Court File and Parties

COURT FILE NO.: FSA-558-18 DATE: 2019-01-03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

S.M. Respondent – and – R.M. Appellant

Counsel: Drew L. Bowyer, Counsel for the Respondent Charles Morrison, Counsel for the Appellant

HEARD: December 18, 2018

The Honourable Mr. Justice D.J. Gordon

Reasons for Decision

[1] The respondent/father appeals from the order of Neill J., granted August 8, 2018, wherein his motions for contempt and summary judgment were dismissed.

Background

[2] S.M. and R.M. cohabited from June 2011 to November 2015. Two children were born to their relationship: A.M., age 6, and I.M., age 4. Following separation, proceedings were initiated in the Ontario Court of Justice at Kitchener.

[3] On March 15, 2016, the parties executed Minutes of Settlement. Both were represented by counsel. Allen J. granted an order that day regarding parenting of the children, child support and related matters. Relevant to these proceedings are the following provisions of that order:

1. The parties shall share custody of the children, A.M. … and I.M. … .
2. i. The Respondent, R.M., shall have the children, A.M. … I.M. … every Friday from 3:30 p.m. through Sunday at 7:30 p.m. ii. The Respondent, R.M., shall also have two additional overnights per month to be arranged in accordance with his work schedule.
3. The Applicant, S.M., shall have the children, A.M. … and I.M. … from Sunday at 7:30 p.m. through Friday at 3:30 p.m. each week.
4. The parties shall share holiday periods and the arrangements for Thanksgiving, March Break, and Christmas holidays periods shall override the regular parenting schedule.
5. Neither party shall move the children, A.M. … and I.M. …, further than a 15 minute drive from the other’s residence without the other’s written consent or Court Order (current residences are 11 minutes apart).

[4] Notwithstanding para. 8 of that order, mother moved, with the children, to Simcoe on June 26, 2016. Father, given some brief notice of mother’s intention, did not consent to the move. Mother’s extended family reside in Norfolk County. They provided accommodation, as well as employment for mother in the family dry-cleaning business.

Contempt Motion

[5] On September 8, 2016, father initiated a contempt motion, returnable October 27, 2016. He alleged non-compliance regarding the order of Allen J. pertaining to mother’s move (para. 8) and the two additional overnight visits per month (para. 2 (ii)). Affidavits were served and filed by both parties.

[6] The motion was heard by Bradley J. on October 27, 2016. The parties were represented by present counsel. It appears the hearing proceeded by way of submissions pertaining to affidavit evidence. Bradley J. found mother to be in contempt of the order of Allen J., granted March 15, 2016. He directed her to return the children “ … to a residence in compliance with paragraph 8 of the order on or before June 15, 2017”. Written submissions were requested on costs and, on December 12, 2016, Bradley J. released his reasons on that issue, awarding partial indemnity costs, payable by mother in the amount of $3,921.01.

Motion to Change

[7] On May 4, 2017, mother commenced further proceedings by way of a motion to change. She sought permission to move the children’s residence to Norfolk County, changing father’s access to alternate weekends, requiring father to provide all transportation for the children and other relief.

[8] At the time, mother and the children were residing in Simcoe.

[9] In father’s response to motion to change, dated July 13, 2017, in addition to opposing mother’s request, he sought an order as follows:

(a) directions for a “purge” hearing regarding mother’s continued contempt of court; (b) in consequence of mother’s continued contempt of court, the children be placed in his care and custody; (c) terminating his child support obligation; and (d) requiring mother to pay child support.

Motion for Summary Judgment

[10] On August 15, 2017, father brought a motion returnable September 14, 2017. He requested:

(a) summary judgment dismissing mother’s motion to change; (b) imposition of terms and penalties regarding mother’s failure to comply with the order of Bradley J., granted October 27, 2016, including but not limited to: (i) placing the children in his care; (ii) imposition of a fine against mother; (iii) imprisonment of mother.

Motion to Extend Time to Relocate

[11] On September 5, 2017, mother brought a motion, also returnable September 14, 2017, seeking:

(a) extending the time to relocate the children as set out in the order of Bradley J., granted October 27, 2016; (b) extending the existing access and custody arrangements until further order; (c) determining the arrears of child support pertaining to daycare; and (d) setting a date for a case conference on her motion to change.

