SUPERIOR COURT OF JUSTICE
CITATION: Campo v. Campo, 2015 ONSC 1349
COURT FILE NO.: FS-06-056967
DATE: 2015 02 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNA MARIA CAMPO
John-Michael Campo
An infant under the age of eighteen years, by his litigation guardian, Anna Marie Campo
Sender Herschorn, for the Applicant
Applicant
- and -
FELICE CAMPO
Jane Alexandra Connon, for the Respondent
Respondent
HEARD: December 9 and 11, 2014
REASONS FOR DECISION
EMERY J
[1] The respondent father, Felice Campo is desperate to renew a relationship with his youngest child, Alessandra.
[2] Through a series of court orders directed towards reunification with Alessandra, steps have been provided for Mr. Campo and the applicant Anna Marie Campo, his former spouse and Alessandra’s mother, to re-introduce him into Alessandra’s life.
[3] Mr. Campo blames Ms. Campo for failing to comply with those orders. He takes the position that her failure to comply has frustrated his right to access. He has resorted to desperate measures for a remedy and seeks a finding from this court that Ms. Campo has purposely breached several orders and that she be found in contempt.
Background
[4] Mr. Campo and Ms. Campo were married on April 11, 1987. They separated on April 24, 2006 and were divorced on January 21, 2011.
[5] The parties have three children. John Michael Campo was born on August 29, 1988. Feliciano-Marie Campo was born on March 11, 1991. Alessandra Anna Campo was born on May 21, 1998. Alessandra is currently 16 years old.
[6] The trial of all issues between the parties, including custody, access, equalization, spousal support and child support was scheduled for trial in November 2009. Mr. Campo and Ms. Campo signed minutes of settlement on November 2, 2009. Those minutes were incorporated into the final order made by Mr. Justice Del Frate dated November 3, 2009. That final order provided that Alessandra shall have her primary residence with Ms. Campo in Mississauga. The final order also provided that Ms. Campo shall make all decisions regarding Alessandra after consultation with Mr. Campo. Alessandra was 11 years old at the time the order was made.
[7] The final order also provided the following provision relating to access that is relevant to this motion:
- The Respondent shall have access with Alessandra commencing forthwith at a Supervised Access Center and/or at a Therapeutic Access Center if available. If the specific details with respect to the supervised access cannot be agreed to by counsel, the matter shall be returned before the court to be dealt forthwith.
[8] Justice Del Frate’s order also provided that Alessandra shall not be removed from Ontario without the written consent of the respondent or a court order.
[9] Initially, there were three visits scheduled between Mr. Campo and Alessandra at the Peel Supervised Access program. The first of these visits occurred on January 16, 2010. Alessandra was driven to this access visit by her uncle, Santo Gucciardi. Mr. Gucciardi is the brother of Ms. Campo.
[10] Mr. Campo and Alessandra had not seen each other since Mr. Campo and Ms. Campo separated on April 24, 2006.
[11] Ms. Campo’s lawyer, Mr. Herschorn, subsequently wrote a letter dated February 4, 2010 to the lawyer for Mr. Campo, Ms. Connon, to advise that Alessandra refused to see her father for the next access visit. The letter stated that Alessandra would like those visits terminated until she wished to resume them. The letter then stated:
Out of respect for Alessandra and for her well-being, please explain to Mr. Campo that Alessandra would like the visits at the Peel Regional Access Center to be terminated until she wishes to resume them. I have advised Ms. Goodyear to notify the coordinator, Ashley Robertson, that Alessandra’s [sic] does not want to visit with her father effective immediately. I am sorry for this development.
[12] Ashley Robertson, the coordinator for the Peel Supervised Access program, wrote to Ms. Campo on February 19, 2010 to confirm their telephone conversation of February 16, 2010 that “you indicated that you no longer wish to use the program. You indicated that this was due to your daughter not wanting to attend the visit center.”
