BARRIE COURT FILE NO.: FC-10-119-00

DATE: 20150911

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Amber Irene Perna, Applicant

and

Darren Darren Foss, Respondent

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

COUNSEL:
Amber Irene Perna, Self-Represented/Responding Party, Not Appearing
Brooke Camlis, for the Respondent, Not Appearing
Sandra Bennett, Intervener/Moving Party, In Person

HEARD: August 27, 2015

ENDORSEMENT

Introduction

[1] This is a motion for contempt of court brought by Sandra Bennett, the paternal grandmother of seven year old Jackson Wayne Douglas Foss, against Amber Perna, the child’s mother, for refusing to permit Ms. Bennett to have access to her grandson in accordance with the Order of Justice Wildman, dated April 9, 2015.

Background

[2] Amber Perna and Darren Foss were married on January 19, 2008, just one month before Jackson was born. They separated in August 2009. Until April 11, 2012, they had shared custody of Jackson, but on April 11, 2012, the father agreed to an order granting sole custody of Jackson to the mother, with access at certain times to the father.

[3] The mother lives in Barrie and the father in Calgary. In 2015, the mother took the child to the Dominican Republic for a three month vacation. She then decided to extend the vacation and failed to return Jackson for the father’s scheduled access in March 2015. Following an urgent motion in March 2015 by the father to have the child returned to Ontario, the mother returned the child to Barrie on April 7, 2015. She has since brought a motion to permit her to remain in the Dominican Republic at her discretion.

[4] On April 19, 2015, the court granted a temporary consent order granting the paternal grandmother, Ms. Bennett, access to the child “so long as it is on reasonable notice” (defined in the order as 48 hours’ notice) to the mother, and in accordance with the following schedule:

Sandra Bennett shall have access to the child at least one day per week for a period of not less than 4 hours from either 3:30 pm to 7:30 pm on a school day or 11:00 am to 3:00 pm or 3:30 pm - 7:30 pm on a weekend.

[5] Ms. Bennett’s affidavit states that since the date of that order she has had access to her grandson in April and May, but after May 23, 2015 (which was the last visit with her grandson), the mother has denied her access. Her affidavit material provides texts of Skype conversation, dated May 27, 2015, in which the mother indicates that she will no longer permit Ms. Bennett to have unsupervised access with Jackson because she believes that Ms. Jackson is “having conversations with him [Jackson] regarding serious issues”.

[6] Ms. Bennett originally brought this motion on July 9, 2015, and Justice McDermot heard it on July 23, 2015. Justice McDermot indicated that the material filed by Ms. Bennett was inadequate to move for contempt of the April 19, 2015 order (the motion material did not include a supporting affidavit setting out the facts in relation to the alleged contempt). He also indicated, however, that the mother had acknowledged on the record that she was not providing access to Ms. Bennett in accordance with that order. His endorsement states:

Ms. Bennett needs to file and serve material that outlines the breaches of the order. Ms. Perna wishes to bring a motion to set aside that order and wishes to respond to the motion for contempt.

[7] He adjourned the motion to August 27, 2015, and set out a schedule for the parties to exchange motion materials in relation to the contempt motion and, if she chose, a motion by the mother to change the access provisions of the April order.

[8] Ms. Bennett did file additional affidavit material to outline the breaches of the order. Ms. Perna did not file any response or any motion to amend the April 2015 order.

[9] In addition to setting out the specific dates in which access was denied, Ms. Bennett’s affidavit includes as exhibits two additional text messages from the mother to Ms. Bennett from July 2015. The first dated July 17, 2015 states:

Just wanted to give you another opportunity to think about what your doing. As I said before I would like you to be able to see and visit with Jackson those are my concerns and if you are not willing to even discuss them I can tell you right now absolutely nothing is going to happen in court as I will not be pressured into agreeing to this again. It will be a long process from here and thought maybe you would have wanted to see Jackson. Guess not.

[10] The second is dated July 20, 2015, and states:

I will consider giving you ur (sic) time back if u can promise me only good times and no conversations w Jackson about moving or living in Dominican Republic. I want the pressure off of him completely. I never said I wanted you out of his life Sandra. I just don’t want him having to answer questions about how he showers or what mommy does. It’s not fair. If you agree to this we can start visits again. But you also have to promise Kim [Ms. Bennett’s roommate] won’t be pressuring him either.

