SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-09-00000047
DATE: 20140210
RE: BRIAN PETER SKALITZKY, Applicant
AND:
SHARON CLARICE SKALITZKY aka SHARON CLARICE CHOQUETTE, Respondent
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL:
M. Kowalsky, for the Applicant
Respondent, Self-Represented
HEARD: February 3, 2014
ENDORSEMENT
[1] This matter is before the court today on sentencing and costs, pursuant to this court’s finding on November 29, 2013 that the respondent wilfully breached three terms of the final order of Eberhard, J. dated June 14, 2012, resulting in a finding of contempt.
[2] This is the court’s second finding of contempt in relation to Ms. Choquette. She has previously been found in contempt of two court orders by Olah, J., who imposed the following sentence on April 26, 2011:
The respondent mother shall receive a suspended sentence and shall be placed on probation for a period of 24 months or until the matter has resolved by Minutes of Settlement or until receipt of a judgment after the conclusion of the trial in this matter, whichever is earlier, on the following conditions:
She shall obey all orders of this court currently in existence, as well as any order of this court made during the period of probation; and
If she is found to breach an order, as determined by Olah, J. or Wood, J., she will pay a fine of $6,000 forthwith.
[3] In the second contempt application, this court found that the respondent wilfully and deliberately breached paragraphs 2, 13 and 15 of the order of Eberhard, J. by:
Failing to return Alyshia to the applicant at the conclusion of an access weekend. The finding of contempt by Olah, J. was, in part, based on the same conduct;
Attempting to unilaterally engage the services of Joanne Shaw, who had previously represented Alyshia on behalf of the Children’s Lawyer, contrary to the process outlined in the order; and
Involving Alyshia in an interview with a lawyer to the extent that she was informed of the nature of the appointment and relayed part of its substance to her father, despite a term prohibiting the respondent from having Alyshia interviewed by any professional or other person for any purpose except in the case of a medical emergency or with clear prior approval of her father.
[4] As a cross-motion to the applicant’s motion for contempt, the respondent moved to have Ms. Shaw re-engaged to determine Alyshia’s desires with respect to a change in residency and occupational studies. Her motion was dismissed for the reasons explained in paragraph 18 of this court’s Reasons dated December 2, 2013.
[5] Alyshia is 22 years old, but is developmentally delayed. As stated in my Reasons of December 2, 2013, the evidence supports the fact that Alyshia has the mental and emotional capacity of a ten-year-old. Mr. Kowalsky submitted that the final order of Eberhard, J. was carefully crafted to protect Alyshia from manipulation by the respondent, as she is particularly vulnerable to such emotional coercion. The wording of the order reflects the intention that the parties are to approach Alyshia’s care in a methodical manner, with consultation with one another at all steps along the way. The point of the order was to ensure that Alyshia’s life does not erupt into chaos as a result of the dynamic between mother and child, versus mother and father. Unfortunately the respondent’s conduct created exactly that outcome.
[6] The respondent has now exhibited a clear trend of disregarding court orders. Her actions require sanctions in order to specifically deter her from further breaches, and to discourage like-minded individuals from disregarding orders of the court, so as not to bring the administration of justice in disrepute: Peers v. Poupore, 2012 ONCJ 306 at paras. 21-23; Einstoss v. Starkman 2002 2777 (Ont. S.C.) at para. 37; McMillan v. McMillan, (1999) 1999 14982 (ON SC), 44 O.R. (3d) 139 (Gen. Div.).
[7] The powers of the court following a finding of contempt are set out in Rule 31(5) of the Family Law Rule as follows:
31 (5) If the court finds a person in contempt of the court, it may order that the person,
(a) be imprisoned for any period and on any conditions that are just;
(b) pay a fine in any amount that is appropriate;
(c) pay an amount to a party as a penalty;
(d) do anything else that the court decides is appropriate;
(e) not do what the court forbids;
(f) pay costs in an amount decided by the court; and
(g) obey any other order.
[8] The principles of sentencing in civil contempt matters are set out in the decisions of Cassidy v. Cassidy, 2010 ONSC 2707 (Ont. S.C.J.), Boucher v. Kennedy, [1998] O.J. No. 1612 (Ont. Gen. Div.) and Geremia v. Harb, 2007 30750 (ON SC), [2007] O.J. No. 3019 (Ont. S.C.J.) and have been taken into account in this decision.
[9] In this court’s reasons for the finding of contempt, it was noted at paragraph 15 that the respondent’s excuses for her contempt show an immature perspective on the issues that give rise to Alyshia’s dependency. At paragraph 17 it was noted that the respondent “…rationalizes her breach in a manner that makes the breach all the worse, as her excuses show an unwillingness, perhaps even a lack of emotional capacity, to honour the spirit and intent of the order.”
