Overview and Procedural Background

[1] On October 7, 2020, Zisman J. of the Ontario Court of Justice ordered that the parties’ three-year old daughter, D, be placed in the care of the Respondent father, Cletus Oppong Wiafe, on an interim basis pending the determination of the custody and access proceeding before that court. The order was made as a term of an adjournment sought by the Appellant mother, Gifty Afoakwa-Yeboah, with whom D had been residing. The Appellant appealed Zisman J.’s order to this court and sought a stay of the order pending her appeal.

[2] On October 20, 2020, Nakonechny J. dismissed the Appellant’s stay motion and made an interim order granting access to the Appellant for five hours per weekend pending the hearing of the Appellant’s appeal before this court (the “October 20 Order”). The Appellant sought to appeal Nakonechny J.’s dismissal of the stay motion to both the Court of Appeal and to the Divisional Court.

[3] The Appellant brings this motion for contempt against the Respondent on the basis that the Respondent breached the October 20 Order by failing to provide the Appellant with access to D on the first two weekends in November.

[4] The relief sought by the Appellant on the motion includes an order returning D to her primary care and an order imposing a term of imprisonment on the Respondent. At the hearing, I advised that I would not be considering the issue of penalty because a contempt motion generally proceeds in two stages: (i) a liability hearing; and (ii) a penalty hearing. In addition, the contemnor must be afforded the opportunity to purge the contempt before the penalty hearing: Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, at paras. 121 and 126.

[5] The Appellant’s contempt motion had previously been adjourned because the Respondent changed counsel. The hearing on December 3, 2020 was peremptory against the Respondent. At the hearing, the Respondent sought to strike the Appellant’s reply affidavit on the basis of its length and late service. The Reply Affidavit attached affidavits filed previously and was over 350 pages in length, including exhibits. There was a dispute between counsel as to whether the affidavit was served before or after the noon deadline, including allegations that counsel had altered the time on the covering e-mail.

[6] At most, the Reply Affidavit was served and filed an hour or two late. I declined to strike the Reply Affidavit. Nonetheless, much of the content related to matters between the parties before the October 20 Order and was not relevant to the issues on the motion. The Reply Affidavit included pleadings from the family law proceeding between the Respondent and his previous spouse. Moreover, the volume was disproportionate to the time scheduled for the motion, which was scheduled as regular motion.

[7] At the hearing, I observed that disputes of this nature, such as that over the Reply Affidavit, increase distrust and animosity and are to be avoided in family law proceedings because they do not serve the parties’ interests. Unfortunately, the disputes between counsel continued after the hearing when the corrected Reply Affidavit and bills of costs were filed.

Issues

[8] The issue on this motion is whether the Appellant has satisfied the test for contempt.

Analysis

The Applicable Principles

[9] The purpose of the civil contempt power is to uphold the dignity and respect for the court process. The contempt remedy is “a mechanism designed to emphasize that court orders must not be ignored or disobeyed”: Jackson v. Jackson, 2016 ONSC 3466, at para. 46. In family law proceedings, motions for contempt are governed by r. of the Family Law Rules, O. Reg. 114/99, which states:

(1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.

[10] Subrule 31(5) provides the penalties that may be ordered if a person is found in contempt of court. They include, among other things, a term of imprisonment, payment of a fine or penalty or an order that a person obey an order.

[11] In addition, s. 38 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, enables a court to punish “any willful contempt of or resistance to its process or orders in respect of custody or access to a child.”

[12] On a motion for civil contempt, the moving party must prove contempt beyond a reasonable doubt. In order to meet the test for civil contempt, the following three elements must be established: (i) the order states clearly and unequivocally what should or should not have been done; (ii) the party alleged to be in contempt has actual knowledge of the order; and (iii) the party alleged to be in contempt must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79.

[13] It is not necessary to demonstrate that the contemnor intended to disobey the order, as this would put the test “too high:” Carey, at para. 38. All that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in breach of an order.

[14] The Court of Appeal set out the following principles regarding contempt motions in family law proceedings:

Courts have consistently discouraged the routine use of the contempt power to obtain compliance with court orders;
Great caution and restraint should be exercised when considering contempt motions in family cases;
The contempt power is an enforcement power of last rather than first resort;
A contempt order should not be granted where other adequate remedies are available to the aggrieved party, i.e. in relation to an alleged access denial, a variation or enforcement of the access order;
When the issue raised in the contempt motion concerns access to children, the best interests of the children is the “paramount consideration”;
Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.

See: Hefkey v. Hefkey, 2013 ONCA 44; Ruffolo v. David, 2019 ONCA 385.

