Forrest v. Lacroix, Estate Trustee of the Estate of Marcel Lacroix [Indexed as: Forrest v. Lacroix Estate]

48 O.R. (3d) 619

[2000] O.J. No. 1990

Docket No. C33184

Court of Appeal for Ontario

Morden, Abella JJ.A. and O'Driscoll J. (ad hoc)

May 31, 2000

Contempt of court -- Grounds -- Disobedience of court order -- Defendant in action for support under Part V of Succession Law Reform Act ordered to pay sum of money to plaintiff -- Defendant failing to obey order -- Contempt power not available -- Order may be enforced by contempt power under rules 60.05 and 60.11(1) of Rules of Civil Procedure only where order is not for payment of money -- No "family law" exception to rules 60.05 and 60.11(1) exists -- Order for payment of money includes order for payment of support -- Court not having inherent jurisdiction to use contempt power to enforce order for payment of money -- Defendant's appeal from order finding him in contempt of court allowed -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 60.05, 60.11(1).

The respondent and the deceased, the father of the appellant, were common law spouses for 18 years. The deceased made no provision for the respondent in his will. He left his entire estate to the appellant and named him estate trustee. The respondent brought an application against the appellant as estate trustee and in his personal capacity for support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26. The application judge found that the respondent was a dependant under Part V of the Act and that the deceased had not made adequate provisions for her proper support. The application judge also found that the conduct of the appellant as estate trustee was designed to frustrate the respondent from receiving support from the estate. In contravention of an earlier order preventing further dissipation of the estate, the appellant had made a loan of $100,000 to a friend, unsecured and interest free. The application judge ordered the appellant to pay $100,000 to the respondent by a particular date. The payment was not made. On application by the respondent, the appellant was found in contempt of court and was committed to jail for nine months unless he purged his contempt by paying $100,000 to the respondent. The judge on the contempt application was cognizant of rules 60.05 and 60.11(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provide for the enforcement of an order requiring a person to do an act "other than the payment of money" by a contempt order, but was of the opinion that there is a family law exception to rules 60.05 and 60.11(1). The appellant appealed.

Held, the appeal should be allowed.

An order for "the payment of money" includes an order for the payment of support in a family law matter. Rules 60.05 and 60.11(1) clearly do not contemplate the creation of judicial exceptions for family law matters. The Family Law Rules, which apply to all family law cases in the Family Court of the Superior Court of Justice and in the Ontario Court of Justice, make it clear that a "payment order", which is expressly defined to include a "support order", cannot be enforced by a contempt order although an order other than a payment order may be enforced by the contempt process. It would be incongruous if Superior Court judges hearing family law cases governed by the Rules of Civil Procedure were considered to have an unlimited contempt power to enforce support orders but that their colleagues in the Family Court branch did not have this power. While it is clear, without reference to the Family Law Rules, that there is no contempt power to enforce orders for the payment of support under the Rules of Civil Procedure, it also makes sense to interpret rules 60.05 and 60.11(1) in harmony with the corresponding provisions of the Family Law Rules. It should be noted that Superior Court support orders are enforceable, in proper cases, by the exercise of the power to imprison defaulters conferred by s. 41 of the Family Responsibility and Support of Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

While the contempt power originated as part of the inherent jurisdiction of the court, it is a power that may be controlled by legislation. The effect of rules 60.05 and 60.11(1) is to remove the court's inherent jurisdiction to use the contempt power to enforce an order for the payment of money in cases governed by the Rules of Civil Procedure.

APPEAL from an order of Valin J. (1999), 1999 15106 (ON SC), 46 O.R. (3d) 364 (S.C.J.) finding appellant in contempt of court.

