PHANPHA v. BYTYQI, 2019 ONSC 3556

Court File and Parties

COURT FILE NO.: FC-17-FO88-00

DATE: 2019-06-07

ONTARIO

SUPERIOR COURT OF JUSTICE – UNIFIED FAMILY COURT

BETWEEN:

STANDLY PHANPHA Applicant

– and –

ELMA BYTYQI Respondent

Sheena Naidoo, Counsel for the Applicant.

Vanessa Frey, Counsel for the Respondent.

HEARD: May 29, 2019

Breithaupt Smith, J.

REASONS ON CONTEMPT MOTION

Background

1This is a Contempt Motion brought by the Applicant Father, Standly Phanpha (hereinafter “Dad”), against the Respondent Mother, Elma Bytyqi (hereinafter “Mom”) arising from alleged breaches of the Final Order of Justice J. Caspers dated September 22, 2017. The first Contempt Motion, which is not included in Volume 2 of the Continuing Record, was originally returnable on December 7, 2017 and eventually dismissed on February 16, 2018 without prejudice due to procedural errors. The Notice of Contempt Motion at Volume 2, Tab 1 of the Continuing Record was dated March 20, 2019 and originally returnable April 4, 2019 at 10:00 a.m. Having regard to procedural issues, it was replaced by the Notice of Contempt Motion at Volume 2, Tab 3 of the Continuing Record, and it is this latter motion that was before the Court for argument on May 29, 2019.

2Together, the parties are the parents of now 8-year-old Samuel Malachi Phanpha born June 3, 2011 (“Sam”). On September 22, 2017, with the assistance of Duty Counsel, the parties reached a complete settlement setting out parenting arrangements for Sam in considerable detail, the terms of which were incorporated into the Final Order of Justice J. Caspers on that date (the “Final Order”). The Final Order provides that Mom has sole custody of Sam who resides primarily with her. Sam spends every weekend with Dad from Friday at 3:30 p.m. to Sunday at 6:00 p.m. with additional time for holidays and special days inclusive of an equal division of March break annually.

3Without question, this is a high conflict relationship. Included in the evidence submitted to this Court are a number of toxic text message exchanges and a letter dated January 29, 2018 issued to both parents by Family & Children’s Services of the Waterloo Region cautioning them about the “risk of emotional harm” to Sam arising from their on-going conflict. The Child Protection Worker and her Supervisor, joint authors of the letter, refer the parents to resources intended to assist in managing and minimizing the conflict. They write: “As adults, it is up to you to teach [Sam] how to get along with those who you may not always like or with whom you do not get along. This is a life skill he will need as he grows up!” Unfortunately, it appears that young Sam may well have to look to other adults in his life who will find themselves sufficiently child-focused to model this life skill for him as his parents seem unable to do so.

4Dad brings a Motion before this Court seeking a finding of civil contempt ex facie against Mom. He sets out six specific breaches of the Final Order, which can be summarized as follows:

a. Mom has failed to “notify [Dad] in advance of any scheduled appointments” for Sam;

b. Mom has failed to enroll Sam in one extra-curricular activity;

c. Mom has failed to keep Dad “current with respect to address and telephone number;”

d. Mom has unreasonably withheld consent for Dad to travel with Sam outside of Ontario;

e. Mom has failed to “cooperate in obtaining and renewing a passport” for Sam; and

f. Mom failed to produce her 2017 income tax return and Notice of Assessment by June 1, 2018 as required by the Final Order.

The Law

5Rule 31 of the Family Law Rules governs contempt motions. Rule 31 provides in part:

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.

6Civil contempt requires that the moving party establish beyond a reasonable doubt that: (a) the order alleged to have been breached states clearly and unequivocally what should or should not be done; (b) the alleged contemnor had actual knowledge of the order’s terms; and (c) the alleged contemnor intentionally did the act the order prohibited or intentionally failed to do the act the order required. Of particular importance in family law matters, the presiding judge retains an overriding discretion to decline to make a contempt finding even if the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order: McKinnon v. McKinnon, 2018 ONCA 596 at para. 36, citing Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 33-35, 37.

7The person affected by the Order should know with complete precision what he or she is required to do or to abstain from doing. Implied terms cannot be read into the Order. If the Order is ambiguous, the alleged contemnor is entitled to the most favourable construction: Szyngiel v. Rintoul, 2014 ONSC 3298 at para. 20.

8The Court of Appeal has reminded us on multiple occasions that the civil contempt remedy is one of last resort and not to be used where other remedies are available to the aggrieved party: Hefkey v. Hefkey, 2013 ONCA 44 at paras. 2 and 3.

