Court File and Parties
Court File No.: FC-18-1359-0 Date: 2020-11-05 Superior Court of Justice - Ontario
Re: Julie Catherine Hoysted, Applicant And: Jason Ivan Abitbol, Respondent
Before: The Honourable Mr. Justice Marc Smith
Counsel: Leighann Burns, Counsel for the Applicant Self-Represented, Respondent
Heard: September 28, 2020 by video conferencing
Endorsement
M. Smith J
[1] On August 10, 2020, I released my decision finding that the Respondent Father was in contempt of Justice Corthorn’s Order dated November 23, 2018, as amended on July 18, 2019 (the “2018 Order”). A copy of this decision is attached at Schedule “A”.
[2] The Father was given one last opportunity to purge his contempt, by disclosing to the Mother, by no later than August 31, 2020, any and all IP addresses. The Father did not purge his contempt.
[3] On September 28, 2020, the Mother brought back the Motion before me to provide submissions regarding the penalty to be imposed and the costs associated with the Motion. Although the Father was properly served, he did not attend the September 28, 2020 Court appearance, claiming that he had another matter scheduled on that day.
THE ISSUES
[4] The issues to be determined are:
a. What is an appropriate penalty?
b. Costs to be paid by the Father.
THE LAW AND ANALYSIS
Issue #1 - Penalty
[5] Contempt proceedings occur in two steps: the first is the contempt hearing and the second is to determine the penalty (Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574).
[6] The first step was heard on July 20 and 31, 2020. The Father was found to be in contempt of Court for failing to provide the disclosure (IP addresses) as set out in the 2018 Order. He was given an opportunity to purge his contempt by no later than August 31, 2020. He failed to do so.
[7] The second step proceeded on September 28, 2020. The Father did not attend this hearing.
[8] The Mother seeks the following sanctions:
a. Imprisonment for a period of three (3) days;
b. Payment of a fine in the amount of $5,000.00;
c. An Order that the Father shall not denigrate the Mother, make any commentary or post any pictures or videos about this case, the Mother and the child, as well as remove any such commentary, videos or pictures immediately, to the extent it is in his control to do so; and
d. An Order dispensing with the Father’s consent to allow the Mother to deal directly with or obtain disclosure from any third-party record holder with respect to any online postings or commentary about the Mother or the child.
[9] Rule 31(5) of the Family Law Rules, O. Reg. 114/99 (“FLR”) states that if a Court finds a person in contempt, it may order the following: (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.
[10] A Court Order is not a suggestion. There are consequences for non-compliance (Gordon v. Starr, (2007) 2007 35527 (ON SC), 42 R.F.L. (6th) 366 at par. 23).
[11] Sentencing is comprised of two components: (a) restorative to the victim of the contempt; and (b) punitive to the contemnor (Szyngiel v. Rintoul, 2014 ONSC 3298).
[12] A sanction must be proportionate to the nature of the contempt and the mitigating and aggravating circumstances. It must also not deviate from a marked departure from those imposed with similar circumstances (Stone v. Stone, 2019 ONSC 3214).
[13] Factors to consider when determining an appropriate sentence in civil contempt matters are: (a) the available sentences; (b) the proportionality of the sentence to the wrongdoing; (c) the similarity of sentences in like circumstances; (d) the presence of mitigating factors; (e) the presence of aggravating factors; (f) deterrence; (g) the reasonableness of a fine; and (h) the reasonableness of incarceration (Cassidy v. Cassidy, 2010 ONSC 2707).
[14] For the reasons set out below, I find that an appropriate penalty to be imposed upon the Father is the payment of a fine in the amount of $2,500.00:
a. Any breach of a Court Order is serious, but some are more serious than others. Here, the breach in question is the Father’s refusal to provide IP addresses, which I would say is at the lower end of the spectrum of seriousness. The sentence must be proportionate to the gravity of the wrongdoing.
