Court File and Parties
COURT FILE NO.: 17-1261
DATE: February 2, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ZELENA VAN DER LEEDEN
Applicant
– and –
LUC VAN DER LEEDEN
Respondent
Counsel:
Stephen Pender, for the Applicant
Beverley Johnston, for the Respondent
REASONS FOR DECISION
ABRAMS, J
Introduction
[1] The Respondent brings a contempt motion against the Applicant alleging numerous breaches related to non-compliance of the Final Order of MacEachern J., dated October 30, 2020 ("the Final Order").
[2] The allegations of non-compliance include:
a. Not respecting the parenting schedule;
b. Withholding the children;
c. Not following the travel provisions;
d. Involving the children in adult issues; and
e. In general, not acting in the best intertest of the children.
[3] Remarkably, the combined materials filed for the contempt motion exceeded 1000 pages.
Issues
[4] Following a cursory review of the materials, I ordered the motion to proceed in respect of two discreet issues, namely:
How, if at all, and to what extent, paragraph 46 of the Final Order circumscribes the Court's jurisdiction to adjudicate the issues raised at this stage?
Whether the broad authority inherent in Rule 1(8) Family Law Rules ("FLR"), empowering the Court to make any order that it considers necessary for a just determination of the matter provides a prelude step of enforcement, prior to seeking a quasi-criminal finding of contempt?
Brief Background
[5] The parties are the biological parents of Luca van der Leeden, born March 28, 2012 ("Luca") and Alexandra Marie van der Leeden, born December 27, 2013 ("Alexandra") (collectively "the children").
[6] The recital paragraph upon which the Final Order is based says:
Pursuant to Final Minutes of Settlement signed June 21, 2019, the endorsement of Justice MacEachern dated June 2019 and further signed minutes of settlement dated July 31, 2019, and a court appearance to settle the terms of the order on October 29, 2020, via Zoom, this Court orders that:
[7] The Final Order is one of the most comprehensive orders pertaining to child related issues that I have reviewed during my 12 years as a judge of this Court. To that end, great care was taken to address issues that might arise between the parties in an attempt, it would seem, to keep them out of court. Regrettably, that has not been the case.
[8] Notably, the parties consented to the inclusion of a Dispute Resolution clause, specifically:
- Any disputes that may arise relating to this Final Order shall be addressed through mediation/arbitration with Carol Bartels (emphasis added).
Parties Positions
[9] The Respondent contends that at the core of his contempt motion is the fact that the Applicant has, and continues to be, non-compliant with many aspects of the Final Order. Specifically, the Applicant does not respect the parenting schedule by, inter alia, withholding the children. She does not follow the travel provisions by failing to tell him where she is taking the children on holiday. She involves the children in adult issues, and generally does not act in their best interests because of her decision to function as a "permissive parent".
[10] As regards the application of the Dispute Resolution clause, the Respondent argues that the Court retains exclusive jurisdiction to address issues of contempt: Woronowicz v. Conti 2015 ONSC 5247, at paras. 29 and 30. Further, the parties never settled on the terms of the dispute resolution clauses (plural) within 30 days of executing the minutes of settlement, as was anticipated. Finally, the Respondent asserts that the terms of the Final Order do not comply with the formal requirements of the Arbitration Act: Magotiaux v. Stanton, 2020 ONSC 4049.
[11] The Respondent's stated objective is to ensure compliance with the Final Order. Moreover, and most importantly, the Respondent is seeking a remedy that is prospective in hopes there will be less conflict between the parties, which is ultimately best for the children.
[12] The Applicant contends that the Respondent ought not be permitted to circumvent the Dispute Resolution clause, which was agreed to on consent and specifically recognizes Ms. Carol Bartels, who the parties have used in the past. Further, the Applicant asserts that paragraph 46 of the Final Order is extremely broad and that "Any dispute" should be read to include: differing interpretations of the Final Order, disputes over parenting time, and disputes over major decision-making for the children.
