Court File and Parties

Court File No.: FS-14- 19641 Date: 20240730 Superior Court of Justice - Ontario

Re: I. S., Applicant -and- M.S., Respondent

Before: M.D. Faieta, J.

Counsel: Annie Zhuang, Agent for the Applicant Martine Ordon, for the Respondent

Heard: July 9, 2024 and July 25, 2024

Endorsement

[1] The applicant mother was found in contempt of court for having, over a period of about 3 1/2 months starting in August 2023, denied all court ordered parenting time to the respondent father in respect of their child born in August 2014: See I.S. v. M.S., 2024 ONSC 773. The parties returned for the sentencing hearing which is the subject of this Endorsement.

Background

[2] By Order dated April 25, 2019, Gilmore J. ordered that the respondent father have parenting time with his son in accordance with the following schedule:

(a) Every Wednesday from pick-up at the child's daycare to 7:00 pm drop-off at the applicant mother's home.

(b) Alternating Saturdays from 9:00 am to 4:30 pm with pick-up and drop-off from the applicant mother's home.

(c) Overnight access on the first Saturday of the respondent father's access each month with pick-up at the applicant mother's home at 9:30 am on Saturday and drop-off at Noon on Sunday at the applicant mother's home.

[3] The applicant mother has withheld or unreasonably interfered with the respondent father's parenting time almost from the time that the child was born. She may have been motivated by resentment that the respondent father has not disclosed the child's existence to his wife and children: See M.S. v. I.S., 2021 ONSC 3715, paras. 140-156, 250.

[4] Subsequent to the hearing of the contempt motion, on January 18, 2024, the Applicant mother brought a motion to temporarily suspend parenting time between the parties' child, who is now almost ten years old, and the respondent father, until a parenting assessment is completed or the Office of the Children's Lawyer ("OCL") becomes involved with this matter. Alternatively, she sought that the father's parenting time be supervised. The applicant mother short-served the respondent father with her motion materials. The respondent father sought an adjournment and also brought a cross-motion seeking, among other things, requesting a finding that the mother's unilateral termination of his parenting time are further acts of contempt. Kraft J. adjourned the motions to February 1, 2024.

[5] On February 9, 2024, Kristjanson J. issued the following Endorsement:

[1] The decision on the cross-motion on contempt is reserved. Costs on both the motion and cross-motion to be addressed after the decision is released.

[2] The father has not had regular parenting time in accordance with Justice Gilmore's Order since August, 2023 save for the December times ordered by Justice Faieta, and the regular parenting time recommencing on February 7th as ordered by me following argument on February 6th.

[3] To avoid any misunderstandings, Order to go directing the parenting time in accordance with Justice Gilmore's Order on the dates in the attached Schedule, which has been provided with the consent of both parties. Those dates may be amended by further Court order or written agreement of the parties.

[6] The Schedule attached to Kristjanson J.'s Endorsement is an annotated calendar for each month in 2024 that shows date and time for the respondent father's parenting time.

[7] There is no dispute that the applicant mother has complied with paragraph 3 of Kristjanson J.'s Endorsement.

Analysis

[8] The importance of sanction for contempt in a family law proceeding was eloquently described by R.A. Blair, J. in Surgeoner v. Surgeoner (1992), 6 C.P.C. (3d) 318 (Ont. S.C.):

5 ... No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its courts' orders at their whim because in their own particular view, it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice.

6 The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and "self-rightness." In this environment it is all too easy for a spouse to believe that he or she "knows what is right," even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination.

7 Those who choose to take this tack must know that it will not be tolerated.

[9] In LeGrand v. LeGrand, 2024 ONSC 693 (Div. Ct), McGee J. described the objectives and principles for sentencing civil contempt in a family law proceeding as follows:

59 A contempt sanction is a penalty imposed in response to a finding that a party has deliberately disobeyed or disrespected a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. As summarized in Kronberger v. Kudrocova, 2023 ONSC 2326, at paras. 44-49, the applicable sentencing principles for contempt of court in the context of family law proceedings include:

Sentencing should be restorative to the victim and punitive to the contemnor. To accomplish the former requires that the sentence correlate to the conduct that produced the contempt and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances: Cassidy v. Cassidy, 2010 ONSC 2707, 85 R.F.L. (6th) 148, at para. 10 [Cassidy].

