Superior Court of Justice
Citation: C.H. v. M.N., 2025 ONSC 2741 Court File No.: FS-20-0173-00 Date: 2025-05-05
Between: C.H., Applicant (responding party)
- and - M.N., Respondent (moving party)
Before: Mr. Justice F. Bruce Fitzpatrick Heard: April 29, 2025, at Thunder Bay, Ontario
Counsel: M. Cupello, for the Applicant (responding party) R. Schroeder, for the Respondent (moving party)
Judgment on Motion for Contempt
1The Respondent father M.N. moves for an order finding the Applicant mother, C. H. in contempt of the consent final parenting order of Nieckarz J. dated September 13, 2024 (the "Order").
Background
2The parties have one child A.. The parties were married August 9, 2014. They separated in 2018. The litigation was commenced in 2021. The litigation is still ongoing with respect to financial issues.
3This is a high conflict case. The matter went to trial in September 2024. The parenting issues were settled after four days of trial and about two days of intensive negotiation with the assistance of Nieckarz J..
4The Order was aimed at resolving all aspects of parenting time that the parties could anticipate. Given the history of the matter, the Order provided express terms, commencing at paragraph 10 (a) to gradually restart M.N.'s parenting time with A.. According to M.N., C.H. did not comply with the Order in many ways. Primarily she did not facilitate visits that were stipulated in the Order. M.N. responded by bringing this contempt motion on October 24, 2024.
5Since service of the notice of motion on October 25, 2024, the parties have had 3 additional case conferences with Nieckarz J.. These occurred on November 15, 2024, December 3, 2024, and January 29, 2025. The allegations of contempt and the particulars of this motion were discussed at all these conferences without a satisfactory final result. Nieckarz J. gave leave for a three hour motion in her endorsement of January 29, 2025. And here we are.
Preliminary issue
6M.N. served C.H. with a 154 page motion record on Friday April 25, 2025. This gave C.H. one business day to consider a new affidavit dated April 25, 2025, included in the record. It outlined alleged contemptuous actions of C.H. after October 24, 2025. At a minimum, I was concerned that C.H. did not have the opportunity to respond to anything after January 27, 2025, when she filed a responding affidavit to the initial motion.
7During argument, I advised the parties for the purposes of this motion, I was only considering allegations of contempt for the period September 14, 2024, to October 24, 2024. The affidavit material filed by both parties made significant reference to events prior to the settlement being achieved on September 13, 2024. In my view, this prior evidence was irrelevant to the matter before the Court. One cannot be in contempt of an order because of actions before the order is made. The recent motion record included an affidavit by M.N. dated August 15, 2024. This particular affidavit was uniquely unhelpful as part of the consent Order provided the contempt motion for which the August 15, 2024, affidavit supported was withdrawn by M.N..
8Also, I agreed with C.H. that it was unfair to consider events after October 24, 2024, as they had not yet occurred at the time the motion was served. An allegation of contempt is serious. The court should not encourage the parties to continue to produce ongoing never-ending streams of allegations once a party has put a contempt motion before the Court. The acts of contempt had or had not occurred as of the date the motion is made. In my view, the court does not have the time or the resources to assist parties if they want to engage in a running battle which requires constant back and forth with no end in sight.
9M.N. attempted to engage the court in a discussion of actions by C.H. that have occurred throughout this litigation up to and including last week. This was premised on an idea that her actions are part of an ongoing thematic pattern of contempt and desire to alienate A. from M.N.. I was not persuaded that this was appropriate in the context of the legal test for contempt which I will discuss in the following paragraphs.
10In my view, given M.N.'s decision to bring a motion for contempt 41 days after agreeing to a lengthy and comprehensive order for parenting, it was required to confine this proceeding to the allegations that existed from the date of the Order to the date the notice of motion was made. To do otherwise would defeat the purpose of having parties clearly outline for the court and the opposing party what exactly was being alleged and allowing them a fair opportunity to respond to precise allegations.