Freedman v. Freedman (1923), 25 O.W.N. 3 (H.C.J.), apld Bates v. Bates (1888), 14 P.D. 17, 58 L.J.P. 85, 60 L.T. 125, 37 W.R. 230, 5 T.L.R. 155 (C.A.); Cohen v. Cohen (1979), 1979 3668 (ON CA), 10 R.F.L. (2d) 169 (Ont. C.A.); De Lossy v. De Lossy (1890), 15 P.D. 115, 62 L.T. 704, 38 W.R. 511; Estrien v. Estrien (1995), 1995 1481 (ON CA), 10 R.F.L. (4th) 321 (Ont. C.A.); Galley v. Galley (1905), 1 W.L.R. 155 (N.W.T.S.C.); Lynch v. Lynch (1885), 10 P.D. 183, 54 L.J.P. 93, 34 W.R. 47; Pilpel v. Pilpel (1993), 27 C.P.C. (3d) 157 (Ont. Gen. Div.), consd Kapis v. Kapis (1977), 1977 1042 (ON SC), 15 O.R. (2d) 722 (H.C.J.), not folld Other cases referred to Atkinson v. Atkinson, 1987 3992 (ON CA), [1987] O.J. 292 (C.A.); Berry v. Donovan (1893), 21 O.A.R. 14; Buckley v. Crawford, [1893] 1 Q.B. 105, 62 L.J.Q.B. 87, 67 L.T. 681, 57 J.P. 89, 41 W.R. 239, 9 T.L.R. 85, 37 Sol. Jo. 67, 5 R. 125; Craft v. Craft (1983), 1983 1103 (AB KB), 28 Alta. L.R. (2d) 223, 3 D.L.R. (4th) 713, 37 R.F.L. (2d) 156 (Q.B.); Estrien v. Estrien, Ont. Gen. Div., Beaulieu J., December 9, 1992 (unreported); Hanley v. Hanley, [1950] O.W.N. 470 (H.C.J.); Harris v. Harris (1982), 1982 1708 (ON SC), 37 O.R. (2d) 552 (U.F.C.); Merklinger v. Merklinger, Ont. Gen. Div., Smith J., May 3, 1993 (unreported); Mihalko v. Mihalko, 1974 949 (SK QB), [1974] 2 W.W.R. 740 (Sask. Q.B.); Olteanu v. Olteanu (1985), 1985 4957 (ON SC), 3 C.P.C. (2d) 215, 47 R.F.L. (2d) 96 (Ont. H.C.J.); Olteanu v. Olteanu (1985), 1985 5115 (ON SC), 47 R.F.L. (2d) 100 (Ont. H.C.J.); R. v. Pratt (1870), L.R. 5 Q.B. 176, 39 L.J.M.C. 73, 18 W.R. 626, 21 L.T. 750, 34 J.P. 150 (D.C.); Surgeoner v. Surgeoner (1991), 6 C.P.C. (3d) 318 (Ont. Gen. Div.); Tilco Plastics v. Skurjat, 1966 235 (ON SC), [1966] 2 O.R. 547, 57 D.L.R. (2d) 596, [1966] 1 C.C.C. 131, 49 C.R. 99, 66 C.L.L.C. 14,138 (H.C.J.) (sub nom. Ontario (Attorney General v. Clark) [affd 1966 517 (ON CA), [1967] 1 O.R. 609n, 61 D.L.R. (2d) 664n, [1967] 2 C.C.C. 196n]; Toronto-Dominion Bank v. Szilagyi Farms Ltd. (1988), 1988 4745 (ON CA), 65 O.R. (2d) 433, 29 O.A.C. 357, 28 C.P.C. (2d) 231 (C.A.); Weinert v. Weinert (1982), 1982 1782 (ON SC), 38 O.R. (2d) 779, 138 D.L.R. (3d) 186, 28 C.P.C. 245 (S.C.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 66(2)(s) Debtors Act, 1869, 32 & 33 Vict., c. 62 (U.K.), ss. 4, 5 Deserted Wives and Children's Maintenance Act, R.S.O. 1970, c. 128, s. 12 Family Law Reform Act, 1978, S.O. 1978, c. 2, ss. 28-29 Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, ss. 8(2), 40(21), 41 Fraudulent Debtors Arrest Act, R.S.O. 1990, c. F.30 (rep. 1991, vol. 2, c. 42, s. 1), s. 12 Provincial Courts Act, R.S.O. 1970, c. 369, ss. 25, 28 Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 67(3) Support and Custody Order Enforcement Act, 1985, S.O. 1985, c. 6 (am. 1991, vol. 2, c. 5, s. 81), s. 11 -- renamed Family Support Plan Act, 1985 (S.O. 1991, vol. 2, c. 5, s. 18) Rules and regulations referred to Family Law Rules, O. Reg. 114/99, rules 1(2), 2(1), 26(3), (4) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 60, rule 1.03 Authorities referred to Miller, The Law of Contempt in Canada (Toronto: Carswell, 1997), p. 97 Ontario Law Reform Commission, Report on the Enforcement of Judgment Debts and Related Matters, Part V (1983) at pp. 84-86 Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), pp. 285-87

Christopher A. Caruana, for appellants. Stephen J. MacDonald, for respondent.

