Court File and Parties

Court File No.: 03-856 Date: 2019-05-27 Ontario Superior Court of Justice

Between: Katherine Lynn Stone, Applicant And: Corey Mathew Stone, Respondent

Counsel: Chelsey Cook, counsel for the Applicant Robert Vitulano, counsel for the Respondent Ezioma O. Nnorom, counsel for the child

Heard: May 24, 2019

Disposition on Contempt Desormeau, J.

Overview

[1] The Applicant, Ms. Katherine Lynne Stone brought a motion for contempt against the Respondent, Mr. Corey Mathew Stone. The motion was heard on April 5, 2019, at which time Mr. Stone was found to be in contempt of my interim order dated August 22, 2018 with regard to the access provisions and communications with the child, Jaxon Stone, born April 16, 2008.

[2] This court gave Mr. Stone an opportunity to purge his contempt by complying with the August 22, 2018 order. Given the nature of this high conflict file, the parties were reminded of the importance that neither of them speaking to the child about adult issues or court related issues. The contempt motion was adjourned to May 24, 2019 for final disposition on the contempt and to address costs.

Background

[3] The parties were in an on again, off again relationship from approximately October 2000 until their final separation on or about August 14, 2017. They were married on September 6, 2014. They have two children from their union: Cameron Burley-Stone, born December 26, 2012, and Nolan Burley-Stone, also born December 26, 2012 (the twins). Mr. Stone had a relationship with Ms. Angela Ricci, and from that union, he and Ms. Ricci had Jaxon Stone, born April 16, 2008. Mr. Stone and Ms. Stone resided together, with the twins and Jaxon from approximately 2010 until separation in August, 2017. Jaxon’s biological mother, Ms. Ricci, died of an overdose in October, 2017. Tragically, her body was found by Jaxon, 9 years old at the time, and Mr. Stone.

[4] There is a dispute as to when Jaxon left Ms. Stone’s home to reside with his Father, as well as the level of contact between Jaxon and either of the parents from that time onward.

[5] On August 22, 2018, Ms. Stone brought a motion for primary residence of Jaxon. Mr. Stone did not attend court on that date. For reasons put on record, which included concerns regarding Mr. Stone’s mental health, section 24(2) Children’s Law Reform Act and the status quo, as well as the need for Jaxon to have stability, I found that an order regarding Jaxon’s care was appropriate, and ordered on a temporary basis:

1. The child: Jaxon Stone, born April 16, 2008, shall be in the primary care of his Father.
2. The Applicant Stepmother shall have Jaxon in her care: i. Commencing August 22, 2018, and every second week thereafter from Wednesday at 3:30 p.m. (or if the child is in school, afterschool) until Thursday at 7:00 p.m. ii. Commencing August 29, 2018, and every second week thereafter, from Wednesday at 3:30 p.m. (or if the child is in school, afterschool) until Sundays at 5:00 p.m. iii. Any other times as agreed by the parties.
3. Neither parent shall involve the child in adult discussions or court related issues / discussions.

[6] Costs from the August 22, 2018 motion were reserved to the October 1, 2018 status check. On October 1, 2018, the file went before a different judge, and therefore the costs issue from the August 22, 2018 motion is still outstanding.

[7] On April 5, 2019, I heard a contempt motion brought by Ms. Stone regarding the Father’s breaches of the access and communication provisions of the August 22, 2018 Order. Mr. Stone also brought a motion to vary the access schedule. Mr. Stone’s motion was dismissed. Mr. Stone was found to be in contempt of the access and communication provisions of the August 22, 2018 order. He was given approximately seven weeks to purge his contempt and comply with the order.

[8] On the return of the motion heard May 24, 2019, Ms. Stone is seeking the following relief based on the Father not having purged his contempt:

1. An order that the Father be found guilty of contempt of paragraphs 2 and 3 of the order of Justice H. Desormeau dated August 22, 2018 as he has not purged his contempt.
2. An order that the Respondent be sentenced to 10 days imprisonment in accordance with Rule 31(5)(a) of the Family Law Rules.
3. An order that the Respondent’s Answer be struck from the record and/or his pleadings be dismissed in accordance with Rule 1(8)(b) and (c) of the Family Law Rules.
4. An order that the Respondent pay costs to the Applicant.
5. Any further order this Honourable Court deems just.