b. The Mother argues that a penalty of $5,000.00 is reasonable as it aligns with other cases involving contempt of Court for disclosure (a penalty of $8,500.00 was imposed upon the husband who repeatedly failed to comply with disclosure orders (Van de Mierden v. Van de Mierden, [2009] O.J. No. 2865) and a penalty of $6,024.00 was ordered against the father for failing to disclose the required income tax return, notice of assessment and pay stub (Sharpley v. Sharpley, 2005 ONCJ 483, [2005] O.J. No. 5697). I find that these cases are distinguishable, not only on the nature of the disclosure requested but on the breach itself. The first deals with breaches of multiple financial consent orders, while the second pertains to a failure to provide sufficient financial disclosure for child support purposes.
c. The Father chose not to purge the contempt or appear at the penalty portion of the hearing. That said, to my knowledge, this is the first finding of contempt against the Father.
d. There is no evidence of mitigating factors because the Father has chosen not to participate in these proceedings.
e. The Mother says that according to his sworn Financial Statement dated August 23, 2018, he earned an annual income of $75,000.00. The Father’s current financial situation is unknown. I find that the amount of the penalty will serve as a deterrent.
f. Incarceration is only reasonable where the lesser restrictive sanctions are not appropriate (Cassidy v. Cassidy). Although the Father has demonstrated a clear refusal to comply with a portion of the 2018 Order, I do not find that incarceration in the circumstances of this case warrant such a sanction at the present time.
[15] Two additional sanctions are being sought by the Mother, namely a non-denigration Order as well as dispensing with the Father’s consent to obtain third-party disclosure.
[16] The Mother has deposed that she believes the Father has made multiple derogatory social media posts about her on nine different websites, all of which has caused her a great deal of stress and embarrassment. In correspondence with counsel for the Mother, the Father has denied being involved with any of these postings.
[17] The Court is given a broad discretion in imposing a penalty upon the contemnor. When I consider the remedial objective of the law of contempt, I find that an order preventing further disparaging remarks is appropriate. The Mother initially sought out the IP address disclosure to prove that these inappropriate online postings were made by the Father. Despite his denial of any wrongdoing, he has not filed any materials to respond to the Mother’s allegations, he remains in breach of the 2018 Order, and he has not fully participated in the hearings. Preventing any future online derogatory postings is a remedy that will ensure that the Mother and the child are not subjected to any derogatory online postings by the Father.
[18] While I am hopeful that the fine imposed upon the Father will incentivize him to comply with the 2018 Order, a further way to remedy the breach is to provide the Mother with the authority to deal directly with the third parties that have posted the derogatory remarks, without the Father’s consent. It provides the Mother with the ability to obtain the disclosure sought out in the 2018 Order.
[19] In the draft Order, the Mother seeks a blanket Order to deal with or obtain disclosure from any third-party record holder that has made any online postings or commentary about the Mother or her child. This is too broad. The Order must specifically name the third-party in question and it must be limited to those that have participated in malicious online postings. The Mother shall amend the draft Order to include these changes.
Issue #2 - Costs
[20] The Mother initially sought costs in the amount of $4,930.93 but now seeks the sum of $5,784.07 as a result of additional time spent since the hearing in July 2020.
[21] Costs orders are at the discretion of the Court (see section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43). The framework in awarding costs is set out at Rule 24 of the FLR.
[22] Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party. In setting the amount of costs, the Court shall consider the factors outlined in Rule 24(12) of the FLR.
[23] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (see Mattina v. Mattina, 2018 ONCA 867).
[24] Proportionality and reasonableness are the touchstone considerations that need to be applied when fixing an amount of costs (see Beaver v. Hill, 2018 ONCA 840).
[25] The issues raised in this Motion date back to November 2018. Since then, the Father has always refused to disclose the IP addresses, despite the existence of the 2018 Order.
[26] The Mother was successful on the Motion. She is presumptively entitled to her costs.
[27] I have reviewed the Bill of Costs and find that for this type of Motion, the time spent (approximately 20 hours) and the amount being sought are reasonable and appropriate.
[28] The Father’s behaviour has been inappropriate throughout these proceedings. He failed to attend on July 20, 2020. At his request, the Court reconvened on July 31, 2020 to hear his submissions. He did not file any materials in response to the Mother’s Motion. During argument, he told the Court that he would be able to comply with the 2018 Order and provide the IP addresses. The Father was given an opportunity to purge, which he chose not to do. He then did not appear for the penalty component of the contempt proceedings.
[29] The Father does not appear to be particularly concerned about complying with a Court Order or attending Court proceedings. The Father’s behaviour needs to be discouraged and sanctioned.