Court Appearance – September 14, 2017

[12] Father’s motion for summary judgment and mother’s motion to extend time to relocate came before Rogerson J. on September 14, 2017. The motions were adjourned to December 6, 2017 for argument. Rogerson J. was of the view a new contempt motion was required pertaining to mother’s failure to comply with the order of Bradley J., granted October 27, 2016 and provided directions regarding same.

Contempt Motion (Second)

[13] On September 20, 2017 father brought a further contempt motion, returnable December 6, 2017, regarding:

(a) mother’s non-compliance with the order of Allen J., granted March 15, 2016 moving the children (para. 8) and the two additional overnight visits per month (para. 2 (ii)); and (b) mother’s non-compliance with the order of Bradley J., granted October 27, 2016 directing her to return the children to a residence in compliance with paragraph 8 of the order of Allen J. on or before June 15, 2017.

Mother Returns

[14] On December 1, 2017 mother returned the children to a residence in Cambridge as required in the original order of Allen J. Her employment in Simcoe continued. It appears her motion to extend the time to return was abandoned.

Further Appearances and Orders

[15] The motions scheduled for argument on December 6, 2017 did not proceed. Rather, Neill J. granted an order:

(a) father’s access to continue in accordance with the order of Allen J.; (b) disclosure of third party police and Children’s Aid Society records; (c) mother to register A.M. in school commencing January 8, 2018 and to make efforts to have I.M. placed in daycare in Cambridge; (d) mother to provide disclosure to father of her proof of residency in Cambridge, including rent, utilities and lease agreement; and (e) adjournment to February 6, 2018 to be spoken to.

[16] The disclosure of third party records was said to pertain to an investigation of allegations of sexual interference by another individual regarding the children while in mother’s care.

[17] On February 6, 2018 the parties again appeared in court before Neill J. By then, A.M. was in school in Cambridge but I.M. was still in daycare in Simcoe. An order was granted:

(a) expanding father’s parenting time on weekends and directing him to arrange for the mother to have some parenting time on alternate weekends, on a without prejudice basis; (b) mother to disclose efforts to register I.M. in daycare in Cambridge and to comply with the disclosure terms of the order of December 6, 2017, all by March 16, 2018; and (c) adjourning the motions to a settlement conference on March 28, 2018 and for a hearing on June 6, 2018, if not resolved.

Motions Heard – June 6, 2018

[18] Father’s contempt motion and motion for summary judgment were heard by Neill J. on June 6, 2018. Her reasons for decision were released August 8, 2018, as hereafter discussed. An order was granted on that latter date:

(a) dismissing the contempt motion and summary judgment motion; (b) on a temporary basis, amending the order of Allen J. such that: (i) parties to arrange the dates for father’s two additional overnights each month, failing which twice each month his weekend access extended to Monday morning; (ii) mother to share in the transportation of the children for father’s alternate weekend access; and (iii) directing written submissions on costs.

[19] Counsel advise the issue of costs as above have yet to be addressed.

Current Status

[20] Mother’s motion to change remains outstanding in the Ontario Court of Justice. It is scheduled for a date in late January 2019 to be spoken to pending the result of this appeal.

[21] Counsel advise that:

(a) both children are attending school in Cambridge; (b) mother resides in Cambridge with the children and commutes to work in Simcoe; and (c) father has parenting time with the children each weekend.

Police Investigation

[22] On October 19, 2017 mother was interviewed by a detective with Waterloo Regional Police Service regarding an investigation of sexual interference pertaining to her children, said to have occurred in May 2016. The accused was a person known to mother from a dating relationship.

[23] The only relevant matter from the investigation were comments from mother regarding this case, specifically her move to Simcoe in June 2016. Mother was recorded as saying:

So, I mean I wasn’t technically in contempt until we went to court about it but I’m in breach of an agreement. So in the court agreement that we made, Ryan had snuck in a little detail of saying that neither one of us could move more than 15 away from their permanent residence. So we thought we could get away with it on a technicality that, at that point in time that I moved, his permanent residence was listed as Highland Ave in Simcoe, but the court didn’t see it that way. They ruled in his favor. I had to pay his court costs of $4000 and move back up to Kitchener/Waterloo by June 27 th of 2017.

