Court File and Parties

COURT FILE NO.: FS-21-00021501-0000 DATE: 20230601 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JANNYL MOLINA Applicant – and – CHICOUNG LA Respondent

Counsel: Jessica Polis, for the Applicant Keith Newell, for the Respondent

HEARD: APRIL 13, 2023

VELLA J.

Reasons for Contempt Motion

[1] The Applicant Mother, Jannyl Molina, moves for an order that the Respondent Father, Chicoung La, is in contempt of the order of Justice Akazaki dated February 14, 2023 by:

(a) Refusing/failing to administer medication to the Child, Marley Molina La (“Marley”); and (b) Bringing Marley to a parenting exchange on his e-bike.

[2] Ms. Molina further moves for an order that Mr. La is in contempt of the orders of Justice Kiteley dated July 30, 2021 and Justice Shore, dated November 1, 2022, for failing to:

(a) produce an accurate and fulsome income valuation report; and (b) comply with Costs Orders made.

[3] The hearing was conducted on the basis of a written record, without objection.

[4] This is a high conflict situation with a litigation history going back to 2021 featuring several court appearances to date. It is clear based on the evidence that Ms. Molina and Mr. La have had, and continue to have, challenges working together when it comes to making parenting decisions.

[5] Ms. Molina filed her own affidavits – one in reply to Mr. La’s affidavit evidence.

[6] Mr. La filed his own affidavit together with an affidavit of Mahesh Prajapat who was the parenting coordinator for these parties from March 2022 to June 2022, after which Ms. Molina terminated his role. Mr. La also filed a brief affidavit from Reza Agel, who is a long-time friend of Mr. La and has had the opportunity to observe Ms. Molina and Mr. La’s relationship over the years.

[7] For the reasons that follow, I find that Ms. Molina has not proven that Mr. La is in contempt of court on the requisite standard of proof.

Analysis

[8] Rule 31 of the Family Law Rules, O. Reg. 114/99, sets out the procedure and scope of remedies for contempt motions in family law proceedings.

[9] The test for family law contempt motions is the same as for civil contempt motions. The leading case of Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35, established a three-part test:

(a) The order which is the subject of the contempt motion must clearly and unequivocally state what should and should not be done; (b) The alleged contemnor must have had actual knowledge of the order; and (c) The alleged contemnor must have intentionally done the act, or refused to have done the act, that the order provides.

[10] Carey confirmed that the onus of proof is on the moving party and the standard of proof is the criminal standard of “beyond a reasonable doubt”: para. 32. This standard applies to breach of family law orders (Jackson v. Jackson, 2016 ONSC 3466).

[11] Even if all three elements are proven beyond a reasonable doubt, the court retains a residual discretion to decline to declare that the alleged contemnor is in contempt of court (Carey, at para. 36 – 37; see also North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited, 2021 ONCA 173 at para. 45).

[12] A contempt of court finding is a last resort (Jackson at para. 56). The function of a contempt finding is “primarily remedial, the basic objective being to coerce the offender into obeying a court judgment or order…” rather than punitive (Kopaniak v. MacLellan at para. 28).

[13] A finding that a party has breached a court order is insufficient, in and of itself, to ground a finding of contempt. Parties should be mindful of the difference between a breach of court order (which on its own can attract certain remedies) and a finding of contempt of court which has heightened requirements beyond the fact of a breach of a court order.

[14] Finally, in the context of family law proceedings, and particularly in high conflict situations, a cautious approach should be taken to the contempt of court analysis in order to not unduly escalate the existing conflict (Jackson at para 56).

Preliminary matter

[15] Ms. Molina advanced further grounds of contempt in her affidavit and factum. The grounds are not reflected in the Notice of Motion. Ms. Molina also asks for ancillary relief, such as a request to dispense with Mr. La’s consent to renew Marley’s passport and to travel out of the country. In my view, given the serious nature and consequence of a motion for contempt, Ms. Molina cannot advance a new grounds of contempt that is not reflected in the Notice of Motion. Furthermore, a motion for contempt cannot be used as a vehicle for unrelated ancillary relief. Accordingly, I decline to consider them.

Orders of Justice Kiteley and Justice Shore

[16] On July 20, 2021, Kiteley J. made a temporary order addressing temporary spousal and child support, among other things.

[17] The two paragraphs of Kiteley J’s order that are relied upon by Ms. Molina read as follows:

(a) “The Respondent [Mr. La] shall produce an income valuation prepared by a qualified Certified Business Valuator by September 30, 2021”; (b) “The Respondent shall pay the Applicant’s costs of this motion on a partial indemnity basis in the amount of $8,534.00 payable by August 31, 2021”.

[18] As Mr. La failed to produce an income valuation pursuant to Justice Kiteley’s order, the parties attended before Justice Shore. On November 1, 2022, Justice Shore made the following orders relating to the income valuation:

(a) “2. The Respondent, Chicuong La, shall contact and retain Marmer Penner Inc. to obtain an income valuation within 30 days.”