[30] For these reasons and in exercising my discretion, I find that a reasonable and proportionate amount for costs is $5,500.00, all inclusive.
CONCLUSION
[31] This Court orders the following:
a. The Father shall pay to the Mother a fine in the amount of $2,500.00, within sixty (60) days of the date of this Endorsement;
b. The Father shall not denigrate the Mother, make any commentary or post any picture or video about this case, the Mother or the child (Victoria Scarlett Hoysted born on May 21, 2018);
c. The Father’s consent is dispensed with for the Mother to deal directly with or obtain disclosure from third parties (to be specified) with respect to any malicious online postings about the Mother or the child; and
d. The Father shall pay costs fixed at $5,500.00 to the Mother, within sixty (60) days of the date of this Endorsement.
M. Smith J
Released: November 5, 2020
Schedule “A”
COURT FILE NO.: FC-18-1359-0 DATE: 2020-08-10 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Julie Catherine Hoysted, Applicant AND Jason Ivan Abitbol, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Leighann Burns, Counsel for the Applicant Self-Represented, Respondent
HEARD: July 20, 2020 by video conferencing; July 31, 2020 by teleconference
ENDORSEMENT
M. SMITH J
[1] The Applicant Mother seeks a contempt Order against the Respondent Father for failing to comply with the Order of Justice Corthorn dated November 23, 2018, as amended on July 18, 2019 (the “Order”).
[2] The Father failed to appear at the prescribed time (10:00 a.m.) for the Motion on July 20, 2020. The Mother argued her Motion in his absence. The Father attended at 11:00 a.m. claiming that he experienced technical difficulties in joining the video conference. I accepted his explanation and provided him with the opportunity to respond to the Motion.
[3] The Father attended at the continuation of the Motion on July 31, 2020, without filing and/or serving responding materials. He claimed that he was unaware of the procedure to file materials. The Father was given an opportunity to provide submissions regarding the Mother’s Motion.
[4] For reasons that follow, I find that the Father is in contempt of Justice Corthorn’s Order dated November 23, 2018, as amended on July 18, 2019.
BACKGROUND
[5] The parties had a brief relationship which lasted less than two years. They are the parents of one child: Victoria Scarlett Hoysted, born May 21, 2018.
[6] The Mother fled the relationship due to the Father’s physical, verbal, emotional, psychological and financial abuse.
[7] The Father has been charged with criminal harassment towards the Mother. The status of these charges is unknown.
[8] On November 23, 2018, the Mother obtained the following order from Justice Corthorn: “The Respondent shall disclose to the Applicant any and all IP addresses, cell phone numbers and email addresses the Respondent owns, uses, or to which he has access for his own use with respect to communication to or about the Applicant”.
[9] The November 23, 2018 Order was amended on July 18, 2019 to include a deadline for disclosure, namely August 1, 2019.
POSITION OF THE PARTIES
The Mother
[10] The Mother says that the Father has yet to provide the IP addresses as per Justice Corthorn’s Order. She indicates that an IP (Internet Protocol) address is a label unique to each device that is connected to a computer network. A cellular phone also has an IP address.
[11] The Mother argues that the Order is not vague. The Father has communicated with the Mother’s counsel through email “about” the Mother. To do so, he would require a device which is connected to the internet. Therefore, an IP address is available.
[12] Counsel for the Mother has made several attempts to call the Father’s attention to the requirements of the Order. Following the amendment of the Order, counsel for the Mother wrote to the Father on July 19, 2019, November 12, 2019, December 19, 2019, December 23, 2019, December 24, 2019, March 12, 2020, June 19, 2020 and July 9, 2020.
[13] The Mother says that the Father has vacillated back and forth. He finally provided his cellular phone number and email address, but it is unknown if these are the only ones. The Mother wishes to receive confirmation from the Father that they are the only cellular phone number and email address.
The Father
[14] The Father claims that he did not have the opportunity to argue the merits of the Mother’s original request for disclosure. He confirms that he has not taken any steps to appeal Justice Corthorn’s Order dated November 23, 2018.
[15] The Father argues that the Order is vague and open to interpretation. He further says that it is nonsensical and simply cannot be complied with.
