ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-856

DATE: December 11, 2014

B E T W E E N:

GARFIELD BRUCE McEWEN

Duncan Crosby, for the Applicant

Applicant

• and -

ANNE BRIDGET DOYLE McEWEN

Alexandre Martel, for the Respondent

Respondent

HEARD: November 28, 2014

DECISION

James J.

1This is a motion for a finding of contempt of court by the respondent. The facts may be stated briefly as follows.

2As a result of a three day trial in November 2013, a judgment was issued at the end of February 2014 that awarded sole custody of the child of the marriage, Peta McEwen, to the respondent with regular access to the applicant. The respondent’s request to move permanently to Australia with Peta was dismissed.

3The evidence at trial disclosed that the parties sometimes took extended trips to Australia to visit the respondent’s family. The judgment contemplated that such trips would continue to occur in the future albeit without the applicant, consistent with past practice and, subject to compensating access time in favour of the applicant.

4On April 15, 2014 the respondent’s brother was killed in a car accident in Australia and five of his children were injured in the same crash.

5The respondent, her partner and Peta left for Australia immediately. The respondent caused her solicitor to give notice to the applicant via his lawyer, Mr. Crosby. The respondent gave her lawyer her contact information in Australia including a phone number.

6The respondent’s lawyer promptly notified Mr. Crosby and noted that if further information was required, she would be able to contact the respondent later in the week. Mr. Crosby’s response was “yes of course. Please let me know when Peta is expected to return.”

7The respondent says when she purchased the tickets to fly to Australia, she purchased a return ticket for Peta with a return date of November 28, 2014. The proposed return date was not provided to Mr. Crosby. When he wrote again on April 30th, the respondent’s lawyer said the “timing of the return has not been finalized yet.”

8Mr. Crosby wrote again on May 8 and May 20th requesting a date for Peta’s return but did not receive a response.

9In June the applicant filed a request for Peta’s return with the Ministry of the Attorney General for Ontario. By order dated August 1, 2014 Robertson, J ordered that Peta be returned to Canada by August 22, 2014. The actual date of her return was September 5th, 2014.

10A finding of contempt requires the presence of the following elements:

a. The person who is the subject of the request has actual notice of it;

b. The terms of the order are clear and not open to an interpretation that renders the person’s acts or omissions not contemptuous;

c. The disobedience must be wilful and deliberate;

d. The contempt must be proved beyond a reasonable doubt.

11I am satisfied beyond a reasonable doubt that the respondent is in contempt of court for the following reasons:

a. It is not reasonable to suggest that the allowance for occasional holiday trips to Australia in the reasons for decision justified the respondent’s actions.

b. The respondent avoided providing information to the applicant regarding her planned date of return.

c. The respondent has had proper notice of the request for a contempt order.

d. The disobedience was deliberate and wilful.

12The respondent says that she acted in good faith and that the trip was within the terms of the judgment. I reject this contention. The reference in the trial decision to travel to Australia needs to be put in context. Specifically, it was made in relation to sharing holiday time with Peta. For example Peta had travelled to Australia with the respondent in the summer of 2013 for 6 weeks. At paragraph 70 of the decision I said that “the allocation of holiday time should make allowance for the possibility of occasional extended trips to Australia in accordance with the parties’ past practice. The travel which is in question in this motion followed the previous summer visit by less than a year and was inconsistent with the past practice of travelling with Peta in terms of both timing (April to September) and duration. There would have been nothing wrong with travel to Australia for a reasonable time as a result of the family tragedy. The wilful disobedience arises as a result of the decision to remain in Australia for as long as was the case here.

