



COURT OF APPEAL FOR ONTARIO

CITATION: Vigneault v. Massey, 2014 ONCA 244

DATE: 20140401

DOCKET: M43236 & C57244

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Angela Vigneault

Applicant (Respondent on Appeal)

and

Stephen Massey

Respondent (Appellant on Appeal)

Gordon S. Campbell, for the appellant

Yanik S. Guilbault, for the respondent

Heard: February 28, 2014

On appeal from the orders of Justice
Maria
    T. Linhares de Sousa
of the Superior Court of Justice, dated March 11,
    2013 and May 15, 2013.

ENDORSEMENT

[1]

The father, Stephen Massey, appeals a March 11, 2013 order (the
    Contempt Order) finding him in contempt of court and a May 15, 2013 order
    imposing sanctions as a result of that finding. The respondent mother moves to
    quash his appeal of the Contempt Order on the basis that he served his notice
    of appeal out of time.

The Appeals

[2]

The motion judge made the following findings of contempt in the Contempt
    Order :

1. By using his mother as a caregiver for his children after
    school when his work prevents him from caring for them, and not Ms. Laframboise
    as the childrens regular caregiver, the Respondent, Stephen Massey, is in
    breach of the court order dated June 13, 2012 and in contempt of this court.

2. To be clear, the Respondent, Stephen Massey, is not found in
    contempt of the court order dated June 13, 2012, for the non-payment of the
    extraordinary child care expenses. He is being found in contempt because his
    non-payment of those expenses is just one aspect of the evidence leading to the
    finding that his intention is to frustrate the due execution of paragraph 26 of
    the court order dated June 13, 2012. The Respondent, Stephen Massey, has
    behaved in a deliberate and wilful fashion and has not provided any evidence to
    establish on a balance of probabilities as to having any lawful excuse to
    wilfully disobey the court order dated June 13, 2012 other that he does not
    like the caregiver.

[3]

The mother alleged that the father was refusing to comply with paragraph
    26 of a divorce order dated June 13, 2012:

26. THIS COURT ORDERS THAT the children shall continue to
    attend their regular daycare at 13 Wiltshire Circle, Ottawa, Ontario with
    Astrid Laframboise as long as she agrees to continue in that function or as the
    parties can otherwise agree. Pick up and drop off of the children by either
    parent shall take place at the daycare providers home or at school at the end
    of the school day, and in case of Friday transfer of the children, at their
    then residence.

[4]

The divorce order was made following an earlier trial before the motion
    judge at which the issue of whether Astrid Laframboise should continue to
    provide daycare was vigorously contested.

[5]

The Notice of Motion initiating contempt proceedings specified that the
    mother sought a finding that the father was in contempt because:

1. [You] [h]ave failed to pay your equal share of the special
    expenses incurred for the benefit of you children since the date of Madam
    Justice de Sousa judgement issued June 13, 2012.

2. [You] [h]ave failed to sign the daycare providers contract
    for her services for the period of August 31, 2012 through to the end of August
    2013; and,

3. [You] [h]ave failed to pay the daycare provider for her
    services rendered in September and October 2012.

[6]

The motion judge and the parties all recognized that contempt was not
    available to sanction failure to comply with a payment order:
Family Law
    Rules
, O. Reg. 114/99, r. 31(1);
Forrest v. Lacroix Estate
(2000),
    48 O.R. (3d) 619 (C.A.), at paras. 68-69.

[7]

The daycare providers contract in issue is a two page document
    initially signed August 20, 2007 by the mother and Astrid Laframboise. It
    provides for child care from 7:15 a.m. to 5:00 or 5:30 p.m. from Monday to
    Friday. There are handwritten notations renewing the arrangement for each of the
    school years from 2009 to 2012, which appear to have been initialed by the
    mother and the child care provider.

[8]

It does not appear that either the mother or father signed the contract
    for the period of August 31, 2012 to the end of August 2013, the subject of the
    contempt motion.

[9]

Neither parent used the daycare provider when he or she was personally
    available to look after the children. The dispute arose when the father
    arranged his work schedule so that he could pick up the children from school
    rather than Ms. Laframboise, and refused to pay one half of the daycare
    expenses.

[10]

The
    contempt finding was limited to the use by the father of his mother to care for
    the children instead of Ms. Laframboise when he was personally not available. The
    motion judge relied upon the non-payment of the daycare expenses as evidence
    that the fathers intention was to frustrate paragraph 26 of the divorce order.

[11]

Civil
    contempt of court is a quasi-criminal proceeding. The following elements must
    be proven beyond a reasonable doubt:

1)

The order that was breached must state clearly and unequivocally what
    should and should not be done.

2)

The party who disobeys the order must do so deliberately and wilfully.

3)

The breach of the order must be proven beyond a reasonable doubt.

See
Prescott-Russell
    Services for Children and Adults v. G. (N.)
(2006), 82 O.R. (3d) 686
    (C.A.), at paras. 26-27.

[12]

Given
    the quasi-criminal nature of the contempt proceedings and the potential risk of
    imprisonment, the motion judge erred by making findings of contempt extending
    beyond the specific non-monetary breach alleged, the fathers failure to sign
    the daycare contract. This is sufficient to dispose of the appeal and the other
    grounds alleged need not be addressed.

[13]

We
    observe, however, that the divorce order did not clearly and unequivocally
    state that unpaid family members could not pick up the children after school.
    Nor is it by any means clear that the father would have been found in contempt
    solely upon his failure to sign the daycare contract. The father had never in
    the past been required to sign the contract with the daycare provider, and the
    divorce order did not require the father to sign the daycare contract.

[14]

In
    the circumstances, the better course would have been for the mother to move for
    directions, rather than moving immediately for a finding of contempt.

Motion to quash

[15]

In
    response to the mothers motion to quash, the father asks this court to extend
    the time to serve his notice of appeal of the Contempt Order. The father
    expressed in writing his intention to appeal the finding of contempt within
    days of the finding, but received conflicting legal advice as to whether the notice
    of appeal had to be served within 30 days of that finding, or within 30 days of
    the sentence, according to rule 61.04(1) of the
Rules of Civil Procedure
.
    He served the notice of appeal on June 13, 2013 - within 30 days of the May 15,
    2013 order imposing sanctions and costs. As we have determined above, there is
    merit to the appellants appeal of the Contempt Order. There is no evidence of
    any prejudice to the respondent as a result of the delay in service. If
    necessary, the time for service of the notice of appeal of the Contempt Order is
    extended to June 13, 2013.

[16]

The
    motion to quash the appeal of the Contempt Order as out of time is therefore
    dismissed.

Disposition

[17]

The
    appeal is accordingly allowed. The time for service of the notice of appeal of
    the Contempt Order is extended to June 13, 2013, and the Contempt Order and the
    order imposing sanctions and costs dated May 15, 2013 are set aside. In the
    circumstances, there shall be no costs below, or on this appeal.

Alexandra Hoy A.C.J.O.

K.
    van Rensburg J.A.

G.
    Pardu J.A.


