



COURT OF APPEAL FOR ONTARIO

CITATION: Moncur v. Plante, 2021 ONCA 462

DATE: 20210625

DOCKET: C68511

Fairburn A.C.J.O., Harvison
    Young and Jamal JJ.A.

BETWEEN

David Daniel Moncur

Applicant (Respondent)

and

Stéphanie Ginette Plante

Respondent (Appellant)

Michael H. Tweyman, for the appellant

Mimi Marrello, for the respondent

Heard: June 11, 2021 by video
    conference

On appeal from the orders of Justice Robert
    Pelletier of the Superior Court of Justice, dated February 20, 2020 and May 15,
    2020.

Jamal
    J.A.:

[1]

This appeal involves the courts power to make
    findings of contempt of court to sanction the breach of a parenting order in a high-conflict
    family law dispute.

[2]

The appellant mother appeals from (1) the order of
    the motion judge made on February 20, 2020, finding her in contempt of court
    for four breaches of the final parenting order of Kershman J. made on consent on
    November 20, 2018 (parenting order); and (2) the order of the motion judge made
    on May 15, 2020, ordering the appellant to comply strictly with the parenting
    order and to pay the respondent father $2,500 as sanctions for contempt and $10,000
    in costs.

Background

[3]

The parties married in 2007, had a child
    together in 2010, and separated in 2015. Parenting issues were resolved through
    the parenting order in 2018, when both parties were represented by counsel. The
    parenting order, which runs to 43 paragraphs over 12 pages, governs in meticulous
    detail the parties joint decision‑making responsibility and parenting
    time, including parenting decisions, their parenting schedule, communication
    between them, residence, travel, and documents and registrations. It also provides
    for resolving parenting disputes by negotiation, then mediation, and, finally,
    binding arbitration.

[4]

On November 12, 2019, the respondent appeared
    before the motion judge seeking an order that the appellant be found in
    contempt of court for breaching the parenting order 10 times between December
    2018 and July 2019. The respondent was represented by counsel and the appellant
    was self-represented. The respondent alleged that the appellant overheld the
    child twice, attended the childs activities and school several times during the
    respondents parenting time, unilaterally changed the date of the childs First
    Communion without appropriately advising the respondent, and failed to provide him
    with a copy of the childs Social Insurance Number card.

[5]

On November 25, 2019, the motion judge held the matter
    in abeyance until the parties completed an arbitration being scheduled for
    December 2019 (they had attended two mediation sessions, without success). Noting
    his strong sense of dismay at the acrimony that permeates the parents
    relationship at this point, he stated that deciding the contempt motion now
    would only serve to harden positions and add further to the atmosphere of
    mistrust and conflict. He also ruled that the childs best interests, which he
    said must remain central in these proceedings, would be best served by
    allowing the parties to negotiate collaborative parenting solutions. He asked them
    to advise him of the result of the arbitration and stated that he would then release
    his ruling on the contempt motion and would seek submissions on sanctions if
    necessary.

[6]

However, the matter did not proceed to
    arbitration and the parties appeared before the motion judge again on February
    3, 2020. Counsel for the respondent explained that the arbitration was at an
    impasse and that the court was causing more conflict by not releasing the
    contempt ruling, and asked for the ruling to be released without delay. The appellant
    expressed concern that the contempt motion was being weaponized against her
    and used to avoid the arbitration. The motion judge advised that he would
    release his ruling soon.

[7]

On February 20, 2020, the motion judge found the
    appellant in contempt for four of the 10 alleged breaches of the parenting
    order. He ruled that the appellant had violated the parenting order by
    unilaterally modifying the childs schedule with each parent twice,
    unilaterally changing the childs First Communion date without effective notice
    to or consultation with the respondent, and failing to provide the respondent with
    a copy of the childs Social Insurance Number card as required under the
    parenting order. The motion judge ruled that in each case the appellant had
    deliberately and defiantly disregarded the quite specific and detailed
    parenting order without just cause.

