In the mater of Smith v. Smith, the Applicant Mother and Respondent Father were married in North Carolina in 2000 and separated in 2009. There are two children of the marriage, born in 2002 and 2005. Following the separation, the…
Nowacki v. Nowacki (2015),  WDFL 4094 (ONCA)
In this Court of Appeal case, the Applicant wife is seeking to stay a final divorce order while in contempt of previous court orders.
The parties married in 2009 and their son was born a year later. While the child was an infant, the family travelled to Poland and the parties separated while there. The wife kept the son with her in Poland and refused to return to Canada. The husband obtained a court order granting him temporary custody and requiring the wife to return their son to Canada and deliver him to his father. The wife did not comply with this order and others relating to the child and was in contempt of court.
The husband was granted a divorce in Ontario, but the wife brought a motion seeking to have the divorce order set aside. The judge hearing the motion stayed the motion to allow her to purge her contempt. The wife’s motion was eventually dismissed as she failed to do so by complying with the previous Ontario orders.
The wife is seeking to stay the final divorce order. The husband argues on a cross-motion that the court should not hear her request for a stay while she remains in contempt of court.
The Ontario Court of Appeal has discretion to refuse to hear an appeal by a litigant who has not purged a contempt order in the same proceedings. Citing Justice Laskin’s dissent in Dickie v Dickie (ONCA), Justice Huscroft noted that the Court’s discretion may also be invoked when the order being appealed is closely connected to a willfully breached order or orders. Furthermore, as Justice Laskin explained “in each case the court must consider whether hearing the appeal before the breach is cured would abuse the court’s process or impede the course of justice.”
In this case, the divorce and child custody proceedings were intimately connected. The wife sought equitable relief in the form of an order to stay an Ontario divorce while she was in contempt of Ontario court orders requiring her to return the child to Canada. If she were successful in obtaining a stay of the final divorce order, it would result in an unjust situation. A stay of the Ontario divorce order would allow the wife to pursue more divorce, custody, and support proceedings in Poland which would be more favourable to her. She would then be able to seek enforcement of the Polish court orders in Ontario.
However, the decisions of foreign courts do not sanction a refusal to comply with valid Ontario court orders. As such, the decisions of the Polish courts concerning custody of the child do not absolve the wife of her contempt of court in Ontario.
The husband’s cross-motion was granted and the wife was prohibited from proceeding with her motion.