[13] On February 24, 2010, Ms. Connon wrote to Mr. Herschorn about, among other things, the fact they had discussed the issue of access to Alessandra for Mr. Campo, her views that professional intervention was required immediately, and inviting suggestions from Mr. Herschorn.
[14] On February 25, 2010, Mr. Herschorn wrote back to Ms. Connon. In that letter, he states that:
“I do not know what kind of “professional intervention” is required simply because Alessandra does not want to see her father. Please remember that neither Ms. Campo, nor the two older children, want to see Mr. Campo either, so whatever “intervention” you have in mind may not do anything other than to further traumatize her. I think that the best thing to do would be to respect Alessandra’s wishes to leave her alone for the moment. If you care to discuss this matter further, please call me.”
[15] No further visits with Alessandra were scheduled for Mr. Campo to exercise access. Ms. Connon ultimately served a motion returnable on December 22, 2010 to find Ms. Campo in contempt of Justice Del Frate’s order. In the notice of contempt motion, Mr. Campo alleged that Ms. Campo had deliberately refused to comply with the provisions for Mr. Campo to have access to Alessandra, contrary to paragraph 3 of Justice Del Frate’s order dated November 3, 2009.
[16] The motion was heard by Justice Corbett on December 22, 2010. Justice Corbett opened his endorsement with the observations that “this is not an appropriate case for contempt. This family is in pain. They need help.” Later in his endorsement, Justice Corbett split the compliance issue for access from the other terms of the order made by Justice Del Frate as follows:
The applicant shall take all reasonable steps to bring herself in compliance with all terms of the order of Justice Del Frate by January 31, 2011, other than in respect to access.
In respect to access, the respondent shall set out his proposal for therapeutic intervention, in writing, from his counsel by January 21, 2011. The applicant shall respond, in writing, by gender 31, 2011. These proposals shall include:
a. the proposed service providers
b. the scope of service;
c. payment.
- This matter shall return before me on February 10, 2011 to address the appropriate therapeutic intervention and any outstanding terms from the order of Justice Del Frate. Counsel shall provide me with copies of the materials exchanged pursuant to this order on February 9, 2011 to my assistant.
[17] Mr. Campo’s motion was actually next before Justice Corbett on February 16, 2011. Justice Corbett ordered that the parties retain Jacqueline Vanbetlehem to provide the therapeutic intervention for the reunification of Alessandra with her father. Justice Corbett made the following term part of his order:
- The parties shall participate and cooperate with the therapeutic process and shall follow Ms. Vanbetlehem directions about how the process shall proceed. The Applicant shall ensure that Alessandra participates as directed.
[18] Justice Corbett wrote an insightful endorsement on February 16, 2011 in the course of hearing the parties. It is important to note that Justice Corbett specifically made reference in his endorsement to the element of time working against the reunification process. He stated that when the motion was first before him on December 22, 2010, he concluded that the efforts to be made to re-establish a relationship between Mr. Campo and Alessandra should be made as promptly as reasonably possible as this issue will not improve with time. Justice Corbett indicated his agreement with Ms. Connon’s submissions that time is working against re-establishing a healthy relationship between Mr. Campo and Alessandra. He recognized that the therapeutic process must move forward and that it must be done right, the first time.
[19] Justice Corbett stated elsewhere in the endorsement that he considered that this matter must move promptly if an intervention was to be effective.
[20] The parties retained Ms. Vanbetlehem as ordered by Justice Corbett. Ms. Vanbetlehem arranged a visit between Mr. Campo and Alessandra on October 6, 2011. This visit was successful and Mr. Campo and Alessandra participated in scheduling the next visit.
