CITATION: Maan v. Poirier, 2017 ONSC 7678
COURT FILE NO.: FC-14-952
DATE: 2017/12/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sushmita Maan, Applicant
-and-
Eric Poirier, Respondent
BEFORE: Justice D. Summers
COUNSEL: Gonen Snir for the Applicant
Self- Represented Respondent
HEARD: August 22, 2017
ENDORSEMENT
[1] This is a motion by the Applicant, Sushmita Maan, for findings of contempt against the Respondent, Eric Poirier, under Rule 31(1) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), as amended. Ms. Maan alleges that Mr. Poirier has failed to comply with four different court orders made over the course of this proceeding. The lack of compliance that she describes relates primarily to disclosure and access issues.
[2] The specifics of Ms. Maan’s Notice of Motion state that Mr. Poirier failed to obey the following orders:
The Order of Justice Rutherford dated May 8, 2015 by “failing to register and follow a parenting course and provide proof thereof within the next six months”;
The Final Order of Justice Rutherford dated May 8, 2015 by “not making full and timely disclosure of any material change in his income or support obligations”;
The Order of Master MacLeod (now Justice MacLeod) dated April 7, 2016 by not providing
a. a copy of “his criminal record”;
b. copies of “his medical documents from the Royal Ottawa Mental Health Institute and any other mental health professional or institute that the Respondent/father visited, including the results of all psychological and psychiatric assessments”;
c. “a list of treatment centers and programs that he visited for substance abuse”;
d. “copies of his drug and alcohol test results from the recent year”; and
e. “medical records regarding any sexually transmitted diseases that he may have”.
- “The Final Order dated June 23, 2017”.
Background
[3] The parties' common law relationship was short lived. Mr. Poirier moved into Ms. Maan’s home on June 27, 2012. Their first son, Andrew Maan Poirier, was born November 2, 2012. Their second child, Alexandre Maan Poirier, arrived 13 months later on December 8, 2013. Mr. Poirier left the home on February 11, 2014.
[4] The children live with their mother and have done so since separation. She has sole custody. The contentious issues driving the litigation have been Mr. Poirier’s access and ability to pay child support.
[5] Both parties are employed. The child support payable by Mr. Poirier is based on income of $134,600.00 as earned in 2015, however, he also has three children from a prior relationship for whom he was paying support. The support agreed to for Andrew and Alexandre is less than the table amount. Ms. Maan was earning approximately $81,000.00 a year in 2015.
[6] A review of the litigation history reveals multiple court appearances since the spring of 2014 when the Application was issued. Ms. Maan has been represented by counsel from time to time, including on this motion. Mr. Poirier has acted on his own behalf throughout.
[7] Many of the steps taken in this proceeding resulted in consent orders. The ultimate resolution of the case was accomplished in a piecemeal fashion and by late April, 2016, the parties had settled the last remaining issues. Neither party took steps at that time to complete the proceeding by taking out a final order. That did not happen until the spring of 2017 with the consent Order of Justice Ryan Bell, dated June 23, 2017.
Issue
[8] Does the conduct complained of by Ms. Maan rise to the level of contempt?
The Law
[9] Rule 31(1) of the FLRs states that 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] To determine whether a party is in contempt, the court must apply a three-part test: (i) the order that was breached must state clearly and unequivocally what should and should not be done; (ii) the party’s disobedience of the order must be deliberate and wilful; and (iii) the evidence must show contempt beyond a reasonable doubt. Any doubt must be resolved in favour of the alleged contemnor: Prescott-Russell Services for Children and Adults v. G. (N.), 2006 81792 (ONCA).
[11] For contempt to be a possible remedy, the alleged breach must relate to a live or operative order. Contempt is not available if the breach relates to an interim order that has been superceded by a final settlement or order: Fiorito v. Wiggins, 2015 ONCA 729.
[12] It is not inevitable that an affirmative answer to each branch of the three-part test will result in a finding of contempt. A judge on a contempt motion generally retains some discretion to decline to make such a finding: Carey v. Laiken, 2015 SCC 17. Contempt is a remedy of last resort that is to be used with great restraint. Its use as a method of enforcing compliance with orders has been consistently discouraged: Hefkey v. Hefkey, 2014 ONCA 44. This is especially so in family law proceedings where contempt motions should be cautiously considered and granted only where other available enforcement options have failed: Hefkey, supra.
Discussion
The Interim Consent Order of Justice Rutherford dated May 8, 2015
[13] There is scant evidence offered by the parties to support or refute the allegations of contempt. With respect to the above Order of Justice Rutherford, Ms. Maan states only that Mr. Poirier was obliged to take a parenting course and to provide proof that he did so. Mr. Poirier offers very little in response. He acknowledges that he did not take a parenting course but does not agree that he is in contempt of court. He points to the fact that the case between the parties settled in April, 2016.