The judgment of the court was delivered by

[1] MORDEN J.A.: -- This is an appeal by Michel Lacroix from an order made by Valin J. on November 9, 1999. The order:

1. found the appellant to be in contempt of the judgment of Bolan J. dated May 18, 1999;

2. ordered that the appellant be committed to jail for nine months unless he purged his contempt within 28 days of November 9, 1999

(a) by paying to the applicant Collette Forrest the sum of $100,000 under the order of Bolan J. dated May 18, 1999; and

(b) paying to Collette Forrest $2,500 which were fixed as the costs of the motion before Valin J.

3. provided that the matter be adjourned to December 8, 1999 returnable before Valin J. to determine whether or not the contempt had been purged or whether Michel Lacroix should be committed to jail for the specified period of nine months.

[2] The appellant commenced his appeal from this order on November 17, 1999.

[3] The reasons of Valin J., which are reported at 1999 15106 (ON SC), 46 O.R. (3d) 364, contain a convenient statement of the relevant facts and it is, accordingly, unnecessary to repeat them in full. For present purposes, the essential facts are as follows.

[4] Collette Forrest, the respondent, and Marcel Lacroix, the father of Michel Lacroix, had been common-law spouses for eighteen years when Marcel Lacroix died in 1997. In his will, Marcel Lacroix named Michel Lacroix estate trustee and gave his entire estate to him. He made no provision for his common-law partner.

[5] The respondent brought an application against the appellant as estate trustee and in his personal capacity for support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26. Bolan J., who heard the application and released his reasons on May 18, 1999, was satisfied that the respondent was a dependant under Part V of the Act and that the deceased had not made adequate provision for her proper support. Accordingly, he held that the estate was responsible for making such provision for her. He was satisfied that a reasonable amount of support was $2,500 a month.

[6] Bolan J. further found that the conduct of the appellant as estate trustee was designed to frustrate the respondent from receiving support from the estate. Earlier, on January 30, 1998, Bolan J. had made an order on consent preventing "further dissipation of the estate." In his reasons reviewing the appellant's evidence, he said:

He testified that in February 1999, he received a telephone call from Pierre Laporte, a resident in Florida who had been a good friend of Marcel and wanted to borrow $100,000 from him. Michel flew to Florida with the money and gave Laporte the money. It was an unsecured loan payable in six months.

[7] He referred to s. 67(3) of the Succession Law Reform Act, which reads:

67(3) Where a personal representative distributes any portion of the estate in violation of subsection (1) [distribution by the personal representative after notice of application for support], if any provision for support is ordered by the court to be made out of the estate, the personal representative is personally liable to pay the amount of the distribution to the extent that such provision or any part thereof ought, pursuant to the order or this Part, to be made out of the portion of the estate distributed.

[8] Under this provision, he held the appellant personally liable to pay to the respondent the amount which the court ordered to be paid out of the estate. He concluded his reasons as follows:

It is in the Applicant's best interest that in lieu of monthly payments, a lump sum should be paid to the Applicant. I order that the Estate pay the Applicant a lump sum of $300,000. Any shortfall from the Estate is to be paid personally by Michel.

[9] The relevant provisions in Bolan J.'s formal order dated May 18, 1999 read as follows:

2.) THIS COURT ORDERS THAT the Estate of Marcel Lacroix pay to the Applicant Collette Forrest a lump sum of $300,000.00 with any shortfall payable by the Respondent Michel Lacroix personally.

3.) THIS COURT ORDERS THAT judgment also be granted against Michel Lacroix personally for $300,000.00. Any amount received by the Applicant shall be credited as a reduction of the Respondent Michel Lacroix's personal liability on this Judgment.

6.) THIS COURT ORDERS THAT the Respondent Michel Lacroix is ordered to pay to the Applicant Collette Forrest no later than September 1, 1999, the sum of $100,000.00 together with any interest received thereon on the monies loaned by him to Pierre Laporte. Any amount received by the Applicant shall be credited as a reduction of the Respondent Michel Lacroix's personal liability on this Judgment. If the payment is not made, the Applicant may commence contempt of Court proceedings against him.

