Citation: Antoine v. Antoine, 2024 ONSC 1397

COURT FILE NO. FC-17-494

DATE: 2024-03-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Glenn Arthur Eric Antoine

Applicant

– and –

Elizabeth Barbara Antoine

Respondent

Self-represented

Self-represented

HEARD: February 28, 2024

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART 1: INTRODUCTION AND POSITIONS OF THE PARTIES

[1] These are my Reasons for Judgment following the hearing of a contempt motion of the Applicant, Glenn Arthur Eric Antoine (“the father”) dated January 23, 2024. The father requests an order finding the Respondent Elizabeth Barbara Antoine (“the mother”) in contempt of court for having allegedly breached certain parenting terms of the final order of Gordon J. dated March 10, 2021 (“the order”). Those terms relate to the three children of the parties’ relationship, namely Ariella Antoine, born February 13, 2015 (“Ariella”), Peighton Antoine, born January 2, 2016 (“Peighton”) and Shay Antoine, born January 10, 2018 (“Shay”). The parenting terms also relate to the mother’s child from another relationship, Dominyck Antoine, born December 17, 2018.

[2] The relevant terms of the order are as follows:

1. Paragraph 9 provides that the parties must attempt to make all major decisions respecting Ariella, Peighton and Shay jointly. Paragraph 10 stipulates that the mother must first consult with the father in respect of all major decisions and seek his input. It also provides as follows:

It is only after this consultation process that the Respondent Mother will be at liberty to make a decision. The Respondent Mother will advise the Applicant father of her decision fifteen (15) days in advance in writing.

2. Paragraph 17(a) grants the parties regular equal parenting time with Ariella, Peighton and Shay on a week-about basis, with parenting exchanges to occur every Sunday at 7:00 p.m. Paragraph 17(b) also gives them parenting time with those children on Wednesday evening from 3:00 p.m. until 7:00 p.m. during their non-residential weeks.

3. The mother was granted primary residence of Dominyck.

4. The father was granted parenting time with Dominyck on a gradually progressing basis. Paragraph 3 of the order provides that at stage 1, for the first three months, the father was to have one visit each week of no more than one hour in duration during the first two months, in the presence of an adult agreed upon by the parties. Paragraph 4 stipulates that at stage 2, during the following six month period, the father’s visits were to progress to three visits in every two week period, for up to six hours per visit. These visits were also to be in the presence of a third party agreed upon between the parties. Paragraph 5 directs that at stage 3, the father’s visits with Dominyck could proceed to unsupervised time following the six months referred to above, in accordance with the schedule set out in paragraph 6 of the order, if the mother was “reasonably satisfied with the Applicant Father’s ability to act as a parent for Dominyck.” Paragraph 5 further specifies as follows:

If the Respondent Mother believes there are reasons why the Applicant Father’s parenting time with Dominyck should not proceed on an unsupervised basis, she shall immediately provide those reasons to the Applicant Father in writing, including any steps the Applicant Father ought to take to rectify the Respondent mother’s concerns. The Applicant Father will then respond to those concerns in writing. If the Applicant Father’s response does not satisfy the Respondent Mother’s concerns, she will inform the Applicant in writing. Consent to proceed with unsupervised parenting shall not be unreasonably withheld.

5. If the mother agreed at the outset of stage 3 referred to above that the father’s parenting time with Dominyck could proceed to unsupervised visits, paragraph 6 stipulated that the father’s parenting time was to be as follows:

a) Every other weekend, from Friday at 3:00 p.m. until Sunday at 7:00 p.m.

b) Every Wednesday evening from 3:00 p.m. pick-up from daycare or school to 7:00 p.m. drop-off at the mother’s residence. When school or daycare is not in session, pick-up shall be from the other party’s residence at 3:00 p.m. with drop-off at 7:00 p.m.

c) Such further parenting time as agreed upon by the parties.

6. Paragraph 14 of the order required the mother to provide the father with notarized copies of the children’s health cards, birth certificates, passports and social insurance cards by no later than April 10, 2021, at her expense.

7. Paragraph 20 stipulates that the parties “will not harass or speak ill of the other in front of the children, and they shall not allow third parties to do so in the presence of the children.”

[3] The father’s Notice of Contempt Motion dated January 23, 2024 describes the details of the mother’s alleged contempt of court as follows:

“Breach of Court order withholding children, making false accusations, speaking ill to children about me.”

[4] In his affidavit sworn January 22, 2024 in support of the contempt motion, the father provides the following additional details respecting the alleged breaches:

1. First, he claims that the mother would not allow Dominyck to go to his house “as agreed upon” on Tuesday September 5, 2023.

2. Second, he asserts that the mother breached paragraph 14 of the order by failing to provide him with notarized copies of the children’s health cards, birth certificates, passports and social insurance cards by April 10, 2021.

3. Third, he alleges that on December 5, 2023, “the children were told they were not allowed to come say hi to me at the school on their mom’s weeks, as I am there every day to bring my girlfriend’s children.” He claims that the children were very upset that day, and that Ariella was crying. He states that the children had also been dropped off late to school and picked up early to prevent them from seeing him on the school grounds. At the hearing of the motion, he claimed that this information was proof that the mother had spoken ill of him in front of the children, contrary to paragraph 20 of the order.

4. Fourth, he claims that on January 17, 2024, he encountered the mother and the children’s maternal grandmother at the Cambridge Mall, and that the maternal grandmother yelled at him on that occasion about the fact that he had told the children that a man who they believed to be their uncle was in fact their half brother. He states that the maternal grandmother then followed him and his girlfriend around the mall until they left the store. During the hearing of the motion, he explained his position that this incident shows that the mother breached paragraph 20 of the order by allowing others to speak ill of him in the presence of the children.

5. He states that the mother breached paragraphs 6 and 17(a) of the order by withholding the children from him on Sunday January 21, 2024, when they were all supposed to return to his care.

6. Finally, he maintains that the mother has breached paragraph 9 and 10 of the order in that she “continues to fail to communicate with me at any time. I try to she says she has final say and won’t answer after that” [stet].

[5] The father makes numerous other allegations against the mother in his affidavit, but he confirmed during the hearing of the motion that those allegations are not relevant to his allegations of contempt.

[6] The mother acknowledges that she did not produce notarized copies of the children’s documents referred to in paragraph 14 of the order, and that she withheld the children from the father contrary to paragraphs 6 and 17(a) of the order on January 21, 2024. However, she opposes an order finding her in contempt for this non-compliance. She states that she had numerous concerns about the safety and well-being of the children in the father’s care, that the children were fearful of him and that they refused to return to his care. She denies the father’s other allegations that she breached the order.

[7] I advised the father at the outset of the hearing of this motion that the test for a finding of contempt is very onerous, and that this remedy is viewed as one of last resort. I inquired as to whether he would consider alternative measures before proceeding, but he declined to do so and insisted that the motion should proceed. I gave both parties the opportunity to seek legal advice, and they declined to do so. I also asked the mother if she wished to have an oral hearing of the motion, with a right of cross examination, and she confirmed that she wished to proceed based on the written record only.

