KINGSTON COURT FILE NO.: 355/15

DATE: 2019-09-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Steven William Newstead, Applicant

AND

Cynthia Marie Hachey, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Paul G. Andrews, for the Applicant

No counsel for the Respondent

HEARD: July 2, 2019

ENDORSEMENT ON MOTION FOR CONTEMPT

MINNEMA J.

[1] This is the respondent’s motion requesting that the court find the applicant in contempt of my Final Order dated February 26, 2018.

Law

[2] There is no dispute about the law of civil contempt, which is comprehensively set out by Justice Chappel in Jackson v. Jackson, 2016 ONSC 3466. For a summary I adopt the following comments by Justice Charney in Kokaliaris v. Palantza, 2016 ONSC 198 (paragraphs 24 to 26 combined, citations omitted):

Contempt is a serious remedy and is not to be granted lightly. It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. … [T]he civil contempt remedy is one of last resort and that great caution must be exercised when considering contempt motions in family law proceedings. Contempt remedies should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order. … [T]o make a finding of contempt, the court must be satisfied as to three elements of the alleged contempt: (a) the order must be clear and not subject to different interpretations; (b) the acts [or failures to act] stated to constitute the contempt must be wilful [also referred to as “intentional” or “deliberate” in the caselaw] rather than accidental; and, (c) the events of contempt must be proven beyond a reasonable doubt. Unless the motion for contempt satisfies all three parts of the test, the motion for contempt must be dismissed. Notwithstanding the court’s reluctance to exercise it[s] contempt powers, it is important that such powers be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip.

Issues/Particulars

[3] It goes without saying that the purpose of a Notice of Motion, critical for the principles of natural justice, is to give the opposite party and the court notice of what relief the moving party is seeking: Kenora-Patricia Child and Family Services v. M.(A.), 2004 56654 (ON SC), [2004] O.J. No. 673 at paragraph 44. This is especially important for a contempt motion, and it has therefore long been held that “[t]he notice of motion must specify the person against whom the order is sought, and state the date, place, and other facts sufficient to identify the particular acts alleged to constitute contempt”: Toronto Transit Commission v. Ryan, 1998 14635 (ON SC), [1998] O.J. No. 51 at paragraph 29.

[4] The requirement that the Notice of Motion for contempt contain the clearly articulated particulars of the charge was relaxed somewhat in the case of Follows v. Follows, 1998 4629 (ON CA), [1998] O.J. No. 3652 (C.A.) at paragraph 3. It created what has been described as a “very limited exception” where the particulars are readily ascertainable from a single paragraph in the supporting affidavit and no objection is raised: Rocca Dickson Andreis Inc. v. Andreis, 2013 ONSC 5508, [2013] O.J. No. 4071 (Div. Ct.) at paragraph 21. Since the Follows case, the importance of strict compliance with formal procedures has been reemphasized in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, [2009] O.J. No. 356 (Ont. C.A.), and Morasse v. Nadeau-Dubois, 2016 SCC 44.

[5] The Notice of Motion here simply refers to seven sections of the Final Order that the respondent is relying on. When I raised this issue, the applicant indicated he was content to respond to the particulars as found in the affidavit. This case therefore falls within the Follows exception. Again, regardless of whether the particulars are in the Notice of Motion (as is usual and preferable) or in the supporting affidavit, the onus is on the party seeking a finding of contempt to spell out precisely what act or omission constitutes the charge: Rocca Dickson Andreis Inc. at paragraph 24.

[6] The particulars of one of the counts (out of seven), namely that the applicant breached the term prohibiting the parties from discussing the litigation with a child, were contained substantially in the respondent’s reply affidavit. That charge was therefore appropriately withdrawn. In her affidavit the respondent referred to other more general complaints about the applicant, but clarified during the hearing that the only contempt charges being pursued are ones identified below.

First Alleged Contempt – Breach of the Right of First Refusal

[7] The Final Order with respect to alternate care reads as follows:

9. If either party is unable to care for one or both of the children for an overnight period during their time, they shall promptly afford the other party the option of caring for the child or children before arranging for a third party to provide child care.

[8] The respondent charges that between July 16 and 19, 2019, the applicant was hospitalized, and the children (Carson age 13 at the time and Bronte age 10 at the time) were not cared for by her. She therefore wants him found in contempt.