[9] Mr. Stone meanwhile is seeking:

1. An Order that the Respondent Father’s contempt finding was purged.
2. In the alternative, should the Respondent Father be found in contempt, an order that the Respondent Father pay a fine, pursuant to Rule 31(5)(b) of the Family Law Rules.
3. In the alternative, should the Respondent Father continue to be found contempt, an order that the Respondent Father pay a penalty, pursuant to Rule 31(5)(c) of the Family Law Rules.
4. An order dismissing the Applicant Stepmother’s request for a restraining order.
5. Any other orders that this Honourable Court deems just.
6. Costs.

[10] Though Ms. Stone seeks a restraining order in her most recent affidavit, this was not plead in a Notice of Motion or Notice of Contempt Motion.

[11] The OCL attended both the contempt motion and disposition dates and made very compelling submissions which are addressed below.

Issue 1

(A) Has the contempt been purged?

(B) What is the appropriate penalty if the contempt has not been purged?

[12] While the Father was held to be in contempt on April 5, 2019, it is nonetheless important to indicate at this juncture that when the finding was made, I was mindful of the following principles as set out in the case law:

1. Contempt is a serious remedy and is not to be granted lightly: See Fisher v. Fisher, 2003 ONSC 2119, [2003] O.J. No. 976 (Ont. S.C.J.); See Perna v. Foss, 2015 ONSC 5636 at para. 12.
2. It is a quasi-criminal proceeding and subject to proof beyond a reasonable doubt.
3. Civil contempt is a remedy of last resort, one which 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 G.(N.) c. Services aux enfants & adultes de Presott-Russell, (2006), 2006 ONCA 81792, 82 O.R. (3d) 686 (Ont. C.A.), Hefkey v. Hefkey, 2013 ONCA 44, and Children’s Aid Society of Ottawa-Carleton v. S.(D.), 2001 ONSC 28152, [2001] O.J. No. 4585 (Ont. S.C.J.): See Perna v. Foss, supra, at para. 12.

[13] The Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 addressed the law of civil contempt and held that proof beyond a reasonable doubt of an intentional act or omission that was in breach of a clear order of which the alleged contemnor had notice was required to establish civil contempt.

[14] In determining that the Father was in contempt of the August 22, 2018 order, I was persuaded beyond a reasonable doubt that the order was clear and unambiguous, its existence was within the Father’s knowledge at the time of the numerous breaches, and he intentionally failed to comply with the terms of the order of which he had proper notice. It was also disconcerting that the Father was not complying with OCL requests.

[15] As stated by Blair J. in Surgeoner v. Surgeoner, (1991), [1992] O.J. No. 299 (Ont. Gen. Div.) 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. (Also see Perna v. Foss, supra, at para. 14)

[16] Justice Goldstein in 796839 Ontario Ltd. v. Platt, 2016 ONSC 7097, at para. 57 stated:

The purpose of a contempt sanction must also be considered. Nothing less than the rule of law itself is at stake in a contempt proceeding. As Justice McLachlin (as she then was) stated in U.N.A. v. Alberta (Attorney General), 1992 SCC 99, [1992] 1 S.C.R. 901 (S.C.C.) at 931:

The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

[17] The Court of Appeal endorsed in Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574 (Ont. C.A.) 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 to be in contempt, and the sanction or penalty stage to follow if contempt is found. In the case at bar, the Father was provided an opportunity to purge his contempt.

[18] The onus is on the Father to demonstrate on a balance of probabilities that he has purged his contempt or made his best efforts to do so: See 796839 Ontario Ltd. v. Platt, 2016 ONSC 7097, at para. 30. If the Father fails to purge his contempt, then the second step at a contempt hearing is to determine the appropriate penalty.

[19] In Supple v. Cashman, 2014 ONSC 3581, Sheffield J. quotes Johnston J. from Fraser v. Logan, 2012 ONSC 4087, the Court "must take into account the reality of the situation 'on the ground'": at para. 47. In examining the children's ages, their growing opinions, their fragile emotional states and the anxiety that they feel with respect to access visits: Supple v. Cashman, supra, at para. 37.