[11] As indicated above, the motion was scheduled for August 27, 2015. The mother did not appear, although served with the new affidavits on July 29, 2015.

Legal Analysis

[12] 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; and, 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.))

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

[14] 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.

[15] Access is an important right that the court will not hesitate to enforce through a contempt order if there is evidence that the custodial parent has a demonstrated history or pattern of intentionally frustrating, limiting or terminating access: see: Godard v. Godard, 2015 ONCA 568, at paras. 20 – 21; Courtney v Sambray, 2015 ONSC 4872, at para. 17; and, Carr-Carey v. Carey, 2014 ONSC 5441, at para. 22.

[16] 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.

[17] 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).

[18] In Szyngiel v. Rintoul, 2014 ONSC 3298, 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.

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

[20] It is apparent from the electronic correspondence filed by Ms. Bennett, and from the mother’s own admissions made on the record to Justice McDermot when this motion was first heard on July 23, 2015, that the mother is deliberately disregarding the court’s April 19, 2015 order regarding access. The mother may now regret having agreed to the April order, but that does not provide her with justification or excuse for failing to honour her obligations under that order. If she is concerned that Ms. Bennett is having inappropriate conversations with Jackson, the mother must bring that to the attention of the court and seek an appropriate remedy, which might, if her allegations can be proven, include a variation of the April access order. She does not have the right to unilaterally refuse to comply with that order.

[21] It is significant in this regard, notwithstanding Justice McDermot’s direction on July 23, 2015, that the mother did not file a response to the contempt motion, did not appear on August 27, 2015, and has not, as far as I can determine, brought a motion to change that access order.

[22] Having reviewed the material in the record, I am satisfied beyond a reasonable doubt that the mother is deliberately disobeying the access provisions of the April 19, 2015 court order and is in contempt of court. The order is clear; this is not a case in which the mother is confused about its interpretation or application. Nor has denial of access been confined to isolated incidents or circumstances in which conflicting schedules have resulted in a missed week. The mother has demonstrated an announced intention to deliberately disregard the court order and prevent Ms. Bennett’s access to Jackson.

[23] Having found that the mother is in contempt of court, the next issue relates to the appropriate penalty. 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.

[24] While a two-stage, or bifurcated approach is appropriate in most cases, the circumstances of the present case present an important opportunity to persuade the mother to purge her contempt, and I am concerned that delaying the penalty stage will result in that opportunity being missed. As a general matter, the court will refuse to hear from a party who is found in contempt of court. In Ontario (Attorney General) v. Paul Magder Furs Ltd., (1991) 1991 7053 (ON CA), 6 O.R. (3d) 188; 1991 7053 (ON CA) the Ontario Court of Appeal indicated that it would not hear an appeal from a party that refused to purge its contempt. The court stated:

In my opinion, it is an abuse of process to assert a right to be heard by the court and at the same time refuse to undertake to obey the order of the court so long as it remains in force… It is a general rule that a party in contempt will not be heard in the proceedings until the contempt is purged: Hadkinson v. Hadkinson, [1952] 2 All E.R. 567, [1952] 2 T.L.R. 416 (C.A.), at p. 569 All E.R.; Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees (1986), 1986 2399 (NL CA), 59 Nfld. & P.E.I.R. 93 (Nfld. C.A.), at p. 95.

[25] That principle applies to the present case. The mother has an outstanding motion to change, dated April 22, 2015. In this motion to change the April 11, 2012 order, the mother seeks an order that she be permitted to travel with Jackson (and remain in the Dominican Republic with Jackson) at her discretion. She outlines a plan to live with Jackson for half the year in the Dominican Republic, and the other half of the year in Canada. The settlement conference/trial management conference for that motion is now scheduled for October 19, 2015.

[26] An appropriate penalty in the present case is to refuse to hear the mother’s outstanding motion to change, or any other motion brought by the mother, until she brings herself into compliance with the access provisions of the April 19, 2015 court order.

Conclusion

[27] This court orders:

(a) The applicant, Amber Irene Perna, is in contempt of the order of Justice Wildman, dated April 9, 2015.

(b) The court will refuse to hear any motion or other proceeding brought by Amber Irene Perna until she has purged her contempt.

[28] Ms. Bennett is entitled to her costs of this proceeding, which are fixed at $250, payable forthwith.

Charney J.

Released: September 11, 2015