[8] For the reasons that follow, I find that the mother did not produce notarized copies of the children’s documents referred to in paragraph 14 of the order to the father by April 10, 2021, but that she did produce them on October 17, 2023. I find that she also breached paragraphs 6 and 17(a) of the order by failing to deliver Ariella, Peighton and Shay to the father’s care on Sunday January 21, 2024. Notwithstanding these violations of the order, I have declined to exercise my discretion to find the mother in contempt of court. I am not satisfied beyond a reasonable doubt that the mother’s failure to deliver Dominyck to the father’s care on January 21, 2024 breached the order, based on ambiguity in the parenting time terms of the order as they relate to Dominyck. The father has also failed to prove his other allegations of breach of the order by the mother, as described in paragraphs 4(1), (3), (4) and (6) above, beyond a reasonable doubt. Accordingly, I am dismissing the father’s contempt motion.

PART 2: RELEVANT LEGAL PRINCIPLES

I. GENERAL PRINCIPLES REGARDING CONTEMPT OF COURT

[9] The remedy of contempt of court is founded in the common law. It encompasses various forms of conduct that can undermine the general authority of the court. The Supreme Court of Canada described the scope of contempt of court in British Columbia Government Employees’ Union v. British Columbia (Attorney General), 1988 3 (SCC), [1988] 2 S.C.R. 214 (S.C.C.) as follows:

In the legal context the phrase is much broader than the common meaning of “contempt” might suggest and embraces “where a person, whether a party to a proceeding or not, does any act which may tend to hinder the course of justice or show disrespect to the court’s authority”, “interfering with the business of the court on the part of a person who has no right to do so”, “obstructing or attempting to obstruct the officers of the court on their way to their duties”--- See Jowitt’s Dictionary of English Law, vol. 1, 2nd ed., at p. 441.

[10] Subsequently, in United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901 (S.C.C.), the Supreme Court of Canada emphasized that the remedy of contempt of court rests on the power of the court to uphold its dignity and process. It emphasized that “the rule of law is at the heart of our society; without it there can be neither peace, nor order, nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect” (at para. 20). The contempt remedy has evolved through the common law as a means of enabling the courts to achieve these objectives. Although statutory Rules of Court have been enacted throughout Canada to govern the courts’ jurisdiction with respect to contempt, the law in this area continues to evolve through the common law (Jackson v. Jackson, 2016 ONSC 3466 (S.C.J.), at para. 44).

[11] Contempt is generally categorized as either in facie (in the face of the court) or ex facie (not in the face of the court). Contempt in facie encompasses any word spoken or act committed within the court that obstructs or interferes with the administration of justice, or that is calculated to do so (R. v. Kopyto, 1987 CarswellOnt 124 (C.A.); R. v. Cohn, 1984 CarswellOnt 66 (C.A.), at para. 10). Examples of contempt in facie include: failure of counsel or a witness to appear in court or remain when directed by the court to do so; the refusal of a witness to be sworn/affirmed or answer questions; angry outbursts, rude gestures, using profanity towards or insulting the judge; insolent or abusive behaviour; inappropriate interruptions of court proceedings; and counsel intentionally or recklessly misleading a judge. Contempt ex facie involves conduct that occurs outside of the courtroom and encompasses acts done or words spoken or published which are intended or are likely to interfere with or obstruct the fair administration of justice. Examples include: wilful breach of a court order; issuing publications which scandalize or otherwise lower the authority of the court; interfering with a judge, witness, counsel or juror; counselling perjury; fabricating evidence; breaching an undertaking to the court; and engaging in inappropriate criticism of a judge presiding on a trial in a manner that interferes with the ongoing proceeding.

[12] The common law has evolved to recognize two further categories of contempt: criminal contempt and civil contempt (R. v. Ellis, 1893 CarswellNB 56 (S.C.C.); United Nurses of Alberta; Carey v. Laiken, 2015 SCC 17 (S.C.C.), at para. 31; Jackson, at para. 45). A sound appreciation of the differences is important in dealing with civil contempt proceedings, so as to ensure that the boundaries between the two remedies are maintained. In United Nurses of Alberta, the Supreme Court of Canada explained that the distinction between civil and criminal contempt is that the latter includes an element of public defiance of the court’s process in a way calculated to lessen societal respect for the courts (at para 21; see also Carey; at para. 31; Prescott-Russell Services for Children v. G.(N.), 2006 CarswellOnt 10335 (C.A.), at para. 24). In Morasse v. Nadeau-Dubois, 2016 SCC 44 (S.C.C.), the Supreme Court of Canada clarified that for a finding of criminal contempt, the mens rea is an intention to “vilify the administration of justice,” to “destroy public confidence therein” or “to excite disaffection against it,” adding that “[g]ood faith criticism of judicial institutions and their decisions, even where vigorous and outspoken, falls short of this threshold” (at para. 28, citing Kopyto, at pp. 502 and 514). Examples of criminal contempt include bribing a witness or a juror, attempting to influence a judge, and falsely accusing a judge of bias (Vidéotron Ltée. v. Industries Microlec Produits Électroniques Inc., [1992] 2. S.C.R. 1065 (S.C.C.)). The criminal contempt remedy has a public law element in that its purpose is to protect society generally from conduct that undermines the public’s interest in maintaining a strong and effective justice system (British Columbia Government Employees’ Union; Prescott-Russell Services for Children; United Nurses of Alberta; Fresno Pacific University Foundation v. Grabski, 2015 MBCA 70 (C.A.)).

[13] By contrast, the remedy of civil contempt exists for the purpose of redressing private wrongs (R. v. Ellis; United Nurses of Alberta). The primary objective of civil contempt is remedial, to coerce the offending litigant into obeying a court judgment or order, rather than punitive (Kopaniak v. MacLellan (2002), 2002 44919 (ON CA), 27 R.F.L. (5th) 97 (Ont. C.A.); Korea Data Systems Co. v. Chiang, 2009 ONCA 3 (C.A.), at para. 11; Vidéotron Ltée., at para. 61; Carey, at para. 31; Greenberg v. Nowack, 2016 ONCA 949 (C.A.), at para. 32). Civil contempt encompasses breaching the Rules of Court in a civil proceeding, disobeying a court order or judgment, and other misconduct in a private legal matter causing a private injury or wrong (Prescott-Russell Services for Children; SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97 (C.A)). Since civil contempt is not a public law remedy, it cannot be invoked for the sole purpose of punishment and deterrence (Vidéotron Ltée., at para. 61). Although punishment and deterrence do not come into play at the liability stage of a civil contempt proceeding, they are relevant at the sentencing stage, since the sanctions imposed may be geared in part to repairing the damage to the administration of justice and preventing future breaches of the order (Carey, at para. 31; Boily v. Carleton Condominium Corp, 2014 ONCA 574 (C.A.)). In some circumstances, civil contempt, including breaches of a court order, may morph into criminal contempt if the private wrong is deliberately repeated or escalates to the point that it amounts to a public defiance of the court’s authority or a public display of disrespect towards the administration of justice (United Nurses of Alberta, at para. 21).