9It is to be remembered that the Final Order was generated on consent, with Mom having been present with the assistance of Duty Counsel on September 22, 2017 when Caspers J. meticulously detailed the terms of the settlement in her Endorsement at the Settlement Conference. Quite properly, Mom conceded knowledge of the Order’s terms. This specific criterion for each alleged instance of contempt is therefore omitted from the analysis below, leaving the review of the clarity of each term of the Final Order; and Mom’s action or inaction connected with each alleged breach.

Analysis of Alleged Breaches

10The Court must assess each of the alleged breaches individually, as follows:

Failure to Notify of Scheduled Appointments

a. Failure to Notify of Scheduled Appointments:

Paragraph 5 of the Final Order reads: “Both parties shall be entitled to attend any and all appointments for the child, Samuel Malachi Phanpha. The Respondent, Elma Bytyqi will ensure that the Applicant, Standly Phanpha is notified in advance of any scheduled appointments.”

The Final Order does not require either parent to enroll Sam with a regular family physician or other medical care provider, nor does it specify from whom Sam was receiving medical care when it was made. This became significant in argument, as Dad cast aspersions against Mom for failing to find Sam a consistent family physician, to which Mom responded that Dad’s original act of enrolling Sam with his own family physician precluded Sam from accessing regular care anywhere other than the hospital or a walk-in clinic.

The Affidavit evidence presented shows a clear pattern of Mom taking Sam to the hospital or to walk-in clinics and providing Dad with little or no advance notice of her intention to do so. As noted, Mom says that this is her only option, but provides no independent proof of this assertion. Dad flatly denies having enrolled Sam with a family physician. The text messages exchanged between the parties on April 3, 2018 are ambiguous – neither Mom nor Dad clearly state what attempts, if any, they have made to enroll Sam with a family physician.

There is no question that all children’s needs are best met by a single service provider for each area of care – consistency is to be encouraged for any number of reasons, not least of which being the child’s own level of comfort with a regular service provider rather than a series of random attendees at a variety of walk-in clinics. The Court wonders whether Mom has tried to take every possible step to arrange consistent medical and dental care for Sam. Having regard to the overall climate of distrust between these parents, the Court can understand how Dad would form the belief that Mom refuses to enroll Sam with regular care providers so as to shirk her responsibility to advise him of scheduled appointments. However, the fact that oral argument shifted from a review of medical attendances for which Dad received little notice to a discussion of Mom’s obligation to maintain consistency in Sam’s medical and dental care exposes the gap in the Final Order.

As the Final Order does not oblige Mom to secure single service providers for medical and dental care for Sam, she cannot be held in contempt of paragraph 5 for failing to do so. As paragraph 5 of the Final Order is not clear and unequivocal with respect to providing notice of attendances at the hospital or walk-in clinics, she cannot be found to be in contempt of same beyond a reasonable doubt. This ground is therefore dismissed.

Failure to Enroll Sam in one Extra-Curricular Activity

b. Failure to Enroll Sam in one Extra-Curricular Activity

Paragraph 7 of the Final Order reads: “Each party shall select one extracurricular activity for the child, Samuel Malachi Phanpha. The party arranging the activity shall be responsible for all associated costs. The parent arranging the activity shall notify the other parent in advance of the activity selected which shall be in consultation with the child, Samuel Malachi Phanpha.”

Dad says that the purpose of this paragraph was to ensure that Sam participated in two extracurricular activities – one arranged by him and the other arranged by Mom – which would have the effect of providing additional interaction time with Sam, particularly on weekday evenings. The language is mandatory. Mom admits that she has not enrolled Sam in an extracurricular activity at all, but says that she misunderstood the Final Order and had no intention of disobeying it. Indirectly, she also argues that compliance was an impossibility, claiming that her low income from social assistance prevents her from affording any organized extra-curricular activity, and thus providing her with a legitimate excuse to breach the Final Order.

Addressing this latter argument first, the Court does not have any evidence of the availability of geared-to-income activities for Sam or of attempts by Mom to enroll Sam in organized activities whatsoever, which evidence might demonstrate her attempts to comply with the Final Order. In any event, impossibility of performance is not a defence precluding a finding of contempt, but goes to sentence: Manis v. Manis, 2001 CanLII 3851 (ONCA) at paras. 21 – 23.

Mom’s purported misunderstanding of the mandatory nature of the Order is irrelevant to this stage of the analysis; the absence of a contumacious intent is a mitigating factor going to sentence but not an exculpatory circumstance: Coletta v. Coletta, 2003 CanLII 2412 (ONSC) at paras. 22 & 23.

