BARRIE COURT FILE NO.: FC-14-800-00

DATE: 20160630

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Natalie Marie Clinton, Applicant

and

Iain Nelson Clinton, Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL:
Barrie M. Hayes, for the Applicant
Lynn Kirwin, for the Respondent

HEARD: June 18, 2015

ENDORSEMENT

Introduction

[1] This motion is brought by the applicant, Natalie Clinton, to find the respondent, Iain Clinton, in contempt of court as a result of his having breached the order of Justice Wildman, dated February 19, 2015. The specific provisions of the February 19, 2015 order (made on the consent of all parties) that the respondent is alleged to have breached are as follows:

(a) The Office of the Children’s Lawyer (OCL) shall be requested to assist on the issues of custody and access to the [3] children [all age ten]… (Para. 1)

(b) The parties forthwith shall retain Amy deMunnik to provide reconciliation counselling for the children and the respondent. The parties shall share the cost of such counselling not covered by their respective extended benefits providers equally. (Para. 2)

(c) The respondent shall provide the applicant with information of the place of the exercise of his [Sunday] access and shall provide the name of his chosen third party [supervisor] by Wednesday at 6:00 p.m. prior to each weekend. (Para. 11)

[2] The respondent has replied with a countermotion seeking a new access regime and the immediate appointment of a named social worker to “conduct a social work assessment into the long term best interests of the children…act as a parenting coach/coordinator for the parents in facilitating access…counsel the children with regard to transitioning them towards the new access regime with their father…”

[3] For the reasons set out below, the applicant’s motion for finding the respondent in contempt of paragraph 1 of the Order of February 19, 2015, is allowed. The balance of the motion is dismissed. The penalty phase of the proceeding is adjourned to be heard by me on a date to be scheduled by the parties in accordance with the instructions set out in this Order.

Background Facts

Office of the Children’s Lawyer

[4] The parties were married in 1996 and separated in August 2013. The Children’s Aid Society (CAS) became involved with the family in June 2013, following police involvement when the respondent was asked by police to leave the matrimonial home. Since separation, the three children have resided with the applicant in the matrimonial home with little contact with their father. The purpose of the consent order of February 19, 2015 was to establish reconciliation counselling between the children and the respondent and provide for some supervised access for the respondent.

[5] The court hearing the February 19, 2015 motion was of the opinion that this high conflict file included difficult allegations and requested the OCL’s involvement because “the children also need a voice.” Her custody/access order (also dated February 19) requires each of the parties to complete and forward separate OCL intake forms to the OCL “within 14 days of this date.” As indicated above, this order was on the consent of the parties.

[6] The applicant complied with this order and her intake form was forwarded to the OCL on March 3, 2015.

[7] Compliance with the February 19, 2015 order broke down almost immediately. The respondent’s first Sunday access on February 22, 2015 was cancelled by the applicant because the respondent did not provide the required information regarding access prior to the 6:00 p.m. deadline[^1] and the respondent wanted to exercise the access on the Saturday rather than the Sunday. The disagreement over this first access turned into an angry email argument and led to the applicant calling the police in response to emails which she interpreted as threats[^2].

[8] The respondent retaliated by refusing to comply with the requirement to complete and forward the OCL intake form. On February 25, 2015, the respondent’s lawyer, Ms. Kirwin, wrote to counsel for the applicant, Mr. Hayes, to advise that the respondent would not complete the OCL intake form because he was of the opinion that the applicant was responsible for the cancellation of the first Sunday access on February 22, 2015. Ms. Kirwin’s letter stated:

My client does not wish to proceed with a referral to the Office of the Children’s Lawyer until such time as your client is fully engaged with the parenting coordinator, Ms. Alton. It appears that we are at a significant impasse due to the events of last weekend. …My client considers the process of moving forward extremely important but after Saturday he is skeptical that it will move forward. He considers the process flawed and broken. He requires a letter of apology and that the OCL appointment be temporarily halted until the matter is resolved.

[9] On February 26, 2015, the applicant’s lawyer wrote to the respondent’s lawyer urging her to have her client comply with the custody/access order and complete the OCL intake forms within fourteen days. The respondent did not comply.

