Pimiskern v. Brophey, 2013 ONSC 572

CITATION: Pimiskern v. Brophey, 2013 ONSC 572

COURT FILE NO.: DC-12-45ML

DATE: 20130124

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Silke Christina Pimiskern

Applicant

– and –

James Christopher Brophey

Respondent

Dean H. Clark, for the Applicant

Deborah L. Rollier, for the Respondent

HEARD: January 21, 2013

DECISION ON MOTION FOR LEAVE

thomas J.:

1The applicant, Silke Christina Pimiskern (“Pimiskern”), applies for leave to appeal pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990 c. C.43 and Rule 62.01 and 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 94 from the order of Bondy J. dated September 14, 2002.

Background

2Pimiskern and the respondent, James Christopher Brophey (“Brophey”), resided in a common law relationship. They have one child, Nicholas Brophey, born April 18, 2008.

3The couple separated in September 2008 and the issues of custody, access and child support were resolved by minutes of settlement and then the final order of Campbell J. dated December 18, 2009.

4The relevant portions of the order are in para. 4 which sets out the following:

4. (a) The Respondent shall pay to the Applicant support for the child Nicholas Brophey born April 18, 2008 in the amount of $415.00 per month commencing July 1, 2009 and payable on the 1st day of each month thereafter for so long as the child remains a “dependant” as defined in the Family Law Act of Ontario. The amount of child support is based on the Respondent’s annual income of $45,000.00 in accordance with Schedule 1 of the Ontario Child Support Guidelines.

(b) The respondent shall provide to the Applicant a copy of his annual income tax return and Notice of Assessment for the prior year by June 15 annually, commencing in 2010.

5The Family Responsibility Office (“FRO”) enforced paragraph 4(a) from the date of the order to August 15, 2010 when the parties reconciled. They separated again on or about October 31, 2011 and FRO refused to enforce paragraph 4(a) further.

6Counsel for both parties commenced discussions about reactivating support and it seems Brophey was reluctant to simply return to the earlier order. Mutual financial disclosure was being discussed and the name of a mediator had been suggested.

7It was at that point that Pimiskern discharged her counsel and retained Mr. Clark. Mr. Clark immediately served a motion for contempt alleging failure to comply with paragraph 4 of the order of Campbell J.

8While the affidavit of Pimiskern filed in support of the motion alleges default regarding paragraph 4(b) of the Campbell J. order, there are no details supporting that allegation. The balance of the affidavit clearly focuses on the need to restart child support.

9Paragraph 13 of Pimiskern’s affidavit states the following:

I request the following from this Honourable Court:

(a) A declaration that the Order is in full force;

(b) Directing the Family Responsibility Office to enforce paragraph 4(a) of the Order.

10The contempt motion came before Bondy J. in a regular motions court. He endorsed the following:

The motion is dismissed for lack of jurisdiction (see FLR 31(1), Forrest and Lacroix) (2000) 2000 5728 (ON CA), O.J. No. 1990 and Murano v Murano (2002) 2002 49352 (ON CA), O.J. No. 3632) and because service of a contempt motion while mediation was in the process of being scheduled only served to inflame matters. Mr. Clark did not give [the] other side a letter or courtesy call to seek resolution but rather brought this contempt motion.

Costs of $2,500.00 payable within 30 days by this Respondent to the Applicant. These costs are on a substantial indemnity basis.

11In dismissing the motion it is clear from the endorsement that Bondy J. felt the contempt motion sought a finding related only to the non-payment of money and therefore he was without jurisdiction. He was further concerned about the timing of this step taken by Mr. Clark.

12The applicant seeks to appeal this dismissal and the related costs order. She alleges good reason to doubt the correctness of the decision and suggests it is a matter of importance. (Rule 62.02(4)(b))

Analysis

13The parties have provided materials which speak to a series of issues including the power of the motions judge in contempt proceedings. I believe, however, that this matter can be simply determined based on the nature of the order itself.

14I am convinced that the dismissal of a motion for contempt is a final order and as such I have no jurisdiction to make the order sought here.

15In Bush v. Mereshensky, 2007 ONCA 679, the court stated, at paras. 9-10:

The suggestion was raised that the finding of contempt may be an interlocutory order rather than a final order in which case this court would be without jurisdiction to entertain this appeal.

We disagree. This court has consistently held that a finding of contempt is a final order. See Bassel’s Lunch Ltd. v. Kick, 1936 104 (ON CA), [1936] O.R. 445 (Ont. C.A.); International Beverage Dispensers’ Union, Local 280 v. Kilgoran Hotels Ltd., [1970] O.J. No. 389 (Ont. C.A.).

16I have considered whether a contempt motion in a Family Law proceeding should be accorded some different status taking into account the often long and multi-layered applications. Orders are often granted that bear the designation interim – interim, interim and final.

17I see no reason to depart from the view that the decision, on any contempt application, is a final one. It resolves on a final basis the issue of whether the default alleged was worthy of the serious finding of contempt and the related consequences.

18In International Beverage (cited above), Gale, C.J.O. commented on the finality of a dismissal order granted in that case.

If this order were not final then the proceedings which were initiated by the filing of the certificate and the bringing of the motion for committal and attachment could never be terminated and, accordingly, we regard the order as bringing to an end these proceedings so far as committal and attachment are concerned.

Conclusion

19Having found the order of Bondy J. to be final, I dismiss this application for leave.

20I must deal with costs. I am aware that part of the concern raised by Mr. Clark in his materials and argument was what he felt was the punitive nature of the costs award in the order appealed from. He argues it was unreasonable taking into account the means and expectations of his client. I have no jurisdiction regarding those costs and this is not to be interpreted as an indication that I would reduce the costs if I could.

21This motion for leave to appeal was ill-advised. In fact, it seems that this is the second set of motion materials seeking the same result. The respondent was served with two motion records and forced to respond to both, only to find that only the second motion was ever filed.

22The issue of my jurisdiction was clearly raised in the respondent’s material. I have taken into account the factors to be considered in my discretion on costs as they are set out in Rule 57.01 and the relevant cases. Particularly, I have considered the themes of indemnification and reasonableness. It might be viewed that this leave application amounts to a step captured by rule 57.01(f).

23Costs here must follow the success of the respondent and must enforce responsibility in litigation. The respondent has provided a bill of costs on a substantial indemnity basis in the total amount of $6,965.72 which takes into account their need to respond to both leave applications served by the applicant.

24I choose to exercise my discretion to reduce costs awarded to $3,500 inclusive of disbursements and HST. It is my belief this properly represents partial indemnity costs and should fall within the reasonable expectations of the losing applicant. I am further concerned that the cumulative nature of the costs awards may leave the applicant unable to continue to litigate the substantive issues. As those issues include child support and access they have importance to the court beyond the adversarial positions of the parties taken here.

Original signed “Thomas J.”

Bruce Thomas