[10] The appellant raises the following issues on this appeal:

1. The contempt power was not available to enforce Bolan J.'s judgment against the appellant.

2. Even if the contempt power was available, the following requirements for its application were not met:

(a) the order to be enforced must be clear and unequivocal and not open to various interpretations;

(b) the party disobeying the order must do so in a deliberate and wilful fashion;

(c) in considering the evidence as to whether there has been a deliberate and wilful breach of the order, it must be proven beyond a reasonable doubt.

[11] In addition, the appellant raised two procedural issues. He submitted that (1) Valin J. should not have decided the motion on affidavit evidence; and (2) he erred in deciding both the contempt issue and the appropriate sentence at the same time instead of receiving sentencing submissions after determining that the appellant was guilty of contempt.

[12] Further, the appellant appeals against the sentence as inappropriate and excessive.

[13] Because I am of the view that the contempt power was not available in the circumstances of this case, it is not necessary to deal with the remaining issues raised. However, I think that I should say something on the question of whether the order to be enforced was clear and unequivocal and not open to various interpretations because the nature of this order is also relevant to whether the contempt power was available.

[14] Valin J. held that the order was clear and unequivocal. It may be noted that "the order" of Bolan J., which was quoted in Valin J.'s reasons, was taken, not from the formal order, which I have set forth above, but from Bolan J.'s reasons. They read:

Michael is ordered to pay to the applicant no later than September 1, 1999 the $100,000 loaned by him to Pierre Laporte. If the payment is not made, the applicant may commence contempt of court proceedings against him.

[15] If this is the wording which governs, I think that there could be some substance in the appellant's argument that the order contemplated payment by the appellant when repayment of the loan was received or that, at least, it was not clear. It is not, however, the wording that governs. This wording is set forth in para. 6 of the formal order. That wording is, I think, reasonably clear. It imposed an unconditional obligation to pay $100,000 by September 1, 1999 and a further obligation to pay any interest which the appellant received on the loan to Mr. Laporte.

[16] The issue of the availability of the contempt power arises primarily because of the terms of the rules 60.05 and 60.11(1) which, of course, are parts of Rule 60 in the Rules of Civil Procedure, which is entitled "Enforcement of Orders". (Under rule 1.03 "order" includes a judgment).

[17] Rules 60.05 and 60.11(1) read:

60.05 An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.

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.

(Emphasis added)

[18] Rule 60.11(5), which is also relevant, reads:

60.11(5) In disposing of a motion under subrule (1) the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary.

[19] The authority for making Rule 60 is s. 66(2) (s) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which reads:

66(2) The Civil Rules Committee may make rules for the courts described in subsection (1) [the Court of Appeal and the Superior Court of Justice], even though they alter or conform to the substantive law, in relation to,

(s) enforcement of orders and process or obligations under the rules;

[20] From this it may be seen that the authority embraces more than the making of rules relating to the practice and procedure in the Superior Court of Justice. It extends to making laws that are substantive.

[21] In my view, the major question to be decided is, quite simply, whether the order of Bolan J. dated May 18, 1999 is "an order to do an act other than the payment of money". If it is, then the contempt power is available in this case. If it is not, then the power is not available. I say "major question" because I think the possibility of the court having inherent jurisdiction, untrammelled by legislation, to enforce the order should be considered. In the respondent's original and amended notice of motion which sought the contempt order, the respondent relied on Rule 60 of the Rules of Civil Procedure and not on the inherent jurisdiction of the court but, if the latter affords a proper basis for the order, I think that it should be considered.

