



COURT OF APPEAL FOR ONTARIO

CITATION: Ruffolo v. David, 2019 ONCA 385

DATE: 20190509

DOCKET: C65636

Doherty, Rouleau and Brown JJ.A.

BETWEEN

Franco Ruffolo

Applicant (Respondent)

and

Michelle Anne David

Respondent (Appellant)

Valois P. Ambrosino and A. Voss, for the appellant

Ravinder Sawhney, for the respondent

Heard: May 1, 2019

On appeal from the order of Justice Peter A. Douglas of
    the Superior Court of Justice, dated April 8, 2016.

REASONS FOR
    DECISION

[1]

The appellant appeals from the motion judges decision finding her in
    contempt of three access provisions. These access provisions were among a
    lengthy list of custody and access terms agreed to in minutes of settlement reached
    by the parties in January 2011. The minutes of settlement were incorporated
    into a court order in September 2015 and the respondent subsequently brought
    contempt proceedings against the appellant.

[2]

The motion is only one of many, in what has proven to be a very bitter
    and ongoing dispute. The parties were both representing themselves on the
    motion, which, together with the ongoing conflict between the parties, made the
    judges task in addressing this motion somewhat more difficult.

[3]

The respondent sought contempt findings with respect to 37 alleged
    breaches of 10 different access provisions of the order.

[4]

The motion judge dismissed almost all of the allegations. He did,
    however, make three findings of contempt, as follows:

1.

The appellant
    failed to provide the childrens summer activity schedule by May 1, from 2012
    to 2015;

2.

The appellant
    did not allow the respondent to have access to the children during the Easter
    weekend in 2015; and

3.

The appellant denied the respondent access to his son, Michael, on his birthday
    in October 2015.

Procedure to be followed

[5]

The finding of contempt was made on April 8, 2016. For reasons that are
    not apparent from the record, the court has not yet held the sanction hearing.
    Although the appeal from a finding of contempt is governed by the timelines set
    out in the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 (see
Kopaniak
    v. MacLellan
(2002)
, 212 D.L.R.
    (4th) 309 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 263), the
    appeal is usually not heard until the sanction has been imposed. The appeal of
    the sanction, if one was imposed and is under appeal, is then joined with the
    contempt appeal. As explained by Sharpe J.A. in
Sabourin and Sun Group of
    Companies v. Laiken
, 2011 ONCA 757, 286 O.A.C. 273, at para. 9, a contempt
    proceeding has only come to a final conclusion once the sanction has been
    imposed. Until the motion judge has disposed of the motion, including the
    sanction, the appeal court will not know how serious the motion judge
    considered the contempt to be or how the judge intended to bring about
    compliance or punish the contemnor. In the words of Sharpe J.A., [t]hese are
    elements integral to the nature and character of the contempt proceeding and
    essential to an appellate courts full appreciation of the disposition under
    appeal: at para. 9.

[6]

Despite the fact that the hearing in relation to sanction has not yet
    proceeded in this matter, the parties urge this court to hear the appeal. Since
    the finding of contempt is now over three years old and there is no indication
    that the sanction hearing will proceed soon, we conclude that it is appropriate
    for this court to exercise its discretion and hear the appeal in this instance.

[7]

Our decision to proceed with the appeal notwithstanding the sanction has
    not been imposed should not be taken as an indication that this is the
    appropriate or usual procedure.

[8]

In our view, civil contempt proceedings should generally not be heard
    until the sanction has been determined. Motion judges may, for good reason,
    decide to delay the sanction phase after a finding of contempt. In such a case,
    or for some other valid reason, a party found in contempt may consider that the
    interest of justice requires that the appeal of the contempt finding be heard
    even though the sanction has not yet been determined. In such a case, the
    appropriate procedure would be to bring a motion in this court seeking such
    relief.

[9]

We now turn to the merits of the appeal.

