SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 4144/14
DATE: 2014-09-18
RE: SUSAN ANNE CARR-CAREY, Applicant
AND:
JEFFREY JAMES CAREY, Respondent
BEFORE: Gray J.
COUNSEL:
Susan Carr-Carey, Self-Represented
Jeffrey Carey, Self-Represented
HEARD: September 11, 2014
ENDORSEMENT
GRAY J.
[1] This family law matter has been going on for some considerable time. While it is of recent origin in Milton, there were prior proceedings in Newmarket, which gave rise to the orders that are relevant to the matters before me.
[2] What is before me are two motions for contempt, one by each party, and a Motion to Change, brought by the applicant to vary the custody and access arrangements regarding the parties’ child, as well as to vary an order for child support.
Background
[3] The parties were married on March 26, 2006, and separated in October, 2010. They have one child, Madison Anne Carey, born May 20, 2007. She currently lives with the respondent, with access to the applicant.
[4] After their separation, the parties engaged in litigation in this court at Newmarket. On August 29, 2012, Justice Mulligan, for written reasons, determined that Madison should reside with the respondent in Milton. The formal order is attached to these reasons as Appendix A.
[5] Since the order did not specifically provide for periods during which Madison would be with the applicant, the parties subsequently agreed to an amendment, which was granted on consent by Justice Ferguson on September 12, 2013, to add the following new paragraph:
The applicant shall have access with Madison three weekends out of four (from Friday at 6:00 p.m. to Sunday at 6:00 p.m. In the event of a statutory holiday the exchange shall be on Monday at 6:00 p.m.), in addition to the holiday schedule outlined below.
[6] Child support is required through an order December 19, 2012 by Healey J., in the amount of $1,279 per month, payable by the applicant. That Order is attached to these reasons as Appendix B.
[7] On November 13, 2013, the parties consented to an order of Justice Kaufman. That order is attached to these reasons as Appendix C. I should note that the respondent, before me, purported to have no knowledge of any agreement that gave rise to the order, and took the position that he was not aware that there was actually an order of the court. He advised that he had seen what appeared to be a draft of an order, but he had never seen the order itself. I obtained a copy of the order from the Newmarket office of this court, and that is what is attached as Appendix C. It is signed by Justice Kaufman.
[8] The motions before me are:
A motion for contempt by the applicant, alleging that the respondent refused access to Madison from June 3, 2014 onwards; it is also alleged that he failed to honour the times and dates for the exchange of Madison, contrary to the order of August 29, 2012; and that he has violated the order of November 13, 2013 in a number of respects;
A Motion to Change by the applicant, to grant sole custody of Madison to the applicant; retroactively terminate child support as of January, 2014; to insert a police enforcement clause; and to require one-on-one counselling without either parent present;
A motion for contempt by the respondent, alleging that the applicant has violated the order of August 29, 2012 in a number of respects.
[9] The applicant has included, in her material, a number of text messages between herself and the respondent. Those text messages run from November 1, 2013 to July 29, 2014. They reflect a sad litany of communications between these parties that are rude and disrespectful. The applicant can claim no high ground in this respect. Her text messages to the respondent are demeaning and accusatory, and appear calculated to prompt responses in kind, which inevitably were forthcoming. It is difficult to say who started the inappropriate phraseology of the communications, but it is clear that both parties engaged in them with relish.
[10] What is also clear is that, on many occasions, the respondent simply refused to transport Madison to the McDonald’s restaurant in Markham, which is the required location for exchanges as prescribed by the order of August 29, 2012. On virtually all such occasions, the respondent had no excuse for refusing to drive to Markham. Indeed, in his submissions before me he agreed that he did not drive the child to Markham until he was ordered to do so by Ricchetti J. on August 13, 2014. As a result, the applicant did not see Madison from early in June until the date of Ricchetti J.’s order. She does not own a car, and must use public transportation.