[20] Rule 31 of the Family Law Rules (FLR) governs contempt of court proceedings and possible orders upon a finding of contempt. Rules 1(8) and 1(8.1) of the Family Law Rules provide the court with options to deal with a party failing to obey an order in the case or failure to follow the Family Law Rules. The court therefore has a varied selection of possible orders, which range from dismissing a claim or striking a pleading to, in the context of contempt, incarceration. Ultimately, the court must be mindful of the primary objective of the Rules: to deal with cases justly.

Analysis

[21] The Father acknowledges that the onus is on him to demonstrate, on a balance of probabilities, that he has purged his contempt. He submits he has taken the best steps available to do so. After the April 5, 2019 court date, he had a heart-to-heart talk with Jaxon, reviewed the access calendar with him, and did everything to ensure Jaxon attended visits. Jaxon was very upset with access schedule. Jaxon wants to spend time where he pleases and frequently wants to go to friends’ homes instead of his Stepmother’s home. The Father suggests Jaxon’s time with his Stepmother being incumbent on the Stepmother being home, however, this is not a term of the order.

[22] The Father recognizes that there were dates when Jaxon did not attend for the scheduled access with Ms. Stone. It is his view however that he did everything to encourage the child to see his Stepmother, but the child did not want to attend. Therefore, considering the reality on the ground, he has not continued to willfully disobey the order, and has thus purged his contempt.

[23] As for involving the child in adult discussions or court related issues, the Father quickly cast blame on Ms. Stone, including regarding Ms. Stone’s threat to ground the twins if they did not babysit Jaxon while Mr. Stone went to work. He also alleged Ms. Stone engages the children in court related discussions. Nevertheless, Mr. Stone’s affidavit does not deny involving the child in a telephone call with Ms. Stone, involving the child in the conflict, and involving the child in adult issues.

[24] Ms. Stone rebuts the Father’s account of alleged attempts to facilitate access and relies on text message exchanges between the parties attached to her affidavit. She submits that whether or not she is home is not a factor for consideration with regard to sending the child for access. Despite the court order for access, there has been no enforcement, no facilitation, and no parenting by the Father to direct the child to attend or return to her home for access. The Father not only refused to facilitate access, he intentionally planned activities involving the twins and other family members, such as a family dinner, during Ms. Stone’s scheduled access time with Jaxon.

[25] While the Father asserts in his affidavit that he wishes Jaxon to have a healthy and loving relationship with his Stepmother, the Father’s text messages to her supports Ms. Stone’s account. Ms. Stone’s evidence is that on May 7, 2019, Jaxon attended her home and indicated he was going to play soccer over the summer. Ms. Stone texted the Father and requested the soccer schedule. Almost immediately thereafter, she could hear Jaxon yelling on the phone in the basement. He was screaming “no I didn’t”. When Jaxon hung up the telephone, he was crying and melting down. He told Ms. Stone he had to leave because of her. Jaxon said that Ms. Stone was putting words into his mouth about his soccer schedule. Ms. Stone attached as Exhibit D to her affidavit dated May 14, 2019 the text message conversation between herself and Mr. Stone regarding this incident. During that text message conversation, Mr. Stone makes the following comments in response to requests for soccer schedule: “He’ll be going [to] lawyers with me tomorrow over your allegations”; “I’m busy with my life. Fuck off and leave me alone. You hateful ugly whore”; “My son hates you. Trust that. I go over everything and show things you say. You’re a fuckin lying whore”. These text messages are not denied by the Father.

[26] Ms. Stone further asserts that on May 7, 2019, Jaxon and the Father called Ms. Stone on a speakerphone and verbally lashed out at her. Jaxon told Ms. Stone that he read the text messages exchanged between his Father and Stepmother. Jaxon called her a “prick” and a “bitch”. Jaxon told Ms. Stone on the telephone that he was grounded because of Ms. Stone’s text messages to the Father regarding his soccer schedule. Mr. Stone also told Ms. Stone she is irrelevant to Jaxon, that Jaxon does not want her around and does not want to see her. Mr. Stone conveyed he is only doing what he is forced to do. Mr. Stone does not deny contacting Ms. Stone on May 7, 2019, and agrees argument ensued. He also does not deny that Jaxon was involved in a telephone conversation or that Jaxon read the text messages between the parties.