13There is a serious question as to whether the respondent ever intended to return to Canada with Peta. The applicant said the respondent’s Facebook page contained an entry that says “Bridget Doyle-McEwen added a life event: Moved to Australia”. The respondent does not deny this assertion. The applicant also said that Peta told him the respondent and her partner had obtained employment and were working in Australia. There was evidence from the trial that they had jobs waiting for them if they were granted permission to move there with Peta. The respondent did not provide a return date to the applicant until the authorities intervened. The mere fact that the respondent had purchased a return ticket for Peta is not conclusive of an intention to return. The purchase could just as easily have been a ruse to provide cover. Alternatively, while the respondent may have initially been simply responding to a family emergency, this may have morphed at some point into a plan to stay in Australia. In any event, the respondent’s suggestion that she always intended to return to Canada is open to challenge.

14The respondent’s actions have contributed to an erosion of the applicant’s relationship with their daughter. This is not in Peta’s best interests and ought to be taken into account in some fashion.

15The court has a wide array of remedies available to it to sanction contemptuous behavior. In the context of family law proceedings, the focus ought to be on enacting measures that promote compliance rather than impose punishment. Here the applicant has correctly focused on obtaining compensating access time and avoiding a repeat of the unauthorized travel.

16The applicant is granted the following access in priority to the existing, court-approved access schedule and in addition to the make-up access already provided in order to attempt to redress the loss of access in the period from April to September:

i) Christmas access from the end of the school day (pick up at school) on Friday, December 19 until Sunday, December 28, 2014 at 4:00 p.m. with the exchange to take place at the Cobden Shell station. It is worth noting that this was the applicant’s year for Christmas access pursuant to the existing order;

ii) For January, 2015, the middle three weekends (starting Friday, January 9th) from Friday after school (pick up from school) until Monday morning, when the applicant will deliver Peta to school. This will commence on the Thursday after school in the event of a long weekend or PA day, or for any other reason there is no school on the Friday, and extend to the Tuesday morning in the event of a long weekend, snow day, or for any other reason there is no school on the Monday;

iii) Three weekends in February, 2015 as follows:

a. Friday, February 6, 2015 pick up from school, until Monday February 9, return to school;

b. Friday February 13, 2015 pick up from school, until Tuesday, February 17, return to school (Family Day is Monday, February 16th);

c. and Friday, February 20, 2015, pick up from school, until Monday, February 23, return to school.

17The access schedule accepted by the court following the trial shall continue in full force and effect except as varied herein.

18The respondent advised the court that Peta travels on her Australian passport, the Canadian passport having expired. The applicant wishes to control the respondent’s access to the passport. It is currently placed with the court for safekeeping. It has about one year left before its expiry. I am not making any order respecting this passport except to say that it ought to be returned to the respondent. At this point the respondent likely realizes that improperly taking Peta to Australia will attract the intervention of the authorities who will enforce Peta’s return to Canada. If this was to occur, there is a real risk the respondent would lose custody.

19In addition, the respondent ought to appreciate that a recurrence that amounts to contempt of court could very well result in a stern disposition, including the possibility of imprisonment.

20The applicant seeks legal costs associated with the entire process of requiring Peta’s return in the sum of approximately $10,000. Part of the costs claim relates to a motion before Robertson J. in August at which time she ordered that:

a) Peta be returned to Canada; and

b) that the applicant brings his child support up to date which amounted to about $5,200.

21Her endorsement does not include a costs award nor does she reserve costs to be dealt with later. The applicant’s consistent unwillingness to pay child support, even at the modest levels ordered, should not be ignored. It is open to the court to adjust an entitlement to costs downwards to reflect the court’s disapproval. In the circumstances here I am prepared to grant the applicant a substantial amount on account of costs but not full indemnification. The applicant’s costs are fixed in the sum of $7,000 inclusive of disbursements and HST, recoverable by way of a credit against child support otherwise payable by the applicant.

22The Family Responsibility Office is directed to record a credit in favour of the applicant as a support payor in relation to Peta McEwen in the sum of $7,000. In effect the applicant shall recover his costs by way of a notional prepayment of child support.

23The respondent has presented a costs claim of $11,000. This request is dismissed.

24The evidence suggested that the parties have not yet taken out an order from the trial. If this is the case, the parties are directed to finalize the appropriate order within 30 days, failing which the applicant shall take out an appointment to have the order settled.