Sleiman v. Otaki, 2023 ONSC 1216

COURT FILE NO.: FS-19-94819-0001

DATE: 2023 02 21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Murielle Abou Sleiman, Applicant

AND:

Abdo Fares Otaki, Respondent

BEFORE: Justice Ranjan Agarwal

COUNSEL: Holly Langille Counsel, for the Applicant

Abdo Otaki, Self-Represented

HEARD: February 21, 2023

ENDORSEMENT

I. INTRODUCTION

[1] The applicant Murielle Abou Sleiman moves for an order that the respondent Abdo Otaki is in contempt of court for failing to obey two parenting orders and costs orders. This contempt proceeding was bifurcated into a liability phase on October 27, 2022, and a penalty phase on February 14, 2023. Otaki is self-represented.

[2] At the liability phase, Otaki admitted his contempt. Even though liability was established, I suspended my order until December 15, 2022, to allow Otaki the opportunity to purge his contempt. He didn’t. As a result, I made a formal order of contempt. He still has not purged his contempt.

[3] The issue here is what order this court should make that: (a) ensures the administration of justice is not brought into disrepute; (b) punitive to Otaki and restorative to Abou Sleiman; and (c) coerces Otaki’s compliance with the parenting and costs orders. Given that the orders involve access to the parties’ son, Fares Otaki, the paramount consideration is the best interests of the child.

[4] Fares hasn’t had parenting time with Abou Sleiman since January 9, 2020. That is over 3 years. Fares is only 6½ years old—he has been unable to exercise his right to parenting time with Abou Sleiman for almost half his life.

[5] Otaki argues that Abou Sleiman is “mentally unwell” and, as a result, is a risk to Fares. On that basis, he refuses to let Fares exercise his court-ordered parenting time with Abou Sleiman unless: (a) it is supervised by Peel Region Supervised Parenting Time Program; and (b) the Office of the Children’s lawyer finishes its report.

[6] In making this submission Otaki is relitigating issues that have already been heard and decided by this court. At Abou Sleiman’s parenting time motion, Abou Sleiman’s motion to compel Otaki to obey the parenting time order, at the liability phase of the contempt motion, and again during this penalty phase, Otaki argues that Abou Sleiman is a danger to Fares; the only supervision centre that he trusts to keep Fares safe is the Peel Program; and Abou Sleiman can’t have unsupervised parenting time at least until OCL makes its report. At every step, this court has dismissed Otaki’s argument, either because he hasn’t proven his allegations or he’s abusing the court’s process by relitigating these issues.

[7] For the penalty phase, these are irrelevant issues. The only relevant issue is what order will coerce Otaki to comply with this court’s parenting order, given Fares’s best interests.

[8] As a result, I endorse the following orders:

(a) for 3 weeks beginning on February 25, 2023, Fares shall have unsupervised parenting time with Abou Sleiman from 10am to 6pm on Saturday and Sunday at Abou Sleiman’s home (February 25, 2023, February 26, 2023, March 4, 2023, March 5, 2023, March 11, 2023, and March 12, 2023);

(b) for 3 weeks beginning on March 17, 2023, Fares shall have unsupervised parenting time with Abou Sleiman from Friday 4pm until Monday 8am at Abou Sleiman’s home (March 17, 2023, to March 20, 2023, March 24, 2023, to March 27, 2023, and March 31, 2023, to April 3, 2023);

(c) from April 6, 2023, at 4pm, Fares’s permanent residence shall be with Abou Sleiman;

(d) from April 11, 2023, at 4pm, Fares shall have unsupervised parenting time with Otaki every Tuesday overnight from Tuesday 4pm until Thursday 8am and on alternate weekends beginning April 14, 2023, from Friday 4pm until Monday 8am, at Otaki’s home.