[10] On April 17, 2015, the OCL wrote to the parties’ lawyers to advise that it was in receipt of the February 19, 2015 order requesting their involvement, but had decided not to provide service at this time for two reasons:

We have been advised that supervised access, or a new access arrangement, has just started. We encourage the parties to allow the new access arrangement to continue for a sufficient period of time before having the arrangements re-evaluated.

Iain Clinton [the Respondent] did not provide our office with an Intake Form within 14 days. After careful review of the one Intake Form received, we do not have sufficient information to determine whether we can be of assistance in this matter.

[11] Following receipt of this letter, the applicant’s lawyer wrote to the OCL on April 22, 2015, asking whether there was a process whereby their decision not to become involved in the file can be reviewed, and advising that the new access arrangement was not proceeding in accordance with the February 19, 2015 order. The OCL responded on April 27, 2015, that it had “carefully reviewed the information received” but were “once again declining involvement.”

[12] The respondent denies that he refused to sign the necessary forms for the OCL. His affidavit states that he “contacted the OCL and spoke to an intake worker…The intake worker informed me that our case didn’t warrant OCL involvement as it wasn’t “serious” enough. I was informed by the OCL that Natalie [the applicant] had submitted the necessary forms but that they had decided they would not be accepting the referral.”

Reconciliation Counselling

[13] The parties, together with their lawyers, met with Ms. deMunnik on April 10, 2015 to review her role in the reconciliation process. On April 15, 2015, Ms. deMunnik provided the respondent with an Authorization Form and Service Agreement. On April 20, 2015, the respondent wrote to Ms. deMunnik informing her that “I cannot sign any consent form” until the dispute with the applicant regarding access had been resolved. Ms. deMunnik replied, indicating that she cannot engage in service without a Service Agreement, and so could not move forward. The respondent replied to Ms. deMunnik on April 21, 2015, that “once visitation starts to occur and I receive a simple written apology, all will be forgiven and I will sign your consent form.”

[14] The respondent denies that he refused to sign the consent form. On May 8, 2015, four days after being served with the contempt motion, the respondent a signed the consent form and faxed to Ms. deMunnik on that same day. The applicant’s counsel was not advised that the consent had been signed and sent to Ms. deMunnik.

[15] The respondent’s affidavit states:

Subsequent to faxing the signed service agreement for Ms. deMunnik, my counsel contacted Ms. deMunnik who advised me (sic) that Ms. deMunnik is not prepared to proceed with the counselling. She stated that she had agreed to meet with the parties but having considered the case she was not equipped to handle the case as she is a sole practitioner. She stated that she believed my family required a multi-disciplinary approach.

[16] The respondent’s counsel did not advise the applicant’s counsel of Ms. deMunnik’s position until the respondent’s affidavit in this proceeding was served.

Access

[17] The applicant has listed seventeen Sundays between February 22 and June 14, 2015, when access by the respondent should have taken place. Access did not take place on eleven of these occasions, primarily because the respondent did not, or was unable to, provide the applicant with the information (the place of exercise or the name of the witness (supervisor)) required in paragraph 11 of the February 19 order by Wednesday at 6:00 p.m. prior to each weekend, as required by that order. The respondent takes the position that he has tried his best to provide the information required by the deadline, but the applicant has been inflexible with regard to the interpretation of this paragraph, and has cancelled the access whenever he could not comply with its strict terms.

[18] For the reasons I will set out in my analysis of the legal issues, it is not necessary for me to parse the details of each of these eleven occasions.

Legal Analysis

[19] Contempt is a serious remedy and is not to be granted lightly: see Fisher v. Fisher, 2003 2119 (ON SC), [2003] O.J. No. 976 (S.C.J.). It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. Often, although not always, a trial is necessary to establish the alleged contempt beyond a reasonable doubt: see Coletta v. Coletta, 2003 2412 (ON SC), [2003] O.J. No. 81 (S.C.J.). The cases state that the civil contempt remedy is one of last resort and that great caution must be exercised when considering contempt motions in family law proceedings. Any doubt must be exercised in favour of the person alleged to be in breach of the order. (See: Prescott Russell Services for Children and Adults, (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (Ont.C.A.), Hefkey v. Hefkey, 2013 ONCA 44, Children’s Aid Society of Ottawa v. S.(D.), 2001 28152 (ON SC), [2001] O.J. No. 4585. Finally, and as set out Bowman v. Bowman, [2009] O.J. No. 2993 (S.C.J.) at para. 17, to make a finding of contempt, the court must be satisfied as to three elements of the alleged contempt:

(a) The order must be clear and not subject to different interpretations;

(b) The acts stated to constitute the contempt must be wilful rather than accidental; and

(c) The events of contempt must be proven beyond a reasonable doubt.

(See also: Prescott Russell Services for Children and Adults v. G(N), supra; Davydov v. Kondrasheva, 2012 ONCA 488; and Hobbs v. Hobbs, 2008 ONCA 598, [2008] O.J. No. 3312 (Ont. C.A.))

[20] Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed.

[21] Notwithstanding the court’s reluctance to exercise its contempt powers, it is important that such powers be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip. In Surgeoner v. Surgeoner, [1992] O.J.No.299, Justice Blair stated (at paras. 6 and 7):

The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness.” In this environment it is all too easy for a spouse to believe that he or she “knows what is right”, even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated.

[22] The availability of a contempt order to enforce a court order is set out in s. 31(1) of the Family Law Rules, O Reg 114/99, which provide:

31. (1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.

[23] I am satisfied that none of the orders sought to be enforced in this case qualify as a “payment order” since they do not require a person to pay money to another person (Salituro v. Salituro, 2015 ONSC 3010, at paras.11–12).

[24] The court is given extensive remedial powers if a person is found to be in contempt of court. Family Law Rule 31(5) provides:

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. (O. Reg. 114/99, r. 31(5))

[25] I will examine the claims of contempt in light of these principles.

[26] With regard to the respondent’s failure to provide the applicant with the information (the place of exercise or the name of the witness (supervisor)) by Wednesday at 6:00 p.m. prior to each weekend, I find that the respondent did not wilfully disobey this part of the order. Based on the affidavit evidence, it appears that the respondent was often unable to ascertain the name of the supervisor in time and was therefore denied access by the applicant. His failure to comply was not deliberate and he appears to have made his best efforts, notwithstanding his frequent lack of success. I think that all parties now recognize that the 6:00 p.m. Wednesday deadline was overly optimistic. With respect to the first cancelled access of February 22, 2015, counsel for the applicant candidly acknowledged in his February 26, 2015 correspondence to counsel for the respondent that “both of our clients should have shown more flexibility and good faith in their dealings with each other last weekend. No practical purpose is served by arguing over who should assume responsibility for the failure of your client’s access visit.”

[27] I would also conclude that this particular aspect of the order is not one which is appropriately enforced through a contempt proceeding. The respondent’s obligation to provide the required information by Wednesday at 6:00 p.m. was a condition of access. If the respondent failed to provide the information, he did not meet the conditions for access, and the applicant could, and did, deny access. In that sense, the “penalty” or consequence for non-compliance is already set out in the order and there is nothing to be gained from a contempt motion.

[28] With regard to the respondent’s refusal to retain Ms. deMunnik to provide reconciliation counselling for the him and the children, I agree that the respondent did not provide his consent “forthwith” as required by the Order, and, at least at first, deliberately refused to sign in order to extort an apology and other concessions from the Applicant. That is clear from his own April 21, 2015 email to Ms. deMunnik. Once again, however, the reconciliation counselling was for the respondent’s own benefit and, in refusing consent, he seems, to use an old expression, to have “cut off his nose to spite his face”, a practice which seems to be something of a pattern with him.

[29] The respondent contends that his subsequent consent on May 8, 2015, still met the “forthwith” requirement, since it was signed approximately three weeks after it was sent to him. Given the timing, I can infer that service of this contempt motion was the impetus for that signature. Still, the term “forthwith” is sufficiently ambiguous and, given the fact that he did sign the consent before this motion was heard, I must resolve any doubt in the respondent’s favour. This is not a case in which the court imposed a precise deadline, where failure to meet the specified date could more easily lead to a finding of contempt.