[27] The Office of the Children’s Lawyer (OCL) provided an affidavit by Barbara Mitchell, the Clinical Investigator. The submissions presented provided context to what was expressed as the child’s wishes and preferences. The OCL met with Jaxon four times, and his wishes and preferences have vacillated at each of the first three meetings. During their last meeting, Jaxon reiterated that he does not wish to see his Stepmother based on a schedule, and only wishes to see her whenever he so desires. He recounted to the OCL witnessing a serious argument between his Stepmother and his Father which left him very upset with his Stepmother. He speaks very negatively about Ms. Stone at this time. Jaxon wanted the court to know that he does not wish to go to his Stepmother’s home at all, except to see his brothers.

[28] The OCL voiced the school principal’s concern about Jaxon struggling with what he can say or cannot say. It was recounted that Jaxon hesitates when asked simple and straightforward questions. Further, there are concerns of Jaxon’s demeanor and behavior at school. He is not respecting authority and is struggling to stay in class with his peers. Jaxon is not behaving in the classroom and is thus has been expelled from the classroom.

[29] The OCL submits Jaxon believes he does not want to see his Stepmother. Jaxon attributes this to him getting in trouble whenever he tells his Stepmother things, even when the subject should not be an issue.

[30] The OCL is concerned about the impact of conflict and feuding for which both parties are responsible. Jaxon says he is not stressed out at all, but does think that the court order regarding access is retarded as he does not understand why he has to go his Stepmother’s home when neither she nor his brothers are there. The OCL indicated it was impossible to say for sure what is in Jaxon’s interest because of all the feuding going on between the parents. Jaxon appears to have chosen one parent in order to lessen the conflict. From the OCL perspective, the Father’s contempt has not been purged on its face, however, this needs to be measured against all of the circumstances.

[31] I have considered that the parents are dealing with what appears to be a distraught young man. I have also reflected on the reality of the situation on the ground, which includes looking at the child’s age, emotional state, and what the Father purports to be the child’s opinion and anxiety he may feel regarding access. The reality on the ground includes, by my count, Ms. Stone having had four scheduled visits with Jaxon of the twenty-four she was supposed to have.

[32] In Supple v. Cashman, supra, Sheffield J. indicated that the determination of contempt is highly dependent on the facts of the case, and in Supple, he was not convinced beyond a reasonable doubt that the Mother intentionally breached the custody access orders. In that case, the Mother provided evidence of other adult family members, using their best efforts, tried to convince the children to attend access with their Father. In the case at bar, contempt has already been established. The issue is whether the Father has purged his contempt regarding both facilitating access and communications with the child.

[33] I am mindful that this is a high conflict file, and although it is clear that the Father is unable to put aside his anger toward Ms. Stone for Jaxon’s sake, based on the OCL representations, Ms. Stone also appears to incite some of the conflict.

[34] On a balance of probabilities, the onus being on the Father, I find as a fact that the Father has not purged the contempt, particularly regarding involving the child in adult communications. I make this determination based on the uncontroverted evidence that Mr. Stone showed Jaxon the text messages between the parents, and based on the May 7, 2019 telephone conversation where Mr. Stone and Jaxon called the Stepmother to berate her.

[35] With regard to the access provisions, despite the Father suggesting he has done everything to ensure Jaxon attended visits, the evidence shows that on at least one occasion when Jaxon was at Ms. Stone’s home the Father interfered with the visit. The occasion I refer to is the soccer schedule incident, upon which I prefer the Stepmother’s evidence to that of Mr. Stone. I find that it is more likely than not that Mr. Stone has interfered with, undermined, or have failed to facilitate access between Jaxon and Ms. Stone on more than that one occasion. I make this determination despite the OCL’s submissions that Jaxon is very angry with and does not wish to see his Stepmother. This is attributed to Jaxon getting into trouble whenever he tells his Stepmother things, even when they should not be issues, which brings us back to the soccer incident.

