COURT FILE NO.: FC-14-1156-00

DATE: 20150731

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOHN COURTNEY, Applicant

AND:

CANDICE SAMBRAY, Respondent (Moving Party)

BEFORE: The Hon. Justice R.E. Charney

COUNSEL:
M. Bury Counsel, for the Applicant

C. Severn Counsel, for the Respondent

HEARD: July 30, 2015

ENDORSEMENT

Introduction

[1] This motion is brought by the respondent mother, Candice Sambray, to find the applicant father, John Courtney, in contempt of court as a result of his having breached the order of Justice Olah, dated June 24, 2015. The specific provisions of the June 24, 2015 order (made on the consent of all parties) that the applicant is alleged to have breached provide that the children, their daughter, aged 4.5 years and their son, aged 1 year, shall reside with the respondent from Sunday at 5:30 p.m. to Wednesday at 8:30 a.m., and the children shall be exchanged by third parties at the police station.

Background Facts

[2] The evidence is undisputed that the applicant failed to release the children to the respondent on June 28, July 5, July 12, July 19 and July 26, 2015. In short, the applicant has failed to release the children every week since the Order of June 24, 2015 was made. On each of these occasions the applicant has arrived at the police station as required by the Order, but has declined to exchange the children on the basis, he claims, that the daughter did not want to go with the mother. On each occasion the third party approached the father’s truck to receive the children and was told by the father that the daughter did not want to go with the mother. The father then drove away without providing access. The respondent has provided affidavits from the third parties charged with facilitating the exchanges. These affidavits indicate that on each occasion the applicant has coached the daughter to decline access, or has declined access because of his unfounded allegations that the respondent’s boyfriend is a pedophile.

[3] The applicant acknowledges that he was aware of his obligations under the June 24, 2015 Order, but states that he would not force his daughter to attend the access against her will. On each occasion he brought his daughter to the police station parking lot, but his daughter became very upset at the prospect of visiting with the respondent mother and refused to leave the car. He alleges that his daughter told him that she “did not feel safe at mom’s house that long”. As a result, he claims, he refused to release either child as required by the Court Order.

[4] The applicant brought his concerns about the respondent’s boyfriend and other allegations to the attention of the Simcoe Muskoka Child, Youth and Family Services (SMCYFS). The SMCYFS conducted an investigation. By letter dated July 24, 2015, the SMCYFS stated:

[The daughter] was interviewed three times over the investigation period, once at the office and once at each of your homes. Each time, she did not express any concerns about the care she receives from either one of you, but she talked about the conflict between both of you and how this makes her feel. She was aware of an incident of violence between her mom and [her boyfriend], not because she had witnessed this but because her father had told her. She talked about an incident where [the boyfriend] had been in her bed and hugged her; she was clear that this did not make her upset or uncomfortable, but that daddy didn’t like it. There was no indication that she was harmed in any way during this encounter but the worker…did discuss it further with Ms. Sambray. No assessment has been done of [the boyfriend] at this point as we understand that according to your family court order, [he] is not supposed to be around the children during their time with Ms. Sambray.

It appears that the primary risk to the children at this time is the continued conflict between the two of you and their exposure to this. {The daughter] is aware of this and while {the son] is too young to interview, our experience suggests that even very young children are significantly impacted by ongoing custody/access conflicts that occur in their presence.

[5] On June 30, 2015, counsel for the respondent mother wrote to then counsel for the applicant father to advise that the applicant did not release the children on June 28 as required by the June 24 Order. He indicated his intention to bring this motion for contempt if the applicant did not bring himself into compliance with the Order. Notwithstanding this letter the applicant continued to refuse to release the children for access by the mother on all future exchange dates, and the mother has not had access to her children since the June 24 Order was made.

Legal Analysis

[6] 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. Contempt remedies should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. 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. Hobbes, 2008 ONCA 598, [2008] O.J. No. 3312 (Ont. C.A.))

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

[8] Notwithstanding the Court’s reluctance to exercise it 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.

[9] 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.

[10] I am satisfied that the order sought to be enforced in this case is not a “payment order” since it does not require a person to pay money to another person (Salituro v. Salituro, 2015 ONSC 3010, at paras.11–12).

[11] 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).

[12] I will examine the claim of contempt in light of these principles.