[16] The Father claims that it is not possible for him to obtain an IP address. For example, he states that at the time of arguing the Motion, he was sitting in a hotel room, using the hotel WiFi, which would have its own IP address. He has attended at various places to access the internet, using different IP addresses.
[17] The Father indicates that he has provided his cellular phone number and email address. He has recently obtained a new cellular phone number.
[18] The Father says that he has not spoken to the Mother in over 2.5 years. He also has not provided an IP address because he has not spoken to the Mother in all that time.
[19] The Father claims that he has requested clarification from counsel for the Mother regarding the disclosure requirement for the IP address, but it was not received because counsel for the Mother was unaware as to how an IP address functioned.
[20] Despite the above, the Father said during his submissions that he would be able to comply with the Order and provide an IP address.
THE LAW
[21] Rule 31 of the Family Law Rules, O. Reg. 114/99 (the “Rules”) governs contempt of court proceedings and the available orders upon the finding of contempt. Rule 1(8) and 1(8.1) of the Rules provide the Court with options when dealing with a party that fails to obey an order or failure to follow the Rules.
[22] In a recent decision called Callwood v. Callwood, 2020 ONSC 3657, Justice Desormeau summarized the principles applicable in a contempt proceeding:
50 In L.(A.G.) v. D.(K.B.), 2009 14788 (ON SC), [2009] O.J. No. 1342 (Ont. S.C.J.), the court said that in relation to each of the alleged breaches, the court must make the following findings:
That the relevant order was clear and unambiguous;
The fact of the order's existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
That the respondent was given proper notice of the terms of the order. (See: Haywood v. Haywood, 2010 ONSC 5615, [2010] O.J. No. 4317 at paras. 41-43 (S.C.J.))
51 I am mindful of the following principles regarding civil contempt:
a. Contempt is a serious remedy and is not to be granted lightly: See Fisher v. Fisher, 2003 2119 (ON SC), [2003] O.J. No. 976 (Ont. S.C.J.); See Perna v. Foss, 2015 ONSC 5636 at para. 12.
b. Civil contempt is a remedy of last resort, one which should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order. (See G.(N.) c. Services aux enfants & adultes de Presott-Russell, (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.), Hefkey v. Hekfey, 2013 ONCA 44 (Ont. C.A.), and Children's Aid Society of Ottawa-Carleton v. S.(D.), 2001 28152 (ON SC), [2001] O.J. No. 4585 (Ont. S.C.J.): See Perna v. Foss, supra, at para. 12.
c. Great caution should be exercised when considering contempt motions in family law cases: Hefkey v. Hefkey, supra.
52 The Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 addressed the law of civil contempt and held that proof beyond a reasonable doubt of an intentional act or omission that was in breach of a clear order of which the alleged contemnor had notice was required to establish civil contempt.
53 In Ruffolo v. David, 2019 ONCA 385, the Ontario Court of Appeal articulated the following:
We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:
The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, "a court's outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect." As this Court has affirmed, "contempt of court cannot be reduced to a mere means of enforcing judgments." Rather, it should be used "cautiously and with great restraint". It is an enforcement power of last rather than first resort". [Citations omitted.]
Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court's assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.
Ruffolo v. David, 2019 ONCA 385, at paras. 18 and 19
54 In Chong v. Donnelly, 2019 ONCA 799, at para. 12, the court added:
In our view, the motion judge's failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.
55 In Jackson v. Jackson 2016 ONSC 3466, [2016] O.J. No. 2870 (SCJ, Justice Chappel provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:
a. It ultimately remains a matter for the Court's discretion;
b. because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;
c. it cannot be reduced merely to a mechanism for enforcing judgments;
d. it should be used sparingly and as a measure of last resort where there are no other adequate remedies available;
e. it is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted; and
f. the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.
[23] The Court must therefore find the existence of three elements that must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels (see Chong v. Donnelly).
ANALYSIS
Is the Order clear?
[24] The Order is in full force and effect. No steps were taken by the Father to dispute the making of the Order.
[25] For the reasons set out below, I find that the Father has breached the Order and the three elements of civil contempt have been established beyond a reasonable doubt.
