Court File and Parties

COURT FILE NO.: 43643-10 DATE: 2018-12-21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christene Ann Weber, Applicant AND: Sean Robert Hugh Merritt, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Glenda McLeod, Counsel, for the Applicant Respondent, Self Represented

HEARD: October 16, 2018 and December 14, 2018 Kitchener, Ontario

Endorsement

[1] The applicant, Ms. Christene Weber [“Ms. Weber”] brings a motion for contempt against the respondent, Mr. Sean Merritt [“Mr. Merritt”], in relation to alleged contempt of two court orders requiring that he not deplete his assets. The respondent asks the Court to dismiss the motion under Rule 1(8) of the Family Law Rules on the basis of alleged breaches of court orders.

[2] For the reasons set out below, this Court finds that Mr. Merritt is in contempt of both orders. He is given until January 18, 2019 to purge his contempt, as set out below, failing which his pleadings are struck.

A. Brief Background

[3] As set out in my Endorsement dated May 10, 2018 in relation to a motion for third party disclosure, the background of this matter is as follows:

[4] The parties, who are the parents of four children residing primarily with Ms. Weber, separated in October 2009 after an eight-year marriage. They were divorced on February 22, 2012.

[5] There has been extensive litigation since 2010. Much litigation has been focussed on Mr. Merritt’s income and support obligations, and Mr. Merritt’s repeated efforts to reduce the support payable.

[6] On September 10, 2010, on an argued motion within the initial application, Justice MacPherson found Mr. Merritt’s income for support purposes to be $500,000 per year. She set child support at $7,500 per month and spousal support at $5,300 per month.

[7] On June 6, 2011, Mr. Merritt brought a motion to change the temporary order. That motion was dismissed by Justice Campbell, who found that Mr. Merritt had wilfully disregarded the order of Justice MacPherson.

[8] On December 16, 2011, the parties resolved the application for divorce on a consent basis, setting Mr. Merritt’s income at $200,000 per year, plus 40% of his net bonus. Base child support was set at $3,994 per month and spousal support was set at $2,192 per month. These terms were incorporated into the divorce order of Justice Campbell dated February 29, 2012.

[9] Mr. Merritt then brought a motion to change the support set out in the divorce order. By consent order of Justice Broad dated March 13, 2015, Mr. Merritt’s income for support was set at an anticipated $125,000 per year effective February 1, 2015. Mr. Merritt concedes that in the course of that proceeding, he produced a fraudulent T4 slip, seeking to reflect his income as $37,000 less than his actual income. Child support was set at $2,660 per month while spousal support was set at $1,135 per month.

[10] Mr. Merritt was laid off. In October of 2015 he started his own company. In May 2016, Mr. Merritt brought a second motion to change, this time seeking that that his income be set at approximately $13,000 per year and that spousal support be terminated. In or about October 2016, Mr. Merritt let his company go dormant and became an employee of his parents’ company, Blue Water Metals.

[11] Mr. Merritt’s current position in the litigation is that his income for support purposes is the $72,000 per year he is paid as salary from his parents’ company.

[12] The motion to change was scheduled to be heard in September 2018. That did not proceed.

B. Procedure

[13] There is an order in effect that no further motions be brought pending the hearing of the motion to change. However, on June 14, 2018, Justice Sloan granted leave to both parties to bring contempt motions. Only Ms. Weber has brought a contempt motion.

[14] This contempt motion was made returnable with the hearing of the motion to change on October 16, 2018. This Court determined that the contempt motion should be heard first. A further date is to be set for the hearing of the motion to change. This is addressed below.

[15] Both parties filed affidavit evidence for the contempt motion. The court also heard viva voce evidence of both parties, who were cross examined on their affidavits.

[16] In the course of hearing the evidence, it became clear that Mr. Merritt was suggesting that when he withdrew funds from his RRSP, he relied on legal advice of his former lawyer, Mr. Kelly.

[17] The Court adjourned the contempt motion for Mr. Merritt to obtain legal advice in relation to this issue and to provide an opportunity for Mr. Kelly to provide evidence.

[18] The motion resumed on December 14, 2018. Mr. Kelly had filed an Affidavit and attended with counsel. He was cross examined by both parties on the contents of that affidavit.

