Dickie v. Dickie
Indexed as: Dickie v. Dickie
78 O.R. (3d) 1
[2006] O.J. No. 95
Court of Appeal for Ontario,
Laskin, Sharpe and Juriansz JJ.A.
January 13, 2006
Headnotes
Civil procedure -- Contempt -- Appeal -- Appellant appealing contempt order on basis that it was made to enforce order for "payment of money" and was therefore precluded by rule 60.11(1) -- Appellant's non-compliance with court orders not constituting reason for declining to hear his appeal where he attacked jurisdiction to make contempt order -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 60.11(1).
Civil procedure -- Contempt -- Order for "payment of money" -- Appellant failing to comply with interim support order -- Appellant ordered to provide respondent with irrevocable letter of credit to secure his support obligations and to pay respondent's solicitors $100,000 as security for costs -- Appellant failing to do so and found in contempt -- Requirements that appellant provide letter of credit and security for costs constituting orders for payment of money -- Contempt order precluded by rule 60.11(1) -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 60.11(1).
After an order was made increasing the amount of child support payable by the appellant and ordering him to pay interim spousal support and arrears of child and spousal support (the "interim order"), the appellant moved to the Bahamas, a jurisdiction without reciprocal enforcement of judgments legislation to enforce child and spousal support, and did not comply with the order. The appellant was ordered to provide the respondent with an irrevocable letter of credit in her favour to secure his child and spousal support obligations pursuant to the interim order and to provide the respondent with security for costs by paying $100,000 to her solicitors (the "underlying order"). The appellant did not comply with the underlying order. On a motion by the respondent, the appellant was found in contempt of court. He appealed, submitting that the contempt order was made without jurisdiction as rule 60.11(1) of the Rules of Civil Procedure precludes the Superior Court of Justice from making a contempt order to enforce an order requiring a person to make a "payment of money". The respondent brought a preliminary motion submitting that the court should refuse to entertain the appeal because of the appellant's wilful disregard for orders of the court.
Held, the preliminary motion should be dismissed; the appeal should be allowed.
Per Juriansz J.A. (Sharpe J.A. concurring): The authority of the court to dismiss an appeal other than on its merits is found in s. 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. That jurisdiction should be limited to circumstances that constitute an abuse of process or otherwise impede the course of justice. The principle that the court should decline to entertain an appeal of a litigant who is in wilful breach of a support order did not apply to this appeal because the appeal [page2] concerned the legality of the contempt proceeding and not the validity of the underlying support orders. The appeal will not be stayed where the question on the appeal is whether or not the court making the contempt order had jurisdiction to do so.
Rule 60.11(1) precludes the making of a contempt order to enforce an order for the payment of money. There is no exception for family law matters. The order requiring the appellant to provide the respondent with a letter of credit to secure the child and spousal support obligations mandated by the interim order was an order for the payment of money, as was the order requiring the appellant to pay $100,000 to the respondent's solicitors to be held as security for costs. Neither of those orders could be enforced by contempt.
Per Laskin J.A. (dissenting): The court had discretion to refuse to entertain the appellant's appeal and it was appropriate to do so. The appeal should be adjourned until the appellant complied with the underlying order. The statement that the general rule that a court will not hear a litigant who has wilfully breached a court order until the litigant has cured the breach is subject to an exception where the litigant seeks to attack the jurisdiction of the court below to make the contempt order is not supported by principle or precedent.
The orders requiring the appellant to secure his support obligations by an irrevocable letter of credit and to post security for costs were not orders for the payment of money under rule 60.11(1) because neither order amounted to a fixed debt obligation requiring the appellant to pay money to the respondent. Where money is ordered to be paid not to the creditor but into court -- or to its functional equivalent, to a solicitor to be held in trust -- and where the effect of the order is not to create a fixed debt obligation but to secure a debt obligation, then the order is not an order for the payment of money under rule 60.11(1).
APPEAL from an order of Stewart J., reported at 2004 66348 (ON SC), [2004] O.J. No. 4224, 1 R.F.L. (6th) 167 (S.C.J.), and an order dated February 26, 2004, finding the appellant in contempt.
Brophy v. Brophy, 2004 25419 (ON CA), [2004] O.J. No. 17, 45 R.F.L. (5th) 56, 180 O.A.C. 389, 127 A.C.W.S. (3d) 954 (C.A.), consd Ontario (Attorney General) v. Paul Magder Furs Ltd. (1992), 1992 7704 (ON CA), 10 O.R. (3d) 46, [1992] O.J. No. 1693, 94 D.L.R. (4th) 748, 13 C.P.C. (3d) 364 (C.A.); Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 1991 7053 (ON CA), 6 O.R. (3d) 188, [1991] O.J. No. 2025, 85 D.L.R. (4th) 694, 3 C.P.C. (3d) 240 (C.A.), distd Other cases referred to Apple Computer, Inc. v. Mackintosh Computers Ltd., 1987 8932 (FCA), [1987] F.C.J. No. 516, [1988] 1 F.C. 191, 78 N.R. 161, 14 C.I.P.R. 1, 16 C.P.R. (3d) 1 (C.A.); Bates v. Bates (1888), 14 P.D. 17, 58 L.J.P. 85, 60 L.T. 125, 37 W.L.R. 230, 5 T.L.R. 155 (C.A.); Berry v. Donovan, [1893] O.J. No. 2, 21 O.A.R. 14 (C.A.); Coletta v. Coletta, 2003 2412 (ON SC), [2003] O.J. No. 81, [2003] O.T.C. 15, 34 R.F.L. (5th) 9, 119 A.C.W.S. (3d) 454 (S.C.J.); Forrest v. Lacroix Estate (2000), 2000 5728 (ON CA), 48 O.R. (3d) 619, [2000] O.J. No. 1990, 187 D.L.R. (4th) 280, 34 E.T.R. (2d) 241, 8 R.F.L. (5th) 51 (C.A.); Hadkinson v. Hadkinson, [1952] 2 All E.R. 567, [1952] 2 T.L.R. 416 (C.A.); Innovation and Development Partners/IDP Inc. v. Canada, [1994] F.C.J. No. 360, 114 D.L.R. (4th) 326, 166 N.R. 293, 47 A.C.W.S. (3d) 48 (C.A.); Kingsway Electric Co. Ltd. v. 330604 Ontario Ltd. (1979), 1979 2056 (ON SC), 27 O.R. (2d) 541, 107 D.L.R. (3d) 172, 9 B.L.R. 316, 33 C.B.R. (N.S.) 137, 11 R.P.R. 96 (S.C.); Manis v. Man is (2001), 2001 3851 (ON CA), 55 O.R. (3d) 758, [2001] O.J. No. 3672, 29 C.B.R. (4th) 215, 21 R.F.L. (5th) 355, 13 C.P.C. (5th) 234 (C.A.); Pyke v. National Westminster Bank Ltd., The Times, unreported, December 9, 1977; R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, [2003] S.C.J. No. 78, 234 D.L.R. (4th) 87, 313 N.R. 201, 113 C.R.R. (2d) 297, 180 C.C.C. (3d) 97, 16 C.R. (6th) 289; Swaptronics Ltd. (Re), [1998] The Times Law Reports 508 (August 17), [1988] L.S. Gaz. R. 33 (Ch.); [page3 []cf2]X Ltd. v. Morgan Grampian (Publishers) Ltd., [1990] H.L.J. No. 22, [1991] 1 A.C. 1 Statutes referred to Canadian Charter of Rights and Freedoms, s. 15 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140(5) Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) European Convention on Human Rights, ETS No. 5 (Council of Europe, Rome, 1950), art. 6.1 Family Law Act, R.S.O. 1990, c. F.3, s. 34(1) Registry Act, R.S.O. 1970, c. 409, s. 72 Retail Business Holidays Act, R.S.O. 1980, c. 453 Rules and regulations referred to Family Law Rules, O. Reg. 114/99, rules 2 [as am.], 31(1) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 60.11(1) Authorities referred to Eady, D., and A.T.H. Smith, eds., Arlidge, Eady & Smith on Contempt, 2nd ed. (London: Sweet & Maxwell, 1999) Halsbury's Laws of England, 4th ed. Reissue, vol. 9(1) (London: Butterworths, 1998) Lowe, N., and B. Sufrin, The Law of Contempt, 3rd ed. (London: Butterworths, 1996)
Rochelle F. Cantor, for appellant. Harold Niman, for respondent.