Decision of Motions Judge

[24] In lengthy and detailed reasons, released August 8, 2018, Neill J. addressed the two motions before the court, contempt and summary judgment.

(i) Contempt

[25] Neill J. commenced the analysis by referring to the evidentiary standard and relevant principles, at paras. 17 and 18, saying:

[17] Civil 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; (c) the alleged contemnor intentionally did the act the order prohibited or intentionally failed to do the act the order required. A judge retains an overriding discretion to decline to make a contempt finding where 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. Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, McKinnon v. McKinnon, 2018 ONCA 596]

[18] Civil contempt under Rule 31 of the Family Law Rules is a quasi-criminal matter [Fisher v. Fisher, 2013 O.J. No. 976 (Ont.S.C.)]. It should be used with restraint and in exceptional circumstances. Peers v. Poupore, 2012 ONCJ 306]

[26] After referring to mother’s admission regarding breach of the order granted October 27, 2016 by moving the children to Simcoe on June 15, 2017, Neill J. went on to say, at para. 21:

[21] The mother acknowledges that she was in breach of the order of October 27, 2016 from June 15, 2017 until she relocated to Cambridge as of December 1, 2017. She believed that by bringing a Motion to Change before June 15, 2017 to request that she be permitted to move to Norfolk County, this matter may have been dealt with by the court in a reasonable period of time. I note that during an interview with police in October 2017, the mother advised that she did not move back to Waterloo Region in June, 2017 as it was the end of the school year and “it really did not make sense to be trying to move when your kids are still in school. So therein lies the issue in why I couldn’t move at that point”. This explanation is different than the one provided to the court. However, the fact is that as of December 1, 2017, the mother and the children have relocated back to Cambridge and reside within a 5 minute drive from the father’s residence. As such, she is no longer technically in contempt of that portion of the order of October 27, 2016. The mother is willing to continue to reside in Cambridge with the father to have access every weekend with the children, until the issues are properly dealt with on the Motion to Change. The mother continues to be employed in Simcoe, Ontario.

[27] The second component of father’s contempt motion pertained to the failure to schedule, consistently, his two additional monthly overnight visits. Neill J. concluded there was an evidentiary shortfall, saying at para. 23:

[23] On the basis of the evidence, I cannot find that the father has proven beyond a reasonable doubt that the mother is in breach of the order by not providing the father with an additional two overnight access visits each month. There is no clear evidence of the dates that the father requested his additional overnight access, or that the mother refused such requests.

[28] Neill J. made reference to the prior finding of contempt and costs being awarded against mother. She considered the provisions of Rule 1(8), at para. 25 summarizing relevant principles as follows:

[25] Although not specifically argued by the father, I have also considered Rule 1(8) when there is a clear failure to abide by a court order and the remedies under that Rule, including “making any order that it considers necessary for the just determination of this matter”. The primary objective of the remedies available under subrule 1(8) is to coerce the offender into obeying the court judgment or order. General deterrence is the second objective. Kopaniak v. MacLellan, (2002), 27 R.F.L. (5th) 97 (Ont. C.A.); Prince v. Putman, 2018 ONCJ 86] Thus, as with sentencing in contempt proceedings, particularly in family law proceedings, the sanction should be comprised of two components. It should be restorative to the victim of the breach and punitive to the noncompliant party Prince v. Putman, 2018 ONCJ 86].

[29] In this regard, Neill J. determined the most effective remedy was to amend the initial order, set out in her reasons at para. 55 and in paras. 2 and 3 of the order. She indicated the basis for such at paras. 26 and 27, namely:

[26] The mother acknowledges that she failed to abide by the court order of October 27, 2016 from June 15, 2017 to December 1, 2017 by not relocating more than 15 minutes from the father’s residence. The father has been able to maintain his weekend access, but not the additional two overnights each month. The order of March 15, 2016 does not provide a mechanism for such overnights to be scheduled and I cannot find that the mother is in contempt of this provision of the order. However, I find that it is in the interests of justice to outline clear parameters to ensure that his access occurs, which I would suggest may include extending the father’s weekend access to Mondays twice a month. It is not in the interests of justice to make a drastic change in the custodial arrangements as a punitive measure against the mother for breaching the court order. Issues of custody should only be made after a consideration of what is in the best interests of the children, which is a question to be dealt with on the Motion to Change.