[19] In light of the extensive delays in this matter, it now being almost two and a half years since Mr. Merritt brought his motion to change and the contempt motion having taken two days, two months apart, the Court invited and heard submissions both on whether Mr. Merritt is in contempt as alleged by Ms. Weber, as well as on the appropriate sentence should there be a finding of contempt and a failure to purge that contempt. This Court determined that formally bifurcating the hearing would cause further delay and expense. Neither party objected to this process. Mr. Merritt in particular stressed the importance of bringing the process to an end so that the parties can move forward. As stated in Boily v. Carleton Condominium Corp, 2014 ONCA 574 at paras. 121-125, there is no formally mandated process for contempt proceedings. While contempt proceedings typically have two stages, the procedure followed may vary.

C. The Orders

[20] Ms. Weber alleges that Mr. Merritt is in contempt of two court orders: the temporary order of Justice Sloan dated August 18, 2016 and the Order of Justice Reilly dated June 23, 2017.

Order of Justice Sloan dated August 18, 2016

[21] The relevant parts of the order of Justice Sloan provide as follows:

6. The Applicant, Christine Ann Weber (Merritt) and the Respondent, Sean Robert Hugh Merritt shall be restrained from depleting their respective property.

[22] The order of Justice Sloan was entered into on consent, pursuant to Minutes of Settlement filed at a motion appearance. Mr. Merritt acknowledged that he was present at court on the day of the motion.

Order of Justice Reilly dated June 23, 2017

[23] The relevant parts of the order of Justice Reilly read as follows:

4. Mutual order for non-depletion of assets.

[24] The order of Justice Reilly was entered into on consent following a settlement conference.

[25] Mr. Merritt had counsel when both orders were made.

D. Findings of Fact

[26] Based on the affidavit and oral evidence on this contempt motion, I make the following findings of fact:

a. Mr. Merritt was aware that in Ms. Weber’s response to his motion to change, she sought lump sum payment of alleged arrears of child and spousal support and all prospective child and spousal support. Specifically, she sought a transfer to her of $373,000, being the estimated combined balance of Mr. Merritt’s Locked-In-Retirement-Account (LIRA) and his Worldsource RRSP. b. Mr. Merritt was aware of the existence of both the order of Justice Sloan and the order of Justice Reilly. He agreed to those orders, both of which were made on consent. Mr. Merritt candidly stated in his affidavit sworn August 12, 2018, “While I was aware of the orders of Justice Sloan and Justice Reilly at the time I withdrew funds from my Scotiabank and Worldsource RRSP’s, I chose to proceed and withdraw this money from my investments as I did not have any other sources of income or other liquid assets I could reasonably utilize to continue to meet my day to day expenses, or to continue to pay ongoing legal fees…” c. After the order of Justice Sloan was made on August 18, 2016, Mr. Merritt withdrew funds from his RRSP as follows: i. On January 22, 2018, he withdrew $15,000 from his Scotiabank RRSP, from which he received the net amount of $11,943; ii. On March 1, 2018, he withdrew a further $29,902.62 from his Scotiabank RRSP, from which he received the net amount of $20,875.33; iii. On May 30, 2018, he withdrew $60,039 from his Worldsource RRSP, from which he received the net amount of $42,133.76; iv. In total then, he withdrew $104,941.62 from his RRSP’s in 2018, from which he received $74,952.09 net. d. After the withdrawals set out above, Mr. Merritt retained $266,610.89 in his Worldsource LIRA and $48,537 in his Worldsource RRSP. The parties agreed that the funds in the LIRA are not accessible until Mr. Merritt turns 55 years of age. He advised the Court that he is presently 44. e. Of the funds withdrawn, Mr. Merritt stated in his affidavit and testified that he paid legal fees, credit card bills, and living expenses including “rent” to his parents in the amount of $12,000. Mr. Merritt’s father deposed under oath in questioning that Mr. Merritt is not paying rent. While a cheque was provided to his father for $12,000 and appears to have been cashed, the court is unable to find that it was for the payment of rent. f. Notwithstanding his protestations to the contrary, Mr. Merritt can meet his reasonable living expenses from his remuneration from employment, from which he earns $72,000 per year. In addition, the company pays for vehicle expenses as well as his cell phone and internet connection. Mr. Merritt’s net employment income according to his financial statement is approximately $4,411 per month. From that amount, $2,392 is payable to the Family Responsibility Office for payment of ongoing child and spousal support. This leaves $2,019 for payment of other expenses. Since the ongoing rent is not being paid nor is the $400 per month for children’s expenses (listed in the financial statement), Mr. Merritt should have been able to meet his expenses. g. Mr. Merritt was clear in his testimony that he knew that he was not to deplete the funds in the RRSP. h. Mr. Merritt stated that he understood non-depletion to mean that he was not to pay anything that was not part of his normal day-to-day living expenses. He was not to “abscond with the money,” “be irresponsible,” “go to Cuba type of thing” or “you know, buy a Ferrari.” He stated that he believed he could pay legal bills, pay rent, and pay for living expenses. He said that Mr. Kelly told him that “you gotta do what you gotta do.” At the same time, he stated that he was not “putting Matt (Mr. Kelly) under the bus” and that he knew there was a possibility that he could be found in contempt. i. Mr. Merritt received legal advice in relation to the withdrawals from the RRSP. On its face, that legal advice was less clear than it could have been about what constitutes depletion. i. Mr. Kelly’s evidence was that he received an email from his client on January 19, 2018 regarding a planned withdrawal of $25,000 from the RRSP to pay living expenses and pay Ms. Weber. Mr. Kelly did not respond to that email or remind his client of the non-depletion orders. The first withdrawal of $15,000 was made three days later on January 22, 2018. Mr. Kelly’s office received $6,500 towards outstanding legal fees shortly thereafter; ii. On May 28, 2018, Mr. Kelly received an email from his client advising of the $29,902.62 withdrawal on March 1, 2018. In that email Mr. Merritt advised that he intended to make a further withdrawal. He copied Ms. Weber on that email. Mr. Kelly did not contact Mr. Merritt until after he received an email from Ms. Weber’s counsel reminding him of the non-depletion order and threatening a contempt motion if the funds were not repaid into the RRSP. iii. On May 30, 2018 Mr. Kelly discussed the withdrawals with his client and told him that his options were: cancel the RRSP withdrawals and repay the funds to the RRSP; bring a motion for leave to vary the terms of the orders of Justice Sloan and Justice Reilly, or do nothing and see if Ms. Weber brought a contempt motion. At least as at May 30, 2018, Mr. Merritt had been advised that the withdrawals could be seen as contempt. Counsel also told Mr. Merritt that there was a “reasonable argument that to be made that the partial withdrawals from his RRSP’s may not be found to be “depletion” of his assets. I emphasized that using funds for necessary living expenses may not be considered dissipation but made clear that it was uncertain.” iv. On May 30, 2018 Mr. Kelly wrote to Ms. Weber’s counsel stating that Mr. Merritt would not be reversing the RRSP withdrawals. The letter stated that Mr. Merritt did not have the ability to meet his day-to-day expenses while also maintaining support payments and paying his legal fees. The letter stated “it is our client’s position that he is not depleting his assets in contravention of the orders…given that there is still a sufficient balance in the RRSP to satisfy any arrears found owing to your client…” v. Of the $74,952.09 net received by Mr. Merritt from the drawdown of his RRSP’s Mr. Merritt testified that “the bulk” of the funds, after payment of the $12,000 to his father for “rent”, were used to pay legal fees. The total paid for legal fees was unclear on the evidence but at a minimum appears to total $12,200 ($1,500 + $5,000 + $5,700). j. Mr. Merritt did not use any of the net funds from the RRSP withdrawals to address the payment of child support arrears which had accumulated. As set out above, the drawdown of the RRSP should not have been necessary to meet the ongoing support amount payable. Although ongoing payments to the FRO were to be $2,392.76 per month, in August 2018 the amount remitted was $2,000, not $2,392.76. k. Of the $74,952.09 received on a net basis, $3,164.95 remained (in Mr. Merritt’s ScotiaOne account) as at the contempt hearing. If $12,000 was paid to his father and $12,200 was paid on account of legal fees, it is unclear how the balance of $47,587.14 has been spent (to total the net withdrawn of $74,952.90), given that on the evidence Mr. Merritt can meet his reasonable monthly expenses on his income from employment. It may be that there were additional legal fees paid given Mr. Merritt’s testimony that “the bulk” of the RRSP funds went to legal fees, but there was only proof of $12,200 in the evidence. l. In defence of his contempt motion, Mr. Merritt alleges that Ms. Weber is also in breach of court orders including access orders, the non-depletion orders, and timetables. He says her motion for contempt should be dismissed under Rule 1(8) of the Family Law Rules in consequence of those alleged breaches. Mr. Merritt points, for example, to Ms. Weber’s sale of her property in the summer of 2016. In cross examination however, he acknowledged that her property was sold before the first order was made. Later in his cross examination he stated that he really wasn’t very concerned about “Chrissy’s money.” He also acknowledged in cross examination that he had access during Christmas of 2016 although in his affidavit he stated otherwise. Mr. Merritt further alleged that Ms. Weber is in breach of a cost order dated March 7, 2018, although on the face of that order it was stayed until the determination of the motion to change.

