



COURT OF APPEAL FOR ONTARIO

CITATION: J.D.M. v. T.L.L.M., 2020 ONCA 734

DATE: 20201119

DOCKET: C66885

Fairburn A.C.J.O., Pepall and
    Roberts JJ.A.

BETWEEN

J.D.M.

Applicant (Respondent in Appeal)

and

T.L.L.M.

Respondent (Appellant)

Michael H. Tweyman, for the appellant

J. Leigh Daboll, for the respondent

Kathleen Bingham, for the Office of the
    Childrens Lawyer

Heard and released orally:
    November 12, 2020 by video conference

On appeal from the order of Justice R.
    J. Harper of the Superior Court of Justice, dated April 8, 2019.

REASONS FOR DECISION

[1]

The appellant was found in contempt of a family
    law order. That order was settled on consent on June 19, 2017. Paragraph 7(f)
    of the order reads as follows:

The parties shall enroll the children in
    counselling and both parents shall participate in the counselling as directed 
    by the counsellor. The parties shall advise the counsellor that the goal of
    counselling is to facilitate effective co-parenting and communication between
    the girls and both parents and that any issues can be resolved directly with
    the parent involved.

[2]

The motion judge concluded that the appellant
    was in contempt of this paragraph. He found beyond a reasonable doubt that the
    appellant did not facilitate the intended counselling and that her failure to
    do so was wilful in nature, in the sense that she wilfully put multiple road
    blocks in the way of getting the prescribed counselling.

[3]

The appellant made four broad submissions
    respecting alleged errors made by the motion judge.

[4]

First, she argues that the motion judge made
    palpable and overriding errors that were material to the contempt finding. We
    see no such errors. While the motion judge was incorrect when he said that out
    of the 20 investigations conducted by the authorities into the familys
    situation, the mother admitted to being responsible for at least 16 of those
    investigations, it matters not. The reality is that, while the appellant may
    not have been responsible for 16, she was responsible for a great many of those
    investigations, none of which ever resulted in any protection concerns or
    criminal charges.

[5]

The motion judges decision did not turn on the
    precise number of investigations the mother was responsible for. Rather, it
    turned on the entire contextual picture, much of which extended well beyond
    those investigations. The record before the motion judge, as set out in his
    reasons, supports his conclusion.

[6]

The appellant also argued that the motion judge
    erred in finding that the appellant breached para. 7(f) of the order. In
    particular, the appellant says that the clause is open to different
    interpretations, including that the parties could each pursue different
    counsellors for the children. As the appellant was getting counselling for the
    children, she said that this technically fell into compliance with the order.

[7]

We do not agree.

[8]

The appellants argument defies any reasonable
    interpretation of para. 7(f). It is entirely clear, addressing as it does the
    term counsellor in the singular.

[9]

Even if there had been any ambiguity in the
    appellants mind, which we do not accept, the parties appeared before a judge
    in December 2018 and an order was made as to which counsellor would be used for
    purposes of meeting the obligations under para. 7(f). That order was reinforced
    just over a month later. It is against that context that the motion judge found
    that the mother took active steps to obstruct the process. This was a finding
    that was available to the motion judge on the record.

[10]

The appellant also argues that the motion judge
    erred in concluding that the wilful nature of the appellants conduct had been
    proven beyond a reasonable doubt.

[11]

This argument is predicated on whether the
    counsellor was actually available to conduct the counselling. The appellant
    argues that the counsellor would not get involved with the family because there
    were outstanding custody issues. She contends that it was incumbent on the
    respondent to call the counsellor as a witness to resolve this issue.

[12]

The counsellors terms of reference make clear
    that she would not become involved in the event that custody issues were still
    outstanding.

[13]

The respondent denies that there were any such
    issues outstanding. This is evident from the court record.

[14]

The motion judge made findings of fact,
    including that the mother wilfully obstructed the counselling from the start.
    The record supports that finding of fact. It is not for this court to revisit
    that issue by reweighing the evidence.

[15]

The appellant also says that she was ambushed at
    trial by an email that the counsellor sent to the respondent concerning her
    availability to assist the family. While it would have been preferable to
    produce the email earlier in the proceedings, the reasons indicate that this
    email was not material to the motion judges determination of contempt. Nor was
    it used for credibility purposes. Rather, read in context, the motion judges
    reasons demonstrate that the email was used only for purposes of acknowledging
    that the counsellor remained available to assist the family.

[16]

In the end, the motion judge clearly and
    correctly stated the law relating to contempt. He understood that this power
    should only be invoked in family law proceedings in rare circumstances. He saw
    this case as one of those rare occasions.

[17]

The appeal is dismissed.

[18]

Costs will be granted in the amount of $5,000, inclusive
    of disbursements and relevant taxes.

Fairburn A.C.J.O.

S.E. Pepall J.A.

L.B. Roberts J.A.