[27] Unilateral moves of some distance without the consent of the other parent or in breach of a court order should always be discouraged. However, to punish the mother due to her breach of the court order by making the order sought by the father to place the children in his full-time care and not undertaking an analysis of what is in the best interests of the children is an approach that has been found to be inappropriate. [Abbott-Ewen v. Ewen, [2010] O.J. No. 2034 (Ont. S.C.)]

(ii) Summary Judgment

[30] Father sought summary judgment, dismissing mother’s motion to change. The analysis begins with reference to Rule 16, Neill J., at paras. 28 and 29, saying:

[28] Motions for summary judgment are governed by Rule 16 of the Family Law Rules, with the ability of the court pursuant to subrules 16(6.1) and (6.2) to weigh evidence, evaluate the credibility of the deponent, and draw any reasonable inference from the evidence, and to order oral evidence on the motion to exercise these new powers.

[29] In 2014, the law with respect to motions for summary judgment significantly changed with the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7. Hyniak [sic] confirmed that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment based on the evidence filed. This will be the case when the process allows the judge to make the necessary findings of fact, allows the judge to apply the laws to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. Hryniak v. Mauldin; Kawartha-Haliburton Children’s Aid Society v. M.W., 2018 ONSC 2783, [2018] O.J. No. 2399 (Ont. Div. Ct)]

[31] Neill J. went on to particularize the questions outlined in Hryniak and, at paras 32-33, addressed the onus as follows:

[32] It is the moving party’s onus to show that there is no genuine issue requiring a trial. Children’s Aid Society of Hamilton v. N.(M.), [2007] O.J. No. 1526 (Ont. S.C.)] The test now is not whether the moving party has a strong likelihood of success at trial, or that there is “no realistic possibility of an outcome other than that as sought by the applicant”, but whether a summary process will provide a fair outcome in the interests of justice. Kawartha-Haliburton Children’s Aid Society v. M.W.]

[33] The respondent also has an obligation, faced with a prima facie case for summary judgment to provide a full evidentiary record, and must provide specific facts showing that there is a genuine issue for trial. A responding party cannot rest on a denial and must put his or her best foot forward. The court must assume that this is the most that the parents have to offer at this stage. Rule 16(4.1); Kawartha-Haliburton Children’s Aid Society v. M.W.]

[32] As the motion to change raised a mobility issue, Neill J. referred to the applicable legislation and test at paras. 36, 37 and 38, as follows:

[36] Section 29 of the Children’s Law Reform Act provides as follows:

“s.29: A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.”

[37] The Supreme Court of Canada in Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27 (S.C.C.) is the leading authority for the test to be applied in mobility cases, which is outlined at paragraph 49 of the decision:

1. The parent applying for the change in custody or access order must meet the threshold requirement of demonstrating a material change in circumstances affecting the child.
2. If the threshold test is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regarding [sic] to all of the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and the evidence of new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia : (a) The existing custody arrangement and relationship between the child and the custodial parent; (b) The existing access arrangement and the relationship between the child and the access parent; (c) The desirability of maximizing contact between the child and both parents; (d) The views of the child; (e) The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) Disruption to the child of a change in custody; (g) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[38] The factors in s.24(2), (3) and (4) of the Children’s Law Reform Act must be taken into account when considering what order is in the best interests of the children.

[33] Neill J. went on to address further factors, at paras. 39, 40 and 41, saying:

[39] Although the parents have shared custody, since at least the final order of March 15, 2016, the mother has always had the children in her care during the week and arguably she is the primary parent. Rushinko v. Rushinko, [2002] O.J. No. 2477 (Ont.C.A.)].