E. Law and Analysis

Service

[27] Rule 31(2) of the Family Law Rules requires that a Contempt Motion be served by special service unless the court orders otherwise. The requirements of special service are set out in Rule 6(3) and 6(4) of the Family Law Rules. Special service may be effected, for example, by leaving a copy of the documents with the person to be served, or with his or her lawyer of record. Special service does not include service by courier.

[28] In this case, Justice Sloan endorsed on June 14, 2018 that “all motions, including contempt motions, may be served on opposing counsel.” The contempt motion was served by same day courier on counsel of record for Mr. Merritt, as permitted by Justice Sloan’s endorsement.

Requirements of Contempt

[29] Rule 31 of the Family Law Rules governs contempt motions. Rule 31 provides in part:

WHEN CONTEMPT MOTION AVAILABLE

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.

[30] Civil contempt has three elements which must be proven beyond a reasonable doubt:

a. The order alleged to have been breached must state clearly and unequivocally what should and should not be done; b. The party alleged to have breached the order must have actual knowledge of it; c. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to the act that it compels.

Carey v. Laiken, 2015 SCC 17 at paras. 32 – 35.

[31] The offence of contempt consists of the intentional doing of an act or the intentional failure to do an act that has been ordered by the Court to be done. The required intention relates to the act itself, not to the disobedience. The intention to disobey, in the sense of desiring or knowingly choosing to disobey the order, is not an essential element of civil contempt. Greenberg v. Nowack, 2016 ONCA 949 at para. 27.

[32] Contumacy or lack thereof goes to the penalty to be imposed, not to liability. Carey v. Laiken, supra at 38 and 47; Blatherwick v. Blatherwick, 2016 CarswellOnt 7326 at 50.

[33] Contempt is a serious remedy and contempt powers are to be used cautiously. As set out in Fisher v. Fisher, 2003 CarswellOnt 1170 at para. 11:

Contempt of court is the big stick of civil litigation. It should be used sparingly and only in the most clear-cut cases. There are other procedures available to enforce Orders: other than a contempt motion. To use contempt motions to enforce minor but annoying breaches of [an Order] takes away and waters-down the effectiveness of the contempt procedure. Contempt should be reserved for those most serious breaches which justify serious consequences.

[34] Clear proof, beyond a reasonable doubt, must exist that the terms of the order have been breached by the contemnor. Any doubt must be exercised in favour of the person alleged to be in breach of the order. Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.); Greenberg, supra at para. 26; Blatherwick, supra at para 47. See also Prescott-Russell Services for Children and Adults v. G.(N.), 2006 CarswellOnt 10335 at para. 27.

[35] A finding of contempt is a remedy of last resort, to be exercised only where there are no other adequate remedies available to the aggrieved party. Godard v. Godard, 2015 ONCA 568. The object of a civil contempt proceeding is remedial, namely: compliance with the Order.

[36] At the same time, as noted by Justice Charney in Perna v. Foss, 2015 CarswellOnt 13749, “notwithstanding the court’s reluctance to exercise its contempt powers, it is important that such power be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court Order is neither an option nor a bargaining chip.”

[37] Reliance on legal advice does not shield a party from a finding of contempt. Carey v. Laiken, 2015 SCC 17. See also CHBC Television, Re., 1999 BCCA 72 at para. 76, and Manitoba (Attorney General) at v. Groupe Quebecor Inc., 1987 CarswellMan 203. As stated in Fuerst and Sanderson, Ontario Courtroom Procedure, Third Edition (2012) at 534, “it is also no defense to contempt charges that things done were reasonable and were, based upon legal advice, believed not to be breaches.”