[14] The remedy of civil contempt of a court order is a mechanism designed to emphasize that orders cannot be ignored or disobeyed. It is founded on the fundamental principle that a court order stands binding and conclusive unless it is set aside at first instance or on appeal or is lawfully quashed (Carey, at para. 58). The remedy reinforces the point that any wilful disobedience of court orders is a very serious matter that strikes at the very heart of the justice system (Kassay v. Kassay, 2000 22444 (ON SC), 2000 CarswellOnt 3262 (S.C.J.); Surgeoner v. Surgeoner, 1991 CarswellOnt 465 (Gen. Div.); Ricafort v. Ricafort, 2006 ONCJ 520, 2006 CarswellOnt 8554 (O.C.J.)).

II. CIVIL CONTEMPT FOR BREACH OF A FAMILY COURT ORDER: RULE 31 OF THE FAMILY LAW RULES

[15] In this case, the father invokes the civil contempt remedy against the mother based on allegations that she committed various breaches of the March 10, 2021 order. Rule 31 of the Family Law Rules governs contempt motions based on a party’s alleged failure to comply with a court order. Rule 31(1) provides as follows:

Contempt of court

When contempt motion available

31. (1) 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. O. Reg. 114/99, r. 31 (1).

[16] Rule 31(2) requires that a Notice of Contempt Motion be served with a supporting affidavit by special service in accordance with Rule 6(4), unless the court orders otherwise. Rule 31(3) provides that the supporting affidavit may contain statements of information that the affiant learned from someone else, but only if the requirements of Rule14(19) are satisfied. That Rule stipulates as follows:

Affidavit based on other information

14(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed. O. Reg. 114/99, r. 14 (19)

[17] The consequences of finding a party in contempt of a court order are serious. In this regard, Rules 31(5) and (6) set out the following powers of the court if it finds a person in contempt:

Contempt orders

31(5) 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. O. Reg. 114/99, r. 31 (5).

[18] Rule 31(5)(d) grants the court a broad discretion to fashion a remedy in response to a finding of contempt. However, as McGee J. noted in LeGrand v. LeGrand, 2023 ONSC 693 (S.C.J. Div. Ct.), at para. 50, that discretion is not unlimited, and when crafting a contempt remedy in a parenting case, the court “must also consider the impact of the sanction on the best interests of the children” (at para. 50).

[19] Rules 31(7) to (11) elaborate upon the court’s powers with respect to penalty if it makes a contempt finding, as follows:

Limited imprisonment or fine

31(7) In a contempt order under one of the following provisions, the period of imprisonment and the amount of a fine may not be greater than the relevant Act allows:

1. Section 38 of the Children’s Law Reform Act.

2. Section 49 of the Family Law Act.

3. Section 53 of the Family Responsibility and Support Arrears Enforcement Act, 1996. O. Reg. 114/99, r. 31 (7); O. Reg. 235/16, s. 6.

Conditional imprisonment or fine

(8) A contempt order for imprisonment or for the payment of a fine may be suspended on appropriate conditions. O. Reg. 114/99, r. 31 (8).

Issuing warrant of committal

(9) If a party, on a motion with special service (subrule 6 (3)) on the person in contempt, states by an affidavit in Form 32C (or by oral evidence, with the court’s permission) that the person has not obeyed a condition imposed under subrule (8), the court may issue a warrant of committal against the person. O. Reg. 114/99, r. 31 (9).

Payment of fine

(10) A contempt order for the payment of a fine shall require the person in contempt to pay the fine,

(a) in a single payment, immediately or before a date that the court chooses; or

(b) in instalments, over a period of time that the court considers appropriate. O. Reg. 114/99, r. 31 (10).

Corporation in contempt

(11) If a corporation is found in contempt, the court may also make an order under subrule (5), (6) or (7) against any officer or director of the corporation. O. Reg. 114/99, r. 31 (11).

III. THE TEST FOR FINDING CIVIL CONTEMPT FOR NON-COMPLIANCE WITH A COURT ORDER

A. Overview of the Test

[20] While civil contempt is distinguishable from criminal contempt, civil contempt proceedings are nonetheless quasi-criminal in nature and therefore each element of the claim must be proven beyond a reasonable doubt. The burden of proof rests with the party alleging the contempt (Bhatnager v. Canada (Minister of Employment and Immigration), [1990] S.C.R. 217 (S.C.C.); Carey, at para. 32; Morasse, at para. 20; Prescott Russell Services for Children, at para. 26). Any doubt with respect to the necessary elements of a civil contempt case must be exercised in favour of the alleged contemnor (Prescott-Russell Services for Children, at para. 27).

[21] The caselaw establishes that there are two broad stages to the test for determining whether a party should be found in civil contempt of court for breaching a court order. The first stage requires the moving party to establish the following essential elements:

1. First, having regard for the serious consequences of a contempt finding, the moving party must demonstrate that they gave the alleged contemnor proper notice of the application for a contempt finding.

2. Second, the moving party must prove that the terms of the order which they are relying on are alive and operative at the time of the contempt hearing.

3. Third, they must establish that the order alleged to have been breached states clearly and unequivocally what should and should not be done.

4. Fourth, they most show that the party alleged to have breached the order (“the contemnor”) had knowledge of the order, or that they were wilfully blind as to its terms.

5. Finally, they must establish that the alleged contemnor disobeyed the order, in that they intentionally did an act that the order prohibits or failed to do an act that the order compels.

[22] If the moving party fails to establish all of these essential elements beyond a reasonable doubt, the inquiry is at an end and the court must dismiss the motion. However, if they establish all of the elements, the court must then move to stage 2 of the test. At that juncture, the court must determine the following two issues:

1. First, whether it should exercise its discretion to decline to make a contempt finding based on the facts and circumstances of the case at hand; and

2. Second, if it declines to make a contempt finding, whether it should exercise its discretion to order a less severe and more appropriate remedy in favour of the moving party.

(Carey, at paras. 31-32; Fiorito v. Wiggins, 2015 ONCA 729 (C.A.), at para. 17; Morasse, at para. 25; Chong v.Donnelly, 2019 ONCA 799 (C.A.), at paras. 5-9; Ruffolo v. David, 2019 ONCA 385 (C.A.), at para. 18; Moncure v. Plante, 2021 ONCA 462 (C.A.), at para. 10).

[23] I turn now to a more detailed analysis of each aspect of the test for civil contempt of a court order.

B. Stage One of the Test

1. Fair Notice of the Allegations of Contempt

[24] The requirement of fair notice to the alleged contemnor of the contempt allegations is a key element of the test for a contempt finding, having regard for the quasi-criminal nature of the remedy. The notice must clearly identify the terms of the order that have been purportedly breached, and the material facts respecting each alleged breach. The purpose of this requirement is to ensure that the party accused of contempt is fully aware of the case that they must meet (Geremia v. Harb, 2007 1893 (ON SC), 2007 CarswellOnt 446 (S.C.J.), at paras. 35-36; Jackson, at para. 59). It is preferable that the full particulars of the alleged contempt be clearly set out in the Notice of Motion. However, it will be sufficient if the particulars are outlined in the affidavit supporting the contempt motion (Follows v. Follows (1998), 41 R.F.L. (4th) 249 (C.A.); Jackson, at para. 59). A failure to provide appropriate notice may result in the contempt motion being dismissed.

