Sarma v. Sarma, 2022 ONSC 6738

COURT FILE NO.: FS-22-00103544

DATE: 2022-11-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sarma v. Sarma

BEFORE: The Honourable Justice Van Melle

COUNSEL: Amal Nayyar, for the Applicant

Jessica Brant, for the Respondent

HEARD: November 29, 2022

E N D O R S E M E N T

1The respondent father brought a motion seeking to have the applicant mother held in contempt of the order of Justice Trimble. Justice Trimble’s order set out a schedule pursuant to which the father have parenting time with the three children (born 2012, 2014 and 2015).

2On October 26,2022 the father was charged criminally with offences against the mother. The father was charged with four counts of assault and forcible confinement with respect to the mother. He denies the charges and says that the charges are “historical” in that they occurred during the time that the parties lived together (2009 to May 2022).

3After being charged the father entered into an Undertaking pursuant to which, he agreed to stay away from the mother, not to communicate with her directly or indirectly except through a mutually agreed upon 3^rd party for the purpose of child custody arrangements.

4There were some communications between the parties’ respective counsel. Both accuse the other of not responding to their communications.

5The father says that he tried to get the mother to agree to deliver the children to Brayden for supervised exchanges. The mother says that Brayden, in Toronto, was too far to take the children for supervised exchanges. She proposed that her brother supervise the exchanges. The father did not agree to this.

6The father, through his criminal counsel, proceeded to vary the bail conditions. On consent the bail was varied to permit the father to attend on the driveway of the mother’s residence, or in the parking lot of the mother’s place of employment only when picking up or dropping off the children in accordance with a valid family court order. He is to remain inside his vehicle except to open the vehicle door(s) for the children to enter and exit. He is permitted to see the mother when at court for court appearances; and he is permitted to attend at the children’s school in accordance with a valid family court order.

7The bail variation resolved the contempt motion before the court today. However, both parties claim their costs for the motion. The father claims costs because he says that the mother was non-cooperative in allowing the bail variation. He says that she should have contacted the Crown’s office in Brampton. The mother says that the father should not have brought the contempt motion in the first place as she was always agreeable to finding a way for him to have his parenting time with the children.

8Without determining the issue of whether or not the mother was in contempt of Justice Trimble’s order (that is no longer before me as the matter was resolved), I agree with the mother that this contempt motion should never have been brought. I do not agree with the father that it was the mother’s obligation to contact the Crown’s Office in Brampton. Once the father had set the wheels in motion to have his bail varied, there is no indication whatsoever that the mother was not cooperative.

9The father moved far to quickly to have the mother held in contempt. Contempt is a remedy of last resort. It is quasi-criminal. The Ontario Court of Appeal case of Moncur v. Plante, 2021 ONCA 462 is instructive. Had the mother been found to be in contempt, Jamal, J.A. (as he then was) laid out the general principles governing the use of the court’s power to find a party in civil contempt of court for breaching a court order.

10He said at paragraph [10] of the decision:

1. For a party to be found in contempt of court for breaching a court order, three elements 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 had 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: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.

2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.

3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

11He held that it is especially important for courts to consider other options in high conflict family disputes.

12In the present case, I find that the father acted far too quickly in trying to have the mother held in contempt. His inability to exercise parenting time with the children relate directly to the criminal charges against him. Those charges will be dealt with one way or another in due course. In the meantime there is no evidence that the mother did not co-operate with the requested change to his bail conditions which now allow him to parent the children on the schedule set out in Justice Trimble’s order.

13Normally when a matter is resolved on consent no costs are awarded. However, this matter did not resolve on consent. The father was able to vary his bail conditions to permit his parenting to take place. The mother was never opposed to a variation of his bail conditions to permit this.

14I find that the mother is entitled to her costs for responding to the motion. She asks for full indemnity on the basis that the motion should never have been brought. She claims $5,251.28 all inclusive.

15Although I did not have the benefit of the father’s costs outline, I was advised that his legal account for the motion is $10,000. Applying the factors in Rule 24 of the Family Law Rules, I find that the father is to pay the mother $5,000 towards her costs. Payment to be made within 60 days.

16I note that Justice Kumaranayake at a case conference advised counsel to familiarize themselves with the relevant Notices to the Profession regarding case conference materials. Counsel for the father failed to comply with the Provincial and Regional Notices to the Profession and Parties in preparing materials for this motion. The Notices are readily available at www.ontariocourts.ca. Counsel, as officers of the court, are to ensure that they comply with those notices.

Van Melle, J.