[8]

On May 15, 2020, the motion judge ordered the
    appellant to pay the respondent $2,500 as a sanction for the contempt and
    $10,000 in costs. He ruled that a monetary sanction was appropriate given the extent
    of the contempt and to impress upon the [appellant] her obligation to abide
    specifically by the [parenting] order, particularly in the context of this case
    where there is a complete lack of cooperation and flexibility between the [parties].
    He also ordered the appellant to comply strictly with the parenting order.

Issues

[9]

The appellant claims that the motion judge erred
    by (1) ruling that the appellant deliberately breached the parenting order and (2)
failing to consider discretionary factors before making
    findings of contempt of court.

Discussion

[10]

The following general principles govern the use
    of the courts power to find a party in civil contempt of court for breaching a
    court order:

1.

For a party to be found in contempt of court for
    breaching a court order, three elements 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 had 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:
Carey v. Laiken
, 2015 SCC 17,
    [2015] 2 S.C.R. 79, at paras. 32-35;
Greenberg v. Nowack
, 2016 ONCA 949,
    135 O.R. (3d) 525, at paras. 25-26.

2.

Exercising the contempt power is discretionary.
    Courts discourage the routine use of this power to obtain compliance with court
    orders. The power should be exercised cautiously and with great restraint as an
    enforcement tool of last rather than first resort. A judge may exercise
    discretion to decline to impose a contempt finding where it would work an injustice.
    As an alternative to making a contempt finding too readily, a judge should
    consider other options, such as issuing a declaration that the party breached
    the order or encouraging professional assistance:
Carey
, at paras.
    36-37;
Chong v. Donnelly
, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras.
9-12;
Valoris pour enfants et adultes de Prescott-Russell
    c. K.R.
, 2021 ONCA 366, at para.
41; and
Ruffolo
    v. David
, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.

3.

When the issue raised on the contempt motion
    concerns access to children, the paramount consideration is the best interests
    of the children:
Ruffolo
, at para. 19
;
Chong
,
    at para. 11; and
Valoris
, at para. 41.

Issue #1: Did the motion judge err in concluding that the appellant
    deliberately breached the parenting order?

[11]

The appellant asserts that the motion judge erred
    in concluding that the appellant deliberately breached the parenting order in
    four respects.

[12]

First, although the appellant admits she
    breached the parenting order by overholding the child in the week of June 28,
    2019, when the child was to be with the respondent, she says she was justified in
    doing so because the respondent had not told her which camp the child would attend
    the next week. I do not agree. I see no error in the motion judges conclusions
    that the respondent was not required to comply with the [appellants]
    pre-conditions for the exchange to take place and that the overholding was
    unnecessary, unjustified and in deliberate defiance of the [parenting] order.

[13]

Second, although the appellant admits that she overheld
    the child on July 27, 2019 by registering him in a camp during the respondents
    parenting time, she says she told the respondent about this when she booked the
    camp but received no response from him. However, the respondent did object, through
    his counsel. Again, I see no error in the motion judges conclusion that the
    appellants conduct was in strict violation and deliberate defiance of the
    [parenting] order.

[14]

Third, the appellant says she unilaterally changed
    the date of the childs First Communion only to avoid traffic congestion from a
    large event in the city that weekend and says she emailed the respondent beforehand
    but used an old email address. Again, I do not agree that the motion judge
    erred. The motion judge was entitled to find that the parenting order required the
    appellant to notify the respondent of this change using Our Family Wizard, a
    co-parenting app, not email, and that this was more than an inadvertent lapse,
    and therefore a deliberate violation of the order.