[21] Ms. Vanbetlehem wrote a report dated February 16, 2012 in which she stated that she did not identify any significant concerns during the meeting between Mr. Campo and Alessandra on October 6, 2011. She observed that a further meeting was planned and organized with Alessandra’s participation. However, following the first meeting, Alessandra’s mother indicated that Alessandra did not wish to meet again with her father. Ms. Vanbetlehem went on to describe that she met with Ms. Campo on October 24, 2011 to better understand Alessandra’s resistance to meet again with her father. Ms. Vanbetlehem also met with Alessandra on November 1, 2011 to gain a better understanding of her refusal to meet with her father again. Ms. Vanbetlehem could not ascertain any justifiable or realistic concern that resulted in Alessandra’s sudden withdrawal. Ms. Vanbetlehem concluded with the remark that it was hoped that the information provided in the report would assist the court with respect to accommodating Alessandra’s need to have a healthy relationship with both parents.
[22] The parties next attended before Justice Corbett on February 21 2012. Justice Corbett made further orders on February 21, 2012 as follows:
Alessandra shall attend the reunification therapy. She shall attend weekly, or is the therapist directs. Ms. Campo shall facilitate and support this therapy.
If there is any failure to attend in accordance with this order and this Court’s Order of February 16, 2011, Mr. Campo may come before this court for:
(a) sole custody of Alessandra;
(b) an order for contempt;
(c) such other remedy as counsel may advise.
- The costs shall be referred to this court on the next appearance or, alternatively, to the trial judge.
[23] Justice Corbett was subsequently transferred to sit as a judge of the Superior Court of Justice in Toronto.
[24] This motion for a finding of contempt against Ms. Campo for breaching the three orders described above was brought back again as a fresh motion returnable on January 21, 2014. On the new motion, Mr. Campo seeks a finding that Ms. Campo is in contempt of court because she:
Deliberately and willfully failed to comply with the provisions of the orders of the Honourable Mr. Justice Corbett dated February 16, 2011 and February 21, 2012, which required her to participate and cooperate with the therapeutic reconciliation and to ensure that Alessandra participated and attended for appointments as directed and required her to facilitate and support the therapy;
deliberately and willfully failed to comply with the provisions of paragraph 3 of the order of the Hon. Mr. Justice Del Frate dated November 3, 2009, which provided for the child of the marriage, Alessandra, born May 21, 1998, for access with the respondent; and
deliberately failed to consult with the respondent regarding Alessandra contrary to paragraph 2 of the order of the Honourable Mr. Justice Del Frate dated November 3, 2009.
[25] The new motion came on for hearing before Justice Seppi on January 21, 2014. The contempt motion was prudently converted by Justice Seppi to a settlement conference to explore the issues and the contempt motion was adjourned to March 12, 2014. The contempt motion was adjourned ultimately to October 6, 2014 when I directed that the motion materials from all previous proceedings be reassembled as an expanded compendium for me to hear the motion on December 9, 2014.
Analysis
[26] The respondent brings this motion under Family Law Rule 31. Family law Rule 31 provides that an order, other than a payment order, may be enforced by a contempt motion in the case in which the order was made, even if another penalty is available. A case is defined under the Family Law Rules as an application or any other method allowed by law for bringing a matter to court for a final order, and includes all motions, enforcements and appeals.
[27] The court is given extensive powers of the discretionary nature by Family Law Rule 31 if a person is found to be in contempt of court. Family Law Rule 31(5) provides the court with the power to order that the person found in contempt:
CONTEMPT ORDERS
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) ay costs in an amount decided by the court; and
(g) obey any other order. O. Reg. 114/99, r. 31 (5).
[28] The Form 31 Notice of Contempt Motion filed by Mr. Campo does not set out the relief he seeks should this court find the applicant Anna Marie Campo in contempt of one or more of the three previous orders. However, Mr. Campo’s factum filed for the return of the motion on December 9, 2014, requests an order upon a finding of contempt that he be awarded custody of Alessandra, that the applicant pay the costs of all contempt proceedings retroactive to December 22, 2010 on a full recovery basis, and an order that the applicant pay to him a fine in an amount to be set by the court to satisfy in part any outstanding spousal support.