[26] The Father argues that the Order is unclear. I disagree. I find that the Order is clear and it does not contain any ambiguities. The Order says: “By no later than August 1, 2019, the Respondent shall disclose to the Applicant any and all IP addresses, cell phone numbers and email addresses the Respondent owns, uses or to which he has access for his own use with respect to communication to or about the applicant.” The Order simply requires that three things be disclosed: IP addresses, cell phone numbers and email addresses. The Father has provided two of the three disclosure orders. The remaining item is the IP addresses, which I find, is clearly understood by the Father as to what is meant by this part of the Order.
[27] In argument, the Father plainly articulated his understanding of what is meant by an IP address, referring to the fact that he uses many of them while emailing at different locations. More importantly, during submissions, he stated that he would be able to the IP addresses.
Did the Father have knowledge of the Order?
[28] Although the Father claims that he has not spoken to the Applicant in over 2.5 years, the evidence unequivocally establishes that he has spoken several times “about” the Applicant, which is contemplated in the Order. The Father’s comprehension and knowledge of his obligations in disclosing the IP address is evidenced by the following email responses to those received by counsel for the Mother. All of the Father’s email responses originated from j_abitol@rogers.com:
a. July 27, 2019 at 7:08 p.m.: Zero. None. I have no IP addresses I use to communicate with Julie Hoysted. I have one phone number which you and your client already know. You already know my email address. I have no other methods of communication used to communicate with Julie Hoysted.
b. November 15, 2019 at 5:30 p.m.: I have already provided you with the required orders.
c. December 23, 2019 at 5:27 a.m.: I have already complied with the Order. Please advise me what part(s) you find I have not complied with?
d. December 23, 2019 at 6:18 p.m.: I do not communicate to or about the applicant beside with you. So therefor the order has already been complied with. I’m not sure why you have a difficult time understanding this?
e. December 24, 2019 at 7:25 p.m.: I have complied with the order. Just because the answer is not what you want does not mean it wasn’t complied with.
f. March 8, 2020 at 3:11 a.m.: Mr Burns, I will send it to you one more time. As all my emails will be provided to the courts in a supporting affidavit. The judge ordered any and all phones numbers, email addresses and i.p. addresses used by myself to communicate with or about Ms Hoysted. There was no time line given. Since I do not communicate with or about Ms. Hoysted there is nothing to provide. However my only phone number ever used to communicate with her is 403-402-0717 and the only email address I ever have is the one I am writing to you on now. Just because you believe something to be true doesn’t mean it is. What is true is that the posts made on several websites including “the dirty” were in fact made by your client. Several of the posts which contained derogatory slanderous and malicious lies against myself were from an IP address registered on an Apple iPhone.”
g. June 1, 2020 at 3:43 p.m.: Ms. Burns you have received these things already and prior to the date.
[29] In the foregoing emails, the Father refers numerous times to the content of the Order and the fact he has complied on the basis that he does not communicate with the Mother. I find that he is fully aware of the existence of the Order. Turning back to his comments during argument, he agreed to provide the IP address which is further evidence of actual knowledge of the missing element in the Order.
Did he intentionally breach the Order?
[30] Based upon the evidentiary record before me, I find that the Father has deliberately refused to comply with the Order.
[31] Since the Mother obtained the Order, her counsel has diligently attempted, on several occasions during the last year, to have the Father respond and comply with the disclosure. As previously indicated, he has responded to two of the three items of disclosure. He has refused to disclose his IP addresses, arguing that he has not communicated with the Mother for over 2.5 years. I find that the record is clear that he has communicated “about” the Mother many times as contemplated in the Order and as is found in his email correspondences with counsel for the Mother.
[32] Providing his IP addresses is a simple process and I find that based upon the email correspondences and submissions, the Father has the skill and knowledge to obtain the IP addresses and provide them to the Mother. In one of the email correspondences from the Mother, she provided instructions to the Father as to how one goes about to obtain the cellular phone’s IP address. Yet, he has continuously refused to provide it to the Mother. I find that the evidence sufficiently establishes that the Father’s refusal to comply with the Order (i.e. disclosing the IP addresses) is intentional.
Judicial Discretion
[33] Now that I have found that the three elements for civil contempt have been established, I must determine if I should exercise my discretion to decline making a finding of contempt, taking into account the principles set out in Carey by the Supreme Court of Canada.