[36] I find that Jaxon’s wishes are influenced by the feud between his parents, and the impact of the feud has led Jaxon to choose a side so that the conflict around him can be lessened. I have grave concerns about Jaxon’s continued exposure to this conflict, which has impacted him so significantly that he is exhibiting behavioural issues at school, is not respecting authority, and has been expelled from the classroom. We are dealing with an eleven-year old boy who hesitates before answering simple questions such as how his day is going. What he says, and, as the OCL puts it, what he doesn’t say gets used by his parents. This is apparent in the documents filed by each of them.

Sentencing

[37] As liability has been established, it follows that the discrete issue now to be determined is penalty.

[38] Non-compliance of orders must have consequences, a number of which are set out in the Family Law Rules. The court has a very broad discretion in determining consequences, which range from jail time, to fines, to striking of a pleading or dismissing a claim, to anything else that the court determines to be just.

[39] As indicated by Justice Curtis in Peers v. Poupore, 2012 ONCJ 306 at paras. 36 and 37:

The sanction for contempt must be proportionate to the nature of the contempt and the mitigating and aggravating circumstances: iTrade Finance Inc. v. Webworx Inc., 2005 CarswellOnt 6366, 255 D.L.R. (4th) 748, 18 C.P.C. (6th) 117 (Ont. S.C.J.), para. 16.

Failure to impose a significant consequence for such conduct would bring the administration of justice into disrepute. Others who may be tempted to flout an order of the court and frustrate its processes must appreciate that they cannot benefit from such conduct. The court should enforce its own process and give the other litigant an effective remedy: iTrade Finance Inc. v. Webworx Inc., supra, para. 20.

[40] Sentencing in contempt proceedings, particularly in family law proceedings, should be comprised of two components. It should be restorative to the victim of the contempt and punitive to the contemnor. To accomplish the former requires the sentence to correlate to the conduct that produced the contempt, and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances: Geremia v. Harb, 2007 ONSC 1893, 2007 CarswellOnt 446, [2007] W.D.F.L. 4500, 154 A.C.W.S. (3d) 1128, 73 W.C.B. (2d) 395 (Ont. S.C.J.): See Peers v. Poupore, supra, at para. 38.

[41] Ms. Stone submits that Mr. Stone should be sentenced to ten days jail, and that his Answer be struck from the record and/or his pleadings be dismissed.

[42] Mr. Stone argues meanwhile that if contempt is found to be made out, then he should be ordered to pay a $250.00 fine and there should be additional time made up to the Stepmother access visits. These times should be when the twins are present and/or around special outings.

[43] The OCL does not support imprisonment principally due to the possible effect on Jaxon. Mr. Stone is Jaxon’s only remaining biological parent and his imprisonment will not create an environment for Ms. Stone to parent him effectively. The OCL is concerned about Jaxon spiraling downward from where he is currently. The OCL suggests the court impose a condition that when Mr. Stone is working, Jaxon will spend the overnight with Ms. Stone because it is important for the twins to watch him and get him on his bus. Ms. Stone should also be ordered to provide a schedule to the father as if she is at work, he will know who is in the home and when the mother will return home. The OCL suggests that a higher than $250.00 fine would be sufficient.

[44] I am alert to the recent Ontario Court of Appeal decision of Ruffolo v. David, 2019 ONCA 497, 2019 CarswellOnt 7060 (Ont. C.A.), where the primary issue was contempt of three access provisions. The Court of Appeal held where the main issues to be decided concerns access to children, the best interests of the children should be the paramount consideration (para. 19). This instruction leads me to consider section 24(2) Children’s Law Reform Act in the context of the sentencing of Mr. Stone.

[45] With regard to Ms. Stone’s request that the Father’s Answer be struck and/or his pleadings be dismissed pursuant to Rule 1(8) Family Law Rules, there is a three part test to be applied: see Ciarlariello v. Iuele-Ciarlariello, 2012 ONSC 6636 at para. 52, where McDermot J. adopts the test from Ferguson v. Charlton, 2008 ONCJ 1, 2008 CarswellOnt 667 (Ont. C.J.) at para. 64. This three part test starts with determining if there is a triggering event of non-compliance permitting the consideration of Rule 1(8). If there is, then in the second part the court is to determine whether it should exercise its discretion in favour of the non-complying party and not sanction that party, having considered the relevant litigation history and, more specifically the conduct of the non-complying party. The exercise of discretion in favour of the non-complying part, according to McDermid J.’s review of the case law, is to be granted only in exceptional circumstances. Lastly, if the court determines it will not exercise its discretion under in favour of the non-complying party, then it is left with a very broad discretion as to the appropriate remedy under Rule 1(8).