[11] The respondent advised me that he was unable to drive Madison to Markham because he could not afford it. It should be noted that the applicant advised me that the respondent owns two vehicles, and this was not denied by the respondent. It is also noteworthy that during the period the respondent refused to drive Madison to Markham, he was complaining that he was not receiving child support.
[12] The applicant asserts that because of health concerns she has been unemployed since January, 2014, and remains unemployed to date. When she was healthy, she earned over $200,000 per year.
Submissions
[13] The applicant submits that the respondent should be found to be in contempt, particularly of the order dated August 29, 2012. While there were a number of ways he was said to be in contempt of that order and the order of November 13, 2013, the most significant item of contempt was his refusal to drive Madison to the location in Markham where exchanges were to take place. This was particularly important because, to the knowledge of the respondent, the applicant has no automobile and is forced to take public transportation. There is no conceivable alternative way in which she could pick up Madison at any other location than the one in Markham, and even then it is somewhat difficult for her to pick up Madison there.
[14] The applicant submits that there were only two occasions when she was simply unable to be at the exchange location, and these occasions were on account of health difficulties which were unavoidable.
[15] The applicant submits that I should change the order of August 29, 2012, and order that Madison live with her, subject to access visits with the respondent, which would be three weekends out of four. She submits that this is necessary in order to combat the respondent’s determination to alienate Madison from her, particularly through his continual violation of orders that are binding on him. She submits that she has been unemployed for health reasons for a considerable period of time, and since January, 2014 she has simply been unable to pay child support. She asks that all arrears be expunged, and her obligation to pay child support suspended until she obtains employment. She submits that she anticipates her health should improve sufficiently to permit her to get work in the near future, particularly if her motion to vary is granted. She suffers from extreme insomnia as a result of the stress from the current situation, which should be alleviated if her requests are granted.
[16] The applicant submits that the respondent’s motion for contempt should be dismissed. She submits that she has at all times attempted to fully comply with the outstanding court orders, which is to be contrasted with the determination of the respondent to frustrate and violate the orders.
[17] The respondent submits that the applicant’s motion for contempt should be dismissed. He acknowledges that there were many occasions on which he neglected to drive Madison to Markham, but he submits that he had a reasonable excuse for not doing so. He submits that things are very tight financially, and he simply cannot afford to drive Madison that distance. This is particularly a problem because he has not been receiving child support.
[18] The respondent submits that the applicant’s Motion to Change the order of August 29, 2012 should be dismissed. He submits that Madison is now happy in her current environment and she goes to school in Milton where she has many friends. To uproot Madison from her current environment and force her to live elsewhere would not be in her best interests. He submits that to the extent that the applicant has difficulty exercising her full rights of access, she is the author of her own misfortune.
[19] The respondent submits that the outstanding order regarding child support should not be disturbed, and the amount that is now retroactively owing should not be reduced or eliminated. He submits that the applicant was, and is, perfectly capable of earning a substantial income, and it must be assumed that she is quite capable of working now. Any lack of employment now must be considered to be a deliberate choice made by her, and she should not be rewarded.
[20] The respondent submits that the applicant should be found to be in contempt of the order of August 29, 2012 in a number of respects.
Analysis
[21] In Hobbs v. Hobbs (2008), 2008 ONCA 598, 54 R.F.L (6th) 1 (Ont. C.A.) at para. 26, Armstrong J.A. set out the tests for a finding of contempt, as follows:
(a) the order that was breached must state clearly and unequivocally what should and should not be done;
(b) the party who disobeys the order must do so deliberately and willfully; and
(c) the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
[22] While the Court of Appeal in Hefkey v. Hefkey (2013), 2013 ONCA 44, 30 R.F.L. (7th) 65 (Ont. C.A.), stated at para. 3 that the civil contempt remedy is one of last resort and should not be sought or granted in family law cases where other adequate remedies are available, nevertheless, as reflected in Hobbs, the contempt remedy has a place in family law proceedings. This case is an illustration of one where it has a place.