[9] The children were with the applicant during the summer holiday schedule. In the early morning hours of July 16, 2018, he began violently vomiting blood. He lives north of Kingston and was taken by ambulance to the Perth and Smiths Falls District Hospital. From there arrangements were made to airlift him to the Kingston hospital, but the air ambulance was diverted due to weather (fog) and he was taken to the Ottawa hospital instead. The applicant’s partner Ms. Wallace called the applicant’s parents to look after the children and left for the hospital in Ottawa at 6 a.m. after the fog had lifted. When she arrived the applicant had already undergone emergency surgery and was recovering in the Emergency Room. At noon the applicant was moved to the critical care unit. Mr. Wallace returned home around 2:30 p.m.

[10] Ms. Wallace and Bronte left for the hospital at around 7 a.m. the next morning in order to bring the applicant home. They spent the day with him. At noon they learned that he would not be released as he was experiencing an unusual side effect from one of the medications, resulting in a marked decrease in his blood pressure. They left the hospital around 3 p.m. The next day, July 18, they came back to Ottawa and the applicant was discharged at around 10 a.m.

[11] On July 19, 2018, the respondent sent an email to the applicant copying both his partner and father, referring to the right of first refusal clause. It was polite, and seemed to be sent as a reminder for the future as it indicated “[p]lease inform me when you are incapacitated in this manner …” However, at about the same time the respondent incongruously also used the child Bronte’s telephone to send a considerably more aggressive text to Ms. Wallace indicating “both you and he [the applicant] are in breach of this court order”, “[o]ne of Steve’s mistresses[^1] or girlfriends is not an appropriate caregiver when [the children’s] mother is available” and “I will be seeking legal advice on how to deal with this breach, and may need to file yet another charge against Steve, as he is the one responsible for not following the Order”. About a week later the respondent contacted the police, cited the Criminal Code offence of disobeying a lawful order, and requested an investigation on the applicant. On May 5, 2019, about eight months after the event, she brought this motion seeking to have the applicant cited in contempt, with the exaggerated claim that he was in the hospital until July 19, 2018. There is no specificity to this charge. It is not clear to me whether the respondent is of the view the applicant should have arranged alternate care while he was in the helicopter, while he was in surgery, while he was in recovery and expecting to go home, etc.

[12] I do not know what caused the respondent to spiral -- from sending an appropriate email, to making aggressive accusations, to calling the police, and then bringing this motion -- but these events do not warrant a finding of contempt. This was a unique crisis situation, the applicant was initially fighting for his life, and when it looked like he was going home an unforeseen medical reaction cause a delay. One cannot always know how a medical emergency will play out, but in my view there was no intentional failure to comply with the order. Even if there had been I would not exercise my contempt discretion (Carey v. Laiken, 2015 SCC 17 at paragraph 36) in such exigent circumstances. The respondent is not using the contempt remedy here for its purpose -- to ensure compliance with court orders. These unusual circumstances are unlikely to be, and have not been, repeated.

Second Alleged Contempt – Regular vs. Final Holiday Schedule

[13] The Final Order says with respect to the regular parenting schedule at paragraph 4 “the children of the marriage… shall reside… pursuant to the shared-parenting arrangement… [w]ith the Applicant for alternate weekends, commencing after school on Thursday and concluding at the start of school on Tuesday” (emphasis added). The final order says with respect to the Christmas holidays:

The parties will share equally children’s school Christmas Break. The children will reside with the Applicant for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years, and with the Respondent for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in the odd-numbered years. The first half will start when the children leave school on the children’s last day of school in December and end at noon on the date that is the half way point of the Christmas Break. The second half will start at noon on the date that is the half way point of the Christmas Break and end on the morning the children returned to school in January. [Emphasis added.]

[14] For 2018, the applicant was to have the children on the weekend before the Christmas Break, so he would have them starting after school on the Thursday. The respondent was to have them for the first half of the Christmas break, so she would have them after school on the Friday. To try and avoid the inconvenience of multiple transitions the applicant offered the respondent the Thursday before the Christmas Break in exchange for another day at the end of the holidays. In his letter he said that if he did not hear back from her he would pick up the children after school on the Thursday. The respondent did not reply, so the applicant did as he indicated he would. The respondent maintains that the proper reading of the above provisions is that she was to have the children after school on the Thursday and that by taking them the applicant was in breach. In my view the order cannot be interpreted that way. There is no contempt.