[46] Despite the test set out in Ciarlariello, supra, in 2018 the Ontario Court of Appeal decided Burke v. Poitras, 2018 ONCA 1025, which clearly enunciates that utmost caution must be used before striking a party's pleading as it relates to custody and access. A full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interests of the children: D. (D.) v. D. (H.), 2015 ONCA 409, 335 O.A.C. 376 (Ont. C.A.), at para. 1: Burke v. Poitras, supra, para. 18. In Burke, the court determined that despite OCL involvement, a parent’s non-participation in the custody proceeding is generally not in the child’s best interest.

[47] After reviewing the relevant litigation history of this file, being alert to the fact that it is set for trial to commence June 17, 2019, and mindful that we are dealing with custody and access issues, I chose to exercise my discretion in favour of the Father. As such, I am not prepared to strike the Father’s Answer or dismiss his pleadings.

[48] The Family Law Rules support the court’s ability to make any order it considers necessary where a party is in breach of a court order: T. v. D., 2019 ONSC 644, para. 89. However, the sanction must restorative to the victim of the contempt and punitive to the contemnor, and as we are dealing with access, must also be in the child’s best interest.

[49] I have considered all of the above, in particular Jaxon’s currently untenable situation, and s.24(2) Children’s Law Reform Act. Jaxon is so caught in the middle of his parent’s feud that he is unable to answer simple questions and is acting out at school. This conflict is having a heavy toll on him, and must cease immediately, otherwise the Children’s Aid Society will be directed to become involved.

[50] Turning that was is restorative to Ms. Stone, my paramount consideration is what is in Jaxon’s best interest. I find it is necessary to restore the access time Jaxon was to enjoy with Ms. Stone. By my count, he has already missed approximately 20 days of access with Ms. Stone. I am also persuaded that the current status quo needs to be temporarily suspended to permit Jaxon to enjoy a cease-fire between his feuding parents. Further, given what I have found to be the Father’s inability to shield Jaxon from the adult conflict and discussions, I have put in place measures that would prevent any further reoccurrence for the time being. The following interim order shall remain in effect, subject to the trial judge’s discretion, until further court order, or agreement of the parties in writing, or disposition following trial (which is scheduled to commence June 17, 2019, 21 days from today):

1. Effective immediately, the child shall be on extended access with Ms. Stone, at her home.
2. The Father shall have four hours of supervised access with Jaxon per week, either through the Centre York Centre or by a supervisor approved of by Ms. Stone. Access shall take place as available by the Centre York Centre, or on Saturdays from 12:00 p.m. (noon) until 4:00 p.m.
3. Neither Mr. Stone nor Ms. Stone are permitted to communicate directly with one another. They are only permitted to communicate through a third party chosen by Ms. Stone. That name shall be provided through counsel no later than 4:30 p.m. on May 28, 2019.
4. Mr. Stone shall not communicate directly or indirectly with Jaxon by any electronic or non-electronic means. Despite the parties residing less than 800 metres apart, Mr. Stone shall not be within 50 metres of Ms. Stone’s residence, or any place where Jaxon may be, including his school, expect in accordance with paragraph 2, above.
5. Exceptionally, Ms. Stone shall attend the child’s school before the end of classes today to pick up the child and explain to him the access regime and terms set out above.

[51] In determining the punitive sanction to Mr. Stone in the context of an appropriate sentence, my considerations include all available sentences, such as a conditional sentence, probation, and/ or a fine. I have reflected on the appropriateness of available sanctions, proportionality of the sentence to the wrongdoing, aggravating and mitigating factors, deterrence, denunciation and integrity of the legal system (see Geremia v. Harb, 2007 ONSC 1893, 2007 CarswellOnt 4950 at para. 13).

