2005 order is a valid order unless the requirements of section 37 of the Maintenance and Custody Act have been met”.

[ 14 ] In my view it would require clear evidence that the parties had a common intention to consider the order terminated. In this case the evidence before me would not support a conclusion that there was any common understanding that the order would not be relied on. Up until March 12, 2012 the parties appeared to have dealt with the child on the basis that they had joint custody and no attempt was made to change the residence of one party without notifying the other. The evidence also supports a conclusion that any changes to access were arranged with the mutual consent of the parties as contemplated by the order.

[ 15 ] There are strong public policy considerations that would suggest forcing parents to return to court after a failed reconciliation to renew or vary an order would discourage reconciliation. In the absence of a clear intention from the parties that the order is no longer to be followed, the order in my view remains in effect. If the applicant wished to change the terms of the order she should have brought a motion to change in accordance with rule 15.

[ 16 ] There remains, of course, consideration of whether the other requirements for a contempt order have been satisfied. It is clear that the order in this case was breached. The applicant failed to give the 60 day notice of an intention to move her residence as required under the order. The applicant also unilaterally made custody decisions with respect to the child. These involved the city of residence and school arrangements. Finally the move has resulted in a significant and unilateral change to the access of the respondent.

[ 17 ] A further requirement for a contempt order is that the party who disobeys the order must do so deliberately and wilfully. It is clear from the evidence before me that the applicant made a deliberate and wilful decision to move with the child to Keswick. She was fully aware that the respondent was objecting to her decision. She had no reason to believe that the applicant was consenting to the move. In considering whether the applicant’s conduct was wilful and deliberate, however I also need to consider whether there is any basis to believe that the applicant was operating under an honest, but mistaken belief about the status of the order which would mitigate against her having deliberately breached the order.

[ 18 ] The evidence would suggest that up until March 12, 2012 the applicant was generally acting in accordance with the order. Issues with respect to the custody of the child were handled jointly with the respondent. Changes to access were also dealt with on a consensual basis. There is no evidence before me to suggest that she was not aware of the relevant terms of the court order. On the information before me I am left with no reasonable doubt about the fact that the applicant was well aware of the provisions of the court order. However, when it became apparent that the father was not prepared to consent to her move to Keswick the applicant decided that it was better to ask for forgiveness rather than permission. She decided to take matters into her own hands and unilaterally make the move she wanted to make without further consultation or consent from the father. I regard her conduct in this regard to be highhanded and totally at odds with the pre-existing understanding as to how matters of this type would be handled.

[ 19 ] In these circumstances I conclude that the applicant’s breach of the court order was deliberate and wilful beyond a reasonable doubt. It follows therefore that the applicant is in contempt of the court order dated September 14, 2005.

[ 20 ] There remains the issue as to what order should flow from the finding of contempt which I have made. The respondent seeks an order that the applicant return the child’s primary residence to the City of Kawartha Lakes immediately and to return the child to attendance at the Leslie Frost Elementary School. He also seeks an order that his access be restored. It is clear that the order of September 14, 2005 applied only to the child Mitchell Ivan and not to the child who was born subsequently. Any relief granted by the court should, therefore, be restricted to the child who was the subject of the order. It is also apparent to me that any order made by me should take into account the best interests of the child.

[ 21 ] There is conflicting evidence as to whether the new school arrangements made for the child in Keswick are preferable to the ones which were in place in the City of Kawartha Lakes. I am not able to make a clear determination based on the information before me that the child would receive better educational opportunities in either the City of Kawartha Lakes or Keswick. However, it is apparent that the move to Keswick has in a significant way altered the respondent’s access. Given that the respondent has exercised considerable access during the week as well as alternate weekends and given the importance of maintaining a close relationship with the respondent I have concluded it is in the best interests of the child to maintain the status quo as it existed on March 12, 2012 until the court has a full opportunity to consider all of the potential consequences from the proposed move. I also accept that the best interests of the child would be served by accepting the validity of the court order until the court has the benefit of a motion to change before it with more complete information about the advantages and disadvantages of the proposed move.

[ 22 ] I therefore order that the child Mitchell Ivan be returned to the City of Kawartha Lakes and that the joint custody arrangements continue. I further order that the access arrangements in place prior to the applicant’s move to Keswick be resumed. The parties have advised that the access arrangements for the respondent as of March 12, 2012 were as follows:

(1) The respondent was entitled to three overnights per week followed by two overnights the following week. The selection of the overnights was through consultation between the parties.

(2) In addition, the respondent was entitled to alternating weekends.

[ 23 ] This order is also subject to any motion which may be brought to vary or terminate the order of September 14, 2005.

[ 24 ] The parties have agreed that the partial indemnity costs of this motion should be assessed at $2,500 inclusive of HST. I therefore order costs for this motion in the sum of $2,500 be payable by the applicant to the respondent within 30 days. If the respondent has any basis to seek full indemnity costs then the respondent may within 30 days request an appointment with the trial co-ordinator to address that request.

The Honourable Mr. Justice M. McKelvey

DATE RELEASED: August 1, 2012