The Law
11Counsel were in agreement concerning the legal principles that apply in this case. Recently in J.S. v. S.C., [2024] O.J. No. 3343 at paras. 10 through 19, H.C. Desormeau J. provided the following useful summary of the principles applicable when considering a motion for civil contempt;
Rule 31 Family Law Rules ("FLR") governs contempt proceedings in family court.
As per the leading decision, Carey v. Laiken, 2015 SCC 17, the legal test to be applied for a party to be found in contempt of court for breaching an order is a three-pronged test for which each element must be proven beyond a reasonable doubt (at paras. 32-35). The three elements are the following:
(a) The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
(b) The party alleged to have breached the order must have had actual knowledge of it; and
(c) The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
Civil contempt is a remedy of last resort, one which should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order. (See G.(N.) c. Services aux enfants & adultes de Presott-Russell, 2006 CanLII 81792 (ON CA), [2006] O.J. No. 2488 (Ont. C.A.), Hefkey v. Hekfey, 2013 ONCA 44 (Ont. C.A.), and Children's Aid Society of Ottawa-Carleton v. S.(D.), 2001 CanLII 28152 (ON SC), [2001] O.J. No. 4585 (Ont. S.C.J.): See Perna v. Foss, 2015 ONSC 5636, at para. 12.
The party alleging contempt has the burden of proving same beyond a reasonable doubt given the quasi-criminal nature of the proceeding. Often, a trial is necessary to establish the alleged contempt beyond a reasonable doubt: Amid v. Houdi, 2016 ONSC 2849, at para. 12.
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. This includes the right to a hearing, the right not to be compellable as a witness at the hearing, and 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: Antoine v. Antoine, 2024 ONSC 1397, at para. 38; also see Barbara v. Cordeiro, 2024 ONSC 2951.
The first element of the test for contempt is that there must be a court Order to be enforced. Given that the fundamental purpose of the civil contempt remedy is to protect and enforce private rights, it is only available to redress breaches of Orders that are live and operative when the contempt finding is made, and which the aggrieved party wishes to enforce: Babinets v Babinets, 2021 ONSC 2143 at para. 37.
The court may decline to make a contempt finding even if there was non-compliance with the Order if the Respondent acted in good faith by taking all reasonable steps to comply with the Order: Babinets v. Babinets, supra, at para. 42. In order to establish contempt, the acts in question cannot be accidental but willful.
Unless the three parts of the test for contempt are met, the relief sought must be dismissed: Amid v. Houdi, 2016 ONSC 2849, at para. 14.
Even in cases where a party is in breach of a court order, the court must be satisfied that the breach is wilful and must consider the explanation for the alleged breach. In Szyngiel v. Rintoul, 2014 ONSC 3298 (Ont. S.C.J.), the court stated (at para. 24):
There are situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order.
A reasonably held belief is one that is both sincere and has some objective basis for it.
- The Court of Appeal in G.(N.) c. Services aux enfants & adultes de Presott-Russell determined it is an error in law for the court to conclude contempt had been established based on contradictory facts alleged and evidence presented by way of affidavits: G.(N.) c. Services aux enfants & adultes de Presott-Russell, 2006 CanLII 81792 (ON CA), [2006] O.J. No. 2488 (Ont. C.A.) at paras. 19 and 45. A trial of the issues ought to be conducted in such circumstances.
12In this matter there was no dispute C.H. had notice of the terms of the Order and that at all material times the Order was in force.