2. The Terms of the Order Must be Live and Operative at the Time of the Hearing

[25] The second element of the test for contempt of a court order is that the terms of the order relied upon must be live and operative at the time of the contempt hearing. This derives from the principle set out above that the purpose of the civil contempt remedy at the liability stage is to compel compliance with the court order rather than to punish the contemnor. Having regard for this purpose, the remedy is not available for the purpose of sanctioning historical breaches of terms of orders that have been superseded by a court order or by a valid agreement between the parties, or if the parties have agreed not to follow the terms in question for any other reason. Rule 31(1) reinforces the private law enforcement purpose of the civil contempt remedy in Family Law cases by specifically stating that an order may be “enforced” by a contempt motion made in the case. The Ontario Court of Appeal underscored these points in Fiorito v. Wiggins, 2015 ONCA 729 (C.A.), where it stated that “the civil contempt remedy exists where a party fails to comply with a live or operative order” (at para. 17). In that case, the court set aside contempt findings and a contempt sanction on the basis that the orders upon which the trial judge had based the contempt findings had been superseded by a final parenting agreement that the parties had reached and that they had been following. The court concluded that the temporary orders were no longer operative at the time of the contempt finding, even though the Minutes of Settlement had never been incorporated into a court order, since the parties had been abiding by the terms of the Minutes of Settlement rather than the orders. To extend the use of the civil contempt remedy to sanction or deter misconduct in relation to orders that are no longer governing the parties would fundamentally alter the concept of civil contempt by cloaking it with “the public dimension that lies at the heart of criminal contempt” (Jackson, at para. 51; see also Chelson v. Hinojosa-Chelson, 2018 ONSC 613 (S.C.J.), at para. 21).

3. The Terms Relied on Must be Clear and Unequivocal

[26] In order to succeed on a contempt motion, the moving party must also demonstrate that the terms of the order which they are relying on state clearly and unequivocally what should or should not be done. This requirement of absolute clarity ensures that a party will not face the serious consequences of a contempt finding if the terms of the order are vague, ambiguous or open to different interpretations. The meaning of the terms relied upon in support of the contempt claim must be discernible from their face, and their interpretation must not depend on extrinsic evidence (Carey, at para. 33; Morasse, at para. 25; College of Optometrists (Ontario) v. SHS Optical Ltd., 2008 ONCA 685 (C.A.), at para. 45, leave to appeal refused [2008] S.C.C.A. No. 506 (S.C.C.)). Any ambiguity in the text of the order must be resolved in favour of the party who has been accused of contempt (Valoris Pour Enfants et Adultes de Prescott-Russell, 2021 ONCA 366 (C.A.), at para. 29). A breach of the intent of the order in question is not sufficient to form the basis of a contempt finding. (Jackson, at para. 53). Where the order provides for one thing and the parties agree to do something else, a breach of the “something else” cannot form the basis for a contempt finding (Geremia; Gurtins v. Panton-Goyert, 2008 CarswellBC 908 (C.A.)). An order may be found to lack sufficient clarity for the purposes of a contempt motion if it is missing essential details about where, when or to whom it applies, if it uses overly broad language, or if external circumstances have developed that have obfuscated its meaning (Carey, at para. 33; Culligan Canada Ltd. v. Fettes, 2010 SKCA 151 (C.A), at para. 21). A parenting order that does not specify the date and time for parenting time and does not provide a workable mechanism for determining those issues may not satisfy the requirement that the order be clear and unambiguous (Taylor v. Thompson, 2004 ONCJ 278 (O.C.J.)).

4. Actual Knowledge or Wilful Blindness of the Terms of the Order

[27] The fourth element of the test for civil contempt of a court order is that the alleged contemnor either had actual knowledge of the terms of the order that the moving party relies upon, or was wilfully blind as to the terms (Carey, at para. 33; Bhatnager, at para. 18). Actual knowledge may be proven by evidence that the court order was personally served on the person accused of contempt, or it can be inferred based on all of the evidence in the case including the accused person’s conduct (Carey, at para. 33; Morasse, at para. 25) However, the Supreme Court of Canada has emphasized that actual knowledge cannot be inferred from the conduct of others, or the service of the order on persons other than the alleged contemnor (Morasse, at para. 25).

5. Disobedience of the Order

[28] The final part of stage 1 of the test requires that the alleged contemnor disobeyed the order in that they intentionally did an act that the order prohibits or failed to do something that the order compels. The question in addressing this issue is not whether the alleged contemnor wilfully and deliberately disobeyed the relevant order, but whether they engaged in an intentional act or omission that breached the order. Proof of an intention to disobey the order, in the sense of desiring or knowingly choosing to contravene it, or an intention to bring the administration of justice into disrepute (“contumacy”) are not required, although evidence of such intent will go to the penalty if a contempt finding is made (Carey, at paras. 45-47; Greenberg, at paras 27-28).

[29] There is often a nexus between the clarity of the order alleged to have been breached and whether the person accused of contempt disobeyed it (Valoris Pour Enfants et Adultes de Prescott-Russell, at para. 39). Proof of a breach of the order can be established by evidence that the accused party violated specific terms of the order, or that they engaged in a course of conduct that had the overall effect of clearly thwarting the implementation of the order (Brooks v. VanderMeulen, 1999 CarswellMan 610 (Q.B.); Paton v. Shymkiw (1996), 1996 17988 (MB QB), 114 Man R. (2d) 303 (Q.B.); Skalitzky v. Skalitzky, 2010 ONSC 7150 (S.C.J.); Jackson, at para. 54).

[30] In Carey, Cromwell J. held that in addressing this element of the test, the alleged contemnor has a defence of impossibility of compliance with the terms that the moving party is relying on. In other words, they may avoid a finding of contempt if there were circumstances that made compliance with the terms impossible (Carey, at para. 41; see also Jackson v. Honey, 2009 BCCA 112 (C.A.); Fresno). As I have indicated, the mother appears to rely on this defence in this case, claiming that the children refused to return to the father’s care on January 21, 2024 due to their fear of him. In the Family Law context, parents often rely on the alleged refusal of children to comply with parenting time terms in response to contempt claims, citing impossibility of compliance as a defence. A party raising this defence is required to adduce evidence showing that they took concrete and reasonable measures to have the child comply with the order. In Godard v. Godard, 2015 ONCA 568 (C.A.), the Ontario Court of Appeal held in the context of a contempt proceeding respecting a parenting time order that although the wishes of children are important in parenting cases, parents cannot simply leave the decision to comply with a parenting time order up to the child. Rather, absent objectively legitimate concerns about the safety and welfare of the child, they have a positive obligation to encourage the child to comply. In this regard, the Court stated as follows:

28 Although a child's wishes, particularly the wishes of a child of S.'s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child's best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": Quaresma v. Bathurst, [2008] O.J. No. 4734 (Ont. S.C.J.) at para. 8. See also Campo v. Campo, 2015 ONSC 1349, 2015 ONSC1349 (Ont. S.C.J.); Stuyt v. Stuyt, [2009] CarswellOnt 3432 (Ont. S.C.J.), 2009 43948; and Hatcher v. Hatcher, 2009 14789 (ON SC), [2009] O.J. No. 1343 (Ont. S.C.J.).