[15] The respondent also alleged that the applicant breached the Final Order by failing to return to the children to school on the morning it resumed in January. There was no evidence to support that charge. The applicant to the contrary gave an account in some detail of returning them as required. Any doubt must be exercised in favour of the person alleged to be in breach. I am also not prepared to make that contempt finding.

Third Alleged Contempt - March 1, 2, and 3, 2019

[16] The Final Order says at paragraph 4(d) that in addition to the parenting schedule the children shall reside with the applicant “at such other times as agreed between the parties.”

[17] The respondent indicates that Carson had asked her at times if he could go to the applicant’s on certain non-scheduled weekends and she permitted it. Those additional times were arranged through the child, with no direct communication between the parties. When Carson asked to go for the March 1, 2019 weekend, the respondent told him “not this time”. The child, however, told the applicant he had permission, and the respondent therefore picked him up on the Friday after school.

[18] When the respondent learned that the child had gone to the applicant’s home she informed him by telephone that Carson did not have permission. That conversation, not uncharacteristically as between these parties, eventually became heated and ended abruptly. The respondent then called back and left a message that she was going to drive to the applicant’s home and retrieve the child. There was no demand made that the applicant himself transport the child back. The respondent then reconsidered her plan and did not get Carson. Following that weekend she indicated to the applicant that she would not permit any further parenting time outside of the set schedule, which in my view should have concluded the matter. However, she then brought this contempt charge.

[19] While it is somewhat unclear what is being alleged as the specific contempt, “Unauthorized Weekend Pick-up” is the caption for this occurrence in the respondent’s affidavit. In my view the child going to the applicant’s home on March 1, 2019 was as a result of an obvious misunderstanding. I cannot see a willful disregard for the court order that would support a finding of contempt.

Fourth Alleged Contempt - Encouraging the Child Carson to Breach the Order (April 12, 2019)

[20] The respondent indicates that, following the above incident and her subsequently refusing any additional time, Carson became angry with her and texted the applicant. She attached to her affidavit a screen shot from his cell phone of a reply message from the applicant and a separate message from the applicant’s adult son (Carson’s half-sibling). Her assertion is that they raise an “obvious inference”, that the applicant has been encouraging Carson to disregard the parenting arrangements in the Final Order, and that as a result he is guilty of breaching “or conspiring to breach” it.

[21] The applicant in response to this complaint includes as an exhibit his entire related text exchange with Carson. When Carson asked to be picked up because he was bored at his mother’s house, the applicant responded “you need to talk to your mother”. He also suggested that Carson speak to his older brother as a support as he had “been through this before”. That other son texted Carson offering him the opportunity to “hang out” at his place, which did not occur.

[22] Those texts do not establish that the applicant breached the order, and are not indicative of contempt. They also do not support the allegation that efforts were being made by the applicant to incite Carson to breach the order. Further, the respondent failed to explain the legal basis for a “conspiring to breach” charge.

Fifth Alleged Contempt – Snow Days (January 29 and February 12, 2019)

[23] As noted the applicant’s alternate weekend time starts after school on Thursdays and ends at the start of school on Tuesdays. Paragraph 6 of the Final Order says:

6. The drop-offs and pick-ups of the children for the purposes of parenting time shall occur at the children’s school(s) if the exchange is a day on which the children are attending school. The other parent shall not attend at such exchanges. On non-school days, exchanges of the children will occur in the parking lot at the Glenburnie Grocery Store in Glenburnie, Ontario.

[24] Glenburnie is a very rough half-way point between their two homes. There is no dispute that on the non-school days the Glenburnie afternoon exchange time is expected to be 3:00 p.m. There also appears to be no dispute that when the buses do not run the result is a “non-school day”.

[25] The winter of 2019 saw a number of severe weather events in the Kingston area. Two occurred on the transition days when the children were going into the applicant’s care, namely on January 24 and February 7, 2019. I note these for background only. On the former, buses for the children’s school were cancelled and the children did not attend school, but the respondent was still required to go to work (she is a high-school teacher). She therefore had to pick up the children from her home after school (after her work) to bring them to Glenburnie, and as a result she was later than the expected 3:00 p.m. exchange time, indeed closer to 4:00 p.m. On the latter weather related non-school day being February 7, it appears that the respondent stayed home herself with the children, and the exchange took place at 3:00 p.m. as expected but at a different location, namely another school chosen by her. The applicant accommodated these changes.