The Allegations of Contempt
13The Order contemplated a progressive increase in parenting time for M.N. in the weeks immediately following the making of the Order and in the time before M.N. decided to allege contempt. Given the limited time frame at issue on this motion, the terms of paragraphs 1, 5, (the first line only) 10 a) b) c) and the first portion of paragraph 10 i) were the only provisions of the Order which were relevant to consider in adjudicating this motion. They are as follows:
The Applicant Mother shall have decision-making authority with respect to the child, A. (hereinafter referred to as "the Child")…
The Parties shall maximize the time that the Child spends with each Party as is consistent with the best interests of the Child…
The Parties will facilitate at a minimum the following parenting time with the Child, consistent with the Child's best interest commencing the weekend of September 22. 2024, as follows:
a. The Respondent Father will commence one (1) visit per week to enjoy a meal with the Child and return the Child to the Applicant Mother shortly thereafter. This arrangement shall last for two (2) weeks.
b. The Respondent Father will commence two (2) visits per week to enjoy a meal or time in the community with the child and will return the Child to the Applicant Mother shortly thereafter. This arrangement will last for two (2) weeks.
c. The Respondent Father will commence two (2) full days of parenting time visits every week, not including overnights, to occur on Saturday and Sunday, with Sunday commencing at 1:00 p.m. to 8:00 p.m., or to otherwise align with the Respondent Father's employment. This arrangement will last for two (2) weeks…
i. For Thanksgiving in 2024 and on alternate years thereafter, the Respondent Father will have parenting time from Thursday at the conclusion of the Child's school day to the following Sunday at 12:00 p.m....
14I note M.N. also alleged that C.H. was in contempt of all of the provisions of paragraph 5 and 6 of the Order. He argued those provisions required the parties to "immediately" have A. commence therapeutic counselling sessions. The paragraphs did not contain the word "immediately" or set any specific timeline for counselling to occur. Given the narrow timeframe at issue, I advised counsel for M.N. during argument, I would not be considering this submission.
15There were three missed visits in the relevant timeframe for which M.N. alleges C.H. was in contempt of various provisions of the Order. I will discuss each of them in turn setting out briefly the positions of the parties for each.
Missed Visit 1
16M.N. alleges C.H. was in contempt of the provisions of paragraph 10 (a). The first visit in the week of September 22 to September 28, 2024, contemplated by paragraph 10 (a) did not occur. M.N. tried to arrange it. According to C.H., A. told her mother she was "anxious" about visiting with her father. C.H. takes the position that because paragraph 1 of the Order gave her sole decision-making authority with respect to the A., and the definition of decision making responsibility in section 18 of the Children's Law Reform Act means she alone had sole responsibility for making significant decisions about A.'s health, A.'s expression that she was anxious created a question of her health that C.H. alone was left to determine. C.H.'s responding affidavit does not directly address this missed first visit. I understood counsel for C.H. to submit this statement of anxiety was a health issue that made it not in A.'s best interest to attend the first arranged visit following the making of the Order.
17C.H. accordingly did not require A. to attend any visit in the week of September 22 to September 28, 2024.
Missed Visit 2
18On October 2, 2024, M.N. asked C.H. about a visit that was to take place at about 3:35 p.m. on Thursday October 3, 2024. C.H. responded that A. indicated she wanted to bring a friend along on the visit. M.N. refused and said he would come by to pick up A. anyway. When he arrived, Isabelle Fournier, a person who was a friend of C.H. and who had testified during the trial some weeks before, came out of C.H.'s house and began to film M.N. using her cell phone. A. refused to go with M.N..
19C.H.'s responding affidavit material admits A. did not initially go with M.N.. It did not address the filming issue. However, C.H. asserts that A. somehow knew M.N. was going to take her to Montana's restaurant in Thunder Bay on that visit. After M.N. left, A. and Ms. Fournier drove to Montana's at around 4:00 p.m. but could not find M.N. there. Ms. Fournier then drove A. home. C.H. advised M.N. of this via text on October 3, 2024 in two messages one at 3:51 p.m. and one at 4:12 p.m..
Missed Visit 3
20During the period October 6 to October 19, 2024, paragraph 10 (b) of the Order contemplated that M.N. would have two visits with A.. One visit did occur on October 10, 2024. M.N. tried to arrange a second visit for Sunday October 13, 2024, which was on Thanksgiving weekend. According to M.N., C.H. told him A. did not want to go. C.H.'s materials do not address this missed visit. This Thanksgiving Day visit which is also contemplated by paragraph 10 (i) of the Order did not occur.