[15]

Finally, although the appellant admits that she
    did not provide the respondent the childs Social Insurance Number card, even
    though the parenting order requires her to share all of the childs government
    issued identification documents with the respondent, she says the Social
    Insurance Number card is not government identification and in any event the
    respondent already knew the number. Once again, I disagree with her submission that
    the motion judge erred. I see no basis to interfere with the motion judges
    conclusion that the parenting order requires the timely exchange of governmental
    information held by the mother and that [t]hat obligation was clearly not
    met by the appellant failing to provide the respondent with the childs Social
    Insurance Number card. The motion judge was entitled to find in the
    circumstances that the appellants conduct demonstrate[d] a level of control
    by the [appellant] which the [parenting] order set out to specifically prevent.

[16]

I thus see no basis to interfere with the motion
    judges ruling that the appellant intentionally breached the parenting order in
    four respects.

Issue #2: Did the motion judge fail to consider discretionary
    factors before making findings of contempt of court?

[17]

The appellant asserts that the motion judge
    failed to consider relevant discretionary factors before making findings of contempt
    of court, namely, the best interests of the child and whether a contempt
    finding was a remedy of last resort.

[18]

I see no basis for the suggestion that the motion
    judge failed to consider the best interests of the child. The motion judge
    expressed concern for the childs best interests throughout the proceedings:

·

In holding the matter in abeyance to allow the
    parties to proceed to arbitration, the motion judge highlighted that the
    childs best interests must remain central in these proceedings and would be
    best served by allowing the parents to arrive at collaborative solutions to
    the challenges they face.

·

In ruling on the contempt motion, the motion judge
    emphasized that the larger issue was the well-being of a 9-year-old boy who
    has had to endure the very toxic and hostile relationship between his parents,
    which over time would have a devastating effect on [him].

·

The motion judge repeatedly stressed his concern
    for the childs best interests during the hearings, which, despite the parental
    acrimony, he presided over with laudable patience, sensitivity, and decorum.

[19]

I do, however, agree with the appellants argument
    that the motion judge did not appear to consider whether a declaration of contempt
    was a remedy of last resort or whether there were alternative enforcement options,
    such as a declaration that the appellant had breached the order or encouraging
    professional assistance. Without considering any alternative options, he
    appears to have proceeded directly from conclusions that the appellant
    intentionally breached the parenting order to declarations of contempt. Although
    the motion judge had earlier properly held the contempt ruling in abeyance to
    allow the parties to arbitrate their parenting conflicts, and offered to help the
    parties resolve their issues, his reasons do not suggest that he considered
    other enforcement options in lieu of ultimately making his declarations of contempt.
    The motion judge had to consider not only when he should issue his decision on the
    contempt motion, but also whether he should exercise his discretion to resort
    to a less severe enforcement option than declaring the appellant in contempt of
    court. In fairness to the motion judge, such other options do not appear to
    have been raised by the appellant, who was self‑represented, or by the respondent.
    Even so, I conclude that it was an error of law not to have considered such
    options:
Chong
, at para. 12.

[20]

It is especially important for courts to
    consider such options in high-conflict family disputes such as this one:
Chong
,
    at para. 12;
Valoris
, at para. 41. Otherwise, there is a danger that
    contempt proceedings may exacerbate the parental conflict to the detriment of
    the children. In appropriate cases, a staged approach, in which a declaration
    of breach precedes the opprobrium of a formal contempt order, can give the
    parties pause to reflect on their conduct and work on cooperative solutions in
    the best interests of their children. When, however, the court considers that a
    contempt order is truly a last resort and would not work an injustice, it may still
    decide in its discretion to make a formal order of contempt.

Conclusion

[21]

I would allow the appeal. I would set aside the findings
    of contempt of court and the sanctions imposed and replace them with
    declarations that the appellant intentionally breached the parenting order in the
    four respects found by the motion judge.

[22]

In all the circumstances, I would make no order
    as to costs, here or in the court below.

Released: June 25, 2021 J.M.F.

M.
    Jamal J.A.

I agree.
    Fairburn A.C.J.O.

I
    agree. Harvison Young J.A.