[10] Some time was taken during the sentencing submissions for the court to attempt to acquire an understanding of the respondent’s background, as it is perplexing that an individual would repeatedly put herself in this position. Ms. Choquette submitted to the court that she has a high school diploma, and that she followed that with a community college night school course to train as a medical receptionist. She was unsure as to whether she had earned a diploma, but she did not pursue employment in that field. For over 30 years, she maintained employment at a company owned by her father, but in which she eventually acquired shares, which operated a collision repair centre. She assisted in running the office, doing all payroll, accounts receivable and payable, estimating and dealing with insurance adjusters. She did not deny the additions made to this work history by the applicant’s counsel, that she was also engaged in negotiating mortgages and loans for that company, as well as dealing with banks and lawyers concerning mortgages and foreclosures on behalf of her father. From this education and employment background, I infer that she is intellectually capable of reading and understanding the terms of the order of Eberhard, J.. Accordingly, her submission that she did not understand the aspect of it relating to Ms. Shaw’s further involvement is not accepted by this court.
[11] The terms of the order being clear and understandable to Ms. Choquette, I conclude based on her submissions that Ms. Choquette seems to be motivated by her own mistaken belief that she is her daughter’s only advocate. During her submissions she continued to ultimately blame the applicant for “refusing to negotiate”. The final order is a well thought-out, comprehensive order that addresses how the parties are to approach the care of their daughter. It may be that the respondent will continue to be motivated to undermine that order because she believes she is justified in doing so. It is possible that the answer may be to move sole custody into the hands of the applicant, however, the court must use that remedy as an answer to contempt very sparingly. I am not prepared to follow such a course of action at this time, but it may be the only answer available to the court if Ms. Choquette continues to act unilaterally and contrary to court orders. That remedy would focus on addressing, as the applicant’s counsel urges, the respondent’s underlying immature perspective and lack of insight.
[12] The applicant urges that a custodial sentence be imposed to impress upon the respondent the seriousness of her behaviour, together with various ancillary orders that might focus her on the need to concentrate on Alyshia’s stability. I agree that strict sanctions must be imposed to impress upon the respondent that she may not take matters into her own hands. The order being made is intended to deter the respondent from doing anything other than following the order of Eberhard, J., completely and absolutely.
[13] This court orders:
The respondent is sentenced to six days of incarceration, which sentence is suspended on the condition that the respondent comply with all terms of the order of June 14, 2012, failing which a Warrant of Committal shall issue.
The Warrant of Committal may be signed by any judge being satisfied that the respondent has breached the order of June 14, 2012, upon the applicant moving on twenty days’ notice to the respondent and sufficient evidence being provided by affidavit.
Pursuant to s. 36(2) and 37(2) of the Children’s Law Reform Act, the police in the jurisdiction where Alyshia may be found are hereby directed to locate, apprehend and deliver Alyshia to the applicant in the event that the respondent fails to comply with the access provisions of the order of June 14, 2012.
The respondent shall not be later than fifteen minutes for any access exchange at highways 400 and 89 (normally to occur at 8:00 p.m.), unless experiencing a medical or vehicle-related emergency, in which case she must notify the applicant by telephone immediately upon the emergency arising, unless incapacitated. In the event that the respondent fails to comply with the provisions of this order:
(i) On the first instance of non-compliance, paragraph 9 of the order of Eberhard, J. shall be varied to provide that the respondent shall be responsible for all transportation for access with Alyshia, the exchange for which shall occur at the Port Severn gas station, each exchange to be confirmed by telephone to the applicant while transiting Barrie;
(ii) On the second instance of non-compliance, such that the respondent fails to deliver or pick up Alyshia in Port Severn or is later than 15 minutes for any access exchange, subject to the above exceptions, access shall be stayed until further order of the court.
The respondent shall not inform Alyshia of nor discuss with her any aspect of this order.
The respondent is further restrained from using Alyshia as a conduit of communication for requests for access arrangements or variations of access.
The respondent is hereby restrained from engaging in any conversation with Alyshia regarding a change of residence or of the potential of attending school in the Oakville area.
The respondent shall pay a fine of $5,550.00 to the applicant, which fine shall be paid through a suspension of spousal support payments for a period of five months, which amount includes the applicant’s out-of-pocket costs arising from the applicant’s contempt.
In order to give effect to paragraph 8, this court orders that paragraph 19 of the order of Eberhard, J. shall be varied to provide that there will be no spousal support paid by the applicant to the respondent for the period March 1, 2014 to and including July 1, 2014.
[14] With respect to costs, full indemnity costs shall be awarded given that this is the second contempt proceeding. The costs sought by the applicant are reasonable given the complexity of the proceeding, arising both from its history and the seriousness of the allegations.
[15] This court orders that the respondent shall pay the applicant his costs in the total amount of $16,200 payable by December 31, 2014 together with post-judgment interest.
[16] This court orders that in the event of a bankruptcy by the respondent, any costs that remain unpaid on the date of bankruptcy filing shall be characterized as pre-paid spousal support and shall be credited against the applicant’s periodic spousal support obligations set out in the order of June 14, 2012, such that the debt owing to the applicant arising from this order shall not be extinguished by bankruptcy.
[17] In the event of the respondent’s bankruptcy, the Director of the Family Responsibility Office shall adjust the account of the support recipient to account for the pre-paid support referred to in the preceding paragraph, upon receipt of an affidavit from the applicant or his counsel setting out the amount of costs that remain unpaid as of the date of the affidavit.
HEALEY, J.
Date: February 10, 2014