Disposition
Missed Visit 1
21I find C.H. was in contempt of the provisions of the Order at paragraph 10 (a) in regard to Missed Visit 1. I do not accept that her right of sole decision making authority provided for in paragraph 1 of the Order is so broad as to allow her to say that when A. says she is "anxious" about visiting with her father, this translates to a significant health issue that would allow C.H. to facilitate A. not attending a visit. I find her actions on the occasion of the October 2 missed visit were also unreasonable. In C.H.'s responding affidavit she deposes at paragraph 51, she is committed to ensuring M.N. gets meaningful parenting time and "A. is aware that refusing to see her father is not permitted behaviour". Her responding affidavit does not otherwise address how this occasion on October 2 of A. refusing to visit with M.N. was transformed from "not permitted" to "permitted" behaviour.
22In my view, C.H.'s failure in her affidavit to address specifically the circumstances surrounding Missed Visit 1, or to explain her reasons for not permitting the visit, leave me to rely on M.N.'s evidence to find beyond a reasonable doubt that C.H.'s intentional actions resulted in a visit contemplated by the Order at paragraph 10(a) not occurring on October 3, 2024. I further find her actions were wilful in not permitting the visit. It was the first visit after a long and protracted process. It was important, and in my view, C.H. did not treat it as such by allowing A. to skip. C.H. has not provided the Court with any basis to determine she acted in good faith on that occasion. I find on the evidence C.H. did not facilitate a visit that was ordered.
23Paragraph 5 of the Order commits the parties to maximize the time A. spends with each party consistent with her best interests. There is nothing in the material that demonstrates how missing Visit 1 was in A.'s best interests.
24I appreciate a finding of contempt is a remedy of last resort in family law matters. In my view, there is now no other adequate remedy other than making such a declaration available to M.N. in respect of Missed Visit 1. However, I do not intend to award any further remedy, other than a costs order, in respect of this particular finding for reasons I will discuss below following my disposition concerning the other two missed visits.
Missed Visit 2
25On the basis of the evidence, I find that C.H. allowed Ms. Fournier to become unnecessarily involved in the interactions between A. and M.N. on October 3, 2024. I can find no reasonable basis in the material for why this person had to be there. I also find that her actions of filming M.N. in the presence of A. had no reasonable basis. In fact, it was an aggressive action in a family law context. People pulling out their phones and pointing them at others to digitally capture the situation may be appropriate in some circumstances. In this case I can find no reason for Ms. Fournier to have been there filming events other than to antagonize M.N., given Ms. Fournier's previous involvement in the litigation. It certainly was not in A.'s best interest to witness this kind of aggressive adult behaviour by Ms. Fournier.
26However, as apparently some attempt was made by C.H. to connect A. with M.N. on the afternoon of October 3, 2024, in my view, C.H.'s actions on that date fall just short of being contemptuous of the provisions of paragraph 10 (b) and 10 (i) of the Order.
27There will be no finding of contempt in respect of Missed Visit 2.
Missed Visit 3
28I find C.H. was in contempt of the provisions of the Order at paragraph 10 (b) in regard to Missed Visit 3. M.N. has proven beyond a reasonable doubt he did not have a second visit. C.H.'s material does not explain why she did not facilitate the Thanksgiving weekend visit. I am left with M.N.'s evidence alone. I find C.H. did not facilitate a second visit in addition to that that occurred on October 10, 2024, as was contemplated by paragraph 10 (b). I accept M.N.'s explanation that A. had told her mother she did not want to go. In my view, C.H. should have taken more steps to encourage her to go as she had been ordered to do.
29Practically this was to be the second actual visit after a long and protracted process. It was important. In my view, C.H. did not treat it as such by allowing A. to skip. C.H. has not provided the Court with any basis to determine she acted in good faith on that occasion. I find on the evidence C.H. did not facilitate a visit that was ordered. I find her acts were willful and done in full knowledge of her obligations pursuant to the Order to facilitate a second visit in the period October 6 to October 19, 2024, and on the Thanksgiving Day weekend.