JURIANSZ J.A. (SHARPE J.A. concurring):--
Overview
1This appeal concerns the scope of the exception in rule 60.11(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that precludes the Superior Court of Justice from making a contempt order to enforce an order requiring a person to make a "payment of money".
2The appellant seeks to set aside the order of Stewart J. dated January 28, 2004, finding him in contempt, and the order of Stewart J. dated February 26, 2004, imposing a sentence of 45 days in jail for that contempt. The appellant's position is that the motion judge erred in law by finding him in contempt for failing to pay a court ordered "payment of money". The appellant also submits that the contempt proceedings were conducted in a manner that did not respect the requirements of fundamental justice. [page4]
3As a preliminary matter, the respondent submits that this court should refuse to entertain this appeal because of the appellant's wilful disregard for orders of the court. On the appeal, the respondent submits that the orders in question are not orders for the "payment of money" and that the contempt proceedings were conducted in accordance with the principles of fundamental justice.
4I would find that this court should entertain the appellant's appeal. In so doing, I would allow the appeal on the basis that the underlying orders with which the appellant failed to comply were orders for "the payment of money".
Facts
5The parties began living together in 1976 and were married on September 8, 1979. They have three children: Mark, born April 13, 1982; Erin, born July 5, 1984; and Scott, born December 29, 1986.
6The appellant is a plastic surgeon and the respondent is a registered nurse. The respondent worked full-time during the appellant's final years of medical school, his surgical residency in Alberta, and his fellowship in plastic surgery at the University of Western Ontario. The respondent stopped working full-time when their first child, Mark, was born. In June 1984, the appellant established a plastic surgery practice in Sarnia, and the respondent worked two to three days per week in the practice.
7The parties separated on March 23, 1991. They entered into a separation agreement dated June 22, 1993, providing for joint custody of the children. The agreement was amended in June 1994 to permit the respondent to move with the children to Alberta. The parties were divorced on June 29, 1994.
8The separation agreement provided that the appellant would pay $1,750 per month per child, increased annually by 2 per cent. The separation agreement and interim arrangements resulted in the respondent being entitled to spousal support until May 1, 2001. From June 1993 until that date, she was to be paid $4,750 per month, without cost-of-living adjustment.
9After the spousal support provisions of the separation agreement lapsed on May 1, 2001, the respondent brought an application for spousal and child support pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). She also brought a motion for interim spousal and child support.
10In her interim order dated July 5, 2001, Kiteley J. increased child support to $9,067.42 per month (total for the three children), effective from January 1, 2001, until judgment [page5] a6fter trial. Kiteley J. also ordered interim spousal support in the amount of $2,500 per month, commencing June 1, 2001, and continuing until judgment after trial. Kiteley J. further ordered payment of arrears in both child and spousal support.
11The appellant moved to the Bahamas in July 2002 without advising the respondent of his plans to do so. Further, he did not comply with the order of Kiteley J.
12On December 3, 2002, Greer J. ordered that the appellant, "within 14 days of the date of [the] Order, provide an Irrevocable Letter of Credit in favour of the [respondent] in the amount of $150,000.00 to secure his child and spousal support obligations pursuant to the Order" of Kiteley J (para. 2). Greer J. also ordered that the appellant "provide the [respondent] with security for costs by paying the sum of $100,000.00 within 14 days of the date of [the] Order, which sum shall be held in an interest-bearing account by the [respondent's] solicitors pending further Order" (para. 3). Greer J. further ordered the appellant to comply with the order of Kiteley J. Costs were awarded against the appellant in the amount of $1,000.
13In her reasons for making the order, Greer J. noted that the appellant: lives in the Bahamas, a jurisdiction without reciprocal enforcement of judgments legislation to enforce child and spousal support; was self-represented; has seemingly no assets in the jurisdiction of Ontario; cashed in his RRSPs; sold his house; and left a plastic surgery practice from which he earned considerable money.
14The appellant did not comply with the order of Greer J. As a result, the respondent made a motion with the court to have the appellant found in contempt. On January 28, 2004, the motion judge found the appellant in contempt of paras. 2 and 3 of Greer J.'s order. On February 26, 2004, the motion judge sentenced the appellant to 45 days in jail for contempt, which he served immediately.
Discussion
(a) Should this court entertain this appeal?
15As already mentioned, the respondent argued that this court should decline to hear this appeal because the appellant was in non-compliance of the orders of Kiteley J. and Greer J. and had, in fact, fled the jurisdiction in order to evade them. There are two bases for the respondent's position. First, the respondent argues that the court has discretion to refuse to hear an appellant in a family law case who has wilfully refused to honour spousal and child support orders. Second, there is a practice that a party [page6] in contempt cannot be heard or take proceedings in the same cause until he or she has purged the contempt.
(i) Appeals of support orders
16In the recent decision of this court in Brophy v. Brophy, 2004 25419 (ON CA), [2004] O.J. No. 17, 45 R.F.L. (5th) 56 (C.A.), Laskin J.A. discussed the discretion of this court to decline to entertain an appeal of a litigant who is in wilful breach of a support order. In Brophy, the appellant sought to reduce the amount of spousal support he was ordered to pay at trial. When the appeal came on for hearing, he was over $50,000 in arrears. The respondent brought a motion to dismiss the appeal on the ground that the appellant wilfully defaulted in paying spousal support. This court heard the motion, reserved its decision, and then heard the appeal on its merits.
17After reviewing the jurisprudence of this court and the practice of the courts of appeal in British Columbia and Nova Scotia, Laskin J.A. stated that this court has the discretion to stay or dismiss an appeal in such circumstances where the appellant did not seek an adjournment in order to make payment or to demonstrate his inability to pay.
18In Brophy, the court decided the appeal on its merits. Therefore, Laskin J.A.'s comment at para. 15 that the considerations "would ordinarily justify granting Mrs. Brophy's motion and dismissing the appeal" may be regarded as obiter.
19The authority of the court to dismiss an appeal other than on the merits is found in s. 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. In my view, that jurisdiction should be limited to circumstances that constitute an abuse of process or otherwise impede the course of justice.
20Adjourning or staying an appeal is preferable to dismissal because it gives the appellant an opportunity to comply with the support orders or provide some evidence of inability to comply. After satisfaction of either of these conditions, the appeal could proceed. This approach would recognize an appellant's statutory right to appeal and the traditions of procedural fairness in our justice system.
21It is worth noting that requiring an appellant to comply with outstanding support orders, as a condition of proceeding with an appeal, does not make an appellant's appeal pointless. If the appellant is successful on appeal, the court's disposition can take into account the extent to which the support payments made have exceeded the level of support ordered on appeal.