(e) Fares will continue his enrolment in Peel Elementary Virtual School;

(f) the parenting time exchanges shall take place at Peel Regional Police Headquarters, 7150 Mississauga Road, Mississauga;

(g) this court by order under section 36(2) of the Children’s Law Reform Act, RSO 1990, c C.12, directs the Peel Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police, and any police force having jurisdiction in any area where it appears that Fares may be, to locate, apprehend, and deliver Fares to Abou Sleiman for the purpose of giving effect to Abou Sleiman’s right to parenting time under paragraphs 8(a), (b), and (c) of this order;

(h) the police force directed to act under paragraph 8(g) of this order shall do all things reasonably able to be done to locate, apprehend and deliver Fares in accordance with the order;

(i) for the purpose of locating and apprehending Fares in accordance with paragraph 8(g) of this order, a member of a police force may enter and search any place where they have reasonable and probable grounds for believing that Fares may be with such assistance and such force as are reasonable in the circumstances;

(j) the order in paragraph 8(g) shall expire not later than August 21, 2023;

(k) Abou Sleiman is entitled to costs for the contempt motion and I set the amount of costs in the sum of $11,900 inclusive of fees, taxes, and disbursements;

(l) Otaki cannot participate in the case in any way until the costs awards ($19,900) are paid;

(m) the parties shall attend a settlement/trial management conference on April 3, 2023, at 10am;

(n) Otaki shall comply with my order regarding reunification counseling, dated November 9, 2022, by providing names and contact information for three therapists to Abou Sleiman’s lawyer on or before February 23, 2023, and reunification therapy, at Otaki’s cost, shall begin on or before March 17, 2023, or such other date as the therapist recommends; and

(o) Otaki shall contact Tracy Majewski, the OCL social worker, on or before February 24, 2023, to schedule a meeting with her on or before March 3, 2023.

II. BACKGROUND

A. Facts Prompting the Penalty Phase

[9] This endorsement is my 6th decision in this proceeding since August 2022. The facts prompting this penalty phase endorsement are detailed in those other endorsements. That said, to provide context for my reasons, this chronology is useful:

Date	Event
August 2015	the parties marry in Lebanon; they later move to Canada
July 2016	Fares is born
March 29, 2019	the parties separate while Abou Sleiman is in Lebanon—Abou Sleiman returns to Canada in April 2019
April 25, 2019	final order—Otaki and Abou Sleiman consent to daily virtual parenting time and annual in-person parenting time up four weeks in Canada or Dubai
May 2019	Abou Sleiman returns to Lebanon because of her immigration status
January 2020	Abou Sleiman has 9 days of supervised in-person parenting time with Fares through Brayden Supervision Services Inc.
February 2020	Abou Sleiman returns to Canada and begins process of applying for permanent residency Otaki denies Abou Sleiman in-person parenting time under the final order
August 2020	Abou Sleiman starts a motion to change the final order
April 2021	case conference
June 2021	Abou Sleiman moves for a temporary order for parenting time until disposition of the motion to change
October 8, 2021	Justice André endorses a temporary parenting order, beginning with supervised weekly in-person parenting time (“either in a Mississauga hotel or in the community and shall be supervised by Brayden Supervision Services or a mutually acceptable third party”) and gradually increasing to unsupervised parenting time by April 2022 Justice André also orders Otaki to pay $3000 in costs of the motion
October 9, 2021	Phase 1 of Justice André’s parenting order is supposed to begin Otaki refuses to complete Brayden Supervision’s intake forms
August 30, 2022	Abou Sleiman’s moves for an order that Otaki comply with Justice André’s parenting order and pay the costs order I endorse an order that Otaki has failed to obey Justice André order I order Otaki to complete Brayden Supervision’s intake forms by September 2nd and graduated parenting time to begin on September 10th I also order Otaki to pay $5000 in costs of the motion Otaki refuses to complete Brayden Supervision’s intake forms or pay the costs awards
September 23, 2022	Abou Sleiman moves for an order that Otaki is in contempt I endorse an order adjourning the motion to October 27, 2022, so Otaki can retain a lawyer and purge his contempt I also endorse an order that Otaki may move to change the parenting orders at the hearing on October 27th as an alternative to a finding of contempt
October 27, 2022	liability phase of Abou Sleiman’s motion for contempt and hearing of Otaki’s motions to vary Otaki admits that he is in contempt of the parenting orders
November 9, 2022	I endorse an order finding Otaki in contempt and dismissing Otaki’s motion to vary I suspend the contempt order as an alternative I also, as an alternative to a finding of contempt, order that: (a) the parties shall immediately engage in reunification counselling; and (b) the OCL shall cause an investigation to be made on decision-making and parenting my endorsement is copied to Peel Children’s Aid Society as I was concerned that Fares was suffering or likely to suffer emotional harm
December 7, 2022	Peel CAS reported to the court that Fares “is at risk of emotional harm”
December 12, 2022	penalty phase of Abou Sleiman’s motion for contempt Otaki didn’t attend—as such, I endorse an order that Otaki shall not remove Fares from Peel Region and that Fares’s passport must be deposited with Otaki’s lawyer I also asked Peel Police to do a wellness check on Fares I schedule an Early Case Conference on December 14, 2022
December 14, 2022	Otaki explained his inadvertent failure to attend the penalty phase I endorse an order lifting the suspension of my contempt order I also endorsed an order that Abou Sleiman has a right to request information about Fares’s health and education