29 No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant's failure to do all that she reasonably could: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order."

[31] Where the parent relies on impossibility of compliance based on a child’s refusal to obey a parenting time order as a defence in a contempt proceeding, the burden of proof on them in regard to the defence is on the civil standard of a balance of probabilities, as in the case of defences and justifications in Criminal Law (Janowski v. Zebrowski, 2019 ONSC 4046 (S.C.J.), at para. 24(n)). If they fail to adduce evidence showing that they took all reasonable measures to ensure compliance, it is open to the court to find beyond a reasonable doubt that the parent disobeyed the parenting time terms (Godard, at paras. 32-33).

C. Stage 2 of the Test: The Court’s Discretion to Decline to Make a Contempt Finding

[32] As I have indicated, if all of the elements of stage 1 of the test for civil contempt of a court order are met, the court must move to stage 2 of the test. At this phase, the court must determine first, whether it should exercise its discretion to decline to make a contempt finding based on the facts and circumstances of the case at hand. If the court declines to make a contempt finding, it must also decide whether to exercise its discretion to order a less severe and more appropriate enforcement option.

[33] In Carey, the Supreme Court of Canada emphasized that the power to make a contempt finding is ultimately a matter of judicial discretion, that the remedy cannot be reduced to a mere means of enforcing orders, and that it should not be routinely used as a compliance mechanism (at para. 36). Rather, having regard for the seriousness and quasi-criminal nature of the remedy, it should be invoked cautiously, with great restraint, and as an enforcement power of last resort to address matters that are not trifling (Carey, at para. 36; see also Morasse, at para. 84; G.(J.D.) v. G.(S.L.), 2017 MBCA 117 (C.A.), at para. 73). This principle extends to contempt proceedings in Family Law cases and is particularly compelling in the Family Law context (Hefkey v. Hefkey, 2013 ONCA 44 (C.A.), at paras. 3-4; Godard, at para, 17; Ruffolo, at para. 18; Chong, at paras. 9-12; Moncur, at para. 10). The complex emotional dynamics involved in Family Law disputes and the desirability of avoiding a further escalation of the conflict between the parties are factors that support restraint in use of contempt as an enforcement tool in Family Law disputes (Hefkey, at para. 4; Moncur, at para. 20).

[34] Caution is particularly warranted before resorting to the contempt remedy in child protection cases, and in Family Law proceedings where the alleged contempt relates to parenting terms, due the challenge in these cases of reconciling the importance of upholding court orders on the one hand with the need to safeguard the best interests of children on the other. The Ontario Court of Appeal has held that in cases involving child protection and parenting orders, the guiding consideration in deciding whether to issue a contempt finding must be the best interests of the child, including whether there is evidence that the alleged contemnor’s actions were based on honest and objectively reasonable concerns about the child’s well-being and best interests (Prescott-Russell Services for Children and Adults, at para. 29; Ruffolo, at para. 19; Chong, at para. 11; Valoris Pour Enfants et Adultes de Prescott-Russell, at para. 41). This requirement to consider the child’s best interests accords with Canada’s commitment pursuant to section 3(1) of the United Nations Convention on the Rights of the Child C.T.S. 1992/3; 28 I.L.M. 1456; 3 U.N.T.S. 1577; G.A. Res. 44/25 that in all actions concerning children, including those undertaken by courts of law, the best interests of the child shall be a primary consideration. For all of these reasons, the sanction of contempt of court in the Family Law arena is typically reserved for cases involving defiant conduct that is at the most serious end of the spectrum, and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted (Ricafort, at para. 17; Peers v. Poupore, 2012 ONCJ 306 (O.C.J.), at para. 30).

[35] Since contempt is an enforcement measure of last resort, the court should at stage 2 of the test consider whether less severe remedies or approaches to resolve the moving party’s grievances were attempted without success, and if they were not, whether less drastic options would have been more suitable to address the complaints. If the court exercises its discretion to decline to make a contempt finding, it must also consider whether it should order a less severe and more appropriate enforcement option than a finding of contempt (Hefkey, at para. 3; Moncur, at para. 19). In carrying out the analysis of these issues, the alternative measures that the court should consider include without limitation the following:

1. Requesting a case conference or settlement conference to attempt to resolve the issues;

2. Bringing a motion for a declaration that the allegedly non-compliant party breached the order, an order requiring that party to comply with the order, and for costs. In Moncur, Jamal J. emphasized that this course of action prior to a contempt motion “can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children” (at para. 20);

3. Bringing a motion for directions or a Motion to Change or to clarify the terms of the order;

4. Bringing a motion for make-up parenting time in a case involving breach of a parenting time order, provided that evidence is adduced in support of that relief;

5. Attempting to mediate the issues in dispute;

6. Conducting meetings between counsel and the parties to resolve the issues; and

7. Arranging professional services or assessments to address the underlying problems that have triggered enforcement problems.

(Carey, at paras. 36-37; Hefkey, at para. 4; Chong, at paras. 10-11; Ruffolo, at para. 19; Moncur, at paras. 10 and 20; Valoris, at para. 41; Ahmed v. Shaikh, 2021 ONSC 6648 (S.C.J.), at paras. 21-33; J.M. v. B.C., 2021 NBQB 262 (Q.B.), at para. 33).

[36] The court should also consider the other remedies outlined in Rule 1(8) of the Family Law Rules, which sets out the types of relief that a court may grant if a person fails to obey an order in the case or a related case (Jackson, at para. 63: Dephoure v. Dephoure, 2021 ONSC 1370 (S.C.J.), at para. 131; Legrand):

Failure to obey order

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13, s. 1.

[37] In Carey, Cromwell J. declined to delineate the full scope of the court’s discretion to decline to make a contempt finding. However, based on that case and the subsequent caselaw, additional factors which a court may consider in carrying out this discretionary exercise include the following:

1. Whether the alleged contemnor acted in good faith in taking reasonable steps to comply with the order (Carey, at para. 37; Kim v. McIntosh, 2023 ONSC 5121 (S.C.J.), at para. 21);

2. Whether a contempt finding would work an injustice in the circumstances of the case (Carey, at para. 37; Chong, at para. 9; Moncur, at para. 10);

3. The presence of exigent or extenuating circumstances which explain the breach (Newstead v. Hacey, 2019 ONSC 5213 (S.C.J.), at paras. 12 and 30; Kim, at para. 21); and

4. Whether the non-compliant conduct is significant or repetitive in nature (Kim, at para. 21; Jean v. O’Callaghan, 2017 ONSC 4027 (S.C.J.), at para. 11; A.C. v. K.C., 2022 ONSC 1844 (S.C.J.), at para. 66).