[22] Rule 60.02(1) provides that "[i]n addition to any other method of enforcement provided by law, an order for the payment or recovery of money may be enforced by" a writ of seizure and sale, garnishment, a writ of sequestration, and the appointment of a receiver. Could another possible method of enforcement provided by law be a motion for a contempt order? As will be discussed later in these reasons, s. 12 of the Fraudulent Debtors Arrest Act, R.S.O. 1990, c. F.30, s. 12 and predecessor provisions going back to the middle of the 19th century (see, Ontario Law Reform Commission, Report on the Enforcement of Judgment Debts and Related Matters, Part V (1983) at pp. 84-86) prohibited arrest for contempt for non-payment of a money judgment. The whole of this statute was repealed in 1991 by the Fraudulent Debtors Arrest Repeal Act, 1991, S.O. 1991, vol. 2, c. 42. Later, I shall deal with how this repeal should be interpreted but for now address the question whether rules 60.05 and 61.11(1), which were part of the legislative scheme carrying out the purposes of s. 12 of the Act, are sufficient, in themselves, to carry out this purpose -- or, with the repeal of s. 12, whether there is now room for the common law inherent jurisdiction to operate?

[23] Rule 60.11(1) provides for how the contempt power is to be invoked to enforce an order requiring a person to do an act. It excludes the act of paying money. The structure of the provision is such that its terms do not expressly prohibit motions for contempt for non-payment of money under a judgment. Accepting this, I think that the only sensible interpretation of rule 60.11(1) is that it is intended to occupy the field in proceedings under the Rules of Civil Procedure relating to the enforcement of court orders which require an act to be done, with the result that there is no power to commit for non- payment of a money judgment (cf. Toronto Dominion Bank v. Szilagyi Farms Ltd. (1988), 1988 4745 (ON CA), 65 O.R. (2d) 433 at p. 438, 28 C.P.C. (2d) 231 (C.A.)). Accordingly, an "other method of enforcement" (rule 60.02(1)), does not include steps taken under the inherent jurisdiction of the court.

[24] This approach is 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. I shall refer to relevant statutory provisions in the course of these reasons. I return now to how Valin J. dealt with the availability of the contempt power.

[25] Valin J. in his reasons quoted rules 60.05 and 60.11(1) and then referred to the submission by Mr. Lacroix's counsel "that the means of enforcing payment do not include punishment for contempt arising from the failure to pay a judgment debt . . .". He then said [at pp. 367-68]:

There is a need for the sanction of contempt proceedings in family law matters in order that the court can control its own process against those who choose to ignore, disobey or defy its orders: Surgeoner v. Surgeoner (1991), 6 C.P.C. (3d) 318 (Ont. Gen. Div.); Estrien v. Estrien, December 9, 1992, Doc. ND 178058/90Q, Wilson J. (Ont. Gen. Div.); Pilpel v. Pilpel (1993), 27 C.P.C. (3d) 157 (Ont. Gen. Div.). Counsel for the respondent conceded that, for public policy reasons, there is justification for this exception that contempt proceedings should be a mechanism available to the court to enforce its orders. He argued, however, that the exception is limited to family law matters.

The order of Bolan J. that is the subject matter of this motion was made pursuant to Part V of the Succession Law Reform Act. It provides the legislative framework for claims by dependants of an estate. Among other things, Part V of the Act sets out:

(i) who is a dependant;

(ii) what rights a dependant has in relation to the estate;

(iii) the circumstances the court should consider in determining the amount of support that should be awarded; and

(iv) the kinds of orders the court can make for the satisfaction of a dependant support claim.

Like the Family Law Act, R.S.O. 1990, c. F.3 the Succession Law Reform Act is remedial in nature. A comparison of the terms of Part V with those of the support provisions in Part III of the Family Law Act reveals a considerable degree of similarity. The primary emphasis under both statutes appears to be on the needs of the dependant, having regard to his or her accustomed standard of living, and the ability of the payor spouse/estate to pay. As I have noted, members of this court have not hesitated to use the mechanism of contempt proceedings to enforce orders relating to family law matters, including orders for the payment of support, on the basis of the public interest in emphasizing that those who choose to ignore or defy such orders will be punished. I see no valid reason why the same principle should not be applied to orders made under Part V of the Succession Law Reform Act. In my view, there is a similar and parallel need for the sanction of contempt proceeding s in order for the court to be able to control its process against persons who choose to ignore, disobey or defy orders made under Part V of the Succession Law Reform Act.

[26] Accordingly, the result turned on Valin J.'s conclusion that there is an "exception" to rules 60.05 and 60.11(1) which relates to "family law matters".

[27] First, before dealing with the decisions referred to in Valin J.'s reasons, and other decisions that should be considered, I shall set forth what I consider to be the correct line of reasoning. I do not think that there is any warrant in the wording of the rules for concluding that an order for "the payment of money" does not include an order for the payment of support in a family law matter.