[10] As summarized above, over the course of this proceeding, I have considered several alternatives to a finding of contempt:

• finding that Otaki has breached Justice André’s order and admonishing him (endorsement dated August 31, 2022)
• granting Otaki leave to move to vary the parenting orders (endorsement dated September 26, 2022)
• suspending the declaration of contempt to allow Otaki to pause to reflect on his conduct and work on cooperative solutions in Fares’s best interests (endorsement dated November 9, 2022)
• encouraging professional assistance—in this case, reunification counselling and causing an OCL and Peel CAS investigation (endorsement dated November 9, 2022)

[11] Ultimately, and in part because Otaki admitted his contempt, I made a formal order of contempt because it was truly a last resort and would not work an injustice.

B. Relevant Legal Principles

[12] 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 (Family Law Rules, r 31(1)).

[13] If the court finds a person in contempt of the court, it may order that the person,

(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 (FLR, r 31(5))

[14] The contempt power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort (Moncur v Plante, 2021 ONCA 462, at para 10). 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 (Moncur).

[15] The relevant sentencing principles for civil contempt are:

• the sanction imposed on a finding of contempt must be significant and of such consequence to ensure the administration of justice is not brought into disrepute (iTrade Fin. Inc. v Partridge, 2005 CanLII 24776, at para 15 (Ont Sup Ct); Cassidy v Cassidy, 2010 ONSC 2707, at para 9)
• sentencing should be restorative to the victim of the contempt and punitive to the contemnor (Germia v Harb, 2007 CanLII 30750 (Ont Sup Ct), at para 21; Cassidy, at para 10)
• the main purpose of civil contempt is to coerce compliance with the court’s orders (TG Indus. Ltd. v Williams, 2001 NSCA 105, at para 35; Cassidy, at para 12; Gallivan v Rodgers, 2022 ONSC 5259, at para 29)

[16] The relevant factors to consider in sentencing are:

• whether the contemnor has admitted the breach
• whether they have proffered a formal apology to the court
• whether the contemnor’s conduct was flagrant, and the level of defiance which they demonstrated
• whether the contemnor demonstrates any remorse
• how much the contempt has impaired the other party’s relationship with the child
• whether there have been ongoing breaches since the contempt motion was served
• the number of times that the contemnor has breached court orders
• whether the contemnor has previously found in contempt
• the outcome of any previous attempts to enforce compliance with the order
• whether the contempt can be purged (see Cassidy, at para 13; Boucher v Kennedy, [1998] OJ no 1612, at para 69 (Gen Div), aff’d (1999), 1999 CanLII 2779 (ON CA), 124 OAC 151 (CA); Germia, at para 13; Roby v Roby, [2003] OJ no 4408, at paras 31-36 (Sup Ct); and Peers v Poupore, 2012 ONCJ 306, at para 58)

[17] In parenting time cases, when the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children (Moncur; Ruffolo v David, 2019 ONCA 385, at para 11).