IV. PROCEDURAL CONSIDERATIONS

[38] Having regard for the quasi-criminal nature of contempt, the alleged contemnor must be afforded the same protection and procedural safeguards as an accused in a criminal proceeding. These include the following:

a. The right to a hearing, including an oral hearing if requested (Kassay; Jackson);

b. The right to make full answer and defence, including the right to counsel, to call evidence and to cross examine upon the other party’s evidence (Kassay; Jackson); and

c. The right not to be compellable as a witness at the hearing (Vidéotron; Kassay).

[39] Rule 31 of the Family Law Rules does not prescribe a particular format for a contempt proceeding. However, the Supreme Court of Canada noted in Carey, at para. 18 that contempt proceedings are generally bifurcated, with the first phase addressing liability for contempt, and if liability is established, the second phase addressing the appropriate penalty. The Ontario Court of Appeal emphasized in College of Optometrists (Ontario) that a consolidated hearing that considers both liability and penalty in the same hearing may cause unfairness. In this regard, it stated as follows:

75 In contempt proceedings, as in criminal prosecutions, liability and penalty are discrete issues. Each falls to be decided on the basis of evidence that is relevant, material and admissible on the issue being considered. Evidence that is relevant, material and admissible on one issue may be irrelevant, immaterial or inadmissible on the other. In a single hearing, there is always the risk that evidence relevant, material and admissible on one issue will be misapplied to the other, for example to liability instead of penalty. To permit the introduction of evidence that bears on penalty only in a hearing in which liability has not yet been determined also lends an appearance of pre-judgment to the proceedings and forces the alleged contemnor to defend on inconsistent grounds.

[40] Notwithstanding these comments, the court added that the extent to which the fairness of the proceeding is compromised by a consolidated hearing may vary from one case to the next (at para. 76).

[41] If liability is established, the contemnor is typically offered an opportunity to purge their contempt before the penalty phase of the proceeding begins (College of Optometrists (Ontario), at para. 73). The contemnor’s efforts to purge their contempt is a mitigating factor when the remedy is imposed (Ironside v. Roskam, 2018 ONSC 247 (S.C.J.), at para. 49; Stone v. Stone, 2019 ONSC 3214 (S.C.J.); Kim, at para. 22).

PART 3: ANALYSIS

I. THE NOTICE OF THE CONTEMPT ALLEGATIONS WAS DEFICIENT

[42] Applying the legal principles set out above to the facts of this case, I find that the mother was aware of the terms of the order in question, and that the order remains live and operative. However, having carefully weighed all of the evidence adduced on this motion, I have determined that the father has not satisfied the test for a finding of civil contempt against the mother for various reasons.

[43] Addressing first the notice requirements, I find that the father did not give the mother fair notice of several of the contempt claims that he advanced at the hearing. His Notice of Motion did not provide any specifics whatsoever of each alleged breach. As I have previously stated, it simply set out a broad, wide-sweeping allegation that the mother was in contempt of court because of “breach of court order withholding children, making false accusations, speaking ill to children about me.” It did not provide the mother with details about the provisions of the order that she is alleged to have breached, the dates of each alleged breach, or any specifics whatsoever of when and how she purportedly violated the order.

[44] The Applicant’s affidavit sworn January 22, 2024 is only 1.5 pages long, and it also lacks the specifics required to properly put the mother on fair notice of several of the father’s contempt allegations. The affidavit only sets out sufficient information for the court and the mother to properly understand two of the father’s allegations of contempt. Specifically, it indicates that the mother refused to hand over the children to the father’s care on Sunday January 21, 2024 for his regular weekend parenting time, and that she failed to provide him with notarized copies of the children’s documents within thirty days of the order, contrary to paragraph 14 of the order. With respect to the remainder of the affidavit, it was necessary at the outset of the hearing for me to specifically ask the father which sections of the order he was relying on, and to go through his affidavit line by line to determine the particulars regarding each allegation of breach that he was claiming in support of his contempt motion. During this process, he acknowledged that many of the accusations against the mother set out in his affidavit were simply general complaints about her which had no relevance whatsoever to his contempt claim. The inclusion of this material in the affidavit added unnecessary confusion and complication to this motion, and created unfairness for the mother by requiring her to engage in mental gymnastics to determine how the information supported the father’s claims that she breached the order. This is not how motions to find a party in contempt should be framed. Contempt is extremely serious business which can lead to the incarceration of the alleged wrongdoer. The party accused of contempt has the right to be informed of sufficient particulars of the alleged contempt as soon as they are served with the motion, so they have the fullest opportunity possible to answer and defend the case. Neither the alleged contemnor nor the court should be placed in the position of having to ferret out the details of the contempt claim at the outset of the hearing.

[45] With respect to the father’s claim that the mother breached the order on September 5, 2023, the affidavit does not provide sufficient particulars to identify which paragraph of the order he was relying on and why he believes the mother breached the order on that date. As it turns out, September 5, 2023 was a Tuesday, and the order does not grant the father parenting time on Tuesdays. The only paragraph that could possibly apply is paragraph 6(c) of the order, which stipulates that the father may have such further parenting time with Dominyck as agreed upon by the parties. However, the father did not provide any particulars of any such agreement.

[46] In regard to the allegation that the mother breached the order on December 5, 2023, the father claimed in his affidavit that the mother had told the children that they were not allowed to say hello to him on the school grounds during the mother’s parenting time. He did not specify who had relayed this information to him, the paragraph of the order that he was relying on or how this information would support a finding that the mother had breached the order. In fact, when I asked him during the hearing how this information supported his allegation that the mother had disobeyed the order, he had difficulty responding to the question. He initially suggested that the alleged behaviour of the mother in relation to this situation was a breach of paragraph 15 of the order, but then stated that he believed it constituted a breach of paragraph 20, which provides that the parties shall not harass or speak ill of each other in front of the children. With respect to his broad assertion that the children have been dropped off late to school and picked up early to avoid seeing him, his affidavit provided no specifics whatsoever in support of this broad claim or how the mother violated the order.

[47] In regard to the encounter between the father and the maternal grandmother at the Cambridge Mall on January 17, 2024, again the father failed to explain in his affidavit how the mother allegedly breached the order on that date. During the hearing, he alleged that the evidence respecting that encounter established that the mother had spoken ill of him in the presence of the children, contrary to section 20 of the order. However, it was necessary for me to specifically question him on this point to understand the basic details about the mother’s alleged breach of the order. Finally, with respect to his broad assertion in his affidavit that the mother fails to communicate with him at any time, he failed to provide any details regarding this allegation of breach. This type of broad, non-specific claim does not satisfy the requirement of fair notice of the alleged contempt of court that is required by law.

[48] The serious deficiencies respecting notice of the contempt claims against the mother described in paragraphs 4(1), (3), (4) and (6) of these Reasons for Judgment are sufficient to dismiss all of those claims. I have nonetheless set out additional grounds for dismissing those claims below.