[14] I find that the decision in Fiorito, supra applies to Ms. Maan’s first claim for contempt. The final settlement reached by the parties on April 25, 2016 supercedes the provision in the interim Order of Rutherford J. that directed Mr. Poirier to participate in a parenting course. There is no longer a live order and contempt is no longer an available remedy.
The Final Consent Order of Justice Rutherford dated May 8, 2015
[15] The second of Justice Rutherford’s Orders dated May 8, 2015, provides for a final disposition of all outstanding issues with the exception of access. Ms. Maan seeks a finding of contempt under the provision that required Mr. Poirier to make full and timely disclosure of any change in income and/or any change in his obligation to pay support for his children from a prior relationship. Here, Ms. Maan relies on information taken from the court file between Mr. Poirier and his former spouse and she submits excerpts from Settlement Conference Briefs filed in that proceeding. These excerpts are not admissible as evidence in this proceeding. Rule 23(17) of the FLR’s states that no brief or evidence prepared for a settlement conference shall be disclosed to any other judge. In my view, this rule is broad enough to capture the briefs filed by Mr. Poirier in another proceeding in this court where the issues are similar.
[16] Ms. Maan also relies on Justice Sheard’s Order dated May 13, 2016 made in the other proceeding that terminates the spousal support payable by Mr. Poirier to his previous spouse. [Emphasis added]. Mr. Poirier did not tell Ms. Mann about Sheard J’s Order and this, says Ms. Maan, is evidence that he is in breach of the disclosure requirements ordered by Justice Rutherford.
[17] Mr. Poirier’s failure to inform Ms. Maan that his spousal support obligation had ended does not, in my view, contravene Justice Rutherford’s Order. It directed Mr. Poirier to make full and timely disclosure of any change in his income and/or any change in his obligations to pay support for the children of his prior relationship. The Order does not speak to changes in his spousal support payments. [Emphasis added]. Mr. Poirier’s decision not to share that information with Ms. Maan may be at odds with the spirit of Justice Rutherford’s Order but it does not constitute contempt. The unequivocal language of the Order speaks to either a change in his income and/or his child support obligations. There is no mention of spousal support.
Master MacLeod’s (now Justice MacLeod) Interim Order dated April 7, 2016
[18] The third charge of non-compliance by Ms. Maan is under Master MacLeod’s Interim Order dated April 7, 2016. Specifically, Ms. Maan alleges breach of the provision that directs Mr. Poirier to produce certain documents and to make his best efforts to do so before April 28, 2016, as that was the return date for his access motion. The Motion did not proceed as the parties were able to reach a final settlement on April 25, 2016. With the litigation at an end, the interim order died. It can no longer form the basis of a contempt finding: Fiorito, supra.
Justice Ryan Bell’s Order dated June 23, 2017
[19] Ms. Maan claims that Mr. Poirier is in contempt of Justice Ryan Bell’s Order dated June 23, 2017. It is this Order that formalizes the final settlement terms reached by the parties on April 25, 2016.
[20] The alleged breach that Ms. Maan points to is Mr. Poirier’s failure to complete hair follicle drug tests every two months, as required. The Order grants supervised access to Mr. Poirier. It is clear in the Order that his ability to seek unsupervised access is dependent upon 6 consecutive months of negative test results and compliance with his supervised access visits at Family Services Ottawa. The only evidence that Mr. Poirier offers in his defence is a denial. He states that he has complied with Justice Ryan Bell’s Order. That leaves the court with two competing statements: one that alleges breach and one that alleges compliance. No other evidence is offered. Ms. Maan has the onus to prove contempt beyond a reasonable doubt and she has not done so.
[21] For the reasons given, I do not find Mr. Poirier to be in contempt, as alleged, and Ms. Maan’s motion is dismissed. As a result, I do not have to address the discretionary considerations raised in Carey, or Hefkey, supra.
[22] If the parties cannot settle the issue of costs, Ms. Maan shall provide her written submissions to the court before January 10, 2018. Mr. Poirier shall then have until January 19, 2018 to respond with his written submissions and Ms. Maan will have a further 5 day right of reply. Exclusive of Offers to Settle and a Bill of Costs, submissions from each party shall not exceed 2 pages in length.
Justice D. Summers
Date: December 22, 2017
CITATION: Maan v. Poirier, 2017 ONSC 7678
COURT FILE NO.: FC-14-952
DATE: 2017/12/22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sushmita Maan, Applicant
-and-
Eric Poirier, Respondent
BEFORE: Justice D. Summers
COUNSEL: Gonen Snir for the Applicant
Self- Represented Respondent
ENDORSEMENT
SUMMERS J.
Released: December 22, 2017