[30] The respondent’s failure to complete and forward the OCL intake form to the OCL “within 14 days of” the February 19 Order is of greater concern. It is apparent from the letter written by the respondent’s lawyer on February 25, 2015, that the respondent understood precisely what his obligation was under that order and was wilfully refusing to comply with this aspect of the court order in an effort to extort an apology and other concessions from the applicant. This letter provides proof beyond a reasonable doubt of the respondent’s deliberate intent. It is not appropriate for parties to disobey the clear words of a court order in order to retaliate against another party or force the other party to make further concessions. Of equal concern in this regard, is the conduct of his lawyer who, by writing this letter, appears to condone and facilitate this behaviour. It is the duty of counsel to explain to their client that he or she is subject to and must comply with the court order.

[31] This is not a situation in which any conduct of the applicant frustrated the respondent’s ability to fulfill his obligation to complete and forward the OCL intake form as required by the February 19, 2015 order. The respondent’s obligation in this regard was independent of any offence, real or imagined, which the applicant’s conduct may have caused. This seems to be one of the situations described by Justice Blair in Surgeoner, supra, and which calls for the sanctions contemplated by that case.

[32] Finally, I make two observations regarding the respondent’s statement in his affidavit that he “contacted the OCL and spoke to an intake worker” who informed him that the “case didn’t warrant OCL involvement as it wasn’t ‘serious’ enough” and that the OCL had already decided not to accept the referral on the basis of the forms submitted by the applicant.

[33] Firstly, this evidence is inadmissible. Rules 14(17) to 14(20) of the Family Law Rules set out what evidence can be used on a family law motion. As a general matter, evidence on motions may be given by affidavit, and rule 14(19) provides that affidavit evidence may “contain information that the person has learned from someone else.” But rule 14(19) imposes two important limitations on such evidence. Rule 14(19)(a) requires that the “source of the information is identified by name.” This is necessary so that the other side can confirm the information if it is disputed. The respondent’s affidavit refers only to an unnamed “intake worker”, making it impossible for the applicant to verify this disputed information.

[34] In addition, rule 14(19)(b) provides that affidavit evidence on a contempt motion under Rule 31 may be based on information learned from someone else “only if…the information is not likely to be disputed.” This part of the respondent’s evidence is clearly contentious and disputed by the applicant. As such, this paragraph of the respondent’s evidence is inadmissible on the basis that it does not comply with either of the two requirements set out in rule 14(19).

[35] Second, even if this evidence were admissible, I do not believe that the respondent has accurately described the conversation. The information allegedly communicated to the respondent by the unidentified intake worker is contradicted by the April 17, 2015, correspondence from the OCL which stated “Iain Clinton [the Respondent] did not provide our office with an Intake Form within 14 days. After careful review of the one Intake Form received, we do not have sufficient information to determine whether we can be of assistance in this matter.” (emphasis added)

[36] In any event, as indicated above, it is clear from his lawyer’s letter of February 25, 2015, that the respondent deliberately refused to comply with the requirement to complete and forward the OCL intake form to the OCL “within 14 days of” the February 19 order.

[37] Accordingly, I find the respondent’s conduct with regard to paragraph 1 of the order meets the three part test for contempt. The order was clear and unambiguous, his refusal to comply with the order was wilful and deliberate, and the events of the contempt and all of its elements were proven beyond a reasonable doubt.

Remedy

[38] The applicant has been fairly constrained in the relief that she requests. To her credit, her primary concern appears to be to get the reconciliation counselling between the children and the respondent and the supervised access contemplated by the February 19, 2015 order back on track. Indeed, given the failure of the deMunnik retainer, both parties recognise that some alternative is required. They are, however, unable to agree on who that person should be.