[18] Section 16(1) of the Divorce Act directs that the court shall take into consideration “only the best interests of the child of the marriage in making a parenting order….” Section 16(3) sets out several factors that the court must consider in carrying out the “best interests” analysis:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents, and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing, and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.

[19] In considering these factors, the court is required to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being” (s 16(2)).

[20] In Pintea v Johns, 2017 SCC 23, the Supreme Court of Canada endorsed the Statement of Principles on Self-represented Litigants and Accused Persons (2006), issued by the Canadian Judicial Council. The Principles provides guidance to the judiciary on how to ensure litigants “understand and meaningfully present their case, regardless of representation”. I must do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. I have a special duty to Otaki in terms of acquainting him with courtroom procedure and the rules of evidence. See Girao v Cunningham, 2020 ONCA 260, at paras 149-151.

[21] At the same time, Abou Sleiman is entitled to expect that this proceeding will be decided by the same rules of evidence and substantive law whether Otaki is represented by a lawyer or self-represented. To preserve fairness in a proceeding, I must, of course, respect the rights of her as well. As a self-represented litigant, Otaki, under the Principles and our courts’ precedents, is expected to learn about the relevant legal practices and procedures pertaining to his case. See Girao, at para 151; Sanzone v Schechter, 2016 ONCA 566, at para 22; Cicciarella v Cicciarella, 2009 CanLII 34988 (Div Ct), at paras 37-38.

C. The Penalty Phase Hearing

[22] At the penalty phase hearing, Abou Sleiman relied on her affidavit, sworn January 8, 2023, and several other affidavits admitted into evidence at the liability phase hearing. Otaki chose not to cross-examine Abou Sleiman.

[23] Otaki testified on his own behalf. He also called three witnesses: his father Fares Otaki; his sister Zaina Ballan; and his friend Chantay Stumpf. I endorsed an order excluding witnesses to prevent the possibility that any witness expected to testify would not, by reason of hearing others testify beforehand, alter, modify, or change their evidence.

[24] At the outset of the hearing, I explained to Otaki the relevant sentencing principles and factors (discussed above in paragraphs 15 and 16). At the beginning of the penalty phase and throughout the hearing, I explained and reminded Otaki that only evidence that is relevant and material to the issues on sentencing is allowed.

[25] I also explained to Otaki the difference between a fact witness and an expert witness. As Otaki’s witnesses were all fact witnesses, I explained to him that the witnesses could give evidence about things they heard or saw, but they could not present their opinions to the court. I also explained to him that hearsay evidence (information being offered for its truth, that a witness learned from someone else, but does not know about) is not admissible.

[26] Much of Otaki’s and his witnesses’ evidence was either irrelevant or inadmissible. For example, he repeatedly sought to testify about Abou Sleiman’s alleged unfitness to parent Fares. He sought to adduce this same evidence from his father and sister. Abou Sleiman has, candidly and repeatedly, admitted her challenges with anxiety and depression. She denies Otaki’s allegation that she is bipolar or schizophrenic. Otaki’s allegations about Abou Sleiman are historical—she hasn’t seen Fares in 3 years, and she hasn’t been with him unsupervised in almost 4 years. Moreover, all of this evidence was before Justice André, who nonetheless ordered that Fares should eventually have unsupervised parenting time with Abou Sleiman.

[27] Otaki asked all of the witnesses to testify about their opinions or beliefs regarding Fares’s well-being and Otaki’s skills as a father, which is not relevant to the appropriate penalty for Otaki’s contempt. He asked Stumpf to testify about her experiences in other family law proceedings, which is inadmissible and irrelevant. He asked all of the witnesses to testify about events and circumstances that they did not hear or see, which is not admissible evidence. Otaki repeatedly tried to adduce evidence about Keira Kagan, who tragically died in 2020. This evidence is also inadmissible in this case as I explained to Otaki at the liability phase and again at the beginning of this hearing.