[26] In two other instances, the subjects of the contempt charge, the weather issues arose on the days the children were to transition back to the respondent’s care (drop-off at school) according to the schedule. On the morning of Tuesday, January 29, 2019, the school buses to the children’s schools were cancelled. The respondent was the first to become aware of this, and called the applicant at 7:00 a.m. requiring him to bring the children to the school where she indicated she would pick them up. The details of this telephone exchange (and a subsequent one) are disputed, but include the applicant’s position that the children be exchanged instead at Glenburnie at 4:00 p.m. because of the weather and to accommodate the respondent’s work and travel -- in other words along the same lines as what occurred previously on January 24, 2019.

[27] As both parties clearly expected that this was to be considered a “non-school day”, I note that the exchange that morning would have properly been required to take place at Glenburnie, not at the children’s schools as the respondent was seeking. She would have had to drive as well in whatever weather conditions were present. When the applicant for the reasons noted below refused to bring the children to their schools, the respondent called the police but was unable to convince them that their involvement was required. The exchange eventually took place that day at 4:00 p.m. in Glenburnie, as the applicant had suggested.

[28] The applicant took the view that travelling that morning could put the children’s safety at risk. He indicates that he came to that conclusion independently of, but consistent with, the school board and the bus company’s determination that the roads were unsafe for children. He indicates that when there is severe weather, the roads in his area (he lives about one hour north of Kingston) often have not been plowed by the time he would be required to leave home (at 7:00 a.m. to get the children to their schools by 8:15 a.m.).

[29] Following these three bus cancellations some overtures were made by the applicant to attempt to negotiate an inclement weather agreement, but then yet another cancellation occurred, the fourth, on February 12, 2019. With even less communication between the parties the applicant took the same position as before, and the respondent yet again contacted the police who once again determined that no action was required. The exchange ultimately occurred at 4:00 p.m. that day in Glenburnie. The respondent then brought this contempt motion approximately three months later when winter weather conditions were no longer an immediate issue.

[30] The respondent in her factum indicates that the applicant has shown an “arrogant disregard” for the court order. I fail to see that. Indeed, I am not satisfied beyond a reasonable doubt that his behaviour exhibits a deliberate contravention. In neither situation did she propose to meet the applicant part way, in Glenburnie, as the order required. Even if I had determined otherwise, this is not a circumstance where I would be inclined to exercise my discretion and make a finding of contempt. These are once again extenuating circumstances, and the applicant appears to have been acting in good faith in making decisions about reasonable compliance with the order in view of the children’s safety.

[31] Going forward, I encourage both parties to negotiate a refinement to the Final Order to add a mutually acceptable inclement weather clause.

Sixth Alleged Contempt – Refusing Access to Benefit Information

[32] Paragraph 28 of the Final Order reads in part as follows:

28. Each party shall supply the other with updated benefits information as needed, and each shall authorize the other to make inquiries for the children with his or her insurer.

[33] The respondent alleges that she has not been able to access details about the applicant’s benefit plan since 2015 when he called the Ontario Teacher’s Insurance Plan (“OTIP”) and “unauthorized” her. To the contrary the respondent says he authorized the applicant to make inquiries with OTIP in October of 2016, but that in April of 2017, when her own benefit plan became administered by OTIP and unbeknownst to him, she was rendered unable to do so. There is no documentation from OTIP supporting either assertion.

[34] As noted the Final Order was made on February 26, 2018. About a year later, on February 15, 2019, the respondent indicates that she sent the applicant an email advising him that she had contacted OTIP that same day to determine coverage for eyewear for Carson but was told by the plan that she was not authorized. In the email she politely asked him to remedy that. The applicant indicates that he did not receive that email.

[35] It appears that the respondent then attempted to deal with the matter herself. On April 4, 2019, she corresponded by email directly with OTIP, referencing and attaching a copy of the Final Order. Oddly, even though this was about the applicant’s plan, she did not cc. him on this communication. The Benefits Services representative replied on April 10, 2019, indicating that she had forwarded the respondent’s email to another department, but then on April 15, 2019, further advised that the Final Order had been interpreted to mean that the respondent cannot get benefits information without the applicant’s consent, which they did not have. The respondent indicates that she emailed the applicant that same day to tell him that he needed to provide his consent, reiterated Carson’s need for new glasses, and reminded him that she had already asked him earlier in the year. She ended the email politely “[c]an you do this please?” The applicant again indicates that he did not receive the email.