[13] The Applicant argues that the Respondent's evidence is insufficient to support a breach of the Final Order, for the following reasons:
a. Many of his allegations of contempt occurred prior to the Final Order, and therefor cannot constitute contempt of the Final Order;
b. The Final Order is not clear and unequivocal with respect to numerous provisions;
c. The Respondent has failed to bring his motion with "clean hands". As such, he cannot be permitted to succeed on the motion while in breach of the Final Order; and,
d. Many of the allegations of contempt have been resolved and require no enforcement measures.
Analysis
[14] The power of the court with respect to contempt of court is discretionary and should be exercised cautiously and with great restraint: Carey v. Laiken, [2015] 2 S.C.R. 79, 2015 SCC 17 (S.C.C.)
[15] Contempt of court is a remedy which should only be used as a final resort. The judge should consider other options such as declaring that there was non-compliance with the order or encouraging the parties to use mediation rather than passing directly to an order for contempt: Valoris pour enfants et adultes de Prescott-Russell c. R. (R.), [2021] O.J. No. 3019, 2021 ONCA 366 (Ont. C.A.).
[16] Accordingly, while I appreciate that that the Court retains exclusive jurisdiction to address issues of contempt, it is a discretionary remedy of last resort that the Court should not pass directly to, particularly in circumstances where the parties consented to an order to utilize the services of an experienced family law mediator/arbitrator.
[17] On the record before me, it is also difficult to reconcile the Respondent's position that mediation/arbitration is not mandatory under paragraph 46 while simultaneously asserting, in other circumstances, that the parties mediate a variety of issues: Lucas's tutor, Alexandra's speech therapist, and weekly schedule disputes.
[18] Admittedly, arbitrators do not have jurisdiction to make findings of contempt or enforce court orders, however, they have jurisdiction to make parenting orders and to vary orders, which might include ordering make-up parenting time to the Respondent, if the circumstances warrant: Fekete v. Brown, 2022 ONSC 903, at paras. 1 and 4.
[19] Thus, the Respondent's stated objective to ensure prospective compliance with the Final Order can be achieved, in my view, by taking his complaints regarding non-compliance before Ms. Bartels.
[20] The wording of paragraph 46 is sufficiently broad to include "Any dispute", such as: differing interpretations of any provision of the Final Order, disputes over parenting time, and disputes over major decision making for the children. Moreover, the inclusion of the words "shall be addressed through mediation/arbitration" is mandatory verbiage, as opposed to permissive.
[21] For these reasons, the Court chooses to exercise its discretion by encouraging the parties to use mediation/arbitration pursuant to paragraph 46 of the Final Order, rather than passing directly to an order for contempt.
[22] As to whether the broad authority inherent in Rule 1(8) FLR has some application here as a prelude step of enforcement, prior to seeking a quasi-criminal finding of contempt, I make the following observations:
All too often counsel, and parties run to court seeking a finding of contempt when Rule 1(8) FLR would suffice. As I wrote in Villeneuve v. Wilson, 2022 ONSC 2886, at para. 20, the rule provides very broad discretion for the Court to fashion an appropriate remedy, once the Court has determined there is a triggering event of non-compliance with an order, and the Court determines it will not exercise its discretion in favour of the non-complying party.
While I will avoid making any findings of non-compliance with the Final Order in advance of the parties proceeding to mediation/arbitration, I will say this: The Applicant appears to pursue a stratagem of "it's easier to ask for forgiveness than permission", when interpreting the parenting provisions of the Final Order.
Conclusions
[23] In the result, the following order shall issue:
The Respondent's motion seeking a finding of contempt is adjourned sine die, returnable on 14 days written notice.
The parties shall proceed to mediation/arbitration before Ms. Bartels in relation to the issues raised in the Respondent's motion.
The issue of Costs is reserved pending the outcome of the mediation/arbitration, and the return of the motion, if necessary.
The Honourable Mr. Justice B. W. Abrams
Released: February 2, 2023
COURT FILE NO.: 17-1261
DATE: February 2, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ZELENA VAN DER LEEDEN
Applicant
– and –
LUC VAN DER LEEDEN
Respondent
REASONS FOR DECISION
Abrams, J.
Released: February 2, 2023