Holmes v. Holmes, [CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): 2020 ONSC 701
COURT FILE NO.: 78/08
DATE: 2020-01-31
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Rachael Eve Holmes, Applicant
AND: Jason Robert Holmes, Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: both parties self-represented
HEARD: January 31, 2020
ENDORSEMENT
[1] The Applicant moves to cite the Respondent for contempt of court for three breaches of court orders:
a. Failure to provide proof of life insurance;
b. Failure to update income disclosure; and
c. Failure to abide by access arrangements.
[2] The burden of proof is on the moving party. The standard of proof is beyond a reasonable doubt. On this motion my only task is to decide whether the Respondent breached a court order intentionally. I have no jurisdiction to make changes to the existing orders. That is why motions for contempt are rarely useful in solving ongoing family issues.
[3] The parties were married in 2003 and separated in 2006. They have one daughter, now age 14.
Proof of life insurance
[4] The parties entered into a separation agreement in April 2007. The agreement was filed with the Ontario Court under s.35 of the Family Law Act. Under s.35(2)(a) of the Act, its provisions for support can be enforced as if they were a court order. Assuming without deciding that the order to provide proof of life insurance is a “provision for support,” I do not think that a contempt of court has been proven on this head.
[5] The agreement provides as follows:
The husband, with respect to any life insurance provided by his employer, as a result of his employment, shall name the wife beneficiary of the said life insurance in trust for the benefit of the child.
The husband will maintain this designation as long as he is required to pay child support. The husband shall provide to the wife on an annual basis and if requested proof that said insurance is in place and the quantum of same.
[6] Both parties testified viva voce. I found them both credible as to the basic facts. As an aside, with respect to their interpretations of the facts, I found the Respondent more plausible.
[7] The Respondent changed jobs in October 2019. He told the Applicant about the coming change a few weeks before hand. He made voluntary payments to the Family Responsibility Office so that there would be no gap in child support payments between ending the one job and starting the next. When the Applicant requested particulars of life insurance resulting from the new job, he sent her a printout containing the required information. She wanted better proof and today he provided her with a letter signed by his human resources manager. I doubt that he breached the term of the separation agreement in question. He certainly had no intention of breaching it.
Failure to update income disclosure
[8] On July 20, 2012 Martin J. of the Ontario Court ordered:
The parties shall exchange copies of their income tax returns with all schedules attached and any notice of assessment or reassessment on or before June 30 of each year commencing in 2013. In the event of a change in income, the child support or proportionate share of the special or extraordinary expenses shall be adjusted on the 1st day of May each year in accordance with the child support guidelines.
[9] In 2018 the Respondent was on disability for a period of time with the result that his income decreased by about $40,000 that year. The Applicant found out about this when the Respondent sent her his notice of assessment in September 2019 and asked for her consent to reduce child support. He should have sent her the notice of assessment by June 30, but in the absence of evidence as to when he got it from Canada Revenue Agency, I cannot infer any intentional breach of the court order, which in any event would have been minor. The Applicant is critical of the Respondent for not mentioning the disability earlier, but the court order did not require him to do so. The Respondent’s income has since gone back to its former level and he has no intention of making a motion to change to get a reduction in child support for 2019.
Failure to abide by access arrangements
[10] On December 10, 2018 Martin J. ordered:
The Respondent father shall enjoy access with [the child] to be arranged between them and at her discretion. Applicant mother shall encourage and support visitation arrangements made between father and daughter.
[11] The Applicant testified that the Respondent had breached this order by sending too many texts to the child requesting visits. The child is in counselling and unhappy with some of her father’s decisions and wants a break. Never, however, did the Respondent see the child except on visits arranged between him and her. He did not breach the order.
[12] Copies of the text messages were produced. They were not harassing. Speaking subjectively, they may have been too much for the child but looking at them objectively they do not seem excessive, let alone harassing. They are not manipulative. They were written in kind terms. The Respondent would not have had reason to think that he was overdoing it. It is now clear to everyone that the child wants to see her father, but she has a lot on her mind at the moment and she would prefer to initiate the next access visit herself, after taking a break for a while.
Conclusion
[13] The motion is dismissed. There will be no order as to costs.
J.A. Ramsay J.
Date: 2020-01-31