KINGSTON COURT FILE NO.: 289/17

DATE: 2019-12-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Charles Chase, Applicant AND Brianna Marie Whaley, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Eve Theriault, for the Applicant Katelyn Lough as agent for Michael Swindley, for the Respondent

HEARD: November 25, 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 the Final Order of Justice Malcolm dated June 18, 2019, which was made on consent.

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.

[3] It has been emphasized that even where the three elements of contempt are established, a finding is still discretionary and the judge may decline to impose it where doing so would work an injustice in the circumstances of the case: Carey v. Laiken, 2015 SCC 17 at paragraphs 36 and 37; McKinnon v. McKinnon, 2018 ONCA 596 at paragraph 36. Indeed, failure to consider discretionary factors before making a finding of contempt is an error of law: Chong v. Donnelly, 2019 ONCA 799 at paragraph 8. Discretionary factors could include whether the remedy is one of last resort (as noted above), the best interests of children (Chong at paragraphs 11 and 12), whether the contemptor took reasonable steps in good faith to comply with the order (McKinnon at paragraph 36), exigent or extenuating circumstances (the applicant relied on the case of Newstead v. Hachey, 2019 ONSC 5213; see paragraphs 12 and 30), and whether the defiant conduct is serious or significant (Jackson at paragraph 56).

Facts

[4] The 9-year-old child Seth has now played house league ice hockey for several years. Organized hockey runs for five months of the winter (essentially the full months of October through February) with a short Christmas break. There is no dispute that he likes it and wants to play; he also enjoys ball-hockey as his summer organized sport.

[5] For the 2017/2018 season the applicant says the respondent unilaterally enrolled the child and then sent him an invoice for his share. The respondent disagrees and claims that the applicant agreed. Nothing turns on it. At that time both the games and practices took place on Saturday mornings, with one following the other. The parenting schedule then as now was shared with each party having the child on alternate weekends. The applicant indicates that he did his best to bring the child to the games and practices during his time. An incident occurred between the parties in the dressing room in February 2018 and the police were involved, but no charges were laid.

[6] For the 2018/2019 hockey season, the respondent contacted the applicant in August seeking his consent to enroll the child. The applicant would not agree, indicating that he could not afford it. Although he did not give other reasons at the time, he says that he was also “wary” of the time commitment and of encounters with the respondent given the February 2018 incident. The respondent enrolled the child anyway. The applicant did not bring the child to the games and practices occurring during his parenting time. He indicates that he is not against hockey, is active with the child in summer and fall activities, and that during the winter months he and the child began playing “pond hockey” in a neighbourhood park with local children and their parents.

[7] The parties settled their family law issues in the early summer of 2019. The Final Order dated June 18, 2019 provides for joint custody and a shared parenting arrangement which continues the pattern of the child being in the care of each parent every other weekend. It does not directly address the applicant’s refusal to take Seth to hockey, but includes the following paragraph under the heading “Parenting” which is the term that the respondent asserts the applicant has breached:

1 h. If one of the parties seeks to enroll Seth in extracurricular activities and such activities occur during the other parties’ scheduled time with him, consent needs to be obtained from the other party prior to registration in writing, such consent not to be unreasonably withheld.

[8] There is no dispute that the respondent tried to obtain the applicant’s consent to enroll the child for the 2019/2020 hockey season and he again refused citing financial issues. He also told the respondent on August 16, 2019 that if she were to unilaterally enrol the child, he would not take him on his weekends as he wanted to use the time to do “special weekend activities”. The respondent enrolled the child without the applicant’s consent and paid the costs (registration and equipment). The applicant has continued to refuse to take the child to his practices which are still every Saturday morning, and to his games which are now every Sunday morning.

[9] The applicant indicates that he spoke to the child about his decision explaining that he could not afford organized hockey, but they would do “many other fun things together, such as play pond hockey”. He says that Seth told him he was okay with the decision. The respondent indicates that Seth’s reaction, to the contrary, was “both anger and sadness” and that he was crestfallen. I note that the applicant misled the child by citing costs as his reason; the respondent was not seeking financial contribution from him.

[10] The respondent now seeks the relief framed within her Contempt Motion in order to have the child fully participate in this activity. She has obtained a letter from the coach to support her view of the benefits of being a full-time, as opposed to half-time, member of a hockey team. Since the motion was brought the applicant has given additional reasons as to why he will not take the child:

1. Time. The applicant argues that hockey takes “considerable more time” than one hour every Saturday and Sunday, as the child has to arrive early to put on his equipment and be in the dressing room, and the reverse afterwards. Of course, pond hockey and “special weekend activities” also take time.
2. Opportunity Cost. As noted the applicant indicates that he wants to do other family activities with the child on his weekends, including playing hockey on the outdoor ponds. I would observe that pond hockey is not the same as organized hockey. I would also note that October and November in Kingston are not cold enough for pond hockey. Appreciating that there could be missed games or practices for “special weekend activities”, this reason does not fully explain his categorical refusal to bring the child to any and all of his games and practices.
3. Conflict. The applicant says that the incident of conflict in the dressing room “spooked him”. However, that was well over a year and a half ago, and the parties are able to both attend the child’s summer sports activities.

