



COURT OF APPEAL FOR ONTARIO

CITATION: Rego v.
    Santos, 2015 ONCA 540


DATE: 20150721

DOCKET: C58282

Hoy A.C.J.O., Epstein and Huscroft JJ.A.

BETWEEN

Victor Rego

Applicant

Respondent in Appeal

and

Claudia Santos

Respondent

Appellant

Milena Celap, for the appellant Claudia Santos

Laughlin J. Campbell and Dilmini Walaliyadde, for the
    respondent Victor Rego

Heard:  July 9, 2015

On appeal from the order of Justice John R. Sproat of the
    Superior Court of Justice, dated November 20, 2013.

ENDORSEMENT

[1]

The appellant mother and respondent father are the parents of a five year-old
    daughter. They have been involved in numerous custody and access proceedings
    since the first order was made granting access to the respondent on December
    15, 2010.

[2]

The respondent brought a contempt motion on October 26, 2012, alleging
    the appellant failed to comply with the terms of a temporary access order dated
    August 7, 2012.  The motion judge found the appellant in contempt and ordered
    that she pay a fine of $5,000 to the respondent along with costs of $10,000.
    These amounts were to be set off against the respondents child support
    arrears, with any balance to be paid by the appellant by August 31, 2013, after
    which the balance would be set off against the respondents ongoing child
    support obligation at the rate of $200 per month commencing September 1, 2013.

[3]

An appeal to the Superior Court of Justice was dismissed by Sproat J. on
    November 20, 2013. This is the second appeal of the finding of contempt.

[4]

The appellant appeals the decision of Sproat J. on the basis that the
    motion judge erred by:

(1)     finding her in
    contempt of the access order;

(2)

concluding that contempt was
    an appropriate remedy in the                       circumstances of this case;

(3)

ordering her to pay a fine of
    $5,000 directly to the                      respondent;

(4)

setting-off the costs payable
    to the respondent against past and                    future child support
    obligations;

(5)

failing to allow her to purge
    the contempt.

[5]

We reject these arguments.

[6]

As Sproat J. noted, the motion judge correctly set out the three-part
    test that must be met in order for a finding of contempt to be made (
G.(N.)
    c. Services aux enfants & adultes de Prescott-Russell
(2006), 82 O.R.
    (3d) 686 (C.A.) at para. 7):

(i)
the
    order that was breached must state clearly and equivocally what should and
    should not be done;

(ii)
the
    party who disobeys the order must do so deliberately and willfully; and

(iii)
the
    evidence must show contempt beyond a reasonable doubt.

[7]

We agree with Sproat J. that the motion judge applied the test properly.

[8]

The access order clearly and unequivocally sets out the dates and times
    of the access visits. The order provides sufficient clarity for the appellant
    to understand the allegations giving rise to the contempt motion.

[9]

The motion judge considered the evidence as a whole, including the fact
    that only two of thirteen scheduled unsupervised visits had occurred, and did
    not accept the appellant's explanations for the cancelled visits. We note that
    the parties were represented by counsel and chose to proceed without
    cross-examination on the affidavits. The motion judge found it inconceivable
    that the appellant could not facilitate the access order and inferred
    deliberate and wilful disobedience beyond a reasonable doubt.

[10]

As
    Sproat J. concluded, the evidence justified the motion judges finding of
    contempt beyond a reasonable doubt.

[11]

The
    appellant argued in her factum that the motion judge erred in ordering that her
    fine be paid directly to the respondent but abandoned this position at the oral
    hearing. This was appropriate, as Rule 31(5) of the
Family Law Rules
,
    O.Reg. 439/07 clearly provides that a court may order payment of a penalty to a
    party
.
As to the quantum of the
    penalty, we see no error in the appeal judges conclusion that the penalty
    imposed by the motion judge was fairly modest in all the circumstances.
[1]


[12]

The
    motion judge explained her decision to set-off costs payable to the respondent
    against past and future child support obligations as follows:

[The appellant] delayed paying the retainer for the s. 30
    assessment as ordered, thus delaying the investigation into what custody/access
    arrangement would be in this childs best interests, and she has been found in
    contempt of an access order causing the child to be deprived of most of the
    unsupervised access ordered from July to October 2012. If her costs obligation
    is not treated seriously it will send the message that she can disregard the
    court orders with no repercussions.

While it is true that the child will be affected by the set off
    it is also true that the child will be affected if [the appellant] continues to
    interfere with the childs access to [the respondent]. Furthermore the set off
    can be structured to ensure the child does not suffer unduly adverse economic
    consequences, given that [the appellants] current income is about $54,000 and [the
    respondent] will be paying child support of $781 per month plus contributing
    proportionately to the childs daycare expenses.

[13]

The
    decision to set-off costs payable to the respondent against the respondents
    support obligations is unusual. As the Supreme Court noted in
D.B.S. v.
    S.R.G.
[2006] 2 SCR 231 at para. 60, child support is the right of the
    child. However, the motion judge clearly made the order with the child's best
    interests in mind. She considered the potential financial effect on the child and
    determined, not unreasonably, that an incentive for the mother to facilitate
    access by the father was of greater overall benefit to the child. Moreover, the
    motion judge was sensitive to the concern that the child should not suffer
    undue economic consequences and structured the set-off accordingly. Sproat J.
    did not address the matter, but we see no error in the motion judge's decision
    to allow the set-off in these circumstances.

[14]

Finally,
    we agree with Sproat J. that there was no error in the motion judges decision
    not to bifurcate the liability and penalty phases of the contempt motion in
    order to afford the appellant an opportunity to purge her contempt. Although
    there is good reason to bifurcate contempt proceedings (
Boyd v. Carleton
    Condominium Corporation
145, 214 ONCA 574), given the appellants pattern
    of non-compliance and the consequences to the respondent and their daughter, it
    was open to the motion judge to impose the penalty immediately.

[15]

The
    appeal is dismissed.

[16]

The
    respondent is entitled to his costs of the appeal.  In our view $7,000,
    inclusive of taxes and disbursements, is appropriate in the circumstances of
    this case.

Alexandra
    Hoy A.C.J.O.

Gloria
    Epstein J.A.

Grant
    Huscroft J.A.





[1]
This is the second time the respondent has brought contempt proceedings. The
    record includes an endorsement by Maresca J. indicating that the appellant was
    found in contempt of prior access orders, but no penalty was imposed because
    the appellant complied with the order. The record did not include the contempt
    order, however, and there is some confusion as to the nature of the prior
    proceeding. Nothing in this appeal turns on the matter.


