



COURT OF APPEAL FOR ONTARIO

CITATION: Chan v. Town, 2013 ONCA 478

DATE: 20130715

DOCKET: C56803

Feldman, Simmons & Juriansz JJ.A.

BETWEEN

Nancy Chan

Appellant/Applicant

and

Kenneth Town

Respondent/Respondent

Anita Kain and Lisa Katz, for the appellant

Peter M. Callahan, for the respondent

Heard and released orally: July 5, 2013

On appeal from the order of Justice Antonio Skarica of
    the Superior Court of Justice, dated March 20, 2013.

ENDORSEMENT

[1]

The appellant is the mother of two girls, M. now age 16 and J. age 13.
    The appellant and respondent were former common law spouses now living separate
    and apart. The mother was found in contempt of the order of Justice Murray,
    which was a final order dealing with custody, access, support, and all issues
    regarding the parenting of the children.

[2]

The particular issue was the fathers access at March break. The motion
    judge found that the mother had manipulated M. into believing she could go on a
    school trip to Europe during March break, so that when M. refused to go to Whistler
    with the father on March break, the motion judge found that was the mothers
    fault and therefore found her in contempt. He then ordered, as a remedy, that
    the custody and the decision-making authority for both girls, as set out in the
    order of Justice Murray, be changed to the father from joint custody, until
    August of this year.

[3]

In our view the motion judge made a number of errors, both in finding
    contempt and in the remedy. First, the notice of motion seeking contempt did
    not supply sufficient detail, including the particular impugned actions by the
    mother, to allow her to know the case she had to meet. In fact, although the allegation
    was that she breached s. 6(c) of the order of Justice Murray, the motion
    judges fundamental finding was that she breached s. 8, which was not alleged.

[4]

Second, the motion judge failed to consider all of the evidence before
    him, because he limited himself to two affidavits filed. In so doing he ignored
    one affidavit of the mother. This was an error where he was making a finding of
    proof of contempt beyond a reasonable doubt. The excluded affidavit could potentially
    have raised a reasonable doubt.

[5]

Third, and most important, in our view the record does not support the
    finding that the trial judge made. The affidavits were conflicting and no
    cross-examinations were held. Having regard to M.s own conversations in the
    record about her wishes, it was unreasonable on that record for the motion
    judge to find, beyond a reasonable doubt, that it was solely the mothers
    manipulation that led her to want to go on a school trip to Europe during March
    break and to refuse to go with her father on the Whistler vacation.

[6]

We therefore set aside the finding of contempt. It is nevertheless
    necessary to state that the remedy imposed by the motion judge was not an
    available remedy under rule 31(5) of the
Family Law Rules
. Custodial
    arrangements of children cannot be used as a punishment for contempt. That is
    not to say that there may not be a circumstance where a change in custodial
    arrangements would be in the best interests of the child, but this is not that
    case. There was no motion to vary the final order for custody based on a
    material change in circumstances. The motion judges rationale was that he hoped
    that this would bring peace to warring parents, although he said he recognized
    that it could make matters worse. Finally, we do not see the basis on which the
    motion judge purported to retain jurisdiction, presumably to revisit in August
    the custodial arrangements.

[7]

The appeal is therefore allowed and the contempt order and the remedy
    are set aside. Costs of the appeal to the appellant in the amount of $15,000.00
    inclusive of disbursements and HST. Costs of $5,000.00 payable on the motion,
    now payable to the appellant by the respondent.

K.
    Feldman J.A.

J. M. Simmons J.A.

"R. Juriansz J.A."