22In my view, care should be taken that the preliminary motion does not overtake the hearing of the appeal itself. Where [page7] the basis of the appeal is that the appellant is unable to make the payments, deciding the issue on a preliminary motion is of questionable utility. If the court on the preliminary motion has been persuaded that the appellant is unable to make the payments, the respondent would embark on the hearing of the appeal knowing that the appeal will be allowed. Since it is preferable that the substantive issues be decided on the appeal itself, it should be sufficient for the appellant on the preliminary motion to persuade the court there is a genuine issue regarding his or her inability to pay.
23Turning to this appeal, the appellant does not attack the validity of the support orders with which he has not complied. Rather, the appellant seeks to set aside a finding that he was in contempt of court and his sentence for that contempt. As Dubin C.J.O. observed in Ontario (Attorney General) v. Paul Magder Furs Ltd. (1992), 1992 7704 (ON CA), 10 O.R. (3d) 46, [1992] O.J. No. 1693 (C.A.), at p. 53 O.R.:
. . . we are dealing with a finding of contempt of court. Such a finding transcends the dispute between the parties; it is one which strikes at the very heart of the administration of justice in this country and in this province.
24While the appellant has not filed affidavit material regarding his ability to make the payments, I would conclude that the principle referred to in Brophy does not apply to this appeal because the appeal concerns the legality of the contempt proceeding against the appellant and not the validity of the underlying support orders.
(ii) Appeals of contempt orders
25The principle that an appellant who has failed to purge his or her contempt should not be heard by the court is subject to a number of exceptions and is not universally applied. Megarry V.-C. in Pyke v. National Westminster Bank Ltd., The Times, December 9, 1977 said "It was neither the law, nor ought it to be, that a person in contempt was an outlaw, unable to take proceedings in the courts until he had purged his contempt, and liable until then to have any proceedings that he brought struck out."
26The modern statement of the practice is traced to Hadkinson v. Hadkinson, [1952] 2 All E.R. 567, [1952] 2 T.L.R. 416 (C.A.), where, at p. 573 All E.R., Denning L.J. explained that it was a rule of canon law that was adopted by the ecclesiastical courts and the Chancery court and had never been a rule at common law. He noted that the Hadkinson case was the first time in the 80-year existence of the English Court of Appeal that that [page8] court had refused to hear an appellant who had been heard in the court below. He said, at pp. 574-75 All E.R.:
It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.
27Rohmer L.J. wrote separate reasons in Hadkinson. His articulation of the exceptions to the rule were summarized in N. Lowe & B. Suffrin, The Law of Contempt, 3rd ed. (London: Butterworths, 1996) at pp. 653-54:
According to Rohmer Elk's analysis in Hadkinson v. Hadkinson the rule is subject to the following exceptions namely where the contemnor is (1) applying to purge his contempt, (2) appealing against the order which has not been obeyed, (3) submitting that he is not or should not be treated as being in contempt, (4) defending himself against subsequent applications, and (5) appealing against an order made against him, provided that the order was not made in the exercise of the court's discretion.
(Emphasis added)
28The authors go on to comment at p. 654: "In short the rule prima facie has no application to subsequent attempts to clear the very contempt complained of."
29In Arlidge, Eady & Smith on Contempt, 2nd ed. (London: Sweet & Maxwell, 1999), the authors say of the practice, at para. 12-61:
This is clearly a practice which is primarily coercive in nature rather than punitive. It is thus not universally applied. There have always been recognized so-called "exceptions", so that for example a contemnor may be heard on an application to purge the contempt; or for the purpose of setting aside the order breach of which had put him in contempt; or of appealing against the order of committal for lack of jurisdiction; also, he is not precluded from defending himself in the action itself.
30Halsbury's Laws of England, 4th ed. Reissue, vol. 9(1) (London: Butterworths, 1998) at para. 511, puts it this way:
The general rule is that a party in contempt cannot be heard or take proceedings in the same cause until he has purged his contempt; nor while he is in contempt can he be heard to appeal from any order made in the cause. This is, however, subject to exceptions. Thus a party in contempt may apply to purge the contempt, or appeal with a view to setting aside the order on which his contempt is founded, and in some cases he may be entitled to defend himself when some application is subsequently made against him. A plaintiff in contempt has been allowed to prosecute his action when the defendant had not applied to stay the proceedings, and the proceedings will not be struck out.
Even in cases where the rule is prima facie the applicable, the court appears to retain a discretion whether or not to hear the party in contempt, and may in its discretion refuse to hear a party only on those occasions when [page9] his contempt impedes the course of justice and there is no other effective way of enforcing his obedience. In an appropriate case, the court may decide to hear submissions from the contemnor de bene esse.
31In re Swaptronics Ltd., [1998] The Times Law Reports 508 (August 17), [1998] L.S. Gaz. R. 33 (Ch.), Laddie J. stated the modern practice as follows:
The fact that a party to a cause had disobeyed an order of the court was not of itself a bar to being heard. It was only actions of the party which impeded the course of justice in the cause by making it more difficult for the court to ascertain the truth which gave the court discretion to refuse to hear him until the impediment was removed or good reason was shown why it should not be removed.
32In that decision, Laddie J. mused that, if the British courts refused to allow those in contempt access to the courts on the sole ground of that contempt, the courts could well be in breach of Article 6.1 of the European Convention on Human Rights, ETS No. 5 (Council of Europe, Rome, 1950), which provides:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
33That article certainly reflects the values and traditions of our legal system.
34In the Canadian case of Apple Computer, Inc. v Mackintosh Computers Ltd., 1987 8932 (FCA), [1987] F.C.J. No. 516, [1988] 1 F.C. 191 (C.A.), Urie J., after reviewing authorities, said at p. 201 F.C.:
It is thus clear that where the question on the appeal is whether or not the Court making the contempt order had jurisdiction to do so, the appeal will not be stayed.
35This statement applies to this case. The appellant seeks to attack the jurisdiction of the court below to make the contempt order and impose a sentence against him.
36In my view, Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 1991 7053 (ON CA), 6 O.R. (3d) 188, [1991] O.J. No. 2025 (C.A.), in which this court exercised its discretion to refuse to hear an appellant who remained in contempt, was very much a different case. Magder continued to open its retail store on Sundays and holidays after being found in contempt for failing to obey court orders requiring Magder to comply with the Retail Business Holidays Act, R.S.O. 1980, c. 453, and close on these days. Magder had remained open on these days for the preceding 11 years during an unsuccessful attack on the constitutionality of the Retail Business Holidays Act under s. 15 of the Canadian Charter of Rights and Freedoms. Magder then proceeded to challenge the [page10] Retail Business Holidays Act under s. 8 of the Charter and continued to open its store on Sundays and retail holidays. Magder's defiance of the court's orders was, thus, persistently repeated on at least a weekly basis.
37The court adjourned the hearing of Magder's appeal of the contempt finding against it after it refused to undertake to close its store on Sundays and holidays. It is worth noting that the court did not require Magder to purge its contempt entirely before the court would entertain its appeal. The court made it clear that Magder did not have to pay the fines imposed as a sentence for its contempt as a condition of proceeding with its appeal.
38No doubt, Magder's brazen and persistent disobedience of a public statute and several court orders was the major reason the court exercised its discretion in that case. However, as I see it, the key distinction for the purposes of this case is that Magder did not challenge the jurisdiction of the courts to enforce a mandatory injunction to comply with a public statute. Magder's position was that the statute was unconstitutional. Even if it turned out that Magder was correct, the statute's invalidity would not have provided a basis for setting aside the contempt finding. The court observed that Magder's reliance on the Charter did not give it a "licence to break the law or defy an order of the court" and "so long as a law or an order of the court remains in force it must be obeyed" (p. 192 O.R.).