30Like Missed Visit 1, I will not be providing any further remedy other than costs regarding this finding of contempt for reasons I will now explain.
No Stage 2
31Once a court makes an order for contempt it can invite the parties to make further submissions as to penalty or steps that the contemnor can make to purge their contempt. In my view, this would be an unnecessary waste of resources for the parties and the court in the circumstances of this case.
32I have declared C.H. to be in contempt of the Order so as to emphasize the Order cannot be ignored or disobeyed. Her actions in respect of Missed Visit 1 and 3 were clearly of this nature. It was serious as it occurred very shortly after she agreed to terms after protracted litigation. This kind of conduct occurring when it did indicate to me C.H. was not taking into account A.'s best interest in having ongoing contact with M.N.. She did not explain why she did what she did. In my view, there is no other remedy, other than to declare her in contempt, that will appropriately demonstrate to her the gravity of her actions or lack of actions.
33At the same time, the case has gone on. The parties have appeared to try to work towards more regular parenting time. Nieckarz J. has been very involved in the matter. Nieckarz J. is an experienced jurist with a deep background in family law. The tenor of her concerns that a spirit of cooperation between these parents is not readily manifesting itself in their ongoing actions is evident in her recent endorsements. However, these parties cannot continue to act in a manner that sees them returning to court over and over. They have had an additional three case conferences since this motion was commenced. Progress has occurred. I am of the view no further interventions of the court are necessary in respect of events or behaviours from the date of the Order until now.
34While I have found contempt on the part of C.H., I did not see M.N.'s action in so quickly jumping to file this motion as the most prudent action in the circumstances of the history of this family. The thrust of this judgment is to demonstrate to C.H. that she cannot so readily allow A. to dictate how the two adults in her life are going to act. I can see no other remedy that will support that very important point in regard to the relatively narrow issues that were before the court on this motion. Correspondingly, this judgment is not to be interpreted by M.N. as green light to maintain his practice of filing motions for contempt when he perceives that things don't completely go his way.
35I have written remarks which are designed to make C.H. and M.N. think more about their future actions regarding each other and A.. I trust this should be enough to ensure that the behaviours that led me to find C.H. in contempt for events of about six months ago will not happen again. For M.N., I reiterate the need for him to be flexible and consider how A. must feel in this situation where her parents are so bitterly opposed to each other. The same goes for C.H..
36To that end, I order that neither party shall bring any further motions for contempt for any actions or inactions up to and including April 30, 2025. In the event either party wishes to seek a finding of contempt against the other on motion, they must obtain leave of the Court to do so. Leave can be sought on a case conference on 30 clear days notice to the opposite party. In the case conference brief requesting leave, the moving party shall prepare a chart setting out the particulars of the alleged non-compliance, to which portion of the Order the alleged contempt relates and the remedy sought. I thought that the judgment in J.S. v S.C. cited above at paragraph 7 provides an excellent template for such a chart. A copy of this judgment shall be brought to the attention of the justice hearing any further matters with regard to allegations of contempt in this matter.
37I am not encouraging the parties to continue this practice of constant motions against each other.
38Rule 31(5) (f) of the Rules provides a court many order a person found in contempt to pay costs in an amount decided by the Court. At the conclusion of the motion both counsel indicated costs on a partial indemnity scale of between $3,500.00 to $4,000.00 would be appropriate to award to a successful party on this motion. In my view, M.N. was only partially successful. M.N.'s motion materials went far beyond what was required to prove contempt for the period for which he was entitled to seek that remedy.
39Accordingly, I order that C.H. pay M.N. $2,000.00 as costs of this motion as a partial remedy for the contempt found and in the ordinary course of the court awarding costs to a successful party on motion. The $2,000.00 is to be paid on or before July 3, 2025. Any other relief for alleged contempt sought in the notice of motion dated October 24, 2024, is dismissed.
"original signed by" The Hon. Mr. Justice F.B. Fitzpatrick
Released: May 5, 2025