COURT FILE NO.: FC-20-1865
DATE: 2023/02/06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Devon Miles, Applicant
-and-
Kelsey Bradley, Respondent
BEFORE: Justice T. Engelking
COUNSEL: Molnar Dennis, for the Applicant
Allison Lendor, for the Respondent
HEARD: October 12, 2022
contempt motion ENDORSEMENT
Overview
[1] The Respondent, Ms. Bradley, brings a motion seeking findings of contempt against the Applicant, Mr. Miles. The Motion was heard on October 12, 2022.
[2] Although her Notice of Motion requests relief in relation to alleged instances of contempt relating to temporary orders of Justice MacEachern dated November 18, 2020, and February 4, 2021, those were replaced by the Final Order of Justice Shelston dated April 20, 2022, and no findings of contempt can be made in relation to orders which no longer exist.
[3] Similarly, in her Notice of Motion, Ms. Bradley seeks relief in relation to alleged instances of contempt of Justice Shelston’s Final Order which predates the actual order. These instances are also not subject to findings of contempt of an order which was not in existence at the time they were made.
[4] Additionally, there are some alleged instances of contempt which relate to payment orders, which are specifically excepted as being enforceable via contempt findings by Rule 31 of the Family Law Rules, O.Reg. 114/99.
[5] The alleged instances of contempt with which I, therefore, have authority to deal are as follows:
a. Paragraph 7 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraphs 4, 5 and 28 of Justice Shelston’s Order dated April 20, 2022, by refusing to return the children to daycare on August 15, 2022, and August 19, 2022;
b. Paragraph 8 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraphs 4, 5 and 28 of Justice Shelston’s Order dated April 20, 2022, by refusing to return E.G.M. to her daycare on alternate Thursdays from April 14, 2022, to the present;
c. Paragraph 13 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraph 2 of Justice Shelston’s Order dated April 20, 2022, by registering the child E.M. for Jiu-Jitsu classes without the prior discussion, knowledge or consent of the Respondent;
d. Paragraph 14 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraph 2 of Justice Shelston’s Order dated April 20, 2022, by refusing to communicate and cooperate with the Applicant in planning the children’s summer activities including daycare and summer camp;
e. Paragraph 15 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraph 2 of Justice Shelston’s Order dated April 20, 2022, by refusing to drop the children off at their daycare/EDP summer camp pursuant to their registered activities;
f. Paragraph 16 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraphs 4 and 28 of Justice Shelston’s Order dated April 20, 2022, by not providing EDP or daycare for the children between 3 :00 p.m. and 4 :00 p.m.;
g. Paragraph 18 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraphs 4 and 28 of Justice Shelston’s Order dated April 20, 2022, by making it impossible for exchanges to take place at daycare and/or EDP;
h. Paragraph 19 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraphs 2 and 3 of Justice Shelston’s Order dated April 20, 2022, by renewing E.G.M. ’s Health Card without discussion, knowledge or consent of the Respondent;
i. Paragraph 20 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraphs 1, 4, 5 and 6 of Justice Shelston’s Order dated April 20, 2022, by applying for child tax benefits in August of 2022;
j. Paragraph 23 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraph 22 of Justice Shelston’s Order dated April 20, 2022, by refusing to provide documentary verification of his medical and dental plans;
k. Paragraph 26 of the Respondent’s Notice of Motion that the Applicant failed to adhere to paragraph 14 of Justice Shelston’s Order dated April 20, 2022, by failing to disclose a change in his income and update his child support payments accordingly.
[6] Paragraphs 21 and 22 of the Respondent’s Notice of Motion have, additionally, been purged by the Respondent having provided the required verification for the opening of a RESP account and confirmation of his life insurance to the Applicant the day before the motion was heard.
The Law of Contempt
[7] For a finding of contempt to be made for the breach of a court order, three elements must be proven:
a. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
b. The party who disobeys the order must do so deliberately and willfully; and,
c. The evidence must show contempt beyond a reasonable doubt.
[8] Findings of contempt in the context of a family law proceeding should be made sparingly and only as a last resort, and where other adequate remedies are not available.
[9] Any doubt with respect to the necessary elements of a contempt case must be exercised in favour of the alleged contemnor.
Background Facts
[10] The parties were in a relationship from October of 2015 to October of 2020. Two children were born of the relationship, E.M. in [] of 2017 and E.G.M. in [] of 2019.
[11] The parties entered into a final agreement on November 20, 2021, which was later incorporated into the Final Order of Justice Shelston dated April 20, 2022.