[13] Regardless of whether I accept the facts set out by the respondent or the applicant, I am satisfied that the contempt has been proven beyond a reasonable doubt. Given the affidavit evidence filed by the applicant in this case, and taken together with the affidavit of the SMCYFS, I have no doubt that if the daughter did in fact express any reluctance to go with the mother, the daughter’s reluctance was the result of the applicant deliberately coaching or frightening her. This is confirmed by the SMCYFS affidavit that confirms that the father told the daughter about a violent incident between the mother and the boyfriend, and the father’s own evidence that the daughter is afraid of attending the access because she is afraid that the boyfriend will be there. The Court Order of March 10, 2015, para. 27, expressly provides that the boyfriend is not permitted to be present when the children are visiting with the mother, and there is no evidence that the mother has not complied with this term of the Order. In my view the affidavit from the SMCYFS confirms that the concerns regarding the boyfriend are emanating from the father and not the daughter. If the daughter is expressing any concerns or reservations in this regard (as alleged by the father) it is because the father is planting them in her head in order to discourage or prevent the mother’s access. I have reviewed the father’s affidavit, and I do not believe his statements that he is simply following his daughter’s wishes in refusing access, or trying to protect his children from the boyfriend.

[14] In Szyngiel v. Rintoul, 2014 ONSC 3298 (SCJ) the Court stated (at para. 24) that: “There are situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order”. A reasonably held belief is one that is both sincere and has some objective basis in fact.

[15] In this case there is no objective basis upon which the applicant could form a reasonably held belief that there was a good reason to disobey the Order. The father’s affidavit expresses his concern about the presence of the boyfriend, but he has provided no evidence that the mother has not complied with the March 10, 2015 Order expressly preventing the boyfriend from being present during her access. Since the father’s concern with regard to the boyfriend was expressly dealt with by a consent Order, he cannot continue to rely on this same concern in the absence of some objective evidence that the March 10 Order is not being followed. And, given the conclusion of the SMCYFS that the hugging incident complained of “did not make [the daughter] upset or uncomfortable, but that daddy didn’t like it”, this incident (which predates the March 10 Order) would not in itself give rise to a reasonably held belief that there was good reason to disobey the Order.

[16] Even if I were to believe the father’s evidence that the daughter has refused to participate in the access exchange of her own volition and without his coaching or influence, I am still satisfied beyond a reasonable doubt that the father’s refusal to deliver the children to the mother on each of the five occasions complained of was an intentional failure by the father to comply with his obligations under the Court Order of June 24, 2015. Decisions in this case are made by the Court, not by a four-and-one-half year old child. The responsibility to comply with a Court Order is that of the parents’, it is not that of a four-and-one-half year old child. Mr. Courtney’s assertion that he was following the wishes of his four-and-one-half year old daughter even though he knew this was inconsistent with the Court Order leads me to seriously question his parenting capacity and whether he is sufficiently responsible to have shared custody of minor children.

[17] While the Courts have indicated that a civil contempt remedy is one of last resort, they have also expressed the importance of enforcing access orders to ensure that children do not become the pawns of vindictive parents (Carr-Carey v. Carey [2014] ONSC 5441, at para.22). The mother in this case has been denied court-ordered access to her children for over one month, and this calls for a judicial sanction.

[18] I am satisfied that the three part test for contempt has been met in this case. The applicant does not dispute that the order is clear and unambiguous, or that he knew the terms of the order and that he deliberately disobeyed them. Finally, the events of the contempt have been proven beyond a reasonable doubt. As indicated, I reject the applicant’s explanation or excuse for failure to obey the order, even if I were to believe it.

Remedy

[19] 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.

[20] 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 adjourn the penalty phase of the proceeding to August 27, 2015, before me to determine penalty. As indicated in Boily, this will give the applicant an opportunity to purge the contempt and prepare for the sentencing portion. Any action undertaken to purge contempt may serve as a mitigating factor in penalty.

Order

[21] This Court Orders that;

(i) the respondent’s motion for finding the applicant in contempt of the access provisions of the Order of June, 24, 2015, is allowed.

(ii) The penalty phase of the proceeding is adjourned to be heard by me on August 27, 2015. The motion will be booked for sixty minutes, and counsel are encouraged to file written submissions. The Applicant may use this intervening period to demonstrate that he is prepared to comply with the Court’s access Order and this will be taken into account for the purposes of penalty.

[22] The costs of the motion to date are reserved to the balance of the motion

Charney J.

Date: July 31, 2015