[15] Even when the test is met, the motion judge retains discretion to decline to make a finding of contempt 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: McKinnon v. McKinnon, 2018 ONCA 596. A failure to consider the discretionary factors before making a finding of contempt is an error of law: Chong v. Donnelly, 2019 ONCA 799, at para. 12.

Has the Appellant Satisfied the Test for Contempt?

[16] The Appellant submits that the Respondent breached the following term of the October 20 Order: “The Applicant mother shall have access to the child D. in Mississauga for 5 hours each weekend commencing the October 31, on dates and times to be agreed upon by the parties.”

[17] The first element of the test is whether the October 20 Order states clearly and unequivocally what should have been done.

[18] The October 20 Order clearly states that the Appellant was to have access to D for five hours each weekend. The portion of the order that led to problems between the parties was the latter part, which stated “on dates and times to be agreed upon by the parties.”

[19] Ordinarily, parties would be expected to follow the terms of such an order and agree to access times as specified by the order. It is a matter of putting forward dates and times and coming to an agreement on mutually convenient times. In this case, each party had a different interpretation of the term, which caused them to come into conflict, as further described below.

[20] The Appellant takes the position that the language “by the parties” meant that she and the Respondent were to communicate and agree to the dates and times for access between themselves, without the assistance of counsel. The Respondent’s position is that the access times could be agreed to through counsel and that he requested that the Appellant communicate with his lawyer.

[21] The Appellant’s interpretation of the October 20 Order is a very literal one. Court orders and endorsements frequently state that “the parties” shall do something because it is the parties who are before the court and subject to its jurisdiction. However, because parties are represented by counsel, orders are often executed by or through counsel. For example, while parties are often required to provide disclosure by a certain date, in reality, this is done through counsel. Each party’s counsel will obtain documents from the client and produce the disclosure to the other party’s counsel. In this case, nothing in the Order precluded either party communicating through counsel or requesting that the other party communicate with counsel regarding access.

[22] Despite the parties’ differing interpretations of the October 20 Order, I find that the order stated clearly and unequivocally what was to be done. The Appellant was to be provided with five hours of access on the weekend, on dates and times agreed upon by the parties. The first element of the test for contempt is met.

[23] In respect of the second element of the test, the Respondent does not dispute that he had actual knowledge of the October 20 Order. The Respondent represented himself in court on the stay motion. The order was emailed to him when it was released.

[24] The third element requires that the Appellant demonstrate that the Respondent intentionally failed to do an act that the October 20 Order compels. The Appellant’s position is that the Respondent breached the October 20 Order because on two weekends, the Respondent failed to provide her with access to D, despite her attempts to communicate with him to arrange a date and time.

[25] The Respondent does not dispute that the Appellant did not have access to D on the two weekends at issue. His position is that he is not in breach of the October 20 Order because it required that the dates and times for access be agreed to between the parties, and no agreement was reached. He further submits that he asked the Appellant to make arrangements through his counsel and that she failed or refused to do so.

[26] The evidentiary record reveals an astounding breakdown in communication. Below is a brief chronology of events and communications.

[27] On October 22, 2020, the Respondent’s counsel at the time, Glenda Perry, sent an email asking for the Appellant’s proposal regarding dates and times for access in accordance with the October 20 Order.

[28] On October 29, 2020, the Appellant’s counsel, Ms. Deokaran sent a letter inquiring as to whether Ms. Perry was counsel on the appeal before this court. Ms. Perry responded later that day stating: “should I be retained I will advise in the appropriate manner”. Ms. Deokaran then sent a further email confirming that this meant that Ms. Perry was “not currently retained” for the appeal.

[29] On October 30, 2020, D was transferred to the Respondent’s temporary care, in accordance with Zisman J.’s order.

[30] On October 31, 2020, the Appellant sent text messages to the Respondent stating that she would attend at his home to exercise her access time with D. The Respondent responded that access was to be arranged through counsel.

[31] On the evening of October 31, 2020, the Appellant attended at Respondent’s residence to exercise access to D. The Respondent refused because the Appellant had stated in an affidavit sworn on October 29, 2020 that she was in self-isolation until November 9, 2020 due to potential exposure to COVID-19.

[32] On November 2, 2020, Ms. Perry sent an email to Ms. Deokaran requesting a response to her October 22 letter and proposing virtual supervised access at Appellant’s expense. The Respondent states that he sought supervised virtual access because of the Appellant’s behaviour and because he understood that she was in self-isolation. The next day, Ms. Deokaran responded refusing the request for supervised access and stating that she would respond to the other matters raised at a later date.