Therefore, having regard to Mom’s admission that she failed to comply with paragraph 7 of the Final Order, she is held to be in contempt thereof.

Failure to Provide Current Telephone Number

c. Failure to Provide Current Telephone Number

Paragraph 10 of the Final Order reads: “Each parent shall keep the other parent current with respect to address and telephone number.”

At paragraph 23 of his Affidavit sworn March 20, 2019, Dad attests that he “only had access to [Mom’s] phone number because she had read it out loud while we were sitting at the Courthouse.” No date is provided. Regardless, it is apparent that Dad had Mom’s cellphone number by December 7, 2017 as Justice B. Oldham comments in her Endorsement of that date: “The content of the text messages is very concerning and the Court is concerned that the child will be affected because of the constant arguments and negative comments.” As Dad clearly had Mom’s cellphone number before March 20, 2019, being the date on the Notice of Contempt Motion found at Volume 2, Tab 1 of the Continuing Record, Mom could not have been in breach of the Final Order on that date. This ground is therefore dismissed.

Unreasonable Withholding of Consent to Travel

d. Unreasonable Withholding of Consent to Travel

Paragraph 11 of the Final Order reads: “Either parent may travel outside of the Province of Ontario with the child, Samuel Malachi Phanpha. Such travel requires the consent of the non-travelling parent which shall not be unreasonably withheld. The travelling parent shall provide to the non-travelling parent a detailed itinerary with all contact information at least 15 days in advance.”

This ground of alleged contempt can be dealt with on the basis that, while Mom may well have been in breach of this paragraph of the Final Order by refusing to consent to Dad’s proposed short trip to occur from December 26th – 29th, 2017, the requirement that such withholding of consent be reasonable is sufficiently vague to render this paragraph equivocal. This ground is therefore dismissed.

Failure to Cooperate in Obtaining and Renewing a Passport

e. Failure to “cooperate in obtaining and renewing a passport” for Sam

The first sentence of paragraph 12 of the Final Order reads: “The parties shall cooperate in obtaining and renewing a passport for the child, Samuel Malachi Phanpha.”

On January 14, 2019, Dad’s lawyer sent Mom a letter by courier detailing Dad’s position that Mom was in contempt of aspects of the Final Order and enclosing a largely-completed Passport Application for Mom’s signature. In the letter, Dad further undertook to pay the cost of obtaining Sam’s Passport and confirmed that, once obtained, it was his intention to provide the Passport to Mom in compliance with the balance of paragraph 12 of the Final Order. Mom simply refused to participate in any way with the processing of the Passport Application, finally returning it, signed, to Dad via counsel on May 27, 2019.

It is not lost on this Court that Mom’s Affidavit in response to the Contempt Motion is dated May 27, 2019, nor that the Contempt Motion was scheduled for argument, and was in fact argued, a mere two days later on May 29, 2019. Mom provides no excuse for this approach, arguing instead that she remedied the situation before the hearing of the Contempt Motion. That is not the test.

Nineteen (19) months having passed from the date of the Final Order to the date upon which Mom finally signed the Passport Application for Sam, this Court holds Mom in contempt of paragraph 12 of the Final Order.

Non-disclosure of 2017 Personal Income Tax Return

f. Non-disclosure of 2017 Personal Income Tax Return

The first sentence of paragraph 18 of the Final Order reads: “The parties shall exchange copies of their income tax return as filed annually with the Canada Revenue Agency by June 1st commencing in 2018.”

As with the signed Passport Application, so Mom failed to provide her 2017 personal income tax return until she delivered it via counsel with her Affidavit responding to this Contempt Motion on May 27, 2019. This delivery is almost a full year late. However, having regard to the fact that Mom is the recipient of child support, with the result that Sam is not prejudiced by her failure to disclose her 2017 income tax return, the Court exercises its overriding discretion to decline to find Mom in contempt of paragraph 18 of the Final Order.

11In sum, Elma Bytyqi is found to be in contempt of paragraphs 7 and 12 of the Final Order of Caspers, J. dated September 22, 2017.

Remedy

12The analysis now turns to the question of remedy. Rule 31(5) of the Family Law Rules provides broad discretion to the Court in crafting its ruling following a finding of contempt:

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.