[38] Reliance on legal advice may go to mitigation of sentence.

[39] Allegations of contempt cannot be “traded.” That is, the answer to “you are in contempt” is not “so are you.” When contempt is alleged, the question before the Court is whether the moving party can show beyond a reasonable doubt that an order has been breached by the responding party, under the test set out above. Whether the other party may also be in in breach of an order is a separate issue. Carroll v. Richardson, 2013 ONSC 187 at para. 31; Vezina v. Timpano, 2012 ONSC 3493 at para. 18; Gordon v. Starr, 2007 CarswellOnt 5438 at 20.

What constitutes depletion?

[40] Section 12 and 40 of the Family Law Act, R.S.O., 1990. C. F.3, as am., provide for non-depletion orders.

[41] In this case, as equalization had been resolved in conjunction with the divorce proceeding, the orders of Justices Sloan and Reilly must be taken as having been made under section 40 of the Family Law Act, in relation to Ms. Weber’s support claim.

[42] Section 40 reads:

RESTRAINING ORDERS -- The court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this part.

[43] Dissipation means to reduce one’s assets in a manner that impairs or defeats a claim for support. [Emphasis added] Dissipation does not require that the action be wasteful or foolish. Bowman v. Bowman, 2009 CarswellOnt 4143 at 24, 25, upheld at 2010 ONCA 68.

[44] Where a party sold real estate in the face of a non-depletion order, the court on its own motion found that party in contempt of the order. See Coletta v Coletta, 2003 CarswellOnt 55.

[45] Where a party withdrew $15,000 from his RRSP in the face of a non-dissipation order, that party consented to a finding of contempt and the court proceeded to determine the matter of penalty for contempt. Roby v. Roby, 2003 SCC 69, 2003 CarswellOnt 4851. Similarly, where a party withdrew $45,000 from his RRSP where there was an order providing that he not dissipate his assets pending trial, that party was found in contempt. Bowman, supra.

[46] Where funds were used to pay debts, the Court should make findings regarding the nature of the debts, and whether they were incurred prior to separation, and whether they are connected with an assessment of a party’s net family property. Kondrasheva v. Davydov, 2012 ONCA 488 at para. 15.

[47] Some courts have held that a non-dissipation or non-depletion order should not be overly broad and should identify specific assets not to be depleted. Karpacheva v. Karpachev, 2018 CarswellOnt 12308 at para. 31; Greer v. Greer, 1995 CarswellOnt 2244 at para. 7. At the same time, parties have been found to be in contempt where orders simply required “non-depletion” or “non-dissipation” of “assets” or of an “RRSP.” See Taylor v. Taylor, 2005 CarswellOnt 5264; Coletta, supra; and Bowman, supra.

[48] A party should obey not only the letter but also the spirit of an order. He or she may not “ hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and of the administration of justice.” Sweda Farms Ltd. v. Ontario Egg Producers, 2011 CarswellOnt 7348 at para. 21.

[49] Terms of the order should be viewed in the context of the dispute between the parties. As stated in Zhang v. Chau, 2003 CarswellQue 1405 at para. 31: “Courts should, on the one hand, examine the context in which the order was issued, and evaluate it according to the specific and particular circumstances of the case, and on the other hand, ask themselves whether or not the defendant could have reasonably been aware that his acts or omissions fall under the order.”

[50] Where a party participates in the drafting of the order, it may be presumed that he had a good understanding of what he was restraining himself not to do. Zhang, supra at para. 32.

Application of legal principles in this case

[51] Based on the evidence on the motion, this Court finds as follows:

a. Both the Order of Justice Sloan and the order of Justice Reilly were clear and unequivocal. Both restrained the parties from depleting their respective assets. While arguably the language of both orders was broad, in the case of Mr. Merritt there could be no confusion as to the assets not to be depleted. His sworn financial statements showed only two types of assets with value: RRSP’s and his daily banking accounts. This case is distinguishable from Karpacheva, supra, where there were multiple types of assets in numerous countries. Mr. Merritt knew exactly what he was not to deplete. There were no other assets of value. b. Mr. Merritt had actual knowledge of both orders, which were entered into on consent. c. Mr. Merritt admits withdrawing funds on three occasions while having full knowledge of the existence of the orders and the assets to which they applied. d. If Mr. Merritt wished to withdraw funds to pay legal fees or other expenses, the appropriate course was for him to seek permission from the Court to do so, not to repeatedly breach the orders. e. There is no suggestion in this case that the “debts” Mr. Merritt alleged he was paying were pre-separation debts and therefore connected to assessment of his net family property. The parties’ property issues arising from separation had long since resolved and the debts he claimed to be paying were lawyers’ fees, to his parents in respect of rent, and living expenses. This case is therefore distinguishable from Davydov v. Kondrasheva, 2012 ONCA 488. f. Mr. Merritt has reduced his assets in a manner that impairs or defeats Ms. Weber’s claim for arrears and lump sum prospective support. Mr. Merritt previously had liquid RRSP’s having a balance of over $150,000. At September 3, 2018 only $48,537.68 remained.

[52] I find beyond a reasonable doubt that Mr. Merritt is in contempt of both the order of Justice Sloan and the order of Justice Reilly.

Opportunity to purge contempt

[53] Where a party is found to be in contempt of an order of the court, he or she must be given an opportunity to purge his or her contempt. This is provided for in the order below.

[54] To purge the contempt, in this case, requires that Mr. Merritt repay the $104,941.62 wrongfully withdrawn from his RRSP by January 18, 2019. He may repay this into an RRSP, or into another account in his name solely.

Sentencing

[55] Where contempt is found, the Court has broad penalty powers under Rule 31(5) of the Family Law Rules. That section provides as follows:

31(5) CONTEMPT ORDERS – If the Court finds a person in contempt of the Court, it may order that the person,

(a) Be imprisoned for any period and on any conditions that are just; (b) Pay a fine in any amount that is appropriate; (c) Pay an amount to a party as a penalty; (d) Do anything that the Court considers appropriate; (e) Not do what the Court forbids; (f) Pay costs in an amount decided by the Court; and (g) Obey any Order.

[56] Sentencing should be restorative to the victim and punitive to the contemnor. To accomplish the former requires that the sentence correlate to the conduct that produced the contempt and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances. Cassidy v. Cassidy, 2010 CarswellOnt 2937 2707 at 10.

[57] The primary objective in sentencing civil contempt is to coerce the offender into obeying the court judgment or order. Cassidy, supra at 12; Kopaniak v. MacLellan, 2002 CarswellOnt 1309 (O.C.A.) at para 28 citing Jeffrey Miller, The Law of Contempt in Canada (1997) at pp. 13 - 17.

[58] Punishment must be in proportion to the breach or breaches of the order. The court must consider aggravating or mitigating factors. Carroll v. Richardson, 2011 CarswellNS 444, at para. 20.

[59] Deterrence and denunciation are also important objectives of sentencing. Carroll, supra, at para. 21 The purpose of penalties is not to compensate the wronged party, per se. It is to punish the wrongdoer. See Roby supra at para. 30.

[60] In Cassidy, supra, at para. 13, Justice Price summarized the applicable sentencing principles as follows:

a. The available sentences; b. The proportionality of the sentence to the wrongdoing; c. The similarity of sentences in like circumstances; d. The presence of mitigating factors; e. The presence of aggravating factors; f. Deterrence; g. The reasonableness of a fine; h. The reasonableness of incarceration.

[61] Ultimately, the Court is given very broad discretion to order what it considers appropriate when a person has been found to be in contempt. Rule 31(5)(d) of the Family Law Rules specifically states that the court may “do anything else that it decides is appropriate” when it finds a person in contempt. As Justice Campbell stated in Roby, supra at 32, this confers the “broadest” discretion.

[62] As the remedy for the contempt finding, Ms. Weber seeks an order that if Mr. Merritt fails to purge his contempt by reimbursing his RRSP by the amount of the withdrawals, his pleadings be struck and the matter proceed on an uncontested basis. The practical effect in this case would be the striking of Mr. Merritt’s motion to change, and thus the continuation of the March 13, 2015 Order of Justice Broad which based support on an annual income of $125,000. In the circumstances of this case, this is an appropriate and reasonable remedy, should the contempt not be purged.