[33] Before and during the weekend of November 7-8, 2020, the Appellant sent the Respondent text messages requesting access to D. Based on the Appellant’s affidavit, the Respondent believed that the Appellant’s self-isolation would not end until November 9, 2020.

[34] The Appellant had obtained a further letter, dated November 2, 2020, stating that her COVID-19 test was negative. The Appellant’s position is that this letter was forwarded to the Respondent on November 2, 2020. It is unclear when this letter was received, because the email from Ms. Deokaran forwarding the letter does not contain the usual headings with the sender, recipient, date and time.

[35] On Saturday November 7, 2020, the Appellant went to the Respondent’s residence to see D. The Respondent refused to open the door.

[36] On November 8, 2020, Ms. Deokaran sent a letter to the Respondent confirming that he was self-represented on the appeal and requesting that he provide dates and times for access that day, failing which she would serve a contempt motion. The Respondent sent an email to Ms. Deokaran requesting that she deal with Ms. Perry, referencing the communications from October 22 and November 3.

[37] Ms. Deokaran then sent a further message to the Respondent stating that Ms. Perry had advised that she did not represent him on the appeal and giving a time for access that weekend.

[38] On November 10, 2020, the Respondent was served with the Appellant’s contempt motion.

[39] On November 13, 2020, Ms. Perry sent a letter to Ms. Deokaran again suggesting video access with ground rules. Ms. Deokaran did not agree.

[40] On November 17, 2020, Nakonechny J. adjourned the contempt motion and made an order specifically stating the times for the Appellant’s access and additional terms such as the location of pick-up and drop-off (the “November 17 Order”). Following the November 17 Order, the Appellant had access to D on November 21 and 28, 2020 without incident.

Findings

[41] As can be seen from the foregoing, Ms. Perry’s email dated October 29 led to some confusion as to the scope of her retainer. Relying on that email message, the Appellant and her counsel continued to insist on dealing with the Respondent directly, while the Respondent continued to request that they deal with Ms. Perry. It is unclear why no one clarified whether Ms. Perry was representing the Respondent on the interim access issue. It ought to have been evident to the Appellant and Ms. Deokaran that Ms. Perry was engaged in the interim access issue, however, as evidenced by her correspondence on October 22 and November 2, 2020. Nonetheless, the Appellant and her counsel did not deal with Ms. Perry, as the Respondent requested. Irrespective of their interpretation of “between the parties” in the October 20 Order, and the confusion regarding Ms. Perry’s retainer, the Appellant or her counsel could simply have sent Ms. Perry an email proposing access dates and times. Instead, they persisted in communicating with the Respondent and insisting that Ms. Perry did not represent him on the appeal.

[42] At the same time, it would have been a simple matter for the Respondent to provide a date and time for the Appellant to exercise her access. The Respondent states that he did not wish to communicate with the Appellant directly because he wanted to avoid coming into conflict with her. This does not explain why he could not have provided access dates and times to Ms. Perry to convey to Ms. Deokaran.

[43] What is clear is that neither party could “agree” on their own. In order to agree, the parties, through their counsel or between themselves, had to communicate and cooperate. The communication that took place here was positional and was not directed at cooperation or agreement.

[44] In my view, in respect of the November 7-8, 2020 weekend, the Appellant has not demonstrated beyond a reasonable doubt that the Respondent breached the October 20 Order by failing to do an act that the order compelled. The Appellant had stated in a sworn affidavit that she was in self-isolation until November 9, 2020. I am not satisfied beyond a reasonable doubt that the Respondent knew, when the Appellant was seeking to arrange access for that weekend, that the Appellant’s COVID-19 test result was negative. The email forwarding the November 2, 2020 letter does not contain sufficient information to establish that the Respondent received it on that date. While the Appellant states that she also provided the information regarding her negative test to the police officer who was assisting her, it is unclear from the evidence whether the information was conveyed to the Respondent. The Respondent’s counsel sent an email suggesting supervised virtual access, which supports the Respondent’s position that he understood that the Appellant was still in self-isolation.

[45] On the November 14-15, 2020 weekend, the Appellant sent a text message to the Respondent stating that she would “attend at any date and time selected by you.” The Appellant received no response from the Respondent or his counsel.

[46] The Respondent submits that because the custody and access matter was to return before Zisman J. on November 12, 2020, he thought that the access issue was in flux and that a more long-term arrangement would eventually be made. The Respondent further submits that he sought further conditions, such as those eventually granted by Nakonechny J. on November 17, 2020, because he was concerned with the Appellant’s behaviour in coming to his home on the previous weekends.

