Kopaniak v. MacLellan, (2002) 159 O.A.C. 37 (CA)

• Judge: Finlayson, Laskin and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 13, 2002
• Jurisdiction: Ontario
• Citations: (2002), 159 O.A.C. 37 (CA)

Kopaniak v. MacLellan (2002), 159 O.A.C. 37 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. AP.081

Malgorzata Marie Kopaniak also known as Marguerite Kopaniak (respondent) v. Peter Roderick MacLellan (appellant)

(C34784)

Indexed As: Kopaniak v. MacLellan

Ontario Court of Appeal

Finlayson, Laskin and MacPherson, JJ.A.

April 29, 2002.

Summary:

A couple were granted a divorce in August 1996. By October 1996, the father had declared bankruptcy, married his former matrimonial lawyer and moved to Bermuda, taking the daughter with him. He was ordered to return the daughter to Ontario forthwith. He ignored this and several other court orders, and was found to be in contempt. The sentencing hearing was adjourned until the father returned to Ontario. In 1999, the father unsuccessfully moved to have the court orders set aside. In 2000, he returned to Ontario and was arrested. After 17 days in jail, he arranged for the daughter to be returned to Ontario. The father was given a conditional suspended sentence in July 2000. He appealed both the finding of contempt and the sentence. The mother cross-appealed some of the financial components of the sentence.

The Ontario Court of Appeal dismissed the appeal and cross-appeal.

Editor's note: For prior decisions involving these parties, see [2000] O.T.C. 447 and [1997] O.T.C. Uned 48.

Contempt - Topic 5003

Practice - General principles - Procedural rules applicable - A couple divorced in August 1996 - The father remarried and moved to Bermuda, taking the daughter with him - He was ordered to return her to Ontario - He ignored this and several other court orders, and was held in contempt in 1996 and 1997 - The sentencing hearing was adjourned until the father returned - In 2000, he returned and was arrested - The father was given a conditional suspended sentence in July 2000 - He appealed both the findings of contempt and the sentence - The mother argued the 1996 and 1997 contempt orders could not be appealed because the notice of appeal was served beyond the 30 day period in rule 61.04(1(b) - The father responded that the appeal was brought well within the time required by the Criminal Appeal Rules - The Ontario Court of Appeal rejected the father's argument - The Criminal Appeal Rules had no application to this appeal - See paragraphs 22 to 34.

Contempt - Topic 6021

Appeals - Right of appeal - General - [See Contempt - Topic 5003 ].

Family Law - Topic 2175

Custody and access - Enforcement of orders - Contempt proceedings - [See Contempt - Topic 5003 ].

Authors and Works Noticed:

Borrie and Lowe, The Law of Contempt (3rd Ed. 1996), pp. 655 to 656 [para. 28].

Greenspan, Edward, and Rosenberg, Marc, Martin's Ontario Criminal Practice (2002), p. AR/30 [para. 26].

Miller, Jeffrey, The Law of Contempt in Canada (1997), pp. 13 to 17 [para. 28].

Counsel:

Malcolm Kronby, for the respondent;

Gerald Sadvari, for the appellant.

This appeal and cross-appeal were heard on March 13, 2002, by Finlayson, Laskin and MacPherson, JJ.A., of the Ontario Court of Appeal. MacPherson, J.A., delivered the following decision for the court, which was released on April 29, 2002.