Dephoure v. Dephoure, 2015 ONSC 2170

CITATION: Dephoure v. Dephoure, 2015 ONSC 2170

COURT FILE NO.: 31721/09

(Milton)

DATE: 2015-04-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WAYNE ROBERT DEPHOURE - and - TRACEY-LYNN DEPHOURE

BEFORE: Lemon J.

COUNSEL: Wayne Robert Dephoure, on his own behalf

Tracey-Lynn Dephoure, on her own behalf

HEARD: March 30, 2015

E N D O R S E M E N T

The Issue

1Ms. Dephoure has brought a motion for contempt against Mr. Dephoure. She says that he:

(1) Failed to inform her of an emergency medical appointment on February 3, 2012 pursuant to the Order of Justice Gray dated January 14, 2011.

(2) Failed to compensate her $3,194.06 for a Canadian Revenue Agency refund pursuant to the same order.

(3) Failed to adhere to the access schedule in February, March, September, November, and December 2013 pursuant to the order of Justice Coats dated June 15, 2011.

2Mr. Dephoure denies that he is in contempt of any order.

3In the parties’ materials, they responded to a variety of allegations raised by the other. Many of them are unrelated to the issues that are set out above. A finding of contempt is the only determination that I can make; matters of dispute between the two that do not relate to whether contempt is proven are not relevant.

4A finding of contempt may lead to changes in the outstanding order; however, without such a finding in this motion, I can make no variation to this order.

5After hearing submissions, I dismissed the motion for reasons to follow. These are those reasons.

6The parties were married January 22, 2005 and separated on July 8, 2009. They have one child, Lindsey, who is now nine years of age.

7On January 24, 2011, a consent order was made. That order, among many other things, granted the parties joint custody of Lindsey.

8Since then, the parties have been in court a number of times. Mr. Dephoure tells me that it has totaled 22 times and 11 of those have been before me. In the past, I have made an order for contempt against Ms. Dephoure and I have dismissed an earlier motion for contempt against Mr. Dephoure. Both parties are well informed on the law and procedure of motions for contempt. They are aware of the law of costs if unsuccessful.

9For this motion, Ms. Dephoure has filed two affidavits and Mr. Dephoure has filed three. All affidavits have many exhibits. Many of the exhibits are emails between the parties. Some exhibits are inadmissible unsworn letters. There is a great deal of hearsay upon which I cannot rely.

10I advised both parties that they had a right to a viva voce hearing on the issue of contempt. Both confirmed that they wished to proceed with these issues on the affidavit material and without live witnesses or cross-examinations.

Proof and Onus

11Contempt must be proven against the respondent beyond a reasonable doubt. The onus to prove the contempt is upon the moving party. Mr. Dephoure does not need to lead evidence that he is not in contempt; rather Ms. Dephoure must lead evidence to prove that he is in contempt. Ms. Dephoure alleges a variety of complaints against Mr. Dephoure. Based only on the affidavits filed, I cannot tell, for certain, who is telling the truth with respect to Ms. Dephoure’s allegations. Without sufficient proof, I can make no finding of contempt against Mr. Dephoure.

Emergency Medical Appointment

12Ms. Dephoure alleges that Mr. Dephoure failed to inform her of an emergency medical appointment on March 2, 2012 and a dental appointment on January 14, 2014. Allegations of contempt must be specifically proven. The Notice of Motion refers to a medical appointment of February 3, 2012. The affidavit in support refers to events March 2, 2012 and January 14, 2014. On that basis, alone, the allegation relating to February 3, 2012 must be dismissed.

13In any event, there is no evidence upon which I can be certain that the appointment in issue was for an emergency or simply a medical or dental appointment. The order only requires 72 hours notice to the other parent of a non-emergency medical or dental appointment and Mr. Dephoure appears to have done that.

14Mr. Dephoure has set out his response to this allegation and there is no reason for me to reject it.

15This allegation of contempt is not proven.

Canada Revenue Agency

16Ms. Dephoure alleges that Mr. Dephoure did not pay to her a tax refund that should have been shared between them pursuant to the order of Justice Gray. Mr. Dephoure sets out that he received those funds but he deducted sums that Ms. Dephoure had failed to pay into the joint RESP plan as required by the same order. He made those payments on her behalf and then sent her the balance. Ms. Dephoure does not deny that she had fallen behind on those payments but says that she was in the process of catching up. She does not deny that she received the balance of funds as sent by Mr. Dephoure. I am satisfied that Mr. Dephoure properly accounted for those funds and is not in breach of the order.

17This allegation of contempt is not proven.

