BARRIE COURT FILE NO.: FC-09-1006-00
DATE: 20150821
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Adam Woronowicz, Applicant
and
Maria Conti, Respondent
BEFORE: The Honourable Mr. Justice R.E. Charney
COUNSEL: Mark Kowalsky, for the Applicant
Maria Conti, Self-Represented
HEARD: August 6, 2015
ENDORSEMENT
Introduction
[1] This is a motion for contempt brought by the applicant father against the respondent mother for failing to comply with certain paragraphs of a consent court order, dated March 11, 2015. The father alleges that the mother failed to comply with seven different paragraphs of that order. These failures include allegations that she failed to consult with the father regarding major decisions, failed to pay the father the sum of $7,000, failed to provide access to the father in accordance with the terms of the order, failed to immediately retain a parenting coordinator, failed to continue the children in counselling, and failed to attend counselling herself.
[2] For the reasons set out below, the motion for contempt is dismissed. I am not persuaded beyond a reasonable doubt that the mother wilfully violated any of the provisions of the March 11, 2015 court order.
[3] In addition, the $7,000 penalty in the court order of March 11, 2015 was based on an arbitration decision, dated October 27, 2014. For reasons that I will set out in this decision, I am of the opinion that the arbitrator did not have jurisdiction to consider whether the mother was in contempt of court and therefore the validity of paragraph 4 of the March 11, 2015 court order (which was not raised before me) is subject to serious doubt.
Background
[4] The parties were married in 2003 and separated in 2009. There are two children of the marriage born in 2004 and 2006. The parties were given joint custody, primary residence with the mother, by court order, dated September 30, 2010. There has been substantial conflict since the separation, with involvement by the Office of the Children’s Lawyer. In July 2014, the mother told the father that she was moving from Barrie (where they both lived) to Burlington. The father opposed this move and this gave rise to motions and counter-motions.
[5] The father brought a motion for contempt of court and an order to change primary residence of the children to reside with him. The mother brought a number of motions, including a contempt order for previous unpaid costs, an order to compel disclosure and an order to increase child support. On July 24, 2014, the parties agreed to arbitration in regard to the issues raised in the two motions.
[6] The arbitration occurred over two days beginning October 7, 2014. The arbitrator, Kim Kieller, released her arbitration award on October 27, 2014. She indicated that she would address three issues: (a) contempt, (b) mobility, parenting plans and changes if necessary, and (c) child support, retroactive payments and section 7 expenses. She states (at paragraph 2) of her decision:
Given that there was already a court order providing for arbitration, being the order of Justice Stong dated September 30, 2010, and in particular, paragraph 3 therein, the within arbitration was heard as a secondary arbitration as defined by the Arbitration Act, the Family Law Act and the respective regulations thereto.
[7] Paragraph 3 of the September 30, 2010 order referred to by the arbitrator provided for the arbitration of disputes involving the mother’s right to make day to day decisions involving the children and the father’s right to consult with the mother with regard to any major decisions involving the health, religion, education and general welfare of the children. In addition, paragraph 7 of that order required that if either party intended to move away from Barrie and the other disagreed, “the parties shall submit the issue to arbitration…”
[8] Accordingly, the issue regarding the mother’s intention to move from Barrie to Burlington was squarely before the arbitrator as a “secondary arbitration”[^1]. For reasons that I will explain later in this decision, the issue of contempt of court was not properly before the arbitrator.
[9] The arbitration award dismissed the father’s claim requesting an order preventing the mother from moving the residence of the children and their school outside of Barrie, and established a new access regime for the father to accommodate the mother’s move. The award also required the retention and appointment of a parenting coordinator by November 14, 2014; the continuation of counselling for the children, the mother, and the father; the use of the Family Wizard computer program for communication; and dealt with the father’s child support payments. All of these issues and the decision of the arbitrator were within the arbitrator’s jurisdiction.
[10] The arbitrator also considered the father’s contempt motion and concluded that the mother was in contempt of court with regard to five of the father’s allegations of contempt. As a penalty for her contempt, the father requested that the mother pay the sum of $1,000 for each action regarding contempt. The arbitrator found the mother in contempt, and ordered that she pay the father the sum of $7,000. It is not apparent to me how the arbitrator arrived at the $7,000 figure when there appear to be only five actions that she found to be in contempt.
[11] The arbitrator’s award was presented to the Superior Court as an unopposed motion in writing (Form 14B) and signed by the court on March 11, 2015. Paragraph 4 of that order states: “The respondent mother is in contempt and will pay the applicant father the sum of $7,000 in regard to same”. This paragraph is one of the provisions of the March 11, 2015 order that the father now seeks to enforce through a contempt order in the present motion.
[12] The other paragraphs of the March 11, 2015 order sought to be enforced by the father are as follows:
- The respondent shall have the right to make day to day decisions involving the children. The applicant shall consult with the respondent regarding any decisions involving the health, religion, education and general welfare of the children. If there is disagreement, the respondent shall have the final say, provided that either party may refer the issue to arbitration…
7(a) Commencing October 31, 2014, the applicant father shall have the following parenting time with the children…: a) alternate weekends from Friday after school until Monday morning returned to school;
7(b) During the months of September, November, January and May, the applicant father will have an additional weekend to be determined and agreed to by the parties. If the parties cannot agree to the specific weekend, the third weekend for the above named months for the applicant father will be the earliest weekend in which he is not normally scheduled to have the children.
A parenting coordinator will be immediately appointed and he parties will execute a retainer agreement with Howard Hurwitz by November 14, 2014 for a minimum period of two years. If Mr. Hurwitz is not available to complete their retainer within 60 days of October 31, 2014, he will be retained to appoint another fully qualified parenting coordinator in consultation with [arbitrator] Kim Kieller. The parties will immediately retain and provide their financial and written retainer to Howard Hurwitz or his appointee. The parties will meet with the parenting coordinator on his first available appointment. The parties will cooperate with the parenting coordinator on all meetings.
The children shall continue in counselling with an individual determined by the parenting coordinator. The parenting coordinator shall be responsible to ensure the counselling continues…
The respondent mother shall attend and continue with counselling. She will not be obliged to provide the content of the counselling to the applicant father. However the name of the counsellor and the dates and times that she attends will be provided to the applicant father through the parenting coordinator.
The parties will use the Family Wizard on a continuing basis. The children will be instructed by both parents at the respective homes as to how to utilize the Family Wizard for their own use as well.
[13] I will consider each of the allegations of contempt in turn after I have reviewed the law of contempt and the jurisdiction of an arbitrator to make a finding of contempt.
(Decision continues exactly as in the source, including all remaining paragraphs and footnotes, reproduced verbatim.)
Charney J.
Released: August 21, 2015
[^1]: Section 59.7(2) of the Family Law Act provides: “secondary arbitration” means a family arbitration that is conducted in accordance with a separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.