[12] Ms. Bradley alleges that Mr. Miles refuses to abide by the court order of Justice Shelston in that he constantly fails to return E.M. to his EDP for scheduled exchanges and that he constantly fails to return E.G.M. to her daycare for scheduled exchanges, refuses to follow the holiday schedule as set out in the order, fails to make the children available for her Sunday phone calls when the children are in his care contrary to the order, refuses to take E.G.M. to her summer daycare and E.M. to his summer camps contrary to the order, communicates with her by telephone or text rather than by Our Family Wizard as per the court order, and has twice applied to receive CBT benefits for the children when not entitled to do so.
[13] Mr. Miles does not dispute some of the allegations of Ms. Bradley, however, he asserts that he has had lawful excuse for them. For instance, he did not take E.G.M. for a period of time when there was a COVID outbreak at her daycare, and he relied on the provision of the order regarding the right of first refusal for Ms. Bradley to have her. Additionally, he asserts that he cannot always afford to have E.G.M. at daycare but that he has generally taken her on exchange days. He will, otherwise, sometimes have his mother care of E.G.M. .
[14] Mr. Miles asserts that he was also of the understanding that E.M.’s EDP at Convent Glen Elementary School did not operate during the summer. Given, moreover, that Ms. Bradley ensured that she was the only point of contact with the school, Mr. Miles indicates that he did not have the necessary information to comply. He asserts that he was operating under the understanding that Paragraph 28 of Justice Shelton’s Order applied if daycare/EDP/School is not available.
[15] Mr. Miles also indicated that he had vacation time from work on August 15 and August 19, 2022, and he spent it with E.G.M. and E.M.. He indicated that when he did not have vacation time or other plans with the children, he did drop them at daycare and summer camp over the summer, with one exception of when Ms. Bradley moved E.M. to a YMCA camp in downtown Ottawa, which made it very difficult for him to drop E.M. downtown, drop E.G.M. in Orleans and make it to work on time.
[16] With respect to signing up E.M. for jiu-jitsu, Mr. Miles indicates that he did so without expectation of financial contribution from Ms. Bradley or of E.M. attending during her parenting time. He simply thought it was something E.M. would like to do. Due to Ms. Bradley’s negative reaction, and despite the child’s excitement, E.M. did not end up doing the activity.
[17] Regarding the renewal of the health card of E.G.M., Mr. Miles indicates that the application form came to his home, so he completed it and then provided the card to Ms. Bradley when it came in.
Analysis
[18] This case is one, in my view, in which findings of contempt are not suitable. The alleged transgressions of Mr. Miles come nowhere near to meeting the threshold of when it would be appropriate to engage the remedy of civil contempt.
[19] For some of the transgressions, Mr. Miles has provided reasonable explanation, and any doubt must be decided in his favour. Others, such as picking up the child, E.G.M. , early from daycare when it is not an exchange day or registering E.M. in jiu-jitsu during his parenting time, neither of which should have any affect on Ms. Bradley, are minor. Still others have been purged, albeit belatedly.
[20] Other, less severe remedies, moreover, have not been tried. The parties’ Final Order, in fact, contains a dispute resolution mechanism. Mr. Miles indicates that efforts were made to attend mediation with Ms. Guindon, which Ms. Bradley abandoned in favour of bringing her motion. Ms. Bradley indicates, however, that she requested mediation with respect to the issue of summer scheduling and summer camps, but by the time it could happen much of the summer had already elapsed. Still, it seems to me that a much more appropriate remedy than seeking findings of contempt would be for the parties to engage in mediation to resolve any dispute that arises between them. If mediation is not successful in resolving their differences, then a Motion to Change(“MTC”) may be required if Ms. Bradley seeks to vary the terms of a final order and a material change of the circumstances affecting the children has occurred.
[21] Having said that, Justice Shelton’s Final Order is an order, it is not a suggestion. It is an order, moreover, to which Mr. Miles consented. It is incumbent upon him to follow its provisions. If Mr. Miles seeks for anything in the Order to be different, and is not successful changing it on consent, he would likewise have to establish that a material change has occurred since the making of the Order and seek to have it varied by MTC. Barring such a change, he must follow the existing Order.
[22] While I am not prepared to make the findings requested, Ms. Bradley should not have had to bring a motion for contempt to get Mr. Miles to follow the existing court order, some of which he did only the day before the motion. I cannot deal with the other relief requested by her as I cannot vary a Final Order in the absence of a MTC. Although I am dismissing Ms. Bradley’s motion for contempt, pursuant to Rule 24(4) I am not prepared to make any costs order in favour of the “successful” party, Mr. Miles. There will, therefore, be no order as to costs.
Justice T. Engelking
Date: February 6, 2023
COURT FILE NO.: FC-20-1865
DATE: 2023/02/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Devon Miles, Applicant
-and-
Kelsey Bradley, Respondent
BEFORE: Justice T. Engelking
COUNSEL: Molnar Dennis, for the Applicant
Allison Lendor, for the Respondent
comtempt motion ENDORSEMENT
Justice T. Engelking
Released: February 6, 2023