Access schedule

18Mr. Dephoure is a pilot for Air Canada. He is required to “bid” on his work schedule for future months. Accordingly his schedule is uncertain. Therefore, in the first order, access was agreed upon with the following terms:

10. (iii) The parties agree that the times set out in this paragraph may have to change to accommodate the Applicant/Father and Respondent/Mother’s work schedule;

11. (iii) The parties agree that the times set out in this paragraph may have to change to accommodate the Applicant/Father and Respondent/Mother’s work schedule, but shall be subject to the same terms and conditions as set out herein.

12. The Applicant/Father anticipates receiving a copy of his work schedule on the 26th of each month. The Applicant/Father shall provide a copy of his work schedule to the Respondent/Mother within forty-eight (48) hours of his receipt of same. When the Applicant/Father provides his work schedule to the Respondent/Mother, the Applicant/Father shall indicate to the Respondent/Mother when he is available to have the child with him in accordance with the parenting schedule herein. The parties shall attempt to agree upon the dates and times for the Applicant/Father’s time with the child in accordance with the parenting schedule herein. The Applicant/Father shall use his best efforts to bid a regular work schedule to ensure consistency and predictability in his access. The parties shall finalize the parenting schedule for the coming month, no later than the 30th of each month.

13. The Applicant/Father and Respondent/Mother shall maintain a flexible approach with respect to the dates and times for the Applicant/Father’s access to accommodate both parties work schedules.

14. The Applicant/Father and Respondent/mother shall maintain a flexible approach with respect to the dates and times for the Applicant/Father’s access to allow the child to participate in activities.

19There were difficulties with access and Mr. Dephoure’s work schedule. A further consent order was made June 15, 2011. The new terms amended paragraphs 9 (iii), 10 (iii), 11 (iii) and 19 as follows:

9. (iii) The parties agree that the times for access may have to change to accommodate the Applicant/Father’s work schedule;

10 (iii) The parties agree that the times set out in this paragraph may have to change to accommodate the Applicant/Father’s work schedule;

11.(iii) The parties agree that the times set out in this paragraph may have to change to accommodate the Applicant/Father’s work schedule, but shall be subject to the same terms and conditions as set out herein.

19. The Applicant/Father and Respondent/Mother shall maintain a flexible approach with respect to the dates and times for the Applicant/Father’s access to accommodate the Applicant/Father’s work schedule.

20That amendment removed any reference to Ms. Dephoure’s work schedule. Accordingly, the parties agreed that the times for access would have to accommodate Mr. Dephoure’s work schedule with a flexible approach by both.

21The primary issue between the parties is as to whether the access schedule over five months in 2013 was properly within the terms of the court order. Ms. Dephoure complains that Mr. Dephoure had too many consecutive days of access to the child. In return, he submits that he did the best that he could with his work schedule, the numbers of days are different than what Ms. Dephoure calculates and, in any event, she had more consecutive overnights with the child. For the following reasons, I need not delve into the details of this issue.

22Coincidental with this motion was Mr. Dephoure’s motion to vary some of the terms of the access schedule. I am advised that those proceedings have been settled with some changes to the schedule. From that, I presume that access will work out going forward.

23Contempt findings should be made sparingly and only where other methods have failed. We are now two years after the first two months in issue and about a year and a half after the last three. These sorts of allegations are not the appropriate topic for such a serious matter as contempt.

24For a contempt finding, the order in issue must be expressed in clear, certain and unambiguous language. The parties agreed that access might have to change to accommodate Mr. Dephoure’s work schedule. On these materials, I can make no finding that the access was not properly compliant with the order.

25This allegation is not proven.

Costs

26Mr. Dephoure sought costs in the amount of $990.04 for disbursements along with approximately $400 for the work that he had to carry out in preparation for the motion. He asked that I order Ms. Dephoure to make a payment with respect to the RESP account. Finally, he pointed out that Ms. Dephoure had not paid an earlier costs order of $180 dated March 19, 2015.

27Ms. Dephoure submitted that she has limited income, the earlier costs order payment was in the mail and that at most, she could afford $100 a month towards a costs order.

28I cannot make an order that Ms. Dephoure pay into the RESP. That is already part of Justice Gray’s order.

29With respect to costs of this motion, I am satisfied that $1,400 is an appropriate costs order. There have been two attendances before me, the materials are thick, the argument was approximately an hour and these issues are very important to the parties. I do not know Ms. Dephoure’s present financial circumstances because they were not relevant to the issues of contempt. However, from my earlier dealings with the parties, I am aware that she is of limited means but not impecunious. She shall pay the costs order at the rate of $150 per month commencing May 1, 2015.

Lemon J.

DATE: April 8, 2015

CITATION: Dephoure v. Dephoure, 2011 ONSC 2170

COURT FILE NO.: 31721/09

(Milton)