[47] The October 20 Order was in effect and ought to have been followed. I am not convinced by the Respondent’s attempts to justify the Appellant’s lack of access during the November 14-15 weekend. While the suggestion of virtual access while the Appellant was in self-isolation was reasonable, it was not up to the Respondent to decide unilaterally that additional terms, such as supervision, beyond those contained in the October 20 Order were required. If this were sufficient justification for non-compliance, many parties would not follow access orders.

[48] In my view, the Respondent and his counsel at the time did not make meaningful efforts toward agreeing to dates and times for the Appellant to exercise her access to D. The Appellant was clearly seeking a time to exercise her access. Her text messages show that she was pleading with the Respondent to provide her with access. Because D is residing with the Respondent, the Appellant has little control over the situation. It was not a sufficient response to say that she had to deal with counsel. Nor was repeatedly asking for a proposal or suggesting terms that were not incorporated in the October 20 Order. It was incumbent on the Respondent, whether through his counsel or otherwise, to provide dates and times on which the Appellant could exercise the five hours specified by the October 20 Order.

[49] However, the Respondent’s failure to provide dates and times does not necessarily lead to a finding that the Respondent intentionally failed to do an act required by the order. The order stated that “the Appellant shall have access… on dates and times as agreed upon by the parties.” The October 20 Order did not specifically require that the Respondent to do a particular act. For example, it did not require that the Respondent facilitate the Appellant’s access on dates and times chosen by her. Rather, it was implicit in the order that the Respondent was to endeavour to agree to dates and times for the Appellant’s access. While I have found that the Respondent could have made greater efforts toward agreement, his failure to do so does not amount to an intentional or deliberate failure to do an act required by the October 20 Order. By requiring that the Appellant deal with his lawyer, the Respondent was not deliberately or intentionally failing to comply with the order.

[50] Because the Appellant has failed to demonstrate beyond a reasonable doubt that the Respondent failed to do an act required by the October 20 Order, her contempt motion fails.

Exercise of discretion

[51] In the event that my finding that the Appellant has not proven contempt beyond a reasonable doubt is incorrect, I would nonetheless exercise my discretion to decline to make a finding of contempt.

[52] The principles articulated by the Court of Appeal regarding contempt proceedings in family law matters are no less applicable here. The contempt motion relates to an access issue. The court must exercise the contempt power cautiously and with great restraint and may decline to impose a contempt finding where it would work an injustice in the circumstances of the case. Moreover, the best interests of the child are of paramount importance.

[53] It is not in D’s interest that the Respondent be found in contempt and potentially subject to a term of imprisonment. Moreover, the Respondent has shared parenting of two children from another relationship.

[54] As noted above, a contempt motion is a last resort, where parties have availed themselves of other enforcement mechanisms. In this case, the Appellant proceeded with a contempt motion immediately after the perceived breach on the weekend of November 7-8, 2020. The prospect of a contempt motion was raised in the communications on November 8. The motion was served on November 10. No other procedural mechanisms were pursued, let alone exhausted. The Appellant did not seek a case conference or bring a motion for enforcement of the October 20 Order. The Appellant’s objective of having her access time with D would have been better served by a motion for enforcement rather than a contempt motion.

[55] Indeed, bringing a contempt motion at such an early stage, as a first resort as opposed to a last one, is an example of raising the stakes and intensifying the conflict in a manner unhelpful to the parties or the child at issue.

[56] The chain of events described above escalated in the Appellant’s unscheduled attendances at the Respondent’s home and the involvement of the police. It has now escalated further into a contempt motion with the Appellant requesting a term of imprisonment for the Respondent. It should be lost on no one, whether counsel or the parties, that the main casualty of this inability to cooperate, and the further animosity generated by it, is D.

[57] Moreover, in this case, the specific relief sought was unlikely to be granted. The change in D’s temporary care is the very issue under appeal. The contempt motion is thus a collateral attack on Zisman J.’s order. In addition, it should have been apparent that the requested term of imprisonment was not appropriate for, at most, two missed access visits, during a pandemic. Numerous decisions of this court have recognized the risk of COVID-19 in custodial settings where social-distancing is difficult, and the resulting risk to the community: R. v. Hearns, 2020 ONSC 2365, at paras. 13-14.

[58] This proceeding has been characterized by a high degree of conflict between both the parties and counsel. At the hearing, I strongly recommended that counsel make greater efforts to cooperate to resolve matters to help reduce the tension between the parties. At the very least, counsel are expected not to amplify the level of hostility between the parties. Specifically, the court would expect counsel to see through the conflict to find a path to executing rather than impeding the October 20 Order.