[63] I am very aware that the striking of pleadings is a remedy of last resort. Horzempa v. Abblet, 2011 CarswellOnt 10739 at para. 21. It is a remedy that the court must be extremely careful about invoking, and to be used only where no other remedy would suffice. Molina v. Molina, 2011 ONSC 35689 at para. 8; Purcaru v. Purcaru, 2010 CarswellOnt 563 (O.C.A.) at para. 48. As the Ontario Court of Appeal stated in Purcaru:

[t]his is particularly so in a family law case where the resulting judgment may provide continuing obligations that can only be varied by proof of a change in circumstances. A change in circumstances may be difficult to establish if the initial judgment is based on incorrect assumptions, thus perpetuating the injustice.”

And further:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. See para. 49

See also Smith v. Smith, 2013 ONSC 5811 at para. 10.

[64] For the following reasons, I find that the appropriate sentence, should Mr. Merritt fail to purge his contempt as provided for below, is for his pleadings to be struck as sought.

[65] In reaching this conclusion, I have considered all of the principles that apply to sentencing for civil contempt, including the overriding remedial objective of the law of contempt. I have also considered the importance of denouncing the conduct of Mr. Merritt in disregarding not one but two orders to which he consented, on several occasions, and deterring any further non-compliance. I find that the remedy selected is proportionate to the breaches.

[66] I have considered aggravating factors, including in particular that Mr. Merritt chose to pay $12,000 of the dissipated funds to his father when Mr. Merritt Sr. had deposed that rent is not being paid. I have also considered the fact that Mr. Merritt stated he needed the funds to pay living expenses when the evidence does not support that, accounting for his salary, benefits, and expenses.

[67] I have also considered as somewhat mitigating the fact that Mr. Merritt’s lawyer appears to have given lukewarm advice about the impact of the non-depletion orders.

[68] In this case, a fine would not suffice nor would it be proportional to the magnitude of the breaches. Incarceration, in my view, does not assist in the resolution of this matter in any practical way.

[69] My conclusion that Mr. Merritt’s pleadings should be struck if he does not purge his contempt is consistent with the court’s determination in Bowman, supra, where the Court similarly ordered that pleadings be struck should an RRSP not be repaid by the amount withdrawn.

[70] Finally, in determining the appropriate remedy I have considered the practical reality that in response to the motion to change (this being the second motion to change since the divorce proceedings in 2012), Ms. Weber sought not only lump sum arrears but also lump sum prospective support. Until the matter is determined on its merits it is unknown whether she has a basis for same. However, by his contempt, if not purged, Mr. Merritt has effectively defeated Ms. Weber’s ability to enforce a judgment in her favour. Such conduct cannot be accepted by the Court.

F. ORDER

[71] Based on the foregoing, this Court makes the following Order:

1. The Court finds that Mr. Merritt is in contempt of the Order of Justice Sloan dated August 18, 2016;
2. This Court finds that Mr. Merritt is in contempt of the Order of Justice Reilly dated June 23, 2017;
3. Mr. Merritt shall have until January 18, 2019 to purge his contempt and provide Ms. Weber’s counsel with proof of same. Purging shall require that he pay $104,941.62 to his RRSP or another account in his name solely and provide proof of having done so;
4. This matter shall be brought back to me in Chambers to ascertain whether the contempt has been purged; Mr. Merritt shall file an affidavit by January 25, 2019 regarding the purging of his contempt and documentary proof of payments made to purge his contempt. Ms. Weber may file an affidavit regarding whether she accepts that the contempt has been purged by February 1, 2019.
5. If Mr. Merritt’s contempt has not been purged as provided for above, his pleadings are struck and the matter shall proceed on an uncontested basis.

[72] Mr. Merritt is reminded that the order of Justice Sloan and the order of Justice Reilly remain in full force and effect and he shall take no steps to dissipate his remaining assets.

[73] The hearing of the Motion to Change shall be set to a two day appearance on the February 2019 sittings in Kitchener, Ontario, to be organized through the Trial Coordinator.

COSTS

[74] If there is no agreement on costs, I will receive brief written submissions on the following schedule:

a. Ms. Weber may provide brief written submissions and a bill of costs by February 15, 2019; b. Mr. Merritt may provide brief responding submissions by February 22, 2018; c. Ms. Weber may provide a brief Reply, if any, by March 1, 2019.

[75] Timelines may not be extended without leave of the Court. If submissions are not received on the timeline set out herein, the question of costs of this Motion will be deemed to have been resolved on consent.

Madsen J. Date: December 21, 2018