[23] I am satisfied beyond a reasonable doubt that Mr. Carey’s refusal to deliver Madison to the McDonald’s restaurant in Markham from early June until late August, 2014 on virtually every occasion when exchanges of Madison were to be made, was the implementation of a deliberate decision made by him. The result of that decision was that the applicant was deprived of virtually all physical contact with her daughter for that entire period. Mr. Carey knew that that would be the result because he knew that the applicant had no vehicle and was required to use public transportation.
[24] I suspect that Mr. Carey’s actions can be explained, in part, as a response to the applicant’s somewhat over-the-top, mean-spirited and hysterical text messages, in which she chose to accuse him of everything under the sun. While his frustration may be understandable on one level, he is not allowed to use unlawful means to vent his frustration.
[25] I do not accept his explanation that he is unable to afford to drive Madison to Markham. This is connected, in my view, to his position that the failure of the applicant to pay child support has made life very difficult for him. It is clear, in my view, that non-payment of child support cannot be linked to a refusal to permit access to a child. In substance, that is what the respondent was doing, and he is not permitted to do so.
[26] I am satisfied that the tests set out in Hobbs have been met. The order is clear and unequivocal; the order was deliberately disobeyed; and the breach has been proven beyond a reasonable doubt; indeed, the respondent does not dispute it.
[27] Having taken into account the caution expressed in Hefkey, I am persuaded that this is an appropriate case to make a finding of contempt. I hold that the respondent is in contempt of the order of August 29, 2012. An appropriate sanction for the violation of the order will be determined on another day.
[28] I am not persuaded that the order of August 29, 2012 should be altered. The order was made after full argument by counsel, judgment was reserved, and a reasoned decision was issued by Justice Mulligan. I am not persuaded that it is in Madison’s best interests to be uprooted from her current environment, where she appears to be doing well.
[29] The main issue, it seems to me, is to ensure that the applicant’s access rights are fully respected. I am assuming, now that the respondent has been found to be in contempt, that that should no longer be a problem. If it turns out to be a problem in the future, this issue may have to be revisited.
[30] I am persuaded that some relief with respect to the child support order is appropriate. The applicant clearly cannot work having regard to her current health situation. She is simply unable to pay child support at the present time, and it is unlikely that she could have paid any from and after January 2014.
[31] However, I am not prepared to give her relief for all of the arrears. At the time the motion to change was brought, the arrears were slightly more than $8,000. I will fix the arrears at $5,000, but direct FRO to suspend enforcement until January 1, 2015.
[32] I am convinced that the applicant is not able to pay child support currently. However, I am not prepared to give her unlimited relief. I will order that child support shall not be payable until January 1, 2015, at which point it shall be payable at the rate of $1,000 per month. By then, she should be able to secure employment. The applicant will need to convince the court that any further relief after January 1, 2015 is appropriate. It will not be an easy burden to meet.
[33] In my view, the respondent’s motion for contempt should be dismissed. I am not persuaded that the applicant deliberately violated any provision of the orders.
Disposition
[34] For the foregoing reasons, I order the following:
a) the respondent is found to be in contempt of the order dated August 29, 2012;
b) arrears of child support are fixed in the amount of $5,000;
c) FRO shall not enforce payment of the arrears until January 1, 2015;
d) the obligation of the applicant to pay child support is suspended until January 1, 2015, when she shall commence paying child support in the amount of $1,000 per month;
e) the motions of the applicant are otherwise dismissed;
f) the respondent’s motion for contempt is dismissed;
g) the applicant’s contempt motion is adjourned so that an appropriate sanction for the respondent’s contempt can be determined; it shall be brought before me by arrangement through the Trial Coordinator at 9:00 a.m. on a date I am sitting in Milton.
[35] I will determine the costs of these proceedings after I have heard submissions on the sanction to be imposed on the respondent for his contempt.
Gray J.
Released: September 18, 2014
APPENDIX A
APPENDIX B
APPENDIX C