39While a number of distinctions between Paul Magder Furs Ltd. and this case may be pointed out, the fact that the appellant challenges the jurisdiction of the court to find him in contempt is reason enough to hear his appeal. I would dismiss the respondent's preliminary motion that this court exercise its discretion and decline to hear the appeal.
(b) Were contempt proceedings precluded by rule 60.11(1)?
40Rule 60.11(1) of the Rules of Civil Procedure provides:
60.11(1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.
41Rule 60.11(1) legislatively removed the inherent jurisdiction of the court to use the contempt power to enforce an order for the payment of money. This court's decision in Forrest v. Lacroix Estate (2000), 2000 5728 (ON CA), 48 O.R. (3d) 619, [2000] O.J. No. 1990 (C.A.), at para. 24, explained the policy underlying the rule, namely that this restriction on the court's jurisdiction is: [page11]
. . . consistent with the general trend of the law since the middle of the 19th century which has increasingly widened the protection of the liberty of the subject. Where incarceration is considered necessary to enforce court orders to pay money, it is provided for in well-tailored statutory provisions and not by the unrestricted inherent jurisdiction of the court.
42In Lacroix Estate, this court concluded that there was no exception for family law matters. Support orders made in family law matters are orders for the payment of money and cannot be enforced by the contempt process.
43The question in this case is whether paras. 2 and 3 of the order of Greer J. ordered the appellant "to do an act other than the payment of money". If yes, it follows that the contempt proceedings were not precluded. For the reasons that follow, however, I would find that both paras. 2 and 3 ordered a payment of money, as contemplated by rule 60.11(1). Accordingly, the motion judge erred by using contempt to enforce them.
(i) Letter of credit to secure support
44Paragraph 2 of Greer J.'s order required the appellant to provide an irrevocable letter of credit in favour of the respondent in the amount of $150,000 to secure the child and spousal support obligations mandated by the order of Kiteley J. The parties agree that the only question to be resolved is whether an order to provide an irrevocable letter of credit falls within the exception in rule 60.11(1).
45The respondent relied upon this court's decision in Manis v. Manis (2001), 2001 3851 (ON CA), 55 O.R. (3d) 758, [2001] O.J. No. 3672 (C.A.). That case did not involve an order to provide an irrevocable letter of credit as security. The appellant in that case was ordered to arrange "substitute security" for his debts in place of the assets he jointly held with his wife. While the debt obligations on the joint assets would have to be discharged, the order presumed this would be accomplished by the provision of "substitute security" rather than by repayment of the outstanding debts. It was not necessary for the appellant in Manis to repay his debts in order to avoid being found in contempt.
46The decision in Manis is reflective of the reasoning of Hagarty C.J.O. in Berry v. Donovan, [1893] O.J. No. 2, 21 O.A.R. 14 (C.A.). In Berry, this court held that a defendant could be found in contempt for failing to comply with an order to procure the discharge of an encumbrance, which was wrongfully placed by the defendant on the plaintiff's lands. Hagarty C.J.O. observed that the order did not require a payment as between a creditor and a debtor, and said at p. 21 O.A.R.:
The fact that the alleged wrongdoer may not be able to redress the wrong without some expenditure or payment of money to somebody else, cannot, in my opinion, prevent the action of the Court by way of attachment or committal. [page12]
47Similarly in this case, the underlying order (to the finding of contempt) requires the appellant to irrevocably secure interim support payments that he was already required to make as a result of the order of Kiteley J. In a technical sense, the appellant could not be found in contempt for failing to make the payments themselves.
48I believe, however, that consideration must be given to the true nature and substance of the irrevocable letter of credit. The letter of credit was to secure the amount of $150,000 of the appellant's interim spousal and child support obligations mandated by the order of Kiteley J. and not the final order to be made at trial. Greer J.'s order places no restriction on when or in what circumstances the respondent could draw upon the letter. At the time Greer J.'s order was made, December 3, 2002, the arrears under Kiteley's J.'s order dated July 5, 2001 already exceeded $150,000. Therefore, it appears that the respondent could call on the letter as soon as it was received, if the appellant had provided it.
49Judicial comment on the character of letters of credit is usually traced to Kingsway Electric Co. Ltd. v. 330604 Ontario Ltd. (1979), 1979 2056 (ON SC), 27 O.R. (2d) 541, 107 D.L.R. (3d) 172 (S.C.). At issue in that case was whether a letter of credit constituted "money's worth actually advanced or supplied" under a first mortgage. If yes, s. 72 of the Registry Act, R.S.O. 1970, c. 409, would give priority to the Toronto- Dominion Bank's mortgage.
50Speaking generally about the nature of a letter of credit, Lovekin J. said, at p. 545 O.R.:
The offer or proposal, put forward in the letter of credit, once accepted by a third party by way of the advance of goods or money, becomes an irrevocable pledge of money which the maker is bound to honour. In the case of an irrevocable letter of credit the author of the letter of credit is left without any right of retraction or other means of avoiding his obligation of meeting the fiscal promise given, for he has irrevocably committed the specified dollar value to honour a payment generated upon the happening of certain specific events.
That a letter of credit has inherent value is clear from the fact that the irrevocable pledge to pay up to a face amount is sufficient to induce a third party to advance goods or services upon being made aware of the existence of the letter. In the commercial world of today it is common practice to use letters of credit to guarantee a specific amount of ready cash to initiate and carry a specific project. To give a mortgage against the asset that will ultimately benefit from those funds, namely, the realty concerned, is again common practice. The letter of credit then becomes identical to cash to its full face value at the moment it is given.
(Emphasis added)
51In concluding that the irrevocable letter of credit did constitute "money's worth actually advanced or supplied" within the [page13] meaning of s. 72 of the Registry Act, Lovekin J. observed, at p. 546 O.R. that: "The face value of the irrevocable letter of credit is money or money's worth put at risk forthwith". Therefore, Lovekin J. concluded the Toronto-Dominion Bank's mortgage had priority.
52In my view, these comments have greater force where, as here, the respondent can call upon the letter of credit as soon as it is provided.
53It is important to consider the object of rule 60.11(1), which is to ensure that people are not imprisoned because they have not satisfied monetary obligations. In light of this object, an order that a person provide irrevocable security "identical to cash to its full face value at the moment it is given" is indistinguishable from an order requiring the payment of money. The order clearly and directly addresses the satisfaction of a monetary obligation.
54To conclude otherwise would render nugatory the exception in rule 60.11(1). A successful litigant would simply have to persuade the court to order that the unsuccessful litigant provide irrevocable security for any money the court ordered paid.
55The Family Law Rules, O. Reg. 114/99 also support this conclusion. In Lacroix Estate, Morden J.A. noted some of the differences between the wording of rule 60.11(1) and the corresponding provisions in the Family Law Rules. Despite the differences, he concluded that the contempt power under rule 60.11(1) should be interpreted in harmony with the contempt power in the Family Law Rules.
56Rule 31(1) of the current Family Law Rules, O. Reg. 114/ 99, provides:
31(1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.
57Those rules define a "payment order" as including a "support order", which in turn is defined to include "an order described in s. 34(1) of the Family Law Act [R.S.O. 1990, c. F.3]". Section 34(1)(k) of the Family Law Act provides for the making of an order "requiring the securing of payment under the order, by a charge on property or otherwise". Thus, under the Family Law Rules, an order requiring that security be provided for a court-ordered payment is a "payment order", and this may not be enforced by contempt. Consistent with the requirement for harmonious interpretation, rule 60.11(1) should be interpreted in a similar fashion.