The primary objective in sentencing civil contempt is to coerce the offender into obeying the court judgment or order: Cassidy, at para. 12; Kopaniak v. Maclellan, 2002 CarswellOnt 1309, [2002] 212 D.L.R. (4th) 309, (O.C.A.) at para. 28, citing Nigel Lowe and Brenda Sufrin, Barrie and Lowe on the Law of Contempt, 3rd ed. (1996) at pp. 655-56, and Jeffrey Miller, The Law of Contempt in Canada (1997) at pp. 13 - 17.

Punishment must be in proportion to the breach or breaches of the order. The court must consider aggravating or mitigating factors: Carroll v. Richardson, 2013 NSSC 187, 331 N.S.R. (2d) 129, at para. 20 [Carroll].

Deterrence and denunciation are also important objectives of sentencing: Carroll, at para. 21. The purpose of penalties is not to compensate the wronged party, per se. It is to punish the wrongdoer: Roby v. Roby, [2003] 48 R.F.L. (5th) 389, at para. 30 [Roby] ....

65 The amount of a penalty or a fine payable imposed pursuant to Rule 31 (b) and (c) of the Rules can be substantial, provided that it is reasonable and proportionate to the nature of the contempt and its mitigating and aggravating circumstances.

66 At the same time, it must not markedly deviate from a sanction imposed in like circumstances, see Stone v. Stone, 2019 ONSC 3214. In Cassidy v. Cassidy, 2010 ONSC 2707, starting at para. 13, the court sets out the principles of sentencing in on a finding of civil contempt in a family law proceeding as a consideration of (a) the available sentences, (b) the proportionality of the sentence to the wrongdoing, (c) the similarity of sentences in like circumstance, (d) the presence of mitigating factors, (e) the presence of aggravating factors, (f) deterrence, (g) the reasonableness of a fine, and (h) the reasonableness of a proposed period of incarceration.

67 The Ontario Court of Appeal has since emphasized the additional principle of restraint in sentencing, see Gagnon v. Martyniuk, 2020 ONCA 708, at para. 25, and that judicial discretion in sentencing be informed by the best interests of the child(ren): Moncur v. Plante, at para. 10, Valoris pour enfants et adultes de Prescott-Russell c. R. (R.), supra, at para. 27; Chong v. Donnelly, supra, at para. 11; and Ruffolo v. David, at para. 19.

[10] In parenting cases, the best interests of the child is a paramount consideration on sentencing. In LeGrand, McGee J. stated:

50 Subsection 31(5)(d) confers a broad discretion on the court to fashion an appropriate contempt sanction; but that discretion is not unbounded. When fashioning a contempt sanction in parenting cases, the court must also consider the impact of the sanction on the best interests of the children. . ..

56 It is not in a child's best interests to lose their independent right to ongoing support from a parent within a court sanction purposed to coerce their parent's compliance with a past court Order, or a court sanction fashioned to deter and denounce a parent's wrongful behaviour ...

60 Even when the sanction to be determined concerns access to children, the paramount consideration remains the best interests of the children: see Moncur v. Plante, 2021 ONCA 462, at para. 10, Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at para. 19 and Valoris pour enfants et adultes de Prescott-Russell c. R. (R.), 2021 ONCA 366, at para. 27.

Has the Applicant purged her contempt?

[11] In Chiang (Trustee of) v. Chiang (2007), 31 C.B.R. (5th) 19 (Ont. S.C.), var'd on other grounds 2009 ONCA 3, Lax J. stated:

30 Purging contempt is rooted in quasi-religious concepts of purification, expiation and atonement. To "purge" is to cleanse an existing wrong. One can purge contempt, but still be held responsible for it, just as one can commit a crime and feel remorse. Whether or not a contemnor has purged his contempt is a mitigating factor to be considered in determining a remedy:

The law is clear with reference to disobedience of orders of the court.... Purging of contempt by compliance does not deprive the court of power to punish the person who has flouted its orders. It is merely a matter to be taken into account in assessing the penalty to be imposed upon the contemnor....

31 Thus, even if the contemptuous acts have ceased, or the contemnor has purged his contempt, the court still retains jurisdiction to consider and punish for contempt. [Footnotes omitted]

[12] A court will consider, among other things, whether the contemnor has admitted the breach and whether the contemnor has demonstrated a full acceptance of the paramountcy of the rule of law, by tendering a formal apology to the court: Boucher v. Kennedy (1998), 60 O.T.C. 137 (Ont. S.C.), para. 69.

