• by Christina Hinds
Originally published in the OFLM 2024-02 edition
Overview
In E.M.B. v. M.F.B. (2024 ONSC 162), Justice Mandhane considered the appropriate penalty after finding the mother in contempt. The father sought a reversal in primary parenting and decision-making.
Justice Mandhane reviewed Rule 31(5) of the Family Law Rules and considered the court’s broad discretion to determine an appropriate penalty in contempt proceedings.
A reversal in primary parenting is an extreme order. Justice Mandhane noted that even at the penalty stage of a contempt hearing - where the overall goal is to promote compliance with court orders by punishing the contemnor and providing restitution to the victim – the only basis for ordering a reversal of primary parenting is that such a reversal is in the child’s best interests.
After considering the principles applicable at the penalty stage, as well as the child’s best interests, Justice Mandhane ultimately declined to order a reversal in primary parenting. Instead, Her Honour made an order for make-up parenting time and an expansion of the father’s parenting time.
Facts
In July 2021, Justice Mandhane made a final order with respect to parenting time and decision-making. The final order granted the mother sole decision-making and primary residence, with parenting time between the child and father.
The father brought a contempt motion in August 2022 and Justice Mandhane found the mother in contempt. The mother had breached the overnight parenting provisions of the final order on three separate occasions. The mother’s previous conduct in denying parenting time, including before the trial, seemed to influence Justice Mandhane’s decision to find the mother in contempt rather than ordering a lesser penalty. At paragraph 20, Her Honour explained: “In exercising my discretion to find the Mother in contempt rather than ordering a lesser penalty, I found that the Mother’s actions were consistent with of a larger pattern of conduct that started immediately upon separation, and which continued before and after the trial.” Justice Mandhane noted that the mother had shown a complete disregard for court-ordered parenting time and frequently resorted to self-help measures. (at para. 20)
Between the contempt finding and the penalty hearing, the Office of the Children’s Lawyer (OCL) completed a report to provide the court with insight into the child’s current circumstances and best interests. Due to delays in receiving third-party records, the report was released in October 2023. As a result, 16 months passed between the contempt finding and the penalty hearing.
The OCL determined that the child was doing well academically and socially and was very attached to the mother. The OCL also found that the mother had limited insight into how her behaviour was impacting the father’s relationship with the child. The OCL recommended that the child remain in the mother’s primary care, but that the father’s parenting time be expanded.
Principles of Sentencing in Penalty Hearings
Subrule 31(5) of the Family Law Rules provides the court with broad discretion when determining the appropriate penalty in contempt proceedings. If the court finds a person in contempt of the court, it may order that the person,
- be imprisoned for any period and on any conditions that are just;
- pay a fine in any amount that is appropriate;
- pay an amount to a party as a penalty;
- do anything else that the court decides is appropriate;
- not do what the court forbids;
- pay costs in an amount decided by the court; and
- obey any other order.
The above list is not exhaustive or mutually exclusive. In Geremia v. Harb (2007 CanLII 30750), Justice Quinn stated that: “Use of "may" in subrule 31(5) indicates that the seven enumerated possible "sentences" do not represent a closed list. As well, the seven sentences are not mutually exclusive and may be levied in any number and combination found to be just and appropriate.”
The overriding purpose of sentencing in contempt proceedings is the preservation of the integrity of the administration of justice (at para. 10).
Breaching a family court order must have consequences and in high conflict matters, meaningful consequences are essential. Otherwise, allowing a contemptor to “get away” with breaching a court order could be misinterpreted as judicial condonation for their behaviour. (at para. 10)
Similar to sentencing in criminal proceedings, Justice Mandhane noted that the sanction imposed must be “proportionate to the nature of the contempt and the mitigating and aggravating circumstances” (at para. 11):
The sanction I impose must be proportionate to the nature of the contempt and the mitigating and aggravating circumstances […] The penalty should be both restorative to the victim and punitive to the contemnor; it must correlate to the conduct at issue, while not reflecting a marked departure from penalties imposed in similar circumstances […] I must consider the available sentences, proportionality to the wrongdoing, similarity of sentences in like circumstances, the presence of mitigating and aggravating factors, deterrence, and the reasonableness of a fine or incarceration […]
Purging Contempt
Purging one’s contempt does not negate the contempt but rather goes to the appropriate remedy. If a party has purged their contempt, this will be a mitigating factor when determining the appropriate penalty. (at para. 12)
The onus is on the contemptor to demonstrate on a balance of probabilities that they have purged their contempt (at para. 12). Justice Mandhane found that “even on the narrowest view of the world “purge”, the mother had not purged her contempt.” (at para. 23) The mother did not offer any make-up parenting time and she withheld further parenting time after the contempt finding.
Reversal in Primary Parenting
A reversal of primary parenting is the most extreme order that a court can make in a parenting dispute. Even in the context of a penalty hearing following a finding of contempt, the only basis for making such an order is because it is in the child’s best interest. (at para. 5)
Justice Mandhane found that a reversal in primary parenting was not in the child’s best interest, explaining that (at para. 6):
The question is whether such an extreme order is in the Child’s best interests because of the Mother’s ongoing efforts to minimize the Father’s parenting role. In my view, it is not. At this stage in the Child’s life and in the life of this litigation, the parents need to focus on maintaining stability, minimizing parental conflict, and supporting one another in their respective roles. The proposed reversal would not accomplish any of these goals. An order for make-up parenting time, along with an expansion in the Father’s parenting time is a more proportionate penalty for the Mother’s contempt.
The court must “show great restraint” when revisiting a final order outside of the context of a motion to change and a contempt motion should not become a litigation tactic to avoid proving a material change in circumstances (at para. 14). Further, a reversal in parenting must never be imposed as punishment for contempt – the court must only consider such an order where it is in the best interests of the child (at para. 15).
At paragraph 16, Justice Mandhane cited four cases wherein a reversal in primary parenting was found to be in the child’s best interests. These cases involved findings of significant manipulation and alienation. Those cases included Y.H.P. v. J.N., (2023 ONSC 5766); S. v. A., (2021 ONSC 5976); Wilson v. Wickham, (2017 ONSC 5279); and JLZ v. CMZ, (2021 ABCA 200).
At paragraph 18, Justice Mandhane cited Justice McGee’s comments in S. v. A.:
[A] reversal of primary care is the most difficult of parenting decisions. It is an option that must be approached with caution, and each case must be considered on its own facts. A reversal is not a vindication of which parent is right or wrong. It is a finding as to which parent can best provide physical, emotional, and psychological safety and security to a child in distress. Which parent will best protect the child from the conflict and place the child’s well-being above the litigation “win.”
Conclusion
As the child was doing well academically and socially, saw the father regularly, and had a strong relationship with both parents, Justice Mandhane found that a reversal in primary parenting would not be in the child’s best interest (at para. 6).
Justice Mandhane ultimately ordered make-up parenting time, an expansion of the father’s parenting time, therapy for the child, and that the parties engage a parenting coordinator (at paras. 49 – 54).
A few takeaways/reminders:
The court has broad discretion to determine the appropriate remedy following a finding of contempt.
A party’s behaviour, such as limiting parenting time, may follow them indefinitely. Lawyers should be upfront with their clients about the dangers of “self-help remedies” when they spot such behaviour.
A reversal in primary parenting is an extreme order and even in contempt hearings, will not be made unless it is found to be in the child’s best interests.