58Applying this reasoning, I would conclude that the order for provision of the irrevocable letter of credit in the amount of $150,000 constitutes an order for the "payment of money" within the meaning of rule 60.11(1). It could not be enforced by contempt. [page14]
(ii) Payment of security for costs
59By way of para. 3 of the order of Greer J., the appellant became required to pay the sum of $100,000 to the solicitors for the respondent to be held as security for costs. The respondent's position is that an order to provide security for costs is not an order for the payment of money.
60The respondent relies on Coletta v. Coletta, 2003 2412 (ON SC), [2003] O.J. No. 81, 34 R.F.L. (5th) 9 (S.C.J.). In that case, which proceeded under the Family Law Rules, Quinn J. held that a court ordered payment into court is not a payment "to another person". The phrase "to another person" is found in the definition of "payment order" in Rule 2 of the Family Law Rules.
61It is unnecessary to consider whether Coletta was correctly decided because, in this case the respondent was ordered to pay the security for costs not into court but to the respondent's solicitors. The purpose of the order (to provide security for costs) and the fact that the money was to be held in an interest-bearing account pending further order of the court does not change the fact it was an order that the appellant pay a sum of money to another person.
62In my view, the contempt power was not available to enforce the order. It could, however, be enforced in the usual manner in which orders to provide security for costs are enforced. That is, a respondent who fails to provide ordered security for costs may have his or her pleadings struck and be disallowed from taking any further step in the litigation.
Conclusion
63As the contempt power was not available to enforce either paras. 2 and 3 of the order of Greer J., I would allow the appeal and set aside the orders of motion judge finding the appellant to be in contempt and imposing a penalty for contempt. As a result, I find it unnecessary to consider the appellant's additional arguments that the contempt proceedings were conducted in a manner that did not meet the requirements of fundamental justice.
64I would grant costs to the appellant on a partial indemnity scale in the amount of $15,000 inclusive of disbursements and GST, to be set off against the outstanding support arrears.
LASKIN J.A. (dissenting):--
A. Introduction
65I have read the reasons of my colleague Juriansz J.A. in which he would allow Dr. Dickie's appeal. My colleague has concluded first, [page15] that although Dr. Dickie continues to flout the support order made by Kiteley J. and the orders for security made by Greer J., this court has no discretion to refuse to entertain and decide his appeal; and second, that the contempt power cannot be used to enforce the orders of Greer J., because each order was an order for "the payment of money" under rule 60.11(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
66I have reached a different conclusion on both issues. First, in my view, this court has discretion to refuse to entertain Dr. Dickie's appeal and, on the record before us, it should exercise that discretion. The court should adjourn the appeal until Dr. Dickie complies with the orders of Greer J. Second, assuming that the court entertains the appeal, the orders of Greer J. requiring Dr. Dickie to secure his support obligations by an irrevocable letter of credit and to post security for costs are not orders for the payment of money under rule 60.11(1), because neither order amounts to a fixed debt obligation requiring Dr. Dickie to pay money to the respondent Leaka Dickie. Thus, the court can use its contempt power for a breach of these orders. Finally, on the other issue argued by Dr. Dickie -- that he was denied a fair hearing in the contempt proceedings before Stewart J. -- I am satisfied that he was afforded adequate procedural fairness. I would therefore dismiss his appeal.
B. Summary of the Factual Background
(a) The parties, their separation, and their divorce
67Dr. and Mrs. Dickie were married in 1979. They have three children: two boys, Mark, now 23 years old, and Scott, 18 years old, and a 21-year-old daughter, Erin, who is learning disabled. The parties separated in 1991, and were divorced in 1994. Mrs. Dickie then moved to Alberta. All three children live with her.
68Dr. Dickie was, and undoubtedly still is, a highly successful cosmetic plastic surgeon. Before he departed this jurisdiction for the Bahamas, he practised medicine in Sarnia, Ontario. Mrs. Dickie and the children have been almost entirely dependent on him for support. After the parties separated, Dr. Dickie paid support under the terms of a separation agreement made in 1993. Spousal support lapsed under that agreement on May 1, 2001.
(b) Dr. Dickie refuses to pay support and moves to the Bahamas
69Since May 2001, Dr. Dickie has shown an appalling disregard for orders of the court, for his support obligations to his family, and for the welfare of his children. When support lapsed [page16] under the parties' agreement, Dr. Dickie stopped paying support altogether, despite Mrs. Dickie's obvious need. She had no alternative but to bring an application for child and spousal support.
70On July 5, 2001, Kiteley J. ordered interim support. She found that for the year 2000, Dr. Dickie's income was $915,000 and for the year 2001, would be $656,000. She ordered retroactive support and ongoing child support in accordance with the Guidelines. Effective January 1, 2001, and until trial, she ordered Dr. Dickie to pay child support of $9,067.42 per month. She also ordered him to pay spousal support of $2,500 per month.
71In late June 2002, nearly a year after Kiteley J.'s order, Mrs. Dickie received an anonymous letter that said: "Ken Dickie is secretly preparing to flee the country within a couple of weeks, to the Bahamas, where he chooses to go to avoid all Canadian laws that are not to his liking."
72Four days later, Mrs. Dickie learned that her former husband had in fact moved to the Bahamas. In doing so, he misled his own lawyer and breached an undertaking that he gave on a discovery to advise Mrs. Dickie's solicitors if he intended to move.
73On discovering his move, Mrs. Dickie brought an urgent motion to restrain Dr. Dickie from dealing with his RRSPs. She was too late. Wright J. granted the relief she sought, but by then Dr. Dickie had already cashed most of his RRSPs. He cashed the remainder after Wright J.'s order. In all, he recouped over $300,000. He has never disclosed what he did with the money.
74By November 2002, Dr. Dickie was already behind in his support obligations. Mrs. Dickie applied to the court for an order that the support owing to her be paid from the proceeds of the sale of Dr. Dickie's home in Sarnia, which were being held by his real estate solicitor. In November 2002, LaForme J. made the order. It did not help. Dr. Dickie had put a mortgage on his home and the mortgagee, the Bank of Montreal, had priority over the proceeds. All Mrs. Dickie received was support for one month: November 2002. Since then, until the date of the final hearing of the contempt motion in January 2004, Dr. Dickie paid no support at all -- neither child support nor spousal support. He never sought to vary or appeal Kiteley J.'s order. He simply refused to comply with it. During the argument of this appeal, his counsel advised the court that Dr. Dickie is now paying some support. We were not told how much. Apparently, however, his support arrears exceed $100,000.
75Unfortunately, but hardly coincidentally, Bahamas does not have legislation permitting reciprocal enforcement of judgments. Therefore, Mrs. Dickie is powerless to enforce Kiteley J.'s support order in the Bahamas. On the record before this court, [page17] the inference that Dr. Dickie moved to the Bahamas to frustrate Kiteley J.'s order, and to avoid his obligation to support his children and his former wife, is overwhelming. His current wife admitted as much in a letter to the children in which she said, "Though we will not continue to pay you the unbelievable amounts of money your mother has not so graciously received in the past we do expect to work hard in our new environment in the Bahamas."
(c) The orders for security made by Greer J.