[39] The applicant has requested that:

(a) The present order be varied to provide that notice of the name of the respondent’s witness to the exercise of his access be provided no later than 3:00 p.m. Friday prior to access;

(b) That the respondent’s access be fixed to commence at 11:00 a.m. until 3:30 p.m.;

(c) That the applicant transport the children to the access as long as the distance for the exercise of access is the equivalent of from Alliston to Newmarket;

(d) That Jill Foley be retained forthwith to provide counselling for the children with such counselling focused on the issue of addressing a reconciliation between the children and the respondent. That Jill Foley either file a report addressing the views and preferences of the children in relation to the issue of the respondent’s access with the children or, in the alternative, that the respondent be responsible to pay for the costs of retaining private OCL lawyer to determine the views and preferences of the children in relation to custody and access; and,

(e) That New Path Alliston provide further counselling or support services for the children.

[40] Counsel did not have a full opportunity to canvass these requests, but I recognize that some change has to be made to the February 19, 2015 order to put the intent of that order back on track. Both parties have requested a change to the access regime. It is also clear that no court order will be successful unless both parties approach the order with “flexibility and good faith in their dealings with each other”, as stated by the applicant’s counsel in his letter of February 26, 2015 to the respondent’s counsel. The reconciliation counsellor proposed by the applicant is not the same as the counsellor proposed by the respondent, and they are unable to agree on any person. I recognize that reconciliation counselling can only work with the respondent’s cooperation. On the other hand, it is the respondent who was found to be in contempt of the February 19 court order.

[41] In Boily v. Carleton Condominium Corporation No. 145, 2014 ONCA 574, the Court of Appeal endorsed a two-stage approach for contempt hearings. The first stage is the hearing of a contempt motion to adjudicate on whether a party is found in contempt, and the sanction or penalty stage to follow if contempt is found. The court stated at paras. 121-125:

There is no formally mandated process for contempt proceedings. The procedure followed may vary. However, contempt proceedings typically have two stages – the liability hearing and a subsequent hearing to determine penalty: The College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses), 2008 ONCA 685, 93 O.R. (3d) 139 at paras. 73-75, per Watt J.A.; Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164, at paras. 34-36. If a contempt finding is made, the matter is adjourned to provide the contemnor an opportunity to purge the contempt and prepare for the sentencing portion of the process. Any action undertaken by a contemnor to purge his or her contempt may serve as a mitigating factor in sentencing: Echostar, at para. 35.

There is good reason to bifurcate contempt hearings. As in criminal prosecutions, in contempt hearings, liability and penalty are discrete issues. In a hearing in which liability and penalty are dealt with together, there is a risk that evidence relevant, material and admissible to liability, will be improperly applied to penalty or vice versa. R. v. B.E.S.T. Plating Shoppe Ltd. and Siapas (1987), 1987 4056 (ON CA), 59 O.R. (2d) 145 (C.A.).

I agree with the comments of Watt J.A. in Great Glasses where he said, at para. 74, that: “a proceeding that considers both liability and penalty in the same hearing, may cause unfairness or be infected with legal error to such an extent to require a new hearing.” I also agree with his comments at para. 76, that the extent to which fairness is affected varies from case to case.

In my view, contempt proceedings should be bifurcated for the simple reason that bifurcation avoids risking the need for a new hearing.

[42] Given the direction of the Court of Appeal in Boily, and the fact that counsel have not had an opportunity to make submissions on penalty in light of my finding of contempt, I would follow the approach endorsed by Boily and order the parties to schedule a motion before me to determine penalty.

Order

[43] This court orders that,

(a) the applicant’s motion for finding the respondent in contempt of paragraph 1 of the order of February 19, 2015, is allowed. The balance of the motion is dismissed.

(b) The penalty phase of the proceeding is adjourned to be heard by me on a date to be scheduled by the parties through the trial coordinator. The motion will be booked for sixty minutes and counsel are encouraged to file written submissions. Counsel are also encouraged to make joint submissions if they can agree to an order along the lines proposed by the applicant.

(c) The costs of the motion to date are reserved to the balance of the motion.

Charney J.

Released: June 30, 2015

[^1]: Since the February 19 order was made on a Thursday, it was agreed that the 6:00 p.m. deadline for the access information for the first access on February 22 would be Friday instead of Wednesday.

[^2]: The specific reference is the respondent’s statement “My witnesses don’t want to be around your mother. ..I am also afraid of your mother. I remember with absolute clarity some of the large shouting matches and arguments you two had. I will be taking extra steps to secure my person and my children from harm.”