[13] The onus rests on the contemnor to show, on a balance of probabilities, that they have purged their contempt: Chiang, para. 37.

[14] I dismiss the applicant mother's submission that she has purged her contempt. In her affidavit, the applicant does not clearly admit to having breached the parenting time order by denying parenting for a period of about 3 ½ months nor does she express remorse. Instead, the applicant attempts to provide a justification for her contempt. Further, the applicant mother submits that she has purged her contempt by having complied over the last five months with the parenting time regime described in Kristjanson J.'s Endorsement dated February 9, 2024. Subsequent compliance with a court order does not serve to purge one's contempt for the past breach of that court order.

The Available Sentences

[15] Rule 31(5) of the Family Law Rules, O. Reg. 114/99, provides that 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.

[16] Further, Rule 31(8) provides that a contempt order for imprisonment or for the payment of a fine may be suspended on appropriate conditions.

Proportionality of the Sentence to the Wrongdoing

[17] The sentence must be proportional to the breach of this court's order for a period of about 3 ½ months when the applicant withheld the child from the respondent father. While the applicant mother has long standing resentment towards the respondent father, the withholding of parenting time harms the child and undermines his relationship with his father.

Similarity of Sentences in Like Circumstances

[18] The parties referred the court to several cases involving contempt of parenting orders.

(a) In Mancini v Mancini, [2003] O.T.C. 747 (Ont. S.C.), rev'd (2004) , 181 O.A.C. 275, the mother was found to be in contempt of a parenting for having withheld their son from his father for a total period of about three months over a period of 18 months. The mother was ordered to pay a fine of $500.00. I note that the court did not consider the sentences imposed by other courts in similar cases.

(b) In V.S. v. I.M.B., 2021 ONCJ 705, the father was denied court-ordered access for 103 days over the period of about one year. The mother was ordered to pay $5,000 as a penalty to the father in installments of $500.

(c) In Boucher v. Kennedy (1998), 60 O.T.C. 137 (Ont. S.C.), a defendant was found to be in contempt of an order that prohibited her from communicating with certain persons. The defendant did not agree with the order and knowingly breached it on a weekly basis for about two years. The court ordered that she pay a fine of $30,000.00.

(d) In Ding v Chen, 2023 ONSC 3733, aff’d 2024 ONCA 395, a husband was found in contempt of orders that required him to produce various forms of financial disclosure. Kraft J. ordered that the husband pay a penalty of $10,000.00 to his wife.

The Presence of Mitigating Factors

[19] The applicant mother states that she has an inability to pay a fine or penalty. The applicant mother states that she has not worked since late 2022 when she left her position as a trader at a financial institution because she was "burnt out" from the death of her mother in late 2021, the death of her grandmother in February 2022, and being the sole palliative caregiver to her father who ultimately died in September 2023. The applicant does not dispute that she receives $5,000 in tax free child support or that she recently sold a home for about $2.1 million for which she paid about $800,000 with the respondent's assistance, or that she now owns a condominium that is mortgage free.

[20] The respondent states that he pays for virtually all his son's expenses and that the applicant does not pay the 10% portion of section 7 expenses that she is required to pay. The applicant states that she sold her home to pay for living expenses and legal fees. The Applicant further states that she alone pays for the tuition to her son's private school.

[21] The applicant mother's assertion that she is unable to pay a fine or penalty amounts to a bald assertion as she has not filed a financial statement that provide particulars of her financial position.

[22] I find that there are no mitigating factors in this case.

The Presence of Aggravating Factors

[23] The applicant mother has not admitted her breach, nor has she apologized to the court. Her breach of the respondent father's parenting time rights is part of an ongoing pattern that commenced as early as 2015: See M.S. v. I.S., 2021 ONSC 3715, paras. 140-156, 250. The applicant's withholding of parenting time undermines her child's relationship with the respondent father.

Deterrence

[24] As noted in Cassidy, at para. 34, the punishment for contempt should serve as a disincentive to those who might be inclined to breach court orders.

The Reasonableness of a Proposed Period of Incarceration

[25] Incarceration was not proposed. It is a remedy of last resort. However, in the event that there is a further breach of a parenting time order, some period of incarceration may have to be considered.