[40] I am mindful of the following additional principles outlined in the case law as they relate to mobility:

1. If the mother proves that there has been a material change in circumstances, then the court must embark upon a fresh inquiry of what order is in the best interests of the children. In this fresh inquiry both parents bear the evidentiary burden of demonstrating where the best interests of the children lie. Gordon v. Goertz; Bubis v. Jones, [2000] O.J. No. 1310 (Ont. S.C.)]
2. The views of the primary parent are entitled to great respect and consideration, and the decision of the primary parent to live and work where he or she chooses is entitled to respect, barring an improper motive reflecting adversely on the primary parent’s ability. Gordon v. Goertz, Porter v. Bryan, 2017 ONCA 677]
3. Although the mother has stated that she will relocate to the Waterloo Region with the children if so ordered, many courts have found it problematic to rely upon representations by a parent that he or she will not move without the children should the court order that the children be relocated as it places the parent in a classic “double bind” situation. Spencer v. Spencer (2005), 2005 ABCA 262, 15 R.F.L. (6th) 237 (Alta. C.A.); Drury v. Drury [2006] O.J. No. 833 (Ont. S.C.); Hejzlar v. Mitchell-Hajzlar, 2011 BCCA 230]
4. The court must first determine which parent is to have primary residence. Only when the question of primary residence is evenly balanced and the court finds that the best interests of the children require both parents in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one. [T.K. v. R.J.H.A., [2015] B.C.J. No. 31 (B.C.C.A.)]
5. Moves by a primary resident parent of between 2 and 4 hours away where there is no improper motive, and there will be continuing access with the other parent, have generally been permitted. Luckhurst v. Luckhurst; Rushinko v. Rushinko, [2002] O.J. No. 2477 Ont.C.A.); Johnson v. Cleroux, 2002 CarswellOnt 787 (Ont. C.A.); Sferruzzi v. Allan, 2013 ONCA 496 (Ont.C.A.)]

[41] The court cannot order that a parent relocate and can only deal with the residence of the children. Should the court order that the residence of the children return to the Waterloo Region, the court must make a determination if it is in the children’s best interests to change their primary residence to the father in the event that the mother chooses not to relocate. Without such evidence or an analysis, the court cannot determine the issue of mobility. [Jones v. Jones, [2014] O.J. No. 5569 (Ont. C.A.)]

[34] While not deciding the mobility issue, in her analysis at paras. 44 – 47, Neill J. explained why the summary judgment motion was rejected, saying:

[44] There is an argument that there has been a material change in circumstances since the order of March 15, 2016 due to the following:

• At the time that the final order was made in March, 2016, the mother only had part-time employment and was experiencing financial hardship. She advises that she could not find full-time employment. At one point, her hydro was cut off. The maternal grandfather was assisting to pay her rent. Although the father was ordered to pay child support, receipt of such support was delayed while it was administratively enforced through the Family Responsibility Office.
• Both the maternal and paternal family reside in Simcoe, Ontario.
• The mother’s family owns a dry cleaning business and offered her full-time employment, and her family offered her a place she could rent, which initially she could reside in rent-free.
• The mother’s Financial Statement sworn in April, 2017 attaches her 2016 Notice of Assessment showing an income for that year of $5,721.00. The mother also attaches a paystub from her current employment indicating that she was making minimum wage of $11.40 per hour, working almost full-time with an annual income of approximately $23,000.00 in 2017. Now that minimum wage has increased, the mother would be making approximately $29,000.00 annually. While it is true that she could probably find full-time employment making minimum wage in Cambridge, her Financial Statement also indicates that she did not pay any housing costs while she was residing in Norfolk as she was residing in a rental property owned by her family, who supports her.

[45] The father argues that due to the mother’s breach of the court order she cannot use this to her advantage to assert that there has been a material change in circumstances. However, even where a parent has moved out of the jurisdiction with the children in contravention of a court order, and has been found in contempt of that order, the court has found that there was a material change in circumstances to warrant a fresh inquiry of what order is in the best interests of the children in light of the move. [Jones v. Jones, [2014] O.J. No. 5569 (Ont.C.A.)] The issue of the breach of the court order to move may be relevant under an analysis of what is in the best interests of the children, particularly if such move impairs the other parent’s ability to exercise access. Schikolenko v. McLellan, 2017 ONSC 111]

[46] I find that the father has not satisfied his onus to prove that there is no genuine issue that there is [sic] has not been a material change in circumstances since the order of March 15, 2016.

[47] If it could be determined that there has been a material change in circumstances, the court must embark upon a fresh inquiry of what order is in the best interests of the children, and which parent should have primary residence of the children.

