



COURT OF APPEAL FOR ONTARIO

CITATION: Chong v. Donnelly, 2019 ONCA 799

DATE: 20191007

DOCKET: C67021

Sharpe, Hourigan and Jamal JJ.A.

BETWEEN

Ting Mei Chong

Applicant
(Respondent)

and

Timothy John Donnelly

Respondent
(Appellant)

Christopher J. Haber, for the appellant

Ting Mei Chong, self-represented

Heard: October 3, 2019

On appeal from the order of Justice Judy
    A. Fowler Byrne of the Superior Court of Justice, dated May 1, 2019.

REASONS FOR DECISION

[1]

The issue in this appeal is whether the motion
    judge erred in finding the appellant in contempt of a court order that governed
    the parties parenting arrangements in the context of a bitter matrimonial
    dispute.

[2]

The relevant term of the order directed that the
    childrens transitions between the parties were to occur on school days and
    non-school days as follows:

Transitions on a school day shall take place
    at the school with the parent whose time with the children is ending delivering
    the children to the school and the parent with whom the children will be with
    picking up the children. If not a school day, the parent who has the children
    will deliver the children to the other parents residence at 8:00 a.m.

[3]

On a school day when the children were to be picked
    up by the respondent, the appellant advised the respondent by text message that
    he would pick up the children after school in order to feed them, because he
    believed the respondent could not do so, and that he would then return them to
    school to attend school events that evening. The respondent advised the
    appellant not to do so because the children would be in after-school care and
    she had arranged for their dinner. The appellant nevertheless picked up the
    children, fed them dinner, and returned them to school.

[4]

The motion judge found the appellant in contempt
    of the order but dismissed the appellants motion that the respondent was also
    in contempt for other alleged breaches of the order. The latter finding was not
    appealed. We understand that the appellants motion for contempt was brought
    first and then the respondent responded with her own motion for contempt.

[5]

In finding the appellant in contempt, the motion
    judge referred to two leading cases on civil contempt,
Carey v. Laiken
,
    2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35 and
Greenberg v. Nowack
,
    2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26, which set out the three
    elements that must be proved beyond a reasonable doubt: (1) the order alleged
    to have been breached must state clearly and unequivocally what should and
    should not be done; (2) the party alleged to have breached the order must have
    actual knowledge of it; and (3) the party allegedly in breach must have
    intentionally done the act that the order prohibits or intentionally failed to
    do the act that the order compels.

[6]

The motion judge found that these three elements
    were established beyond a reasonable doubt: the order was clear, the appellant
    had actual knowledge of it, and he intentionally did the act that the order
    prohibited  he picked up the children from school on a day when he was not
    entitled to do so. The motion judge found the appellant in contempt, but imposed
    no penalty and awarded no costs. She did, however, encourage the parties to see
    a family mediator.

[7]

We see no basis to interfere with the motion
    judges finding that appellant had breached the terms of the order and that the
    three elements of civil contempt were established.

[8]

Having found that the three elements for civil
    contempt were established, however, the motion judge erred in law by failing to
    consider whether she should exercise her discretion to decline to make a
    finding of contempt. It is this last, crucial step that is missing from the
    motion judges analysis.

[9]

As the Supreme Court of Canada stated in
Carey
,
    at para. 36, [t]he contempt power is discretionary and courts have
    consistently discouraged its routine use to obtain compliance with court
    orders. This power should be exercised cautiously and with great restraint
    as an enforcement power of last rather than first resort. The Court added, at
    para. 37, that a judge may properly exercise his or her discretion to decline
    to impose a contempt finding where it would work an injustice in the
    circumstances of the case.

[10]

There is no indication that the motion judge
    considered whether a finding of contempt was a last resort or whether she
    considered any alternatives to such a finding. Such alternatives might have included
    the court finding that the appellant had breached the order, while admonishing
    him that, despite his apparently good intentions in ensuring his children were
    fed, he should respect the respondents wishes when the children were with her
    and comply with the order.

[11]

Nor does it appear that the motion judge
    considered the best interests of the children, which this court has stated is
    the paramount consideration when the issue raised in the contempt motion
    concerns access to children
: Ruffolo v. David,
2019 ONCA 385, 25
    R.F.L. (8th) 144, at para. 19. As this court stated in
Ruffolo
, it is
    in the best interests of the children to encourage professional assistance as
    an alternative to making a finding of contempt too readily. Indeed, here, the
    motion judge herself encouraged the parties to continue working with a family
    mediator.

[12]

In our view, the motion judges failure to
    consider these discretionary factors before making a finding of contempt was an
    error of law. It is especially important for courts to consider the discretion to
    impose a contempt finding in high-conflict matrimonial cases such as this one.
    We note, in fairness to the motion judge, that she refused to impose any
    penalty but that still left the appellant with the opprobrium of a contempt
    order. We are persuaded that while it was proper to find that the appellant had
    breached the order, it was not in the interests of justice in the context of
    this case to add a formal order of contempt.

[13]

The appeal is allowed. There will be no order as
    to costs.

[14]

We would urge both parties to attempt to resolve
    their parenting arrangements amicably in the future. The contempt motions they
    each brought reflected poorly on them both and are not in the best interests of
    their children.

Robert J. Sharpe J.A.

C.W. Hourigan J.A.

M. Jamal J.A.