II. THE ORDER RESPECTING PARENTING TIME WITH DOMINYCK IS AMBIGUOUS

[49] The father claims that the mother withheld Dominyck from him on January 21, 2024, when the child was supposed to transition to his care for his regular weekend parenting time, contrary to section 6 of the order. The mother acknowledges that she failed to hand Dominyck over to the father’s care on that date, and that she has not permitted the father parenting time with Dominyck since then. She relayed that the father is not Dominyck’s biological father, and that this explains in part the differences in the parenting time terms of the order for him as compared to the other children. She claimed that she is entitled pursuant to paragraph 5 of the order to suspend the parenting time with Dominyck as set out in paragraph 6 of the order at any time if she has concerns about the father’s care of the child during visits, provided that she gives written notice to the father of her decision and reasons for doing so.

[50] I have considered whether the parenting time terms of the order relating to Dominyck are sufficiently clear and unequivocal to support a contempt finding against the mother, and I conclude that they are not. As I have already noted, paragraphs 2 to 6 of the order set out a framework for the father’s parenting time with Dominyck to begin with limited, supervised visits once per week and to progress eventually to alternate weekends from Friday at 3:00 p.m. util Sunday at 7:00 p.m. as well as every Wednesday evening, as provided for in paragraph 6 of the order. However, paragraph 5 stipulates that the mother can decide not to proceed with the progression of parenting time to the arrangement described in paragraph 6 if she “believes there are reasons why the Applicant Father’s parenting time with Dominyck should not proceed on an unsupervised basis.” In that case, the order requires her to immediately provide those reasons to the Applicant in writing, as well as notice of any steps that the father ought to take to rectify her concerns. The father is then required to respond to those concerns in writing. If his response does not satisfy the mother’s concerns, she is required to “inform the Applicant in writing.” The order specifies that consent to proceed with unsupervised parenting time shall not be unreasonably withheld. The parties proceeded to unsupervised parenting time in accordance with paragraph 6 at some point prior to the commencement of this motion. The unclear aspect of the order is whether the mother’s discretion referred to in paragraph 5 as to whether the parenting time arrangement set out in paragraph 6 should proceed permits her to suspend the parenting time set out in that paragraph at any point in time, even though the parties had already progressed to the arrangement referred to in paragraph 6. The mother’s understanding is that it does, and I note that she also commenced a Motion to Change Final Order to address parenting time issues shortly after January 21, 2024. The scope of the mother’s discretion respecting the father’s parenting time as set out in paragraph 6 is ambiguous and open to contrary interpretations. While it appears at first blush to apply only at the time when the parenting time described in paragraph 6 was supposed to begin, it could also be argued based on the wording of section 5 that it permits the mother to suspend the continuation of that arrangement at any time if she has concerns about the father’s ability to parent Dominyck. The mother provided the father with written notice of the reasons for her decision to suspend his parenting time with Dominyck on January 21, 2024, as required by paragraph 5 of the order. The father did not respond to the mother’s correspondence to him as directed in paragraph 5 of the order, except to bring this contempt motion. He failed to respond to the mother’s concerns even in the context of this motion. There is no indication in the order about what should occur respecting the father’s parenting time with Dominyck if the mother gives notice that the arrangements set out in paragraph 6 should not continue and the father fails to respond. Any lack of clarity or ambiguity in the order must be resolved in favour of the mother for the purposes of this contempt motion, having regard for the gravity of a contempt finding. For all of these reasons, I conclude that the parenting time terms of the order respecting Dominyck are not sufficiently clear and unequivocal to support a finding that the mother is in contempt of those provisions.

III. THE LACK OF EVIDENCE RESPECTING SEVERAL ALLEGED BREACHES OF THE ORDER

[51] Several of the father’s contempt claims must be dismissed based on lack of evidence that the mother breached the order as alleged. I deal first with the father’s broad claim that the mother has failed to communicate with him at any time about the children. As I have stated, he did not specify which paragraphs of the order he was relying on in support of this alleged breach, but it appears that paragraphs 9 and 10 would be the relevant terms. They require the parties to attempt to make all major decisions impacting Ariella, Peighton and Shay jointly, and direct that the mother must consult with the father before exercising her right to have final say respecting major decisions. Quite apart from the father’s failure to provide sufficient notice of the particulars of this claim, there is no credible evidence before the court whatsoever to support the allegation that the mother breached paragraphs 9 and 10 of the order.

[52] As I have previously indicated, the father alleges that the mother breached the parenting terms of the order on Tuesday September 5, 2023 by failing to hand the children over to him “as agreed upon.” The evidence does not support a finding that the mother breached paragraph 6(c) of the order on that day. Paragraph 6(c) grants the father additional time with Dominyck as agreed upon between the parties. The father did not adduce any evidence about when any such agreement was reached, and the mother denies that she agreed to the father having the children on September 5, 2023. She acknowledges that she had communicated with the father at some point about the children possibly staying with him that day if her brother and sister-in-law were unable to watch them for her. However, she states that her brother and his wife were in fact able to care for the children, so she advised the father that his assistance was not required.

[53] Likewise, the evidence does not support the father’s claims that the mother breached paragraph 20 of the order, which directs the parties to refrain from harassing or speaking ill about each other in front of the children and from allowing third parties to do so in the presence of the children. As discussed above, the father accuses the mother of telling the children not to talk to him on the school grounds during her parenting time periods, and doing drop-offs and pick-ups at school at irregular times in order to prevent him from seeing them on the school grounds. However, he did not state the source of his information in support of these claims, as he is required to do, and the mother adamantly denies having engaged in these alleged behaviours. Even if she had, the allegations and evidence before the court relating to these claims would not support a finding that the mother had spoken ill of the father in the children’s presence or permitted others to do so.

[54] Turning to the father’s claim that the mother breached paragraph 20 of the order during his encounter with the maternal grandmother at the Cambridge Mall on January 17, 2024, there is similarly no evidence before the court to support this allegation. First, the mother has adduced evidence showing that the maternal grandmother was out of the country on January 17, 2024. The mother acknowledges that there was an encounter between the father and the maternal grandmother on another day at the Cambridge Mall, during which the maternal grandmother chastised the father for having told the children that a person who they had been told was their uncle is in fact their half brother. However, there is no evidence that the maternal grandmother spoke ill about the father during that conversation, or that she did so in front of the children. Furthermore, there is no evidence that the mother allowed the maternal grandmother to speak ill of the father in the presence of the children during this incident, or on any other occasion.

IV. THE ALLEGED BREACH OF PARAGRAPH 14 OF THE ORDER

[55] Addressing the father’s complaint that the mother breached paragraph 14 of the order by failing to provide him with notarized copies of the children’s documents by April 10, 2021, the mother admits that she failed to meet this deadline. However, the father acknowledges that the mother eventually gave him notarized copies of the documents referred to in paragraph 14 on October 27, 2023. Although the mother did not meet the April 10, 2021 deadline, I decline to find her in contempt of paragraph 14 of the order for several reasons. First, as I have discussed in these Reasons, the purpose of civil contempt is to ensure compliance rather than to inflict punishment upon a party for historical breaches. The mother has already given the documents in question to the father, which was the main objective of paragraph 14. Second, I find that the mother arranged with her counsel at the time that the order was made to provide the father with the notarized copies of the documents in question. It was her understanding that the lawyer had produced the documents to the father. She states that the father did not address this issue with her for quite some time, and that her lawyer failed to respond to her communications about the issue when she attempted to follow up with her. In addition, she indicates that she experienced difficulties finding a notary public to assist her. Furthermore, she advises that she provided the children’s original documents to the father whenever he required them without any objection or difficulties. The mother made all reasonable efforts to comply with paragraph 14 of the order, and her failure to meet the deadline of April 10, 2021 did not cause the father any prejudice. Having regard for all of these considerations, an order finding her in contempt of paragraph 14 of the order would be inappropriate, counterproductive and contrary to the interests of justice.