[36] The applicant says that the fact that the respondent was unable to make inquiries of his plan was only brought to his attention for the first time when he was served with the contempt motion, following which he immediately contacted OTIP to reinstate her authorization. He indicates that the respondent’s emails on their face make it apparent that they were printed without actually being sent, given the lack of an automatically generated header, footer, and signature block which is evident in other emails. I have compared the emails in question with others in the record, and fail to see a pattern that supports this assertion. Some emails have date stamps and/or the respondent’s email address seeming imprinted by a program at the top of the page, but some do not. Some have what appears to be automatically generated signatures or signature blocks, but others do not, and at times even the ones that do are different. Not only am I unable to determine from the record that these two emails were somehow a deviation from the many emails (some close in time) admittedly sent and received between the parties, but the applicant’s broad assertion that he only learned of this problem when he was served with the contempt motion is untrue. He was served (by process server) on May 11, 2019, yet on May 10, 2019 he received an email from OTIP that was in response to his “most recent inquiry” about this very same issue.

[37] In her reply affidavit the respondent indicates that this is one of many examples of the “long history” of applicant ignoring correspondence/emails, and that she was puzzled why he would do so here given “such a mundane request”. The applicant suggests that having received no response from him, it was incumbent on the respondent to mail him a letter or otherwise communicate with him about this issue before including it as part of her contempt motion. The applicant is being disingenuous here. The Final Order at paragraph 17 clearly says that “[e]xcept in the case of an emergency, neither party shall communicate with the other except through email.”

[38] The order is clear and not subject to different interpretations in the sense that the applicant was to authorize the respondent to make inquiries for the children with his insurer. When she alerted him that there was no such authorization in place he only rectified it the day prior to being served with the motion. Is that delay a refusal or a failure to act warranting the serious quasi-criminal finding of contempt?

[39] Ultimately the contempt power remains a matter for the court’s discretion, to be used sparingly, and is typically reserved for cases involving defiant conduct that falls at the most significant end of the spectrum (Jackson at paragraph 56). The applicant may have been purposely provoking the respondent by dragging his feet, but this poor behaviour in the context of all the other sometimes outrageous actions in this case does not in my view put it near the serious end of the spectrum. Indeed, I am not satisfied beyond a reasonable doubt that the particulars of this charge -- that the applicant “refused” access to benefit information – have been met. He never said no and he provided the authorization, although not in a timely way.

[40] Had the applicant acted more quickly or at least let the respondent know what he was doing, she may not have included this issue in her contempt motion. While that does not sustain the charge, it is relevant to costs.

Decision

[41] The respondent must appreciate that the court on a motion for contempt is not assessing whether her dislike of the applicant (or vice versa) is or was warranted, or which party is generally the more reasonable. The potential impact of a contempt finding and the criminal standard of proof means that the remedy is reserved for serious matters, and none of the counts that she has put forward either satisfy the three part test or, more generally, meet that definition. This is not the usual family law case where an access parent is seeking contempt for a persistent denial of time with a child. The respondent herself has primary residence, and her overall time has not been significantly impacted. When taken cumulatively and looked at as a whole, these charges are less indicative of the applicant being a person who routinely and persistently flouts court orders, and more suggestive of the respondent having found yet another front on which to wage this highly conflictual family law battle.

[42] The motion is dismissed. As the parties indicated that they wished to address me on costs I will accept written submissions as follows:

1. From the applicant served and filed within fifteen days from the release date of this decision of no more than four pages, double spaced, in addition to any relevant offers and draft bills of costs.

2. From the respondent served and filed within fifteen days after she is served with the applicant’s submissions of no more than six pages, double spaced, in addition to any relevant offers and draft bills of costs.

3. If required, a reply from the applicant of no more than two pages double spaced served and filed within five days after he is served with the respondent’s submissions.

4. If no submissions are received within the contemplated timeframe, the parties shall be deemed to have settled the issue of costs between themselves.

Mr. Justice Timothy Minnema

Date: September 9, 2019

[^1]: Notwithstanding that (1) the parties separated in April of 2014, (2) the applicant began a relationship with Ms. Wallace in November of 2015, and (3) the parties were divorced on July 7, 2016, the respondent continues to insist on referring to Ms. Wallace as the applicant’s “mistress”: see the Reasons for Judgment, 2018 ONSC 1317 at paragraph 33.