13In contrast with the Court’s penal jurisdiction in matters of criminal contempt, the Court’s jurisdiction in respect of civil contempt is primarily remedial: Kopaniak v. MacLellan (2002), 2002 CanLII 44919 (ON CA), 27 R.F.L. (5th) 97 (Ont. C.A.) at para. 28. The purpose of a Contempt Order is to repair the wound suffered by the aggrieved party and to ensure compliance with the breached Order: Geremia v. Harb, 2007 CanLII 30750 (ON SC), [2007] OJ No. 3019 at para. 38. Where the contemnor is of limited financial means, a fine may not serve any useful purpose: Geremia v. Harb, supra, at para. 39.

14Dad’s requests for relief are themselves instructive. On the one hand, the Court appreciates the creativity with which counsel approached this difficult matter. There is no question that a sensitive approach should be taken in family law matters where contempt is found and the crafting of a remedy or sentence is to be undertaken. Having said this, much of Dad’s requests for relief relate to grounds for which this Court has made no finding of contempt. These points would have been more appropriately reviewed in the context of a Motion to Change the Final Order under Rule 15 of the Family Law Rules on the basis that repeated failures to comply with the Final Order can themselves constitute a material change in circumstances (see Laurin v. Martin, 2005 CanLII 37970 (ON CA)).

15Mom’s contempt with respect to the completion of Sam’s Passport Application was purged immediately prior to the hearing of the Contempt Motion. She remains in contempt of paragraph 7 requiring her to enroll Sam in one extra-curricular activity at her own expense. This Court has reviewed the letter dated May 7, 2019 from Marina Dotzert, Leisure Access Administrator for the City of Kitchener in detail in crafting the remedy in this matter.

16Based on all of the foregoing, this Court Orders that:

1. Elma Bytyqi shall pay to Standly Phanpha the sum of $57.00, being the application fee for the Passport Application for the child, Samuel Malachi Phanpha. This fine shall be paid within ten (10) days.

2. Elma Bytyqi shall enroll the child, Samuel Malachi Phanpha, in one or more City of Kitchener direct program(s) accessible through the Leisure Pass issued to the child in accordance with the terms of the Leisure Pass (“available programs”) which has a monetary value of $300.00 and is to be used by October 31, 2019.

a. One program shall be selected for each of the Summer 2019 and Fall 2019 terms.

b. The exact programs shall be selected by Standly Phanpha and are to be scheduled to occur not less than once per week on any of Mondays; Tuesdays; Wednesdays; or Thursdays.

c. Within five (5) days of the date of this Order, through counsel, Elma Bytyqi shall provide Standly Phanpha with a list of available programs for the Summer 2019 term. Not later than September 1, 2019, Elma Bytyqi shall provide Standly Phanpha with a list of available programs for the Fall 2019 term. Should she fail to do so on either occasion, Standly Phanpha shall be entitled to communicate directly with the City of Kitchener, inclusive of the Leisure Access Administrator’s office and any City of Kitchener Community Centre, to obtain a list of available programs. Further, notwithstanding the existing Final Order for sole custody, he shall be entitled to enroll the child in an available program through the Leisure Pass issued to the child without the participation or consent of Elma Bytyqi.

d. Standly Phanpha shall advise Elma Bytyqi, through counsel, of his choice of program within two (2) business days of receiving the said list of available programs on each occasion. Should he fail do to so on either occasion, Elma Bytyqi may select the available program in which to enroll the child.

e. The combined cost of the Summer 2019 and Fall 2019 programs shall not exceed $400.00. Any difference between the $300.00 value of the Leisure Pass issued to the child and the actual total cost of both programs shall be borne by Elma Bytyqi.

f. In the event that the parties are unable to agree upon transportation for the child to and from the program(s), which agreement shall be documented in writing not less than one week prior to the commencement of each program, Standly Phanpha shall collect the child from Elma Bytyqi’s residence twenty (20) minutes prior to the commencement of the program and shall transport the child to the program, and Elma Bytyqi shall collect the child at the conclusion of the program at the location at which it is offered.

g. In accordance with the terms of the Leisure Pass program, Elma Bytyqi shall apply for a renewed Leisure Pass for the child not later than October 25, 2019 for the upcoming renewal term (being November 1, 2019 through October 31, 2020) and shall provide Standly Phanpha with complete copies of her application materials on or before that date by email to: standly.phanpha@gmail.com.

h. In the event that the parties are unable to agree upon the child’s attendance at future programs commencing in the Winter session of 2019, they shall attempt mediation prior to recommencing litigation regarding this issue but, if such mediation is unsuccessful, either party may bring this issue back before the Unified Family Court of the Superior Court of Justice by way of Form 14 Motion Form with accompanying Affidavit evidence in accordance with the Family Law Rules.

Costs

17Having regard to the mixed success in this matter, there shall be no order as to costs.