76Unable to enforce Kiteley J.'s support orders in the Bahamas, Mrs. Dickie sought security in Ontario. On December 3, 2002, Greer J. made the two orders whose breach formed the basis for the later contempt motion:
-- This court orders that the Respondent, Kenneth Earle Dickie, shall, within 14 days of the date of this Order, provide an Irrevocable Letter of Credit in favour of the Applicant in the amount of $150,000.00 to secure his child and spousal support obligations pursuant to the Order of the Honourable Madam Justice Kiteley dated July 5, 2001.
-- This court orders that the Respondent, Kenneth Earle Dickie, shall provide the Applicant with security for costs by paying the sum of $100,000.00 within 14 days of the date of this Order, which sum shall be held in an interest bearing account by the Applicant's solicitors pending further Order.
77Dr. Dickie did not appeal these orders. He did not apply to vary them. He simply refused to comply with them.
(d) The consequences of Dr. Dickie's refusal to pay support
78Dr. Dickie's refusal to pay the court-ordered support has had disastrous consequences for his children and for his former wife. The two older children stopped their education because they could not afford it. Mark, the eldest, dropped out of university because he could not both do his studies and work full-time. Erin could not get her high school diploma without a special needs tutor, which her mother could not afford. Scott, the youngest, also needs a tutor to help him finish high school. His mother cannot afford that expense either. Nor does she have any money for the children's extra-curricular activities. She has depleted all of her RRSPs and has no savings. She is even at risk of losing the family home.
(e) Dr. Dickie maintains a luxurious lifestyle
79Meanwhile, although Dr. Dickie claims he now has a modest income, the record before this court strongly suggests otherwise. [page18] The coloured pictures in the appeal book show that he lives in a large and luxurious home in the Bahamas. He drives a Porsche. He has a jet boat and a "sea- doo". His Visa statement, showing charges from resorts, bars, and for the rental of an additional boat, reveals a rather lavish lifestyle.
(f) The contempt proceedings
80In June 2003, Mrs. Dickie brought her motion for contempt of Greer J.'s order. The motion was adjourned twice, once for a case conference and once at Dr. Dickie's request. It was heard on January 13, 2004. Dr. Dickie did not attend. Instead, he filed a written "unsworn" submission, which Stewart J. considered, despite the objection of Mrs. Dickie's counsel. Stewart J. found Dr. Dickie in contempt. She concluded that Dr. Dickie had wilfully refused to comply with Greer J.'s orders that he post a letter of credit and security for costs. She gave him a further month to purge his contempt. He did not do so.
81On February 26, 2004, Stewart J. heard the penalty phase of the contempt proceedings. Dr. Dickie appeared. He was allowed to make both oral and written submissions. Stewart J. was not persuaded by these submissions. She ordered that Dr. Dickie be jailed for 45 days, refused to stay her order, and ordered that Dr. Dickie pay costs in excess of $16,000. Dr. Dickie served his entire sentence before launching this appeal.
82He still refuses to comply with Kiteley J.'s support order, or with Greer J.'s orders for security, or with Stewart J.'s order for costs.
C. Analysis
(a) Should the court entertain and decide Dr. Dickie's appeal?
83I begin with these two points. First, I propose to adjourn Dr. Dickie's appeal, not to dismiss it. Second, this is not a case where an appellant is being deprived of his right to appeal because of impecuniosity. On the record before us, Dr. Dickie has the means to satisfy the orders of Greer J. Certainly, he has filed no evidence to suggest otherwise. He has chosen not to comply. Once he does comply, he will have his day in this court.
84Juriansz J.A. recognizes the general rule that a court will not hear a litigant who has wilfully breached a court order until the litigant has cured the breach. However, my colleague says that the rule is subject to an exception where, as in this case, "the appellant seeks to attack the jurisdiction of the court below to make the contempt order and impose a sentence against him". [page19 ]
85In my view, neither principle nor precedent supports this limitation or exception. First, principle. The general rule against granting an audience to a contemnor who has failed to purge the contempt reflects the exercise of the court's discretion. That discretion is grounded in the inherent jurisdiction of the court to control its own processes and, in Ontario, in s. 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which gives the court express power to stay or dismiss a proceeding as an abuse of process. The rationale underlying this exercise of discretion is that a court will not allow a litigant to abuse the court's processes, or to impede the course of justice, or to undermine the court's ability to enforce its own orders.
86This rationale argues not for carving out categorical exceptions to the exercise of the court's discretion, but for a flexible approach to the exercise of this discretion. If needed to meet its underlying rationale, the court will exercise its discretion, apply the general rule, and refuse to entertain an appeal until the wilful breach is cured.
87The exercise of the court's discretion to refuse to hear the appeal of a litigant who has not cured a wilful breach of a court order obviously applies when the order appealed is the very order the litigant has refused to obey. But the court's discretion may also be invoked when the order appealed is closely connected to an order or orders wilfully breached. See Innovation and Development Partners/IDP Inc. v. Canada, 1994 10962 (FCA), [1994] F.C.J. No. 360, 114 D.L.R. (4th) 326 (C.A.), at p. 330 D.L.R. And, similarly, the court's discretion may also be invoked where an appellant seeks to attack a contempt order on the ground that the trial court had no jurisdiction to make it. To preclude altogether the exercise of the court's discretion in such a case would make a mockery of the rationale for the general rule. Instead, 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.
88Second, precedent. My colleague finds support for his position in various English authorities, beginning with the judgment of Rohmer L.J. in Hadkinson v. Hadkinson, supra, and in the decision of the Federal Court of Appeal in Apple Computer, Inc. v. MacKintosh Computers Ltd., supra. In my respectful view, this case law does not support Juriansz J.A.'s position.
89In Hadkinson, Rohmer L.J. suggested various exceptions to the general rule against hearing a litigant who has failed to cure a wilful breach of a court order, including the exception my colleague relies upon. However, in Hadkinson, Lord Denning wrote concurring reasons and took a more flexible approach, the approach I argue for. He wrote at p. 575 All E.R.: [page20 ]
I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.
90Lord Denning's more flexible approach has largely been adopted in later case law. In their text, The Law of Contempt, 3rd ed. (London: Butterworths, 1996) Nigel Lowe and Brenda Sufrin summarize the modern position at p. 653:
Although subsequent cases can be found supporting Rohmer L.J.'s approach, the growing weight of judicial opinion now favours Denning L.J.'s more flexible approach. Lord Bridge said in X Ltd. v. Morgan-Grampian Ltd. [See Note 1 at the end of the document]:
I cannot help thinking that the more flexible treatment of the jurisdiction as one of discretion to be exercised in accordance with the principle stated by Denning L.J. better accords with contemporary judicial attitudes to the importance of ensuring procedural justice [rather] than confining its exercise within the limits of a strict rule subject to defined exceptions.
(Emphasis added)
91Even in Apple Computer, Urie J.A. at para. 29 recognized that to impose categorical exceptions on the discretion whether to stay an appeal would improperly fetter that discretion:
The second of those exceptions it was said by counsel for the appellants applied to this case because the appeal is from the very order -- the injunction -- upon which the alleged contempt was based. I do not think that His Lordship meant his statement to be taken so literally. I have this view for several reasons. First, it is clear that whether to grant a stay or not is in the exercise of a discretion. If the rule is as categorical as he appears to have said it is, no discretion could be exercised where the appeal is from the very order said to be in contempt. That would constitute a complete fettering of that discretion.