[28] Second, the great weight of authority supports the view that family law support orders are covered by the wording of the rule. It is a separate issue, one of policy, whether the contempt power should be available to enforce family law support orders. As I shall indicate later in these reasons, this policy issue has been resolved in favour of the availability of the contempt power in this context -- but not in the Rules of Civil Procedure but, rather, in the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

[29] Before considering the cases, I should address an argument, not based on case law, which the respondent made, in various ways, on why the order for the payment of money exception in rules 60.05 and 60.11(1) should not be applicable. This argument is based on the appellant's conduct in administering his father's estate from the outset, which involved submitted breaches of his fiduciary obligation as estate trustee. This conduct is deserving of punishment. Related to this, it is submitted that Bolan J's. judgment is not for the payment of money but to restore an asset to the estate.

[30] The answer to these submissions is that the only contempt alleged against the appellant is his non-payment of the $100,000 in breach of para. 6 of Bolan J.'s order and not any previous conduct, and that the order made was, by its terms, a straight money judgment award and not one to restore property or assets. The respondent's argument that the order was clear and unequivocal, referred to above, supports this view.

[31] The authority which, in my view, accurately states the law on the question of the reach of rules 60.05 and 60.11(1) is the decision of Smith J. in Freedman v. Freedman (1923), 25 O.W.N. 3 (H.C.J.). The decision was made in a motion by the plaintiff to commit the defendant for contempt of court in not paying interim alimony as ordered. The report of Smith J.'s reasons is relatively brief and I set it forth in full:

Smith J., in a written judgment, said that sec. 13 of the Fraudulent Debtors Arrest Act, R. S. O. 1914 ch. 83, provides that no person shall be liable to arrest for contempt for non-payment of any sum of money or of any costs, charges, or expenses payable by a judgment or order of the Supreme Court or of a Judge thereof, etc. An order for interim alimony may be obtained under Rules 386 and 387, but there is no provision for enforcing payment by committal. Rule 545 provides that a judgment requiring any person to do any act other than the payment of money may be enforced by attachment.

Counsel for the plaintiff was unable to refer to any authority shewing that there is power to commit in this case.

Under the English Debtors Act, 1869, abolishing attachment for non-payment of debt, it was held that where there was an order to pay into Court or give security there could be attachment for not giving the security, though not for non- payment of the money: Lynch v. Lynch (1885), 10 P.D. 183; Bates v. Bates (1888), 14 P.D. 17.

These cases were followed in Galley v. Galley (1905), 1 W.L.R. 155, and attachment was refused where there was simply an order for payment of $25 per month for alimony -- the English Debtors Act being in force in the North-West Territories in 1905.

[32] With respect to the first point in these reasons, I note that s. 13 of the Fraudulent Debtors Arrest Act [1914] remained as part of Ontario legislation until, when it was s. 12 of the Fraudulent Debtors Arrest Act, 1990, the Fraudulent Debtors Arrest Repeal Act, 1991, which came into force on November 25, 1991, repealed the whole Act. Section 12 had read:

12. No person is liable to arrest for contempt for non- payment of any sum of money or of any costs, charges or expenses payable by a judgment or order of the Ontario Court (General Division) and no person is liable to arrest for non-payment of costs.

[33] It is clear that the reason for the repeal of the legislation was to remove from Ontario legislation a method of arresting and imprisoning persons for civil debt (provided for in sections of the Act other than in s. 12) and not to return to an earlier era when a person could be in contempt of court for failure to pay a judgment debt (Legislative Assembly of Ontario Debates, November 3, 1991, at p. 3380).

[34] Rule 545, referred to in Smith J.'s reasons, is an earlier version of the present rule 60.11(1). The key language is the same: "[a] judgment requiring any person to do an act, other than the payment of money, . . . may be enforced by attachment or by committal." Attachment and committal were remedies for contempt of court involving imprisonment.