[29] The starting point on any contempt motion is the recognition that court orders must be obeyed. The Court of Appeal has recently restated this fundamental requirement in Boily v. Carleton Condominium Corporation No. 145, 2014 ONCA 574 in the following terms:
80 The purpose of a penalty for civil contempt is to enforce compliance with a court order and to ensure societal respect for the courts: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, at 1075. The remedy for civil contempt is designed not only to enforce the rights of a private party (See: Poje v. Attorney General (B.C.), [1953] 1 S.C.R. 516 at 517; Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1, at para. 37), but also to enforce the efficacy of the process of the court itself. Justice McLachlin powerfully expressed this broader purpose in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 931, stating:
[t]he rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.
[30] Given the sanctity of court orders and the gravity of the offence if a party is found in contempt for noncompliance of an order, the courts have developed a specific test that is to be strictly applied in order for a person to be found in contempt. In Hobbs v. Hobbes, 2008 ONCA 598, [2008] O.J. No. 3312 (Ont. C.A.), the Court of Appeal confirmed the following three-part test of what is required to find contempt:
(a) a clear and unequivocal order as to what must be done or not done;
(b) a deliberate or willful disobedience of the order; and
(c) proof of those matters on a criminal standard, which is beyond a reasonable doubt.
[31] Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed.
[32] Contempt proceedings in the family law context are no less onerous for a finding of conduct worthy of sanction against a person than in any other area of law. Evidence of contempt must be clear and unequivocal in family law proceedings and even then, restraint is appropriate in making such findings: A.G.L. v. K.B.D., [2009] O.J. No. 1342, citing Brooks v. Vander Muelen (1999), [1999] 141 Man. R. (2d) 25 (Q.B.) with approval. It is been held that where a custodial parent can show that he or she acted at all times in the best interest the child and not with the intention of disobeying a court order, the court should be reluctant to make findings of contempt.
[33] The law is clear that a motion for a finding of contempt in a civil proceeding should only be used as a last resort. Further, the contempt remedy should neither be sought or granted in family law cases where other remedies are better suited or otherwise available under the circumstances: Hefkey v. Hefkey, [2013] O.J. No. 1697, 2013 ONCA 44.
[34] I find that the order made by Justice Del Frate on November 3, 2009, based on the language of the minutes of settlement filed by the parties, is not so clear and unequivocal to satisfy the first part of the test for contempt. Paragraph 3 of that order grants a right of access to Mr. Campo, but does not specify what Ms. Campo must or must not do with respect to accommodating the exercise of that access. Without that essential ingredient set out in the clearest of terms, the court cannot measure what Ms. Campo did or did not do to comply or breach the order.
[35] Justice Corbett heard the first contempt motion based on Justice Del Frate’s final order on December 22, 2010. This motion was brought on grounds Mr. Campo perceived as being Ms. Campo’s failure to comply with that order. Justice Corbett recalibrated Mr. Campo’s motion for contempt into a process to explore the healing of Mr. Campo’s relationship with Alessandra without further injury to the family. Justice Corbett’s orders on February 16, 2011 and February 21, 2012 were made as part of that healing process. By finding that the case was not appropriate for a contempt motion, I take it that Justice Corbett found that on the facts before him and because of the relationship between the parties, Alessandra should not have to endure the contempt process and that family members would be better served by professional assistance to reintroduce and build family relationships.
[36] In my view, where a judge hears the contempt motion and declines to find a party in contempt, the motion for contempt of the baseline motion is spent. I can envisage circumstances in which a party to any family law case may claim that another party has breached previous court orders continuously and that the contempt is cumulative notwithstanding individual findings on earlier motions, but that is not the case here.