[11] The applicant’s reasons as set out do not fully explain why he has taken such an inflexible position. He has disregarded the child’s wishes and has not framed his reasons in the context of Seth’s best interests. The following text exchange between the parties hints at another motive:

RESPONDENT: “Okay, guess daddy won’t be around for his hockey again this year. I don’t care if you’re a part of it or not. He will know his momma has his best interests at heart [smiley face icon]. I’m not meeting you on your Fridays. Period. You want the clothes you can get them.”

APPLICANT: “Hahaha. Little mad are ya?”

Analysis – The Required Elements for a Finding of Contempt

[12] I am not satisfied that the alleged events of contempt have been proved beyond a reasonable doubt and that the order is free from different interpretations, for the following reasons.

Alleged Breach

[13] The onus is on the party seeking a finding of contempt to spell out precisely what act or omission constitutes the charge. The charge as framed in the Notice of Motion is that the applicant:

Failed to comply with Paragraph 1(h) of the Final Order of Justice W. Malcolm, dated June 18, 2019, insofar as you have unreasonably withheld consent for the child, Seth … to be enrolled in hockey.

The respondent paraphrases the above in her affidavit stating that “[t]he issue which gives rise to this Motion for Contempt is Seth’s enrollment in hockey.” However, the applicant’s consent was a precondition to that enrollment, and the respondent enrolled the child anyway notwithstanding the lack of consent. She determined that the applicant was being unreasonable and acted accordingly. The applicant providing his consent now (by purging or court ordered) is academic.

[14] I fail to see how someone can be in breach for refusing to grant permission for something that was done without his permission. A central purpose of the civil contempt process is to compel compliance. Sanctioning the applicant for failing to provide consent for enrollment in an activity that the child is already enrolled in makes little sense.

Clear Order

[15] Although not framed as the actual contempt, the real issue for the respondent is that the applicant is not taking the child to his hockey. However, he was refusing to do that before the Final Order was even made. If there was an intent to address that issue and compel the applicant to take the child on his time, paragraph 1 h. falls far short. Indeed, it appears to have been drafted, to the contrary, to allow the applicant (and respondent) to make their own parenting decisions regarding their scheduled time, providing they are not unreasonable. If the respondent is suggesting now that part and parcel with enrollment (as a term either to be read in or implied) there is a requirement that applicant also bring the child to the activity, her Notice of Motion does not spell that out. Regardless, a finding of contempt requires a clear order, and given that paragraph 1 h. on its face does not compel the applicant to bring the child to hockey it cannot support a contempt charge (had it been laid) for his refusing to do so.

[16] I would add that the case of Wall v. Wall, 2013 ONSC 1353 considered whether Mr. Wall should be held in contempt because he “[u]nreasonably withheld his consent to enrol the parties’ daughter in certain skating programs”. That is indistinguishable from the charge here. As Justice Leach observed at paragraph 60, where the order provides for the “unreasonable” withholding, it is open to various interpretations and is not the clear-cut obligation upon which a contempt finding is normally founded.

Analysis - Discretion

[17] Not only am I unable to find beyond a reasonable doubt that the applicant breached a clear court order, but I would add that had I been satisfied, there is an additional problem with the way the respondent has framed her request that deflects from a discretionary contempt finding.

[18] The respondent is seeking a finding based on the applicant’s refusal to consent to enrollment, following which she wants the court to compel the applicant to take the child to hockey or to allow her to. She relies on Rule 31(5)(d) which says that upon a finding the court may order that the person “do anything else that the court considers appropriate”. However, the purpose of Rule 31(5)(d) is to address the actual contempt. It is not a door that once opened allows the court to deal with any other issue. Had a finding been made that the applicant unreasonably withheld consent for the Seth to be enrolled in hockey – again the actual and only charge here – an appropriate disposition might have been to dispense with that consent. It would not be to make other orders not directly related to the finding. An order that compels the applicant to take the child to hockey on his time or that allows the respondent to do so, regardless of how appropriate it might be, would be a substantial change to the existing custodial arrangement. It is not open for the court to vary the terms of the Final Order under Rule 35(1)(d): Hefkey v. Hefkey, 2013 ONCA 44 at paragraph 5. That requires a full best interest analysis (Balice v. Serkeyn, 2016 ONCA 372 at paragraph 12) which in this case might include an independent report on Seth’s views.

[19] It is obvious that a Motion to Change is the proper process for the relief the respondent has requested. As such it cannot be said that she brought her Contempt Motion as a last resort.

Decision

[20] For the above reasons, I am unable to find that the applicant is in contempt of paragraph 1 h. The motion is dismissed.

[21] The applicant is the successful party. However, the respondent brought her motion in good faith focussed solely on Seth’s best interests. I am not convinced of the bona fides of the applicant’s categorical refusal to take the child to each and every game and practice during his parenting time. There is an element of bad faith in his stating to both the respondent and to the child that money is the issue when it is not. I am therefore not inclined to order costs. If the parties still feel they want to address me on that issue, they shall contact the Trial Coordinator in writing no later than ten days from the date of this decision to request a hearing date, otherwise there shall be no order as to costs.

Mr. Justice Timothy Minnema

Date: December 19, 2019