[34] The Father has complied with part of the Order in respect to the cellular phone and email address. The Mother does not believe the Father’s response, stating that while they were together, he always had three cellular phones. However, the evidentiary record does not allow me to conclude that he was in possession of three cellular phones, as alleged.
[35] The Order was first obtained on November 23, 2018 and amended on July 18, 2019 to add a timeline to the Order. The purpose of the Order was to gather evidence to prove that the Father had posted harassing and threatening texts in or around September 21, 2018. Upon receipt of the amended Order in July 2019, the Father responded that he had only one cellular number and one email address. It is not until November 2019 that the Mother started to press the Father that he needed to comply with the Order vis-à-vis the IP addresses. There has been some delay in moving the matter along but since then, the Mother has appropriately and repeatedly sought compliance with the Order.
[36] The Father has breached the Order deliberately and his conduct cannot be condoned. I do not find that there an alternative to the finding of contempt. The Father has not given a reasonable explanation as to why he has not complied with the Order. I reiterate that the Order is simple and clear. He has been requested numerous times since July 2019 to comply with the Order, yet he continues to refuse to provide the IP addresses. His conduct remains defiant and as such, a finding of contempt is appropriate in these circumstances.
PENALTY AND COSTS
[37] At the initial hearing of the Motion, I invited the Mother to provide me with written submissions on sanctions to be imposed upon a finding of contempt. Counsel for the Mother advises that all materials have been provided to the Father.
[38] The Mother says that the Court must impose a penalty that reflects the Father’s conduct since the commencement of the Application, namely his ongoing disregard for these proceedings, the Court and the law.
[39] The Mother argues that the Father should be provided with the opportunity to purge the contempt by providing the IP addresses on or before a fixed date, failing which he should be imprisoned for a period to be set by the Court in accordance with Rule 31(a) of the Rules. If the Father purges his contempt, no imprisonment will be required.
[40] Lastly, the Mother says that even if the Father purges the contempt, he should nonetheless be imposed a fine in the amount of $5,000.00 which would clearly send the message that court orders are not suggestions and failure to obey them has consequences.
[41] In regard to costs, the Mother seeks the reimbursement of her costs in the amount of $4,930.93, all inclusive.
[42] In fairness to the Father, he was not provided the opportunity to make submissions on the issue of penalty and/or costs.
[43] Before considering the proper penalty and costs to be awarded to the Mother on this Motion, I will give the Father one more opportunity to purge his contempt, by disclosing to the Mother, no later than August 31, 2020, any and all IP addresses. If the Father complies, he shall then provide and serve his written submissions (no longer than 10 pages) by no later than September 15, 2020 with respect to (a) the penalty to be imposed for contempt; and (b) the costs of this Motion. The Mother shall then provide and serve her reply submissions (no longer than 5 pages), if any, by no later than September 25, 2020.
[44] In the event that the Father does not purge his contempt, the Mother may bring this motion back before me, on notice to the Father, to review and consider the penalty to be imposed and the costs associated with the Motion.
ORDER
[45] This Court therefore orders the following:
a. The Father is found in contempt of the Order of Justice Corthorn dated November 23, 2018, as amended on July 18, 2019, by failing to provide any and all IP addresses to the Mother;
b. The Father shall, by no later August 31, 2020, purge his contempt by providing any and all IP addresses to the Mother;
c. If the Father purges his contempt on or before August 31, 2020, he shall then provide and serve his written submissions (no longer than 10 pages) by no later than September 15, 2020 with respect to (a) the penalty to be imposed for contempt; and (b) the costs of this Motion. The Mother shall then provide and serve her reply submissions (no longer than 5 pages), if any, by no later than September 25, 2020; and
d. If the Father’s contempt is not purged on or before August 31, 2020, the Mother may bring this Motion back before me, on notice to the Father, to review and consider the penalty to be imposed and the costs associated with the Motion.
“M. Smith J”
Released: August 10, 2020
COURT FILE NO.: FC-18-1359-0 DATE: 2020-11-05
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Julie Catherine Hoysted Applicant
-and-
Jason Ivan Abitbol Respondent
ENDORSEMENT
Justice Marc Smith
Released: November 5, 2020