[37] It is apparent to me that it is not possible to determine that Ms. Campo failed to comply with the orders made by Justice Corbett on either February 16, 2011 or February 21, 2012, or that she did so willfully or deliberately beyond a reasonable doubt on the material before me. I would have to hear from Alessandra to have her evidence on whether she refused to participate in the reunification process of her own volition. I would also find it helpful to hear from the parties and to observe them under cross-examination. The evidence of other witnesses, such as Jacqueline Vanbetlehem, could also prove instrumental in making determinations on the second and third part of the test for contempt.
[38] I also recognize that Ms. Vanbetlehem has declined further involvement in this case. In her place, Ms. Lourdes Geraldo in Hamilton has provided counselling to Ms. Campo and to Alessandra. She has written a letter to counsel dated March 4, 2014 that discusses her sessions with each of them. I would think Ms. Geraldo’s evidence on the reasons why Alessandra has not participated in the therapy prescribed by Justice Corbett’s orders would be insightful to the adjudication process on the issues.
[39] Ms. Campo relies upon the case of Korczynski v. Korzynski, [2012] O.J. No.1816 (S.C.J.) for authority that a child of 16 years or older should determine the appropriate level of access with her father.
[40] However, it was held in Styut v. Styut, 2009 CanLII 43948 (ON SC), 2009 CarswellOnt 3432, that where a parent has been ordered to abide by an access order allowing the other parent access to the child, the parent governed by the access order is not entitled in law to leave access up to the child. It is the responsibility of the residential parent not just to “accommodate” access, but to “facilitate” the access. To put a finer point on it, although it is not necessary for the residential parent to “force” the child to make herself available for access, that residential parent should “require” the child to attend where and when required by the court for the other parent to exercise access: see S.V. v. C.T.I., 2009 CanLII 9396 (ON SC), 2009 CarswellOnt 1023.
[41] Ms. Campo also relies upon the case of Posinelli v. Sansi, [2012] O.J. No. 553 to argue that delay in prosecuting a motion for contempt is a sufficient ground to have the motion dismissed.
[42] In terms of process, the courts have consistently held that where there is a controversy as to the factual foundation for a contempt motion, the common law has developed principles of fundamental justice that require a viva voce hearing: R. v. Jekyll Manufacturing Ltd. and Alexander, [1987] O.J. No. 2 (Ont. C.A.) and R. v. B.E.S.T. Plating Shop Ltd., and see also [1987] (Ont. C.A.). See also paragraphs 10 to 12 in Fischer v. Milo, [2007] O.J. No. 3692 in which Justice D.M. Brown (as he then was) discusses how motions for contempt may proceed in a summary fashion through a hearing on a written record, or on an oral hearing with viva voce evidence.
[43] I am compelled to return to the relief Mr. Campo was seeking on this contempt motion before I make orders for a trial of the issues. I do so in the hope that the parties will take into account my views on what the law would require with respect to the various forms of relief requested on the motion should this motion proceed to trial.
[44] In Boily v. Carleton Condominium Corporation 145, the Court of Appeal clearly endorsed the two-stage approach for contempt hearings divided between the hearing of a contempt motion to adjudicate on whether a party is to be found in contempt, and the sanction stage if contempt is found. I would follow this approach as a matter of law, which means that even if on the final adjudication of Mr. Campo’s motion I were to find Ms. Campo to be in contempt, I would still require a separate hearing to determine the remedy.
[45] Mr. Campo has served notice in his factum that he seeks sole custody of Alessandra as one of those remedies. Even though Alessandra turns 17 on May 21, 2015, every day in the life of a child is precious. While Alessandra remains a child under 18 years of age and the subject of an access order under the Divorce Act or the Children’s Law Reform Act, every step Mr. Campo takes to restore his parent and daughter relationship with her is important. However, like any other proceeding in which the custody of or access to a child is claimed, the best interests’ of the child is the primary, if not the sole consideration. This means that custody of Alessandra would not be an available remedy if Ms. Campo was found to be in contempt of previous access or facilitation orders without the court having the evidence to determine that a change of custody would be in Alessandra’s best interests. It seems to me that Mr. Campo would find it both effective and efficient if he were to consolidate his motion to change that in which custody of Alessandra is an issue with the balance of this motion for contempt. In that way, custody of Alessandra under both motions can be determined at the same time.