[35] Neill J. went further, at para. 49, concluding there was not enough information to conduct a best interests of the children analysis, pointing out the evidentiary shortfall in some considerable detail. At para. 52, she expressed a lack of confidence in the affidavit evidence to make the necessary findings and, at para. 53, rejected the use of expanded powers to hear oral evidence. Neill J. concluded a “focused hearing” was the appropriate method to address the merits of the motion to change.

Appeal

[36] In his notice of appeal, father asks that para. 1 of the order granted by Neill J. on August 8, 2018 be set aside and an order be made as follows:

1. The respondent/mother’s Motion to Change be dismissed summarily.
2. That there be a finding that the respondent/mother continues to be in contempt of court.
3. That the children of the relationship, A.M. and I.M. be placed in the care of the appellant/father in consequence of the contempt.
4. In the alternative, a continued time sharing schedule between the parties in accordance with the final Order of Justice Allen dated March 15, 2016 with or without “some time” to the respondent/mother on alternate weekends and at her request. The children to remain resident in Waterloo Region.
5. In the further alternative, a continued “ordinary” time sharing schedule in accordance with the Order of Justice Allen with specifics regarding holidays and summer with or without “some time to the respondent/mother on alternate weekends and at her request: The children to remain resident in Waterloo Region: (a) Alternating each year between December 24 at 2:00 p.m. to December 25 at 2:00 p.m. and December 25 at 2:00 p.m. to December 26 at 6:00 p.m; (b) The remainder of the Christmas school holiday to be shared equally; (c) Alternating each year between the Thursday preceding Good Friday at 5:00 p.m. to Easter Saturday at 5:00 p.m. and Easter Saturday at 5:00 p.m. to Easter Monday at 5:00 p.m. (d) Mother’s Day from 9:00 a.m. to 7:00 p.m. to the Applicant; (e) Father’s Day from 9am to 7:00 p.m. to the Respondent; (f) Each party shall have two weeks with the children during the summer school break each year. Each shall give written notice to the other by May 1 each year as to which dates he/she selects. In the event of conflict in the dates, the father shall have preference in odd numbered years and the mother shall have preference in even numbered years; (g) Each party shall have one half of the Winter School Break.
6. His costs of the appeal.
7. Such further and other relief as This Honourable Court may deem just.

[37] These claims were changed in father’s factum, namely:

Part 5 – ORDER REQUESTED

81. The appellant/father simply seeks that the parties’ original Minutes of Settlement, incorporated into the Final Order of Justice Allen dated March 15, 2016 be upheld except that, as per the February 6, 2018 order: (a) His Friday parenting time commences at 7:30 a.m. and (b) “Some parenting time” on alternate weekends to the mother; He has no objection to the specification of specific holiday periods in place of the current general language. He is also content with (and does not appeal) paragraph 2 and 3 of the Order of Madam Justice Neill which provide a more specific framework for the arrangement of his two additional overnights each month. (c) Accordingly, he seeks that the Mother’s Motion to Change be summarily dismissed. The children to remain resident and attending school/day care in the Region of Waterloo. (d) The father seeks costs of this Appeal as well as costs of the Motion before The Honourable Madam Justice Neill.

[38] The grounds for the appeal as stated on behalf of father in his notice of appeal are:

1. The learned motions judge erred in law in treating the mother’s failure to comply with the terms of an existing Contempt Order, i.e. that of Justice Bradley dated October 27, 2016 as a separate contempt matter as opposed to a continuing contempt referable to that original order.
2. The learned motions judge erred in law and fact in failing to give due consideration to the provisions of Rules 2(2) [Primary Objective], 2(3) [Dealing with Cases Justly] and 2(4) [Duty to Promote Primary Objective) of the Family Law Rules, in light of the respondent/mother’s actions and disobedience of the relevant orders of the Court including the Contempt Order aforementioned.
3. The learned motions judge erred in law in failing to consider or apply the principle enunciated by the Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71, i.e. the duty of good faith and honest performance in agreements.
4. The learned motions judge erred in law in her determination that the mother had now complied with the Contempt Order by having physically returned to Waterloo Region notwithstanding that: (a) she did so, only after being directed by Justice Rogerson on September 14, 2017, and merely to fulfill a condition precedent to the bringing of her Motion to Change and not with a view to restoration of the original custody/access Order; and (b) she had failed to make any reasonable effort to enrol the youngest child of the relationship in a local daycare, as ordered by Justice Neil [sic] on December 6, 2017 and to fully outline her efforts to do so in a further order made by Justice Neil [sic] on February 6, 2018.
5. The learned motions judge erred in law in not giving due consideration to the restorative objectives of a contempt finding, as reflected in the Contempt Order of Justice Bradley aforesaid.
6. The learned motions judge erred in law in determining that there was a genuine issue for trial.
7. The learned motions judge erred in law and fact in deeming the mother to be the primary parent for the purposes of her formulation of the test for material change in circumstances in mobility cases.
8. The learned motions judge erred in law in dealing only with the first of three alternative dispositions suggested by the appellant/father, namely the placement of the children of the relationship in his full time care. The learned motions judge further erred in failing to consider the two other dispositions of the motions offered by the appellant father, as set out in his Factum (at paragraphs 76 and 77) and suggested by counsel during the course of the argument.
9. The learned motions judge erred in law in failing to consider whether the issue of best interests of the children had already been raised by the respondent/mother and rejected by Justice Bradley at the Contempt Order stage, thus rendering that issue subject to issue estoppel or res judicata.
10. Such further and other errors that counsel may advise and This Honourable Court accept.

[39] In his factum, Mr. Morrison reduces these grounds by asking the court to address the following issues:

(i) Did the learned motions judge conduct an analysis using the lens prescribed by Rule 2 of the Family Law Rules (Primary Objective) and the duty of honest performance in contractual relations as enunciated by the Supreme Court of Canada? (ii) Did the Decision effectively render the Contempt Order of Justice Bradley ineffectual and if so, was this warranted? (iii) Were the “restorative purposes” of the contempt finding accomplished? (iv) Was there a basis for a “material” change in circumstances and the need to engage in a fresh inquiry as to the “best interests” of the children?

Standard of Review

[40] Questions of law are subject to the standard of correctness while questions of fact or mixed law and fact involves palpable and overriding error. See: Housen v. Nikolaisen, 2002 SCC 33.

[41] Mr. Morrison submits the issues raised are all questions of law while Mr. Bowyer argues most are a combination of law and fact. It must be recognized there are findings of fact set out in the reasons of the motions judge.

Discussion and Analysis

[42] Before addressing the merits of the appeal, there are several preliminary matters:

(a) It is unclear as to why Rogerson J., on September 14, 2017, determined a fresh contempt motion was required. At that point, mother had not returned the children to Cambridge. While such was in contravention of the order of Bradley J., granted October 27, 2016, it was a continuing contempt of the original order of Allen J., granted March 15, 2016. A further contempt motion was not required. (b) At the present time, father essentially has the parenting regime he seeks in that the original order, amended in his favour for clarification, remains in place. In this regard, father’s alternative parenting proposals, presented in his factum but not in his motion in the Ontario Court of Justice proceeding, were obviously considered. Father’s only complaint is that the proceedings in that court continue. (c) In respect to my inquiry, Mr. Morrison conceded that even if the relief sought by his client was granted, mother could initiate a fresh motion to change.

[43] While the relief sought by father is restricted to the status of the motion to change, I will address the four issues presented on this appeal.

(i) Did the learned motions judge conduct an analysis using the lens prescribed by Rule 2 of the Family Law Rules (Primary Objective) and the duty of honest performance in contractual relations as enunciated by the Supreme Court of Canada ?

[44] Father’s complaint is that Neill J. did not engage in a Rule 2 analysis or consider the principle of the duty of good faith in the performance of obligations under an agreement as set out in Bhasin v. Hrynew, 2014 SCC 71 and as applied in Lopatowski v. Lopatowski, 2018 ONSC 824, despite Mr. Morrison’s submissions in this regard.

[45] There is no requirement that a motions judge must address every piece of evidence or all submissions presented. Reasons must be adequate but need not be perfect.

[46] Rule 2 (2)-(4) provides as follows:

(2) PRIMARY OBJECTIVE – The primary objective of these rules is to enable the court to deal with cases justly. (3) DEALING WITH CASES JUSTLY – Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. (4) DUTY TO PROMOTE PRIMARY OBJECTIVE – The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

[47] In her reasons, Neill J. referred to Rule 1(8), as is often the case with contempt motions. That provision says:

(8) FAILURE TO OBEY ORDER – If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including, (a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order.