[19] Under r. 31(1), a failure to comply with a payment order, including costs, is excluded as a ground of contempt. This is a complete answer to this ground. However, Ms. Molina submits that I should take note of Mr. La’s failure to pay this cost award as indicative of his refusal to comply with court orders. I reject this suggestion. Under a motion for contempt of court, the court will focus on the evidence relating to the specific grounds of contempt and not an alleged propensity to breach court orders as evidence of the specific contempt being advanced.

Valuation Report

[20] Mr. La admits that he was aware of the requirement that he produce a valuation report by September 30, 2021 pursuant to Justice Kiteley’s order and Justice Shore’s Order.

[21] Mr. La provided a report from Marmer Penner Inc. dated January 31, 2023 and entitled “Preliminary Comments on Income”. It is a brief report (1 ½ pages) and relies in part on Mr. La’s self-report. It was provided about 2 months beyond the deadline provided by Justice Shore’s order, which was already an extension from Justice Kiteley’s deadline of September 30, 2021.

[22] Ms. Molina submits that while the report may technically comply with the Orders it fails to comply with the “spirit” of Justice Kitely and Justice Shore’s respective orders. She points out that the report has little value given that it is largely based on Mr. La’s self-report and does not address two corporations that Ms. Molina contends Mr. La to have an interest in.

[23] I agree that the report is sparse and that its title suggests it is not a final report. However, the complaint is with respect to the sufficiency of the report. On this front, the Orders of Justice Kiteley and Justice Shore do not specify what the content of the report should be.

[24] I do not have a sufficient evidentiary basis upon which to conclude, beyond a reasonable doubt, that Mr. La has intentionally refused to comply with the subject orders by virtue of having delivered a sparse income valuation report. Also, while the report was delivered late, it has been delivered and before this motion for contempt was brought.

[25] Accordingly, it has not been proven beyond a reasonable doubt that Mr. La is in contempt of the orders to deliver an income valuation report. However, this ruling is without prejudice to Ms. Molina’s ability to seek to bring a motion compelling a further and better valuation report.

Justice Akazaki’s Order

[26] On February 14, 2023, after hearing submissions with both parties present, Justice Akazaki ordered, inter alia, that

(a) “1. The Applicant, Jannyl Van Der Eyken Molina, shall have interim sole decision making responsibility in respect of the child, Marley Molina La born April 16, 2019, (hereinafter, “the child”) with respect to medical, educational and all other significant decisions. The Respondent, Chicuong La, is entitled to be informed of doctors’ appointments, hospitalizations and changes in childcare arrangements and schooling.” (b) “3. During the weekend portions of the Respondent’s parenting time, the Respondent will ensure that the child takes her prescribed inhaler at the prescribed times. The Respondent will take a photograph or video and send it to the Applicant by text message, within five minutes of dose administration.” (c) “4. The Respondent shall not transport the child by bicycle. All transport shall be on foot, by transit, or car with a child seat.”

Has Mr. Molina committed contempt of court in relation to his initial refusal to administer Gravol to Marley?

[27] I am satisfied on the evidence that Mr. La initially refused to administer Gravol to Marley on the evening of March 17, 2023 while she was in his care, and after being advised by Ms. Molina that the emergency doctor who saw Marley on March 14, 2023 to give Gravol to Marely as a preventative health measure. According to Ms. Molina, she found Marley choking in her bed and she had to administer the Heimlich maneuver. After Marley vomited three more times, Ms. Molina took Marley to the hospital in an ambulance. According to Ms. Molina, the emergency doctor advised her that there was a “bad GI tract bug” going around, and she was advised to give Marley Gravol for the next six days, irrespective of symptoms, as a preventative measure.

[28] Ms. Molina told Mr. La of these events in a WhatsApp exchange. Initially Ms. Molina wrote that the “ER dr recommended she takes 5 ml of Gravol before bed until she stops having symptoms.” Later in the exchange, after Mr. La protests and claims that it is his decision to make, Ms. Molina tells Mr. La that it is in fact her decision which he must respect, and that he must give a Gravol pill to Marley. She also wrote that the doctor said “that she needs to keep taking gravol at night, or she could puke in her sleep again”. Ms. Molina does not say in that exchange that the doctor said to administer the Gravol for 6 days irrespective of symptoms.

[29] It is clear based on the What’s App exchange filed in evidence that Mr. La believed he had the right to override Ms. La’s request based on his belief that Marley was not showing GI symptoms that would warrant taking Gravol, and that to the contrary Marley was constipated suggesting Gravol would not be warranted.

[30] The issue here is whether the Order of Akazaki J. was clear and unequivocal. Mr. La deposed that he will administer any medication to Marley that is prescribed. His interpretation of Justice Akazaki’s order was that the scope of decision making vested in Ms. Molina related only to medical decisions such as prescribed medication and not over the counter medication. He believes that he has the ability to make minor decisions regarding Marley’s health when she is in his care. His interpretation of the Order is supported by Justice Akazaki’s addition of the words “and all other significant decisions” suggesting that the scope of exclusive decision-making authority is in relation to significant matters.

[31] He points to the fact that Justice Akazaki makes a further order specific to the administering of Marley’s inhaler which is prescribed by a doctor.