[52] It is important to note this is the first time, to my knowledge, Mr. Stone has been found guilty of contempt. This is an important consideration. Having regard to all of the traditional principles of sentencing, the facts that brings this matter to court, the submissions of the parties including OCL, and the possible ramifications to Jaxon, I find the following to be fit and just in the circumstances. I impose on Mr. Stone a conditional discharge for a period of six months, with the following conditions:

1. Keep the peace and be of good behaviour.
2. Abide by court orders.

Issue 2: Costs

[53] Ms. Stone’s bill of costs includes the August 22, 2018 motion, the contempt motion, and the disposition of the contempt motion. She seeks partial indemnity for the August 22, 2018 motion and solicitor-client costs for the remainder of the motions, totaling $15,528.70.

[54] Mr. Stone’s bill of costs indicates total fees for the contempt motion and disposition is $6,010.19. He argues that the costs incurred for the August 22, 2018 motion should not be addressed in this time it should be left to the trial judge.

[55] The court is mindful of Rule 24 of the Family Law Rules. There does not appear to have been any offers to settle made in either matter. The August 22, 2018 motion was undefended but Ms. Stone was only partially successful. This Court finds that she is entitled to partial indemnity costs particularly given the results of motion, quantified at $3,182.36.

[56] As for the contempt motion disposition, as set out in B. (G.E.) v. M. (K.A.A.), 2011 NLCA 38, 2011 CarswellNfld 189 (N.L. C.A.), where an award of costs is the sanction imposed following a finding of contempt, the appropriate scale of costs is solicitor-and-client costs. The court, having reviewed the sanction of costs in contempt proceedings, concluded:

(i) conduct required for an award of solicitor-client costs may be found in actions that constitute contempt; (ii) ordinarily, a successful party in contempt proceedings will be awarded costs on a solicitor-and-client basis, so that the contemnor bears the full burden of costs and the injured party none; (iii) notwithstanding the foregoing, in contempt proceedings the court retains discretion as to the award of costs.

[57] I have considered the factors outlined in Rule 24 Family Law Rules and what is fair and reasonable for the unsuccessful party to pay in these circumstances. I am alert to my order of April 5, 2019, dismissing Mr. Stone’s motion to change the access schedule. Given the OCL comments about both parents feuding, I am not persuaded that solicitor-and-client costs are appropriate. However, I am persuaded that Ms. Stone receive costs for the contempt motions on substantial indemnity basis, not as a further sanction to Mr. Stone, but given her success. These costs are quantified by me at $11,111.73.

Disposition

[58] This interim order shall remain in effect, subject to the trial judge’s discretion, until further court order, agreement of the parties in writing, or disposition following trial (which is scheduled to commence June 17, 2019):

1. Effective immediately, the child shall be on extended access with Ms. Stone, at her home.
2. The Father shall have four hours of supervised access with Jaxon per week, either through the Centre York Centre or by a supervisor approved of by Ms. Stone. Access shall take place as available by the Centre York Centre, or on Saturdays from 12:00 p.m. (noon) until 4:00 p.m.
3. Neither Mr. Stone nor Ms. Stone are permitted to communicate directly with one another. They are only permitted to communicate through a third party chosen by Ms. Stone. That name shall be provided through counsel no later than 4:30 p.m. on May 28, 2019.
4. Mr. Stone shall not communicate directly or indirectly with Jaxon by any electronic or non-electronic means. Despite the parties residing less than 800 metres apart, Mr. Stone shall not be within 50 metres of Ms. Stone’s residence, or any place where Jaxon may be, including his school, expect in accordance with paragraph 2, above.
5. Exceptionally, Ms. Stone shall attend the child’s school before the end of classes today to pick up the child and explain to him the access regime and terms set out above.
6. Should there be any breach of this court order, either party may bring the matter to a motion before Desormeau J., or her designate, in an expedited fashion.
7. The OCL is asked to meet with Jaxon at least once prior to the trial commencing.
8. Costs are fixed at $14,294.09, payable by Mr. Stone to Ms. Stone, forthwith.
9. The trial shall proceed on a peremptory basis.
10. Approval of this order is not required.

Justice Hélène C. Desormeau Released: May 27, 2019