92Instead, Urie J.A. at para. 34 emphasized that in exercising its discretion whether to allow an appeal to proceed, the court should take into account the nature of the contempt and its effect on the course of justice:
From all of the foregoing I think it proper for me to express the view that the preferable rule is that, in the exercise of its discretion to permit an appeal to proceed or to refuse to do so, a court must have regard, inter alia, to the particular circumstances of the contempt and its effect on the proper administration of justice, i.e. whether it constitutes an impediment to the course of justice. Whether or not it will, of course, will be dependent upon the facts of the contempt and the Court's view of their effect. [page21]
In other words, in exercising its discretion, the court should consider the underlying rationale for that discretion.
93What then of the present case? An important precedent for this case is the decision of this court in one of the appeals brought by Paul Magder: Ontario (Attorney General) v. Paul Magder Furs Ltd., supra. The facts of that case are strikingly parallel to the facts of the present case. The Ontario government had obtained an order under the Retail Business Holidays Act requiring Magder to close his business on Sunday and other holidays. Magder refused to comply with it, contending that the statutory authority for the orders was unconstitutional. So the government brought a motion to have him found in contempt. The motion was granted and Magder was found in contempt. He then appealed the contempt order. This court refused to entertain the appeal. Brooke J.A. wrote the court's reasons. They apply with equal force to Dr. Dickie's appeal (at p. 193 O.R.):
In my opinion, it is an abuse of process to assert a right to be heard by the court and at the same time refuse to undertake to obey the order of the court so long as it remains in force. That is this case. Magder's disobedience from the beginning and now is such that it impedes the course of justice and impairs the ability of the court to enforce its orders. It is a general rule that a party in contempt will not be heard in the proceedings until the contempt is purged ... Accordingly, I think the court ought not to grant an audience to Magder until it has purged its contempt and undertakes to abide by the orders of Farley J. as to closing on holidays, of Chilcott J. as to advertising, and of this court.
94In short, this court refused to entertain Magder's contempt appeal when he had deliberately defied the orders giving rise to the contempt motion. Similarly, this court should refuse to entertain Dr. Dickie's contempt appeal as he has deliberately refused to comply with the orders of Kiteley J. and Greer J., which gave rise to the contempt motion.
95That Magder disputed the court's jurisdiction to make the underlying orders, and that Dr. Dickie disputes the court's jurisdiction to make the contempt order, is a distinction of no significance to the exercise of the court's discretion. In both cases, the appellant wilfully and continuously "thumbed his nose" at the court. In both cases, hearing the appeal before the contempt is purged would impede the course of justice and would impair the ability of the court to enforce its own orders.
96In Innovation and Development Partners/IDP Inc., supra, the Federal Court of Appeal similarly exercised its discretion. In that case, IDP had sued the government of Canada in three related actions. It brought a motion for summary judgment in one [page22 ]of the actions. When it brought its motion, IDP was in contempt of two orders of the Federal Court, and had refused to obey four other orders. The responding party to the motion, the Government of Canada, sought to quash IDP's motion because IDP had not purged its contempt. The motions judge refused to quash, but the Federal Court of Appeal reversed. The court quashed IDP's motion and stayed all of its other actions against the government until it abided by the court's orders.
97Decary J.A. recognized (at p. 330 D.L.R.) that the "general rule does not prevent the party in contempt for non- obedience in one cause from making an application to the court in another cause relating to a distinct matter, although the parties to such other cause may be the same". However, he was of the view that "as the three actions are so closely connected as to warrant a hearing on the same day, it would frustrate the purpose of the general rule to allow a party found in contempt in one of the three actions to proceed in the other two". Because IDP had shown "a flagrant and systematic disregard for orders of this court" (at p. 331 D.L.R.), it was not entitled to proceed with its litigation.
98In the case before us, Dr. Dickie has similarly shown a flagrant and systematic disregard for orders of the court over a period of four years. He has deliberately defied the support order of Kiteley J. and he has deliberately defied the orders for security of Greer J. His disregard and defiance of the court's orders has impeded the course of justice for Mrs. Dickie and her children. Indeed, the children's interests is an added consideration supporting the exercise of the court's discretion to deny Dr. Dickie an audience until he cures his contempt. In The Law of Contempt at p. 654, the authors observe:
There is some suggestion that the rule might be more readily applied where the welfare of minors is involved on the basis that where an order relates to a child the court is or should be adamant upon its due observance.
99The contempt proceeding against Dr. Dickie is not a distinct proceeding. It is intimately connected to and arises out of his breach of the orders of Kiteley J. and Greer J. I would therefore exercise this court's discretion not to entertain Dr. Dickie's appeal until he has at least complied with the orders of Greer J. I would do so by adjourning the disposition of the appeal until Dr. Dickie has posted the letter of credit and paid into court the security for costs ordered by Greer J.
100However, because Juriansz J.A. has considered the merits of Dr. Dickie's appeal, I feel obliged to do so as well. [page23]
(b) Are the orders of Greer J. orders for the payment of money under rule 60.11(1)?
101Greer J. ordered that Dr. Dickie give Mrs. Dickie an irrevocable letter of credit to secure his support obligations under the order of Kiteley J., and that he post security for costs of $100,000. Stewart J. found him in contempt of these two orders. Rule 60.11(1) precludes the use of the contempt power to enforce an order for the payment of money:
60.11(1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.
102The support order of Kiteley J. is obviously an order for the payment of money. Dr. Dickie could not have been found in contempt for breach of that order. He contends that the two orders for security made by Greer J. are also orders for the payment of money under rule 60.11(1), and that, therefore, Stewart J.'s finding of contempt must be set aside. Juriansz J.A. agrees with this contention. I take a different view.
103My colleague argues that rule 60.11(1) should be interpreted in the light of its object or purpose. I agree. The purpose of the exception in rule 60.11(1) is to exclude the use of the contempt power -- which carries with it the possibility of imprisonment -- for fixed monetary obligations, that is, debts, between a debtor and a creditor. We no longer imprison people for their failure to pay a civil debt. See R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, [2003] S.C.J. No. 78, at para. 2.
104I accept that an irrevocable letter of credit is "money or money's worth", and that an order to post security for costs ordinarily is satisfied by the payment of money. However, to determine whether an order is an order for the payment of money under rule 60.11(1), one must consider to whom the money is being paid and the effect of the order for payment. Where money is ordered to be paid not to the creditor but into court -- or its functional equivalent, to a solicitor to be held in trust -- and where the effect of the order is not to create a fixed debt obligation but to secure a debt obligation, then the order is not an order for the payment of money under rule 60.11(1).
105These distinctions are supported by British law, from which our own law of contempt originated. The English text, The Law of Contempt, 3rd ed., supra, at p. 582, discusses the important distinction between an order directing a person to pay [page24] money to another person, and an order directing a person to pay money into court. The latter order does not preclude the use of the contempt power to enforce it:
There are two types of judgment or order which direct a person to pay money, namely, that directing payment of money to another person and that directing payment of money into court. Disobedience to either type of order can amount to contempt but the importance of the distinction is that whereas the effect of an order directing a person to pay money to another person is to create a debt, an order to pay money into court does not necessarily imply the existence of a debt. In the former case the court's power to imprison persons who have disobeyed the court order is very limited and can only be exercised in the circumstances provided for by the Debtors Act 1869, s 4 and s 5. In the latter case, however, where the order for payment into court is not in respect of any debt but merely for the security, for example, of a wife's costs, then the power of the court is not affected by the Debtors Act 1869, s 4, and the normal remedies of committal or sequestration are available. In Bates v. B ates the Court of Appeal held that their power to punish a husband who had defaulted in paying a sum of money into court, ordered for the security of his wife's costs in respect of her petition for judicial separation, was unaffected by the Debtors Act 1869. Lindley L.J. said:
The question turns upon the words of the 4th section of the Debtors Act. It is said that the appellant is within the protection of the Act, because he has made default in payment of a sum of money. But what do the words "payment of money" in this section mean? In my opinion, they do not mean depositing a sum of money in court, to abide an order to be subsequently made.