[32] Ms. Molina counters by saying that Mr. La’s interpretation is too narrow and that she has exclusive decision-making authority in relation to all aspects of Marley’s health. She says that it would not be practical to have to get a court order over every health-related decision concerning Marley.

[33] In my view, the Order of Justice Akazaki is not clear and unequivocal regarding the scope of health-related decisions over Marley which are in the exclusive domain of Ms. Molina. It is clear that Ms. Molina is vested with medical decision-making responsibility with respect to all significant health related matters.

[34] In any event, there was no medical evidence adduced by Ms. Molina to support her statements that the Gravol was medically required for Marley, in the absence of GI symptoms, or that the emergency doctor directed that Marley continue taking Gravol beyond the subsiding of her symptoms. Rather, Ms. Molina has relied on hearsay evidence regarding what the emergency doctor told her. The WhatsApp exchange does not support the entire discussion Ms. Molina had with the emergency doctor either; for example, there is no indication that Marley was to have the Gravol for a six-day period. There is also no evidence as to whether Ms. Molina continued to administer Gravol to Marley after she picked her up the next evening, which would have fallen within the six-day period.

[35] Furthermore, Mr. La eventually administered the Gravol – albeit only after Ms. Molina contacted the police and arrived at Mr. La’s door with the police.

[36] Therefore, Ms. Molina has failed to prove beyond a reasonable doubt that Mr. La intentionally refused to comply with Justice Akazaki’s order as relates to this isolated incident of (initially) refusing to administer Gravol to Marley.

Failure by Mr. La to Administer the Cortico-steroid Asthma Inhaler to Marley

[37] Ms. Molina alleges that on March 18, 2023, the morning following the Gravol incident, Mr. La failed to administer Marley’s inhaler. This is a medically prescribed medication for Marley’s asthma, and it is clearly and unequivocally addressed by Justice Akazaki.

[38] Mr. La admits that he failed to administer the inhaler to Marley and that this is contrary to Justice Akazaki’s order. He was aware of Justice Akazaki’s order. However, he explains in his affidavit that this was a one-time inadvertence caused by the upset of the night before. He states that Ms. Molina was to have picked up Marley on the morning of March 18, but due to the “commotion” of the night before and the change in plans, he “inadvertently did not provide Marley her puffer”. Mr. La states that he continues to provide Marley with “her puffers as directed”. He points out that he did give Marley her inhaler in the evening of March 17, 2023, after he picked her up from daycare.

[39] Ms. Molina deposes that she retrieved Marley on the evening of March 18, 2023 and administered her inhaler.

[40] Given that this appears to be an isolated incident since the order of Akazaki J., I find that Ms. Molina has not proven beyond a reasonable doubt that Mr. La intentionally breached, or willfully disregarded, Justice Akazaki’s order.

Transport of Marley by Bicycle by Mr. La

[41] Ms. Molina deposed that Mr. La “arrived to the following parenting time with Marley on his e-Bike, in direct contravention of the Order”. No other particulars are given in relation to this claim.

[42] Mr. La outright denies the allegation and deposed that “I do not ride with Marley on my bike”.

[43] This appears to be an isolated incident at best. Furthermore, there are insufficient particulars provided by Ms. Molina; e.g.: what day this happened and at what time, and what if anything she said.

[44] Ms. Molina has not proven beyond a reasonable doubt that Mr. La, on one occasion, transported Marley on his e-bicycle subsequent to the order of Justice Akazaki.

Disposition

[45] The motion for contempt is dismissed.

[46] However, this ruling is without prejudice to Ms. Molina’s ability to seek leave to bring a motion or seek relief with respect to the other allegations she has made against Mr. La in her affidavit. While those matters were advanced in the affidavit material, they were not properly the subject of this motion for contempt and therefore I have not ruled on any of them. This includes Ms. Molina’s allegations that Mr. La has made disparaging remarks about her to their daughter and has showed their daughter inappropriate images of Ms. Molina. It also includes her request for a change to the parenting schedule established by Justice Sharma on January 31, 2022.

[47] Furthermore, Mr. La would be well advised to pay the outstanding cost orders promptly and ensure that his support obligations are not in arrears.

[48] As explained above, the fact that I have found that Mr. La is not in contempt of court with respect to the specific breaches alleged in the Notice of Motion is not synonymous with a finding concerning whether or not Mr. La is in breach of court orders, including costs awards, on the lower standard of balance of probabilities.

Costs

[1] I have the Cost Outline from Ms. Molina. Unfortunately, Mr. La did not upload a copy of his Cost Outline onto CaseLines. Mr. La may deliver his Cost Outline and written submissions within 10 days from today. Ms. Molina may deliver responding written submissions within 10 days thereafter. The written submissions will not exceed three pages double spaced from each party. These documents should be delivered by email to my judicial assistant.

Date: June 01, 2023 Justice S. Vella

COURT FILE NO.: FS-21-00021501-0000 DATE: 20230601 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: JANNYL MOLINA Applicant – and – CHICOUNG LA Respondent

REASONS FOR JUDGMENT Vella J. Released: June 01, 2023