V. THE ALLEGED BREACH OF THE PARENTING TIME TERMS RESPECTING ARIELLA, PEIGHTON AND SHAY

[56] The mother acknowledges that she withheld Ariella, Peighton and Shay from the father on January 21, 2024 and that she did not allow them to return to the father’s care again until February 4, 2024. She claims that she did so due to serious concerns about the safety and wellbeing of the children in the father’s care, and because the children refused to return to the father’s care due to their fear of him. The defence of impossibility of compliance due to the children’s refusal to comply with the order is not geared to this type of situation where the alleged contemnor also refuses to comply with the order due to concerns about the children’s safety.

[57] I find that the mother disobeyed paragraphs 17(a) and (b) of the order by failing to hand Ariella, Peighton and Shay over to the father on January 21, 2024, however, I decline to find the mother in contempt in relation to these breaches for several reasons. I add that even if I had found the mother to be in breach of the parenting time terms of the order as they relate to Dominyck, I would have also declined to make a contempt finding against her for the same reasons. First and foremost, I have considered the best interests of the children. The mother states that she withheld the children during this period of time due to serious concerns about their physical and emotional safety in the father’s care. She summarized some of these concerns in her written notice to the father dated January 21, 2024 as follows:

1. Dominyck had disclosed that the father was yelling and saying bad words during his parenting time.

2. Dominyck had also described the father spanking him, grabbing him roughly, throwing things in his presence and forcing him to stay in his room for extended periods of time.

3. All four children had described an incident that had occurred while they were in the father’s care in January 2024, during which the father became irate with them, began screaming and swearing, and was physically aggressive towards them after finding a toy bat in one of the children’s backpacks. All of the children expressed great fear of the father as a result of his behaviour on that occasion.

4. Dominyck had stated that the son of the father’s partner had been punching him regularly, and that the father and his partner had not been addressing this issue with the other boy.

5. In addition, Dominyck had complained to her about being left alone in the home without any adult supervision.

[58] In addition to these concerns, the mother states that Ariella and Peighton have disclosed being spanked on their buttocks by the father during his parenting time. She discussed this concern with a case worker at CAMINO, and that worker made a report to Family and Childrens’ Services of the Waterloo Region (“FACS”). The parties both acknowledged at the hearing that FACS opened a file respecting the family and undertook a child protection investigation as a result of all of the concerns described above. There was no evidence respecting the outcome of that investigation as of the time of the contempt hearing. In addition, the evidence raises serious questions about the father’s judgment in relation to the information that he shared with the children about their half brother. The mother felt that he relayed this information to them in an inappropriate manner, and I share those concerns. This type of information is highly sensitive and could have been confusing and difficult for the children to process. There should have been advance discussion and planning between the parties about how the information should be relayed to the children, and the assistance of a social worker may have been advisable.

[59] I am satisfied that the mother had reasonable grounds for her concerns about the safety and well-being of the children in the care of the father and his partner as of January 21, 2024. She has cooperated with FACS in its child protection investigation, and she took appropriate steps to address her worries about the father’s parenting of the children by commencing a Motion to Change the parenting terms of the order shortly after she withheld the children. Both parties confirmed at the hearing that the father’s regular parenting time with Ariella, Peighton and Shay resumed as of February 4, 2024. There is no evidence of a pattern of the mother withholding the children without justification from the father’s care. Having weighed all of these considerations, it is not in the children’s best interests, or in the interests of justice generally, to find the mother in contempt of the parenting time terms of the order as they relate to Ariella, Peighton and Shay.

VI. THERE WERE MORE APPROPRIATE REMEDIES TO ADDRESS THE FATHER’S GRIEVANCES

[60] Finally, I find that there were many other adequate, less drastic and much more appropriate remedies and options that the father should have pursued to address his grievances rather than bringing this contempt motion against the mother. One option would have been to request an urgent case conference in the context of the mother’s Motion to Change Final Order to have the issues considered by a judge. Another option would have been to bring an urgent motion prior to a case conference in that proceeding to enforce the order or seek other relief to address his complaints. These approaches would have allowed the parties and the court to address the concerns of both parties respecting the children and the father’s grievances about the mother’s actions in a child-focussed manner. The father could have also brought a motion for a declaration that the mother was in breach of the parenting time terms of the order and for costs. Another child-focussed option would have been to seek out the assistance of the court’s mediation service provider to work through the issues with the mother and obtain recommendations regarding therapeutic services that could assist in addressing the underlying problems which the family appears to be experiencing at this time. Unfortunately, the father chose this contempt motion as a remedy of first resort in the face of numerous other remedies and options open to him which would have been much more supportive of the children’s best interests and avoided the escalation of conflict that this motion has caused. His decision to choose and pursue this adversarial remedy of contempt over other more suitable courses of action to address his complaints is another reason for my decision to dismiss this motion.

[61] I have considered whether it is appropriate to order any other remedy as an alternative to address the father’s grievances, and I decline to do so. The most appropriate venue for addressing the problems that led to this motion is the mother’s Motion to Change Final Order which is currently before the court, with a first appearance date scheduled for some time in March, 2024.

PART 4: TERMS OF ORDER TO ISSUE

[62] Based on the foregoing, order to go as follows:

1. The Applicant’s contempt motion dated January 23, 2024 is dismissed.

2. If either party requests costs in connection with the motion, they shall serve and file Written Costs Submissions, any caselaw that they wish to rely upon, a detailed Bills of Costs and copies of any Offers to Settle that were made by no later than March 22, 2024. Any Responding Submissions shall be served and filed by no later than March 29, 2024. Any Reply Submissions shall be served and filed by no later than April 3, 2024. There shall be no extensions to these deadlines unless otherwise ordered on motion brought with notice to the other party prior to the expiry of the applicable deadline.

3. If no Written Costs Submissions are received by March 22, 2024, the parties will be deemed to have settled costs and there shall be no costs payable by either party in connection with the motion.

4. Court staff shall email a copy of these Reasons for Judgment to the parties forthwith as follows:

The Applicant: uncleglenn11@gmail.com

The Respondent: Lpurdy1988@gmail.com

Released: March 7, 2024

Citation: Antoine v. Antoine 2024 ONSC 1397

COURT FILE NO. FC-17-494

DATE: 2024-03-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Glenn Arthur Eric Antoine

Applicant

– and –

Elizabeth Barbara Antoine

Respondent

REASONS FOR JUDGMENT

Chappel J.

Released: March 7, 2024