SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 35591/13

DATE: 2014-04-23

RE: KEITH TRAVERS, Applicant

AND:

JANINE TRAVERS, Respondent

BEFORE: Gray J.

COUNSEL:
Novalea M. Jarvis, Counsel for the Applicant

Robert Lawson, Counsel for the Respondent

HEARD: April 22, 2014

ENDORSEMENT

[1] This is a motion by the applicant for contempt. It is alleged that the respondent violated an order respecting access issued on consent.

[2] Both parties filed affidavit material. The affidavits conflict. Neither party requested an oral hearing.

[3] To the extent that there are conflicting affidavits, I am simply not in a position to make any finding that the respondent is in contempt. This is particularly so because contempt must be proved beyond a reasonable doubt.

[4] With respect to virtually all of the allegations that the respondent has violated the order in question, the affidavits conflict, except in one respect: it is alleged, and indeed not contradicted, that the respondent withheld access from the children for approximately two weeks. As a reason, the respondent alleged that the applicant struck one of the children, and accordingly, she feared for the child’s safety. I do not accept that explanation.

[5] While I am not satisfied that the numerous allegations against the respondent have been proven beyond a reasonable doubt, such that findings of contempt are appropriate, nevertheless the material discloses significant animosity between the parties, and, in particular, a strong desire on the part of the respondent to punish the applicant through the children. It is with this background in mind that I assess the explanation given by the respondent for withholding access.

[6] The child who was allegedly struck is nine years old. There is no suggestion of any background of violence towards that child, or indeed towards any of the four children. I am satisfied that all that happened was that the applicant gave the child a light tap on the head as a disciplinary measure. The Children’s Aid Society, upon investigation, found no cause for concern.

[7] The respondent’s excuse (and I find that that is what it was) for withholding access had no air of reality. As noted, there is no suggestion of any history of violence towards any of the children on the part of the applicant. I am satisfied beyond a reasonable doubt that the respondent used this incident as an excuse to withhold access. She was not entitled to do so.

[8] Having made this finding, the question is what order I should make. There are a number of options. As stated by the Court of Appeal in Hefkey v. Hefkey (2013), 2013 ONCA 44, 30 RFL 7th 65 (Ont. C.A.), at para.3:

The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly, and as we have said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed”.

[9] In the case before me, I am satisfied that I could make a formal finding of contempt. I am satisfied that the order was sufficiently clear; that the respondent disobeyed the order deliberately and willfully; and the violation of the order has been shown beyond a reasonable doubt. However, I am not persuaded that it is appropriate to make a formal finding of contempt at this time.

[10] The order has been in effect for only a short time. Since these proceedings were brought, it is not in dispute that the respondent has complied in all respects with the order. I think she should be given an opportunity to demonstrate that her violation of the order was an aberration. However, if there are further violations, the respondent should assume that the court will not be as charitable the next time. A court order is not a polite suggestion or an invitation. Where a finding of contempt is made, it is a serious matter. Significant penalties may be imposed including fines, or imprisonment, or both. While I will dismiss the motion for contempt, I will take the respondent’s conduct into account on the matter of costs.

[11] For the foregoing reasons, the motion is dismissed.

[12] I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a costs outline. Ms. Jarvis will have five days to file her submissions, and Mr. Lawson will have five days to respond. Ms. Jarvis will have three days to reply.

Gray J.

Date: April 23, 2014