[28] For Otaki’s closing submissions, I allowed him to rely on Stumpf as a “McKenzie Friend” as a support person to him.

III. ANALYSIS

[29] Abou Sleiman’s position is that Otaki’s flagrant disregard for this court’s orders requires a drastic penalty: (a) Otaki should be incarcerated for at least one month, or until he agrees to comply with a fresh parenting order; (b) Abou Sleiman should have sole decision-making for Fares; (c) Abou Sleiman should have gradually increasing supervised and then unsupervised parenting time, leading to a fresh parenting time order for both parents; (d) immediate payment of costs; and (e) Otaki’s response to the motion to change should be struck and he cannot start any fresh proceedings without leave.

[30] Otaki’s position is that there should be no penalty. He repeats that he will only agree to supervised parenting time with the Peel Program, subject to OCL completing its investigation. At the hearing, Otaki conceded that he would allow supervised parenting time at York Region Supervised Parenting Time Centre (both centres are operated by Social Enterprise for Canada, though the York Program is in Aurora). There’s no dispute that the Peel Program is at capacity. Otaki and Abou Sleiman are on a waitlist. The OCL investigation may not be completed for another 4 months. In evidence and again in closing submissions, Otaki admitted that neither incarceration nor a fine would coerce his compliance with the parenting orders.

[31] Otaki admits the breach of the parenting orders. He has proffered no apology to the court. Instead, he is defiant, going as far as to state that this court’s orders are “based on lies”. His conduct is flagrant—he has taken no steps to purge his contempt and continues to relitigate issues that were already decided by this court (with no new evidence). He shows no remorse for his actions. His conduct has severely impaired Fares’s relationship with Abou Sleiman—Fares has not seen his mother in over 3 years, half his life. Since the contempt motion was served, Otaki continues to breach this court’s orders—he did not take any steps to meaningfully engage in reunification counselling and he has delayed Peel CAS’s and the OCL’s investigations.

[32] It’s also relevant that Otaki has never meaningfully complied with the April 2019 final order he consented to. The final order says nothing about supervised parenting time, yet he insisted that Abou Sleiman be supervised. Then, after that supervised parenting time in 2020, he has not allowed Fares the four weeks of annual parenting time with Abou Sleiman that Fares is entitled to.

[33] This contempt can be purged but Otaki chooses not to do so.

[34] Otaki’s attitude towards this court is shown by his response to the parenting orders. Even though he insists that Abou Sleiman is a danger to Fares, he’s risking that this court orders unsupervised parenting time rather than agree to supervised parenting time at Brayden Supervision. In my view, this attitude discloses that Otaki cares more about getting his way than Fares’s safety—if Fares were in real danger, why would Otaki risk Fares having unsupervised parenting time with Abou Sleiman? His disregard for this court’s orders is also shown by his abject refusal to pay the costs orders—if Fares’s safety was Otaki’s primary concern, Otaki would pay the costs orders to show some remorse since they have nothing to do with Fares’s well-being.

A. Incarceration

[35] Incarceration is only an appropriate sentence in cases involving repeated, unrepentant acts of contempt, and the court is satisfied that no other less punitive sanctions are appropriate (Cassidy, at para 37; Geremia, at para 40; Bus. Development Bank of Canada v Cavalon, 2017 ONCA 663, at para 82). In family law cases, the benefits of incarceration in terms of deterrence and punishment of the contemnor must be balanced against the best interests of the children involved, and the potential negative effect on the children of their parent being sent to jail (MMK v PRM, 2000 CanLII 22536, at para 55 (Ont Sup Ct); Peers).