Merits of the appeal

[10]

The
    reasons of the motion judge are extremely short and his findings appear to be
    based, at least in part, on statements made by the appellant in the course of
    submissions, and not on any sworn testimony. The motion judge did not address
    important background in his decision, namely the appellants explanation that
    the respondent had not regularly exercised his access rights for years. This is
    significant, as there would not have been strict compliance with the terms of
    the order for much of the period between 2011 and 2015.

[11]

In
    our view, the record before the motion judge did not support his findings of
    contempt.

[12]

With
    respect to the first finding, the order required the appellant to provide the
    respondent with the childrens summer activity schedule by May 1 of each year.
    The respondent, who was entitled to two vacation weeks with his children each summer,
    was to advise the appellant by May 8 if he intended to take the children for a
    third week. He also had to identify the weeks he proposed to take the children.
    The motion judge found that the appellant was in contempt of the provision, as
    she failed to provide the schedule.

[13]

In
    her submissions, the appellant had explained that she did not schedule any
    summer activities until after May 8 to avoid any conflict with weeks that the
    respondent might choose. She therefore understood that, since no activities had
    been scheduled, there was no activity schedule to provide. The language of the provision
    in the order relating to the summer activity schedule is, in our view,
    ambiguous, and allows for the appellants interpretation.

[14]

Further,
    there is no suggestion in the materials that the respondent complied with his
    obligation to notify the appellant of his choice of weeks by May 8 each year,
    nor that he was unable to secure any particular week because the appellant had
    scheduled activities prior to May 8.

[15]

With
    respect to the second contempt finding, concerning Easter access, the motion
    judge stated that there was no evidence that the appellant complied with her
    obligations to make the children available on that weekend. This appears to be
    based on the fact that she did not confirm by email that she would in fact make
    the children available.

[16]

There
    is, however, no evidence that the appellant prevented the respondent from
    picking up the children at school in order to exercise his access rights on the
    day before the weekend, as provided for in the order, nor that she otherwise blocked
    access. At best, the appellant did not provide a timely response to the
    respondents emails and she may not have agreed to a different arrangement. The
    appellant maintains that the children were available for pickup by the
    respondent, that the respondent never attempted to collect the children in the
    manner provided by the order, and that he was not otherwise prevented from
    doing so.

[17]

The
    third finding was that the appellant breached her obligation to make Michael
    available to the respondent for two hours on his birthday. When the respondent
    attended at Michaels school on his birthday, Michael refused to go with him.
    The appellant had told Michael, before he went to school, that he was to go on
    an access visit with the respondent. She had added that, ultimately, it would
    be his decision. There is no suggestion that the appellant counseled Michael
    not to attend, nor was the appellant present at school when the respondent
    presented himself there to pick up Michael. She was not aware of her sons refusal
    to leave with the respondent and was therefore not in a position to facilitate
    access. In our view, in the circumstances, the fact that Michael did not spend
    two hours with the respondent on his birthday does not amount to an intentional
    failure to comply with a court order.

[18]

We
    add two brief comments. First, as explained in
Carey v. Laiken
, 2015
    SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily
    granted by motion judges:

The contempt power is
    discretionary and courts have consistently discouraged its routine use to
    obtain compliance with court orders. If contempt is found too easily, a
    courts outrage might be treated as just so much bluster that might ultimately
    cheapen the role and authority of the very judicial power it seeks to protect.
    As this Court has affirmed, contempt of court cannot be reduced to a mere
    means of enforcing judgments. Rather, it should be used cautiously and with
    great restraint. It is an enforcement power of last rather than first resort.
    [Citations omitted.]

[19]

Second,
    where the main issues to be decided concern access to children, the best
    interests of the children should be the paramount consideration. In this case, with
    the courts assistance, the parties have, since the contempt hearing, taken
    steps to involve professionals to speak and work with the children to address their
    relationship with the respondent. Such steps are to be encouraged.

[20]

For
    these reasons, the appeal is allowed and the findings of contempt are set
    aside. The appellant is awarded costs fixed in the amount of $7,500, inclusive
    of disbursements and applicable taxes.

Doherty J.A.

Paul Rouleau J.A.

David Brown J.A.


