Court File and Parties
COURT FILE NO.: 8255/19 DATE: 20230125 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lynne Marie Hevey, Applicant AND: Charles James Hevey, Respondent
BEFORE: The Honourable Justice J. A. Desotti
COUNSEL: Aaron Drury, for the Applicant Robert Haas, for the Respondent
HEARD: In Writing
Endorsement
A. Penalty
[1] I found the respondent in contempt with respect to his conduct on two occasions. The matter comes before me to determine an appropriate penalty.
[2] I have read the parties positions and draft orders, and ‘Book of Authorities”. I have also received the respondent’s travel expenses for his re-attendance before the court as we did not complete his cross-examination at the first hearing.
B. Analysis
[3] The first issue was the nature of the penalty. I made it known that a fine was my first inclination and that incarceration was not an option. The parties then turned to the quantum of the fine and to whom that it would be payable.
[4] Frankly, I had never considered the Minister of Finance as the appropriate payee. I accept the applicant’s position that any fine imposed should be payable to the applicant.
[5] The parties disagree on the quantum of the fines that should be imposed. In the first proposed order of the applicant, the applicant is seeking $50,000.00 per each contempt finding and in the second draft order these amounts are blank, I infer that I would then insert an amount that I feel is appropriate in the circumstances.
[6] The respondent asserts in his draft order that an amount of $2,500.00 and $1,0000 be paid as fines, and that those fines be paid to the Minister of Finance and not the applicant.
[7] Both parties would desire that any monies owing by the respondent, regardless of the amount of these fines, but including other costs awarded in favour of the applicant as netted out between the parties, be paid out of the potential resolution in a different action where presently the law firm of Harrison Pensa are holding significant funds in trust for the parties.
[8] All parties agree that the principles determining the amount of the fine are:
a) Proportionality; b) Mitigating Factor; c) Aggravating Factors; d) Deterrence; e) Similarities in Sentence; f) Reasonableness of the Fine.
[9] I would add one final comment and that is each case has its own unique features and thus inevitably one tailor’s a result consistent with the facts in support of the contempt motion.
[10] In these circumstances, the fine for the contempt that occurred with respect to the December 12th, 2021 Court Order is a fine in the amount of $8,000.00. With respect to the contempt of this Court’s Order dated May 10th, 2022, the fine is in the amount of $4,000.00.
[11] Each of these fines in the aforementioned amount shall be payable to the applicant.
[12] Additionally, the following are the additional determinations concerning these two contempt orders:
The Respondent, Charles James Hevey, shall pay the fines outlined in this Order as follows: a) Any funds made available as a result of the motion that was heard on December 9, 2022 by The Honourable Justice McArthur in the Superior Court of Justice Case in London, Ontario with Court File Number 550/19. b) In the event the outcome of the motion before The Honourable Justice McArthur that was heard on December 9, 2022 is dismissed, or does not result in any funds being released, the fines outlined herein are due and owing immediately. c) If The Honourable Justice McArthur has not released his decision on the motion before him on December 9, 2022 on or before March 31, 2023, then the fines outlined herein are due and owing April 1, 2023.
Any other funds made available to the Respondent, Charles James Hevey, either personally or through any corporation in which he is associated, within the commercial proceeding before the Superior Court of Justice in London, Ontario, with Court File Number 550/19, shall be paid into Court pending the disposition of this matter. Such funds may be used to pay any outstanding costs or fines owed by the Respondent, Charles James Hevey, to the Applicant, Lynne Marie Hevey.
Notwithstanding paragraph (12) of the Order of The Honourable Justice John A. Desotti dated November 29, 2022, which states: The Respondent, Charles James Hevey, shall pay into Court the proceeds from any disposition of assets since the interim Order of The Honourable Justice John A. Desotti dated December 13, 2021. The Respondent, Charles James Hevey, may provide an Affidavit to the Applicant's counsel, Aaron B. R. Drury, to satisfy the Applicant, Lynne Marie Hevey, that all funds procured by the Respondent, Charles James Hevey, that resulted in this Court's finding of contempt, are for a business purpose. In the event the Applicant, Lynne Marie Hevey, is satisfied that the funds in question are for a business purpose, a 14B consent motion may be brought to have the funds released from the trust account of the Ontario Superior Court of Justice as contemplated by the Order of Justice John A. Desotti dated November 29, 2022.
Notwithstanding paragraph (10) of the Order of The Honourable Justice John A. Desotti, dated November 29, 2022, which states: The Respondent, Charles James Hevey, is not entitled to any further Court Orders until the costs sanctions imposed are complied with by the Respondent. The Respondent, Charles James Hevey is permitted to bring a 14B motion on consent, if he is able to satisfy the Applicant, Lynne Marie Hevey, that the funds in question are for a business purpose.
The Respondent, Charles James Hevey, shall pay the Applicant, Lynne Marie Hevey, her costs for the sentencing hearing before the Court on January 6, 2023 fixed in the amount of $2,000.00.
The Respondent, Charles James Hevey, for his second attendance in Sarnia, shall be allowed $1000.00 for his travel expenses which amount will be deducted from the costs awarded to the applicant in the amount of $2,000.00 (leaving a sum of $1000.00 in costs).
This Order bears post-judgment interest at the rate of 5% per annum effective from the date of this Order. Where there is default in payment, the payment in default shall bear interest only from the date of default.
The Honourable Mr. Justice John A. Desotti Date: January 25, 2023