[36] I decline to make an order that Otaki be imprisoned. As I discuss below, there are less punitive sanctions that are more appropriate, and appropriately balance Fares’s best interests notwithstanding Otaki’s unrepentant act of contempt.

B. Reversal of Decision-Making

[37] The remedy of changing decision-making is not an available penalty under rule 31(5). Custodial arrangements for children cannot be used as punishment for contempt unless it’s in the child’s best interest. See Chan v Town, 2013 ONCA 478, at para 6. This matter proceeded as a contempt hearing, not a trial of Fares’s best interest. I don’t have sufficient evidence to make a finding under the relevant factors.

[38] For that reason, I decline to make an order that Abou Sleiman be granted sole decision-making for Fares.

C. Parenting Time

[39] In my view, Otaki has weaponized Justice André’s order for supervised parenting time.

[40] Paragraph 9 of the April 2020 final order states: “The Applicant shall be permitted to visit Fares in Canada up to twice annually and for a period of two weeks for each visit. The Applicant shall solely bear the expense of her travel and accommodations. The parties shall arrange the details and conditions of how access shall occur during the Canadian visits between themselves and confirm the schedule in writing.” Again, this final order says nothing about supervised parenting time.

[41] Supervised parenting time may be warranted where a child requires protection from abuse or where there are clinical issues involving the access parent. It may also be justified where a child is being reintroduced into a parent’s life. See TE v GE, 2021 ONSC 7661, at para 8; Slawter v Bellefontaine, 2012 NSCA 48, at para 24.

[42] At the motion before Justice André, Abou Sleiman moved for unsupervised parenting time. Otaki’s position was that Fares should only have virtual parenting time with Abou Sleiman or, alternatively, supervised parenting time. Justice André concluded that a “transitional supervised parenting schedule” was appropriate to create a “bridge” for Fares and Abou Sleiman. Given Otaki’s concession that he would accept supervised parenting time, Justice André could not have anticipated that, 16 months later, the “bridge” between Fares and Abou Sleiman hasn’t even started being built, never mind that Fares would not have the unsupervised parenting time that Justice André ordered.

[43] For these reasons, I endorse an order that:

(a) for 3 weeks beginning on February 25, 2023, Fares shall have unsupervised parenting time with Abou Sleiman from 10am to 6pm on Saturday and Sunday at Abou Sleiman’s home (February 25, 2023, February 26, 2023, March 4, 2023, March 5, 2023, March 11, 2023, and March 12, 2023);

(b) for 3 weeks beginning on March 17, 2023, Fares shall have unsupervised parenting time with Abou Sleiman from Friday 4pm until Monday 8am at Abou Sleiman’s home (March 17, 2023, to March 20, 2023, March 24, 2023, to March 27, 2023, and March 31, 2023 to April 3, 2023);

(c) from April 6, 2023, at 4pm, Fares’s permanent residence shall be with Abou Sleiman; and

(d) from April 11, 2023, at 4pm, Fares shall have unsupervised parenting time with Otaki every Tuesday overnight from Tuesday 4pm until Thursday 8am and on alternate weekends beginning April 14, 2023, from Friday 4pm until Monday 8am at Otaki’s home.

[44] To give effect to this parenting time order, I endorse the following orders:

(a) Fares will continue his enrolment in Peel Elementary Virtual School;

(b) the parenting time exchanges shall take place at Peel Regional Police Headquarters, 7150 Mississauga Road, Mississauga;

(c) this court by order under section 36(2) of the Children’s Law Reform Act, RSO 1990, c C.12, directs the Peel Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police, and any police force having jurisdiction in any area where it appears that Fares may be, to locate, apprehend, and deliver Fares to Abou Sleiman for the purpose of giving effect to Abou Sleiman’s right to parenting time under paragraphs 43(a), (b), and (c) of this order;

(d) the police force directed to act under paragraph 44(c) of this order shall do all things reasonably able to be done to locate, apprehend and deliver Fares in accordance with the order;

(e) for the purpose of locating and apprehending Fares in accordance with paragraph 44(c) of this order, a member of a police force may enter and search any place where they have reasonable and probable grounds for believing that Fares may be with such assistance and such force as are reasonable in the circumstances; and

(f) the order in paragraph 44(c) shall expire not later than August 21, 2023.