[46] Mr. Campo has also made reference in his factum to seek a fine against Ms. Campo if she were to be found in contempt. The Court of Appeal in Susin v. Susin, 2014 ONCA 733, has identified that a fine levied as a sanction for the contempt of one party is not payable to the other, but rather to the Provincial Treasurer. As the court stated at paragraph 39:
39 Respectfully, in my view the motion judge erred in imposing a fine payable to the estate. This Court has held, in SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, 94 O.R. (3d) 236, that a fine imposed for civil contempt of court ought not to be payable to a party in the action but, rather, to the Provincial Treasurer. As Laskin J.A. explained, at paras. 14 and 15:
Contempt of court for breach of a court order is an offence against the authority of the court and the administration of justice. As Cumming J. said in Sussex Group Ltd. v. 3933938 Canada Inc. (c.o.b. Global Export Consulting), [2003] O.J. No. 2952, 2003 CanLII 49334 (S.C.J.), at para. 13, "It does not have, and must not appear to have, the function of a civil action in tort or for breach of contract." See, also, Royal Bank of Canada v. Yates Holding Inc., [2007] O.J. No. 1264, 2007 CanLII 23601 (S.C.J.), per Cumming J., at para. 19. A fine for contempt of court, therefore, should not go to the plaintiff in the lawsuit.
Provisions of the Criminal Code, R.S.C. 1985, c. C-46 and the Courts of Justice Act, R.S.O. 1990, c. C.43 support this conclusion. The Criminal Code is relevant because, although the appellants committed a civil contempt of court, civil contempt bears the imprint of the criminal law. A person found in civil contempt may face any sanction available for the commission of a criminal offence. A fine is one of those sanctions: see s. 734.1 of the Criminal Code; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52; and Chiang (Trustee of) v. Chiang, [2009] O.J. No. 41, 2009 ONCA 3. [Emphasis added.]
[47] I make these comments so that the parties have a clear understanding where the contempt process may or may not lead.
Order
[48] On reviewing the evidence given by affidavits and transcripts from questioning, and on the application of the principles under Family Law Rule 31, I order that:
The motion of the respondent, Mr. Felice Campo for a finding that the applicant mother, Anna Maria Campo is in contempt of paragraph 3 of the order made by Justice Del Frate on November 3, 2009 is dismissed.
The motion of the respondent, Mr. Felice Campo as it relates to the alleged contempt of the applicant Anna Maria Campo for breaching paragraph 2 of the order made by Justice Del Frate or the orders made by Justice Corbett on February 16, 2011 or February 21, 2012 is adjourned for the hearing of viva voce evidence of witnesses to be called by either the respondent or the applicant. These witnesses shall include, but not be limited to Alessandra Campo, on a date to be scheduled forthwith for a hearing of viva voce evidence to take place before May 21, 2015, if possible. Alternatively, if this motion is consolidated within the next 30 days on consent or by order of this court with the motion to change that Mr. Campo has brought, then the hearing of this motion shall continue as part of the hearing of that consolidated proceeding on a date convenient to the parties and as soon as possible as that hearing can be accommodated by the court
The costs of the motion to date are reserved to the judge hearing the balance of the motion on viva voce evidence or the consolidated proceeding, as the case may be.
EMERY J
Released: February 27, 2015
CITATION: Campo v. Campo, 2015 ONSC 1349
COURT FILE NO.: FS-06-056967
DATE: 2015 02 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNA MARIA CAMPO
John-Michael Campo
An infant under the age of eighteen years, by his litigation guardian, Anna Marie Campo
Applicant
- and -
FELICE CAMPO
Respondent
REASONS FOR DECISION
EMERY J
Released: February 27, 2015