[48] One of the pillars of our court system is to deal with cases justly. The aforementioned rules address that concept with specific reference to the unique nature of family law litigation.

[49] Neill J. is an experienced family court judge. Reading her reasons as a whole clearly reveals a consideration of the primary objective. Such was accomplished by amending the original order and in addressing a focused hearing to address the merits of the motion to change. Father’s desire for finality cannot ignore mother’s right to have her mobility request determined.

[50] Similarly, the concept of the duty of good faith in the performance of obligations, specifically the original minutes of settlement resulting in the consent order of Allen J., must be considered in context. In her motion to change, mother alleges a material change in circumstances. Neill J. addressed the relevant principles for such motions. Breach of the order, addressed in the contempt motion, does not prohibit the motion to change from proceeding.

[51] Litigants and lawyers are also bound to follow Rule 2. Here, I agree with Neill J. concluding the motion to change must be heard on its merits. Mother’s non-compliance may be a factor for consideration in that hearing. Delay, and further expense for parties of modest means, occasioned by the motion for summary judgment and appeal is not compliant with the primary objective.

[52] I conclude there was no error on this issue.

(ii) Did the Decision effectively render the Contempt Order of Justice Bradley ineffectual and if so, was this warranted?

[53] It is unclear what father seeks as no relief is claimed in this factum. However, Mr. Morrison argues that mother has escaped any consequences for her breach of the court order.

[54] Neill J. concluded that mother was no longer technically in contempt, having re-located to Cambridge by December 1, 2017. She was not satisfied that the evidence established a breach of the term of the order regarding the additional monthly access visits but did amend the original order, essentially for clarity.

[55] Neill J. could have found mother in continued contempt up until December 1, 2017. However, she correctly addressed the principles applicable in contempt proceedings, as previously referenced in paras. 17, 18 and 25 of her reasons. The primary purpose of ensuring compliance had been achieved. Further, the motions judge has a discretion to decline a contempt finding if it were unjust to do so.

[56] Mr. Morrison correctly submits purging of a contempt does not oust the jurisdiction of the court to consider punishment. Whether father really is asking for imprisonment or a fine, as sought in his motion for summary judgment is unclear, as such relief was not pursued in his factum or submissions on his behalf.

[57] In the absence of a request to overturn the ruling on the contempt motion, this appellate court cannot grant relief. Regardless, the discretionary jurisdiction of the court must attract deference in this case as ultimately the process resulted in compliance with the original order of Allen J. and the contempt order of Bradley J. The fact there was a delay in compliance does not render the orders ineffectual.

[58] I am not persuaded the exercise of discretion by Neill J. was incorrect.

(iii) Were the “restorative purposes” of the contempt finding accomplished?

[59] At para. 25 of her decision, as previously identified, Neill J. made reference to the two components of sentencing in contempt proceedings, namely restorative to the victim and punitive to the offender.

[60] Mr. Morrison argues that by allowing the motion to change to continue, Neill J. rendered the restorative purposes ineffectual. This argument ignores the fact that the contempt motion was dismissed.

[61] Regardless, the restorative purposes were met in that the original order continues. But, father wants the litigation to end, an unreasonable expectation whether the existing motion to change continues or a new one is issued. Again, it is a fundamental principle that cases be decided on their merits.

[62] I conclude there was no error on this issue.

Was there a basis for a “material change in circumstances” and the need to engage in a fresh inquiry as to the best interests of the children?

[63] This issue, as identified on behalf of father, misconstrues the reasons of Neill J. In concluding father had not met the onus for summary judgment, Neill J. reviewed in considerable detail the principles relevant to the motion for change, particularly the mobility issue. No findings were made. Mr. Morrison’s submission that Neill J. favoured mother in this decision is incorrect.

[64] There was no error on this purported issue.

Summary

[65] For these reasons, the appeal is dismissed.

[66] If the parties are unable to resolve the issue of costs, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days.

D.J. Gordon J.

Released: January 3, 2019

COURT FILE NO.: FSA-558-18 DATE: 2019-01-03 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: S.M. Respondent – and – R.M. Appellant REASONS FOR DECISION D.J. Gordon J. Released: January 3, 2019