The Reasonableness of a Fine

[26] The applicant mother submits that an appropriate fine or penalty should be in the range of $500.00 to $5,000.00. The respondent father submits that he does not want a penalty imposed as he does not seek any money from applicant mother. He submits that a "stiff" fine should be in the range of $5,000 to $30,000.00 as it will have a strong deterrent effect going forward. More than punishment, the respondent simply wants to have parenting time with his son in accordance with the schedule mandated by this court. This aligns with the best interests of the child.

Conclusion

[27] In considering the appropriate sentence, I have also considered the bests interest of the child in having the applicant mother comply with this court's parenting time orders. For that reason, I have suspended the payment of a fine in order to coerce the applicant mother's compliance with the parenting time orders on a go forward basis. If she is found to have breached a parenting time order again, then in addition to having to pay the fine that I have ordered she may also be subject to a contempt motion or a motion for relief under Rule 1(8) which, as a result of recent amendments to the Family Law Rules, now permits the imposition of fines and penalties.

[28] In all the circumstances, I find that it is just, having considered the above factors, to order that:

(a) The applicant mother shall pay a fine the amount of $15,000.00 to the Minister of Finance within 30 days. The payment of this fine is suspended unless this court finds that the applicant mother has breached the parenting time provisions of a parenting order of this Court for parenting time to have taken place at any time after the date of this Endorsement.

(b) Adopting the approach used by Kristjanson J. which has been successful, the applicant mother shall comply with the parenting time schedule described below for 2025 which the parties prepared and provided to the Court prior to the hearing on July 25, 2024.

Costs

[29] A hearing was held on July 26, 2024 to address costs.

[30] Just prior to the hearing on July 9, 2024, Ms. Zhuang and Ms. Ordon exchanged settlement proposals. The respondent father offered to accept $7,000 in costs. The applicant mother submits that this offer to settle was accepted however there is nothing in the exchange of emails to support that assertion. In fact, the last email from Ms. Zhuang provides a counter‑offer at $6,000 and stated if the applicant's offer was not accepted"... then I'm in a position where I might need to simply make submissions and take the chances."

[31] The respondent father submitted a bill of costs in respect in the amount of $15,755.03 inclusive of disbursements and HST for both phases of this contempt motion. There was no objection to her hourly rate or time billed. I find that the amount claimed is reasonable and proportional to the importance and complexity of the issues.

[32] I adopt the costs principles outlined by Kraft J. in Deng, paras. 32-37. Further, there was no objective evidence to support the applicant mother's assertion that she is unable to pay costs. Further, I agree with the view expressed by McGee J. in Mohr v Sweeney, 2016 ONSC 3238, at para. 17:

An inability to pay costs cannot be used as a shield against liability. The purposes of a costs award ... are no less applicable to litigants of modest means. To the contrary, those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings.

[Footnotes omitted]

[33] I find that the applicant mother's conduct which is the subject-matter of this contempt proceeding amounted to "bad faith" behaviour and was fueled by the animus that she has towards the respondent father. I have no hesitation in finding that the respondent father is entitled to his costs of both phases of his contempt motion on a full recovery basis. Accordingly, the applicant mother shall pay costs of $15,755.03, inclusive of HST and disbursements.

[34] There is no dispute that the applicant mother has failed to pay the following costs orders:

(a) $800, as ordered by Nakonechny J. on January 25, 2022.

(b) $15,000, as I ordered on September 11, 2023.

(c) $5,000, as ordered by the Ontario Divisional Court on February 9, 2024.

[35] Despite having failed to comply with these costs orders, the applicant mother nevertheless continues to commence proceedings before this court as was the case with the applicant's motion to change that was heard by Kristjanson J. earlier this year.

Decision

[36] Order to go as follows:

(a) The applicant mother shall pay a fine in the amount of $15,000.00 to the Minister of Finance in respect of being found in contempt for failing to comply with the Order of Gilmore, J. dated April 25, 2019. Evidence of payment is to be served and filed within 30 days. This fine is suspended unless this court finds that the applicant mother has breached the parenting time provisions of any parenting order of this Court in respect of parenting time that was to have taken place after the date of this Endorsement.

(b) In 2025, the respondent father shall have parenting time in accordance with the Order of Gilmore J. dated April 25, 2019, on the dates and terms shown in the attached calendar.

(c) The applicant mother shall pay costs of $15,755.03, inclusive of HST and disbursements, to the respondent father within 30 days.

(d) The applicant mother's approval as to the form and content of this Order is dispensed with.

M.D. FAIETA J.

DATE: JULY 30, 2024