106The authors (at p. 583) discuss the underlying rationale for the different treatment of a breach of an order to pay a creditor and the breach of an order for security:
The essence of the distinction seems to be that the payment of money as security is not a debt within the meaning of the Debtors Act, because no definite and fixed obligation to pay a sum of money has thereby been created. As Chitty J. said:
Judgments or orders for payments into court are generally not final: the money paid in may be paid for security only for the safety of the fund, and the person ordered to pay in not infrequently is entitled to have some part of the money afterwards paid out to him.
On the other hand once the sum has become fixed, a definite obligation to pay a sum of money is created and it is in essence therefore a debt.
107This rationale for the distinction between the two types of orders makes sense. As my colleague points out in his reasons, the object of rule 60.11(1) is to ensure that people are not imprisoned because they have not satisfied their monetary obligations. This objective can be traced back to the English case of Bates v. Bates (1888), 14 P.D. 17, 58 L.J.P. 85 (C.A.), where the court commented (at p. 19 P.D.) on the purpose of the Debtors Act: "The object of the Act was to prevent the imprisonment of persons for nonpayment of ordinary debts." The orders of Greer J. do not create "ordinary debts". [page25]
108Ontario's Family Law Rules, O. Reg. 114/99 support my conclusion. As Juriansz J.A. points out, in Forrest v. Lacroix Estate, supra, Morden J.A. said that the contempt power under rule 60.11(1) should be interpreted harmoniously with the contempt power under the Family Law Rules.
109Family Law rule 31(1) and the definition of "payment order" under that rule make explicit the distinction I have argued for in interpreting rule 60.11(1). Rule 31(1) of the Family Law Rules precludes the use of the contempt power to enforce a "payment order":
31(1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.
110"Payment order" is defined in Family Law Rule 2 as an order "requiring a person to pay money to another person". "Payment order" is defined in Rule 2 to mean:
"payment order" means a temporary or final order, but not a provisional order, requiring a person to pay money to another person, including,
(a) an order to pay an amount under Part I or Part II of the Family Law Act or the corresponding provisions of a predecessor Act,
(b) a support order
(f) a fine for contempt of court
111Thus, in Coletta v. Coletta, supra, J.W. Quinn J. held that the breach of an order to pay the proceeds of the sale of a matrimonial home into court could be enforced by a contempt motion, because it was not a payment order. Similarly, I conclude that the orders of Greer J. are not "payment orders" or "orders for the payment of money", because they do not require Dr. Dickie to pay money to his former wife.
112My colleague distinguishes Coletta on the ground that here Dr. Dickie was ordered to pay security for costs, not into court, but to Mrs. Dickie's solicitor to be held in an interest-bearing trust account. In Juriansz J.A.'s view, Dr. Dickie was thus ordered to pay money to another person. I respectfully disagree. I see no meaningful distinction between Coletta and this case. As I said earlier, an order that security be paid to a solicitor to be held in trust is the functional equivalent of an order that the security be paid into court. In both cases, what is ordered is security, not a payment from a debtor to a creditor.
113My colleague argues that my conclusion would "render nugatory" the exception in rule 60.11(1). In his view, a successful [page26] litigant would simply have to persuade the court to order an unsuccessful litigant to give irrevocable security for a monetary order.
114Respectfully, I find this argument unpersuasive. It fails to take into account that the court retains discretion whether to order security, and whether to use the contempt power to enforce the failure to provide it. As with any judicial discretion, this discretion must be exercised in accordance with established principles.
115Orders for security of the kind made by Greer J. will, as a matter of principle, be warranted only where there is a real risk of non-payment. Dr. Dickie's obvious intent to disregard his support obligations made it reasonable to order security in this case. Just because these orders were made in this case does not mean that they will be made in all cases.
116I add as a post-script that the exclusion in rule 60.11(1) refers only to orders for the payment of money; the rule does not exclude the use of the contempt power for breach of an order to post security. I therefore do not think that my colleague's interpretation of the exclusion is justified, even for an order for security that amounts to money or money's worth.
117I would not give effect to Dr. Dickie's submission on this issue.
(c) Did Dr. Dickie receive a fair hearing in the contempt proceedings?
118Dr. Dickie submits that he did not receive a fair hearing in the proceedings before Stewart J. His two main complaints are first, that he was not served personally (or by substituted service) with the notice of the return of the contempt motion on January 13, 2004; and second, that Stewart J. proceeded in his absence and made a finding of contempt against him, without affording him an opportunity to be heard.
119I do not accept this submission. Although perhaps the conduct of the contempt motion was not perfect, it did afford Dr. Dickie adequate procedural fairness. Contempt proceedings, even for breach of a civil order, are quasi-criminal. Thus, Dr. Dickie had the right to be served with the notice of motion particularizing the allegations of contempt, the right to a hearing, the right to be presumed innocent until proven guilty beyond a reasonable doubt, and the right to make full answer and defence, including the right to counsel, the right to cross-examine witnesses against him, and the right to call evidence.
120Dr. Dickie was given all these rights. Six months before the motion proceeded, he was served by mail and fax with the notice of [page27 ]motion particularizing the allegations of contempt. The motion was originally returnable on June 19, 2003. Dr. Dickie's father-in-law attended for him. The motion was adjourned to September 26, 2003, for a case conference. Dr. Dickie attended the case conference, but still refused to pay one penny of support. The contempt motion was adjourned to December 30, 2003. Dr. Dickie wrote a letter requesting a further adjournment. Lowe J. granted his request, and adjourned the hearing of the motion to January 13, 2004.
121Dr. Dickie was served with notice of the return of the motion by fax and courier. It might have been better had he been personally served. However, Stewart J. addressed the question of service, and found [at para. 7] that Dr. Dickie was "well aware of the existence of this motion, its present return date, the nature of the relief sought, and the evidentiary foundation upon which the motion is made". The record amply supports her finding.
122Despite being aware of the contempt motion for six months, and of the return date on January 13, 2004, Dr. Dickie chose not to retain counsel or to appear. Instead, he sent in a written submission, which Stewart J. considered before making her finding of contempt. Even after finding Dr. Dickie in contempt, she gave him a further month to purge his contempt before sentencing him. He did not do so.
123On appeal, Dr. Dickie filed no evidence to show that he could not retain a lawyer for the contempt hearing. And importantly, he filed no evidence to show what defence he would have mounted had he been present before Stewart J. on January 13, 2004. I am satisfied that he was given adequate procedural fairness, and indeed as Mr. Niman points out in his factum, wide latitude to put forward his defence. I would therefore not give effect to Dr. Dickie's submission that he was denied a fair hearing.
D. Conclusion
124In the light of Dr. Dickie's continued wilful refusal to comply with the orders of Kiteley J. and Greer J., I would exercise the court's discretion not to entertain his appeal. Instead, I would adjourn the disposition of the appeal until Dr. Dickie posts the security ordered by Greer J.
125Moreover, in contrast to the reasons of Juriansz J.A., I find no merit in the appeal itself. In my view, the court's contempt power can be used for a breach of the orders for security made by Greer J. Dr. Dickie was given a fair hearing in the contempt proceedings before Stewart J. I would therefore dismiss his appeal with costs.
Appeal allowed.
Notes
Note 1: [1990] H.L.J. No. 22, [1991] 1 A.C. 1, at p. 46.
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