



COURT OF APPEAL FOR ONTARIO

CITATION: Balice v. Serkeyn, 2016 ONCA 372

DATE: 20160517

DOCKET: C61354

Rouleau, Pardu and Benotto JJ.A.

BETWEEN

Claudio Balice

Applicant (Respondent)

and

Joanne Serkeyn

Respondent (Appellant)

Stanley P. Jaskot, for the appellant

Mitchell B. Rosenblatt, for the respondent

Heard: May 4, 2016

On appeal from the order of Justice Cheryl Lafrenière of
    the Superior Court of Justice, dated November 3, 2015.

ENDORSEMENT

[1]

This appeal concerns an order made following a contempt finding against
    the appellant. Among other things, the motion judges order made significant
    changes to the parties access schedule to their two children. Those changes
    were based on her conclusion that 122 days of access should be transferred to
    the father over a two-year period to make up for the mothers contempt. For the
    reasons that follow, we are allowing the appeal.

Background

[2]

The parties are the parents of two children, now aged 12 and 14. Their
    parenting arrangements were the subject of an order by McLaren J. on January 3,
    2013. On April 17, 2014, the respondent moved for a finding of contempt against
    the appellant for not complying with numerous terms of that order. The motion judge
    agreed and found the appellant in contempt on January 26, 2015. This finding is
    not in dispute on appeal.

[3]

A further hearing was set for July 13, 2015, and it is the disposition
    of that hearing that is being appealed. The parties disagree about whether the
    July 13 hearing should be characterized as one in which the appellants purging
    of her contempt was considered, as the respondent describes it, or as a penalty
    hearing, as the appellant argues.

[4]

The motion judge released her decision on November 3, 2015. She found
    that the appellant had not purged her contempt, and accepted the respondents
    submission that from January 3, 2013 to July 13, 2015 the respondent had missed
    122 days of access. The motion judge concluded that an order requiring the
    appellant to purge her contempt by transferring time with the children from the
    appellant to the respondent was in the best interests of the children. This was
    appropriate, in her view, because the mother has enjoyed more time with the
    children than the [McLaren] order provided due to the conflict in the parties
    work schedule.

[5]

This appears to be a reference to the provisions in the McLaren order
    that the access schedule was to be constructed based on the appellants work
    schedule (she is a police officer). Because the balance of the days with the
    children would not necessarily fit well with the respondents work schedule (he
    is a firefighter), the order provided for a mechanism whereby the appellant was
    to work with the respondent to ensure that there would be an adjustment for the
    missed days. This clearly did not occur.

[6]

The motion judges order provided, among other things:

a)

that the appellant was to purge her contempt by giving the respondent
    more time with the children than provided in the McLaren order to make up for
    the time he has missed;

b)

that this make up time was to be made up by the appellant giving the
    respondent between three to five additional overnights each month beyond what
    was provided for in the McLaren order, and giving the respondent some of the
    time allocated to the appellant during the childrens school break at
    Christmas, during the March break and during the summer school break;

c)

that commencing December 1, 2015, the access schedule was to be based on
    the schedule of the respondent and not, as provided in the McLaren order, based
    on the appellants work schedule; and

d)

that the parties were to return before the motion judge every six months
    during the two years within which the appellant had to purge her contempt.

[7]

The appellant appeals on various grounds including that the motion judge
    erred by:

a)

failing to allow cross-examination on the affidavits at the July hearing;

b)

finding that the appellant had failed to purge her contempt;

c)

ordering an increase in the respondents access and adjusting the schedule
    set out in the McLaren order without having considered the best interests of
    the children; and

d)

failing to consider proper sentencing principles in imposing the penalty
    for the contempt.

[8]

The appellant also seeks leave to appeal the motion judges costs award
    and to introduce fresh evidence. The proposed fresh evidence sets out events
    that have occurred since the July 13 attendance and contains expert evidence on
    whether the November 3 order is in the best interests of the children and
    evidence of whether it was consistent with the childrens views and
    preferences.

[9]

For his part, the respondent maintains that the order was properly made.
    He also raises a jurisdictional issue, arguing that the order under appeal is
    an interlocutory order, whose appeal lies to the Divisional Court, with leave.

Discussion

[10]

In our view, the appeal ought to be allowed.

[11]

It is unclear from the motion judges reasons and the terms of the order
    whether that order was intended as a penalty for the appellants contempt, a
    variation of the custody order, or a stand-alone order delaying the penalty
    phase and specifying what the appellant must do to purge her contempt and
    ordering it to be done within 24 months.

[12]

However the order is characterized, it effects substantial changes to the
    custodial arrangements of the children. It ought not to have been made without
    evidence of the childrens current circumstances, and careful consideration of
    that evidence, to determine what was in their best interest. The motion judges
    order that, in effect, the appellant purge her contempt by transferring 122
    days of her custodial access to the respondent in the ensuing two years simply
    cannot stand on the record before us.

[13]

The McLaren order provided for substantial time being spent with each
    parent and established a schedule found to be in the best interests of the
    children. It also provided a mechanism whereby missed days could be made up.

[14]

The amount of make-up ordered by the motion judge, however, is well
    beyond what could have been reasonably contemplated by the McLaren order. It
    significantly alters the balance established by that order for the two parents
    contact with their children for two years.

[15]

The motion judges reasons contain only two references explaining why
    this change was in the best interests of the children: first, a statement that
    the McLaren order was in the best interests of the children at the time it was
    made and continues to be in the best interests of the children; and, second,
    the statement referenced earlier in these reasons to the effect that
    transferring 122 days was in the best interests of the children because the
    appellant had enjoyed more time with the children over the previous
    two-and-a-half years.

[16]

There is no reference to the evidence led at the hearing on the childrens
    wishes nor any reference to the childrens current circumstances. The decision
    appears to be based simply on the premise that each day missed by the
    respondent must be made up within the following 24 months, without considering
    the impact that such a large shift would have on the children.

[17]

Whether make up time is appropriate in any given case, and in what
    amount, must be based on a determination of the best interests of the children
    that takes into account all of the relevant circumstances. The relevant
    circumstances will invariably include the magnitude of the make up time sought
    and can, in the appropriate case, include considerations such as the wishes of
    the children and concerns about alienation of one of the parents.

[18]

The motion judge found that the appellant was attempting to undermine
    the respondents relationship with the children. It may be that the childrens
    best interests require more time with the respondent to offset her efforts and
    preserve his relationship with his children. But a more detailed examination of
    the impact of 122 days make up time is required to assess the need for such an
    order and its effect on the childrens best interests.

[19]

Because we are allowing the appeal and directing a new hearing based on
    inadequate consideration of the best interests of the children, we see no need
    to deal with the other grounds of appeal, nor is it necessary to consider the
    appellants fresh evidence application. We note, however, that this dispute has
    been ongoing for some time. It is by both parents working cooperatively that
    the best interests of the children are achieved.

Disposition

[20]

Accordingly, the motion judges order is set aside and the matter is
    remitted for a fresh hearing. If either party seeks a variance of the McLaren
    order, it may well be more efficient, subject to the motion judges direction,
    to have that motion to change made returnable at the same time as the fresh
    hearing ordered herein.

[21]

As the matter is being remitted for a fresh hearing, we also set aside
    the costs order. In doing so, we should not, however, be taken to disagree with
    the motion judges exercise of discretion in setting the amount of costs, given
    the finding of contempt on the appellants part.

[22]

For the appeal itself, we consider it appropriate to make no costs order.

Paul
    Rouleau J.A.

G.
    Pardu J.A.

M.L. Benotto J.A.