[45] This order achieves the sentencing principles for civil contempt concerning access to children:

• Otaki’s refusal to complete the intake forms for Brayden Supervision bring the administrations of justice into disrepute
• the change in primary residence and immediate, unsupervised parenting time is restorative to Abou Sleiman
• Fares’s bests interest, for his physical, emotional, and psychological safety, security, and well-being, is unsupervised parenting time with his mother, which Otaki’s conduct has denied to Fares for 3 years now

D. Costs

[46] The costs orders from the parenting and compliance motions, totalling $8000, are unpaid.

[47] In addition, Abou Sleiman seeks full indemnity costs for the contempt motion in the sum of $11,900 inclusive of fees, taxes, and disbursements.

[48] Subject to the provisions of an act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. See Courts of Justice Act, RSO 1990, c C.43, s 131.

[49] Under rule 24(12) of the Family Law Rules, 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 of the Family Law Rules, (iv) any 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 expenses properly paid or payable; and (b) any other relevant matter.

[50] There is a presumption that a successful party is entitled to the costs of a motion or enforcement (Family Law Rules, r 24(1)). Modern costs rules are designed to foster three fundamental purposes: (a) to partially indemnify successful litigants for the cost of litigation; (b) to encourage settlement; and (c) to discourage and sanction inappropriate behaviour by litigants. See Fong v Chan, 1999 CanLII 2052 (Ont CA) at para. 22.

[51] The main objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant. See Boucher v Public Accountants Council (Ontario), 2004 CanLII 14579 (Ont CA), at para 26.

[52] If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately (rule 24(8)). This rule requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See Cozzi v. Smith, 2015 ONSC 3626; Scipione v Del Sordo, 2015 CarswellOnt 14971 (Sup Ct). There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See S(C) v S(M) (2007), 2007 CanLII 20279 (ON SC), 38 RFL (6th) 315 (Ont Sup Ct). Bad faith is not synonymous with bad judgment or negligence. Instead, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction, or obfuscation. See Scipione.

[53] Otaki has acted in bad faith. He is intentionally obstructing and disobeying this court’s orders. He has done so knowingly. By relitigating the same issues over and over, he’s abusing the court’s process.

[54] Otaki’s only objection to the costs sought by Abou Sleiman is that they are “too high”. He seems to be arguing that I should consider his ability to pay the costs of this contempt hearing. See MacDonald v Magel (2003), 2003 CanLII 18880 (ON CA), 67 OR (3d) 181 (CA), at para 42.

[55] Otaki led some evidence at the penalty phase on his financial circumstances. Otaki’s Form 13: Financial Statement shows that he earns almost $83,000 annually and his net worth is over $190,000, including a 50% interest in a property in Milton and over $38,000 in cash savings. Otaki’s and his father’s evidence is that Otaki doesn’t pay rent for him and Fares but contributes in-kind living expenses like groceries ($1200-$1300) per month. Otaki bought a leather living room set for around $4000. Though Otaki and his father adduced some evidence that might support the argument that Otaki doesn’t actually have a 50% interest in the Milton property, Otaki’s sworn financial statement from January 2023 says he does. Otaki and his father also testified that, when necessary, the family, including Otaki’s brother, pool their financial resources to pay their common expenses.

[56] Otaki is not impecunious. He can pay these costs awards. In closing submissions, he made clear that he wasn’t paying them not because he can’t but because they are “based on lies”. I’m not persuaded that the impact of these costs awards against Otaki would seriously affect Fares’s best interests.

