CITATION: D’Ilio v. D’Ilio, 2010 ONSC 4516
DIVISIONAL COURT FILE NO.: DC10-214ML Hamilton
DATE: 2010-08-16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mr Justice Ramsay
BETWEEN:
Patrice D’Ilio
Applicant
and
Jason D’Ilio
Respondent
No one for the applicant and respondent
The solicitor appearing for herself
and
Ann Bruce
HEARD: 2010-08-16
Solicitor, moving party )
[1] In this family litigation, Ann Bruce, solicitor for the wife, moves on her own behalf for leave to appeal to the Divisional Court from the interlocutory order of Lafrenière J., citing her, the solicitor, for contempt of court. The parties to the family litigation were not required to appear and chose not to appear.
[2] The solicitor tells me that since filing this motion she has been found guilty of contempt and fined $500. I suggested to her (to no avail) that a more straightforward remedy in the circumstances might be an appeal to the Court of Appeal from the conviction, which can be filed as of right.
[3] I must first observe that the materials placed before me are entirely inadequate. The solicitor has not filed a transcript of the proceedings during which she was cited. Although she says that she is in possession of the reasons for conviction, she has not filed them, either. Instead she has filed the affidavit of her client, who gives an account of the hearing before the motion judge during which the contempt citation was made, to which is attached the handwritten endorsement made that day. The endorsement deals with the merits of the family law motions and costs, and notes, “contempt issue adjourned to Mar 5/2010 10 am tbst to set hearing date.”
[4] The solicitor argues that she should not have been cited for contempt, and in support of that argument makes extensive reference to the judge’s alleged incivility. It cannot be proper to base a motion for leave to appeal on the conduct of the judge without filing a transcript of the proceedings in which the judge acted.
[5] The solicitor further argues that what she did does not amount to contempt. The affidavit of the solicitor’s client does not mention on what basis the judge purported to cite the solicitor for contempt. Again, the transcript would have shown this clearly. When I asked in oral argument what the judge complained of, the solicitor gave evasive answers. On the record before me, it is impossible to assess the correctness of the judge’s decision. When I asked how I could assess the conduct in the absence of a transcript, the solicitor said that the cost of a transcript is prohibitive. That is no answer, especially for a solicitor of the court. It cannot be said that the moving party has shown that there is reason to doubt the correctness of the impugned decision.
[6] The solicitor also argued that the judge erred by failing to provide written reasons for her decision to make the citation for contempt. A citation for contempt constitutes the commencement of a proceeding at which a decision will be made. Reasons should be given for the conviction or acquittal, not the citation. All that the judge is required to do when citing someone for contempt is to inform him or her of the basis of the complaint. That can be done orally or in writing. I have no reason to doubt that it was done orally in this case.
[7] Finally, the record does not permit me to know whether the contempt alleged is a criminal contempt or a civil contempt. If I take the solicitor’s admission in oral argument that it had something to do with her words or conduct at the motion in which she was cited, it would likely be a criminal contempt. The Divisional Court has no jurisdiction over a citation for criminal contempt. The moving party’s failure to satisfy me as to the court’s jurisdiction is sufficient to dispose of the motion adversely to her.
[8] For all these reasons, leave to appeal is denied.
J.A. Ramsay J.
Released: 2010-08-17
CITATION: D’Ilio v. D’Ilio, 2010 ONSC 4516
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mr Justice Ramsay
BETWEEN:
D’Ilio and D’Ilio and Bruce
REASONS FOR JUDGMENT
Released: 2010-08-17 Ann Bruce, solicitor, moving party, in person