[59] In Chong v Donnelly, the Court of Appeal urged the parents to resolve their parenting arrangements amicably in the future, noting that the contempt motions brought by both parties in that case “reflected poorly on them both and are not in the best interests of their children”: 2019 ONCA 799, at para. 14. The comments are apt here.

[60] Unfortunately, and as alluded to at the outset of these reasons, the court’s comments have gone unheeded by counsel. The battles did not end with the late delivery of the Reply Affidavit. Counsel have continued to communicate inappropriately with the court in the subsequent delivery of bills of costs and an index for the corrected Reply Affidavit.[^1] This has little to do with zealous advocacy in their clients’ interest. Most importantly, the level of animosity evident in this case is antithetical to D’s best interests, which ought to be of overarching importance to both the parties and counsel.

Conclusion

[61] The motion for contempt is dismissed.

[62] At the hearing, the Respondent indicated a willingness to provide make-up parenting time to the Appellant for the two weekend visits that were missed. Given that the holidays are approaching, it would be appropriate to arrange the make-up time during that time period. The court expects that the parties and counsel will heed the comments made in this endorsement in agreeing to dates and times for make-up time as ordered below.

[63] At the hearing, I made an order continuing access according to the terms of the November 17 Order until further order of this court. As the hearing of the appeal before this court has not yet been scheduled, the order shall continue until further order of this court or the Ontario Court of Justice.

Costs

[64] Counsel were directed to submit their bills of costs. I have not considered the Appellant’s costs submissions, which were not requested or authorized by the court.

[65] At the conclusion of the hearing, I directed counsel to exchange and file their bills of costs by Wednesday December 2, 2020. The Respondent’s costs at the Legal Aid rate total $3,360.81. The Applicant’s full indemnity costs total $14,113.14. Her partial indemnity costs are $9,879.20.[^2] All amounts include disbursements and HST.

[66] The Court of Appeal has identified the four fundamental purposes that modern cost rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[67] The exercise of judicial discretion in awarding costs is guided by Rule 24 of the Family Law Rules, both in terms of the entitlement of a party to an award of costs as well as to the quantum of that award. The considerations in determining the appropriate quantum of a costs award are found in Rule 24(12), which reads as follows:

24 (12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) and legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expense properly paid or payable; and

(b) any other relevant matter.

[68] Rule 24(8) of the Family Law Rules provides that the court “shall decide costs on a full recovery basis” if a party has acted in bad faith. Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made: Chomos v. Hamilton, at para. 43. Other than as provided in rr. 24(8) or 18(14), there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, at para 11.

[69] The Respondent was entirely successful on the motion and is entitled to costs. In my view, the contempt motion was misguided, as opposed to high-handed or in bad faith. Accordingly, I fix costs of the motion at the Legal Aid rate, for a total of $3,360.81, including disbursements and HST, to be paid by the Appellant to the Respondent. For the purposes of clarity, I have not included in costs any items that are reserved to Nakonechny J.

[70] Accordingly, order to go as follows:

(a) The Appellant shall have access to the child, Danett Oppong Wiafe, born August 14, 2017, on Saturdays from noon to 5:00 p.m. with pick-up and drop-off at the front desk of Division 11 Peel Police Station at 3030 Erin Mills parkway, Mississauga, Ontario;

(b) The Appellant shall have make-up access time to the child for two separate five-hour periods to take place between December 21, 2020 to January 3, 2021, on dates and times agreed upon between the parties;

(c) Until further order of this court or the Ontario Court of Justice, all other terms of the order of Nakonechny J. dated November 17, 2020 regarding the child shall continue to apply; and

(d) The Appellant shall pay costs of the motion of $3,360.81 to the Respondent.

[71] The terms of this endorsement are effective as an order of the court as soon as the endorsement is released, without the need for an order being issued and entered. Counsel may nonetheless send forward agreed upon draft order for my signature.

Nishikawa J.

Date: December 10, 2020

[^1]: The court requested an index to the Reply Affidavit because of its length and numerous exhibits, and because the electronic document was not bookmarked.

[^2]: Ms. Deokaran did not provide her costs at the Legal Aid rate.

Afoakwa-Yeboah v. Wiafe, 2020 ONSC 7649

Case Summary

Overview and Procedural Background

Issues

Analysis

The Applicable Principles

Has the Appellant Satisfied the Test for Contempt?

Findings

Exercise of discretion

Conclusion

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 3