[57] Given that there have been 6 appearances, including two in-person hearings with viva voce evidence, the amount sought by Abou Sleiman is objectively fair, reasonable, and proportionate for Otaki to pay. I endorse an order that Abou Sleiman is entitled to costs for the contempt motion and I set the amount of costs in the sum of $11,900 inclusive of fees, taxes, and disbursements.

[58] As an aside, Abou Sleiman’s lawyer has, generously, foregone payment on the premise that Otaki will abide by this costs awards. In doing so, she has ensured Abou Sleiman’s access to justice and access to legal services in furtherance of her oath as a barrister and solicitor of the Bar of Ontario, and should be commended for her willingness to do so.

[59] I also endorse an order that Otaki cannot participate in the case in any way until the costs awards ($19,900) are paid. In my view, this order is intended to coerce Otaki’s compliance with the parenting and costs orders, in furtherance of the sentencing principle for civil contempt.

E. Conference

[60] The parties scheduled a settlement conference for May 2023. I endorse an order that the parties shall attend a settlement/trial management conference on April 3, 2023, at 10am.

[61] The temporary change to Fares’s primary residence will be reviewed at the conference. If Otaki complies with these penalties and pays the costs awards, he may argue at the conference that Fares’s primary residence should not be changed pending the trial of Abou Sleiman’s motion to change.

F. Other Outstanding Issues

[62] On the reunification therapy, Otaki advises that he spoke to “Chantal”, a counsellor at Lifeworks. As I understand, Lifeworks is Otaki’s Employee Assistance Program. Otaki stated that Chantal told him that there is no basis for reunification therapy until OCL completes its report. Otaki has taken no other steps to comply with my order that he provide names and contact information for therapists to Abou Sleiman so the parties can begin reunification counselling. I endorse an order that Otaki shall comply with my order regarding reunification counseling, dated November 9, 2022, on or before February 23, 2023.

[63] On the Peel CAS investigation, the parties both advised that the file was being transferred from Jemima Mageto to another caseworker, who was now on holiday. The last information was that Otaki was supposed to organize a meeting between the caseworker and Fares. I am again copying this endorsement to CAS.

[64] On the OCL investigation, Tracy Majewski, a social worker, was supposed to meet with Fares and Otaki this month but the meeting was delayed because Fares and Otaki have been sick. I’m concerned that Otaki is intentionally delaying OCL’s investigation. As a result, I endorse an order that Otaki shall contact Ms. Majewski on or before February 24, 2023, to schedule a meeting with her on or before March 3, 2023.

[65] On the health and education information, Abou Sleiman’s evidence was that Otaki was blocking Fares’s doctors and schools from providing her information. As the hearing progressed, the parties clarified that the school was trying to provide of information and the doctor’s office may have been mistaken. As needed, I confirm that at the penalty phase, Otaki advised the court that he consents to Abou Sleiman receiving information from Fares’s doctors and schools in accordance with my order dated December 14, 2022.

IV. CONCLUSION

[66] Fares has a right to parenting time with Abou Sleiman. For too long, Otaki has deprived Fares of that right and, in doing so, abused this court’s process and showed contempt for this court’s orders. He insists that he is doing so for Fares’s safety. His allegations are either unproven or baseless.

[67] At the penalty phase hearing, Otaki repeatedly relied on his duty as a father. That duty includes ensuring Fares’s best interests, which are met by parenting time with Abou Sleiman. That duty should also include being a role model to Fares by showing him that, in our society, court orders and the law are obeyed even if we disagree with the outcome.

[68] I again urge Otaki to retain a lawyer.

[69] I have signed the order, which shall be issued by the court office forthwith.

Agarwal J.

Date: February 21, 2023

COURT FILE NO.: FS-19-94819-0001

DATE: 2023 02 21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Murielle Abou Sleiman, Applicant

AND:

Abdo Otaki, Respondent

BEFORE: Justice Ranjan Agarwal

COUNSEL: Holly Langille Counsel, for the Applicant

Abdo Otaki, Self-Represented

ENDORSEMENT

AGARWAL J.

DATE: February 21, 2023