[35] The reference to Galley v. Galley (1905), 1 W.L.R. 155 (N.W.T.S.C.) in Freedman is instructive. As indicated, it was concerned with a summons to commit the defendant for contempt for default in making payment due on an alimony order. Harvey J. said at p. 155:

The Court has no jurisdiction to make the order. This is an order for the payment of money only. The English Debtors Act, 1869, is in force in the N.W.T. By virtue of this Act no one can be committed for the non-payment of a sum of money. This is an order for payment of money, and is so construed in England: see Lynch v. Lynch, 10 P. D. 183; also Bates v. Bates, 14 P.D. 17; Seton on Decrees, vol. 1, p. 386.

As the order sought to be enforced by attachment for contempt did not, as in the English cases cited, contain the alternative of giving security, it was an order for the payment of money within the Debtors Act, 1869, and therefore could not be enforced by attachment for contempt.

[36] The reference to the Debtors Act, 1869, 32 & 33 Vict., c. 62 undoubtedly was to s. 4 which provided that, subject to certain stated exceptions, "no person shall, after the commencement of this Act, be arrested or imprisoned for making for default in payment of a sum of money". Some of the exceptions to this general rule included:

1. default in payment of a penalty, or sum in the nature of a penalty, other than a penalty in respect of any contract;

2. default in payment of any sum recoverable summarily before a justice or justices of the peace;

3. default by a trustee or person acting in a fiduciary capacity and ordered to pay by a court of equity any sum in his possession or under his control.

[37] In Lynch v. Lynch (1885), 10 P.D. 183, referred to in both Freedman and Galley, the court held that if the husband did not obey an order to find security for the sum of 50 pounds to answer the wife's costs of the hearing of the suit he would be liable for attachment. The reasoning is sparse but the implication is clear that the obligation to find security fell outside the words "default in the payment of a sum of money" in s. 4 of the Debtors Act, 1869 but that, if the obligation had fallen within the provision, the contempt remedy would not have been available. I note that the obligation to pay costs in that particular proceeding would have been akin to an obligation to pay alimony.

[38] The other case referred to in both Freedman and Galley is Bates v. Bates (1888), 14 P.D. 17 (C.A.). This proceeding was for judicial separation. The order sought to be enforced by the exercise of the contempt power was that the husband should, within seven days, pay a sum of money to the wife's solicitor for her costs already incurred, as taxed, and, also, within the same time pay into court 40 pounds estimated by the registrar as sufficient to cover her future costs and expenses or to give a bond for 80 pounds for payment of the costs of the wife, not exceeding 40 pounds.

[39] It was conceded that the first part of the order could not be enforced by contempt because it fell within s. 4 of the Debtors Act, 1869. The court held that the second part fell outside s. 4 and could, therefore, be enforced by contempt proceedings. The reasons of Lindley L.J. are to the same effect of those of Cotton L.J. but are briefer. At p. 20 he 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. If the appellant had been ordered to pay the money to the receiver of the Court in discharge of an obligation to which he had been declared liable, that might be different. But that is not so here; he is to deposit the money in court, or to give security for it. That is not within the meaning of the words of the Act. Therefore the appellant is liable to be arrested for contempt of Court for not having complied with the order. The latter part of the order appealed from is right, and must be affirmed. The former part appears to have been made by an oversight, and the order must be varied in that respect.

[40] Before turning to authority on the other side of the ledger, I should refer to a further late 19th century decision to the same effect as the two above, De Lossy v. De Lossy (1890), 15 P.D. 115. In this case, Butt J. held that the court had no power to grant attachment against a husband for non-payment of arrears under a maintenance order. Although no mention of the Debtors Act, 1869 is made in the brief report of this decision, it is accepted that the basis of the decision is that the order was one for the payment of money within the meaning of s. 4 of that Act. In Craft v. Craft (1983), 1983 1103 (AB KB), 3 D.L.R. (4th) 713, 28 Alta. L.R. (2d) 223 (Q.B.), D.C. McDonald J. said at p. 714:

In England it has been held that a default in paying maintenance which has been ordered by the court is "default in payment of a sum of money" and therefore within s. 4 [of the Debtors Act] so that it is not enforceable by committal: De Lossy v. De Lossy (1890), 15 P.D. 115. Similarly, it was held that an order to pay school fees for the children of the marriage, once the sum required has been ascertained, is an order to pay a sum of money, and therefore s. 4 applied so that a writ of attachment could not issue: Farrant v. Farrant, [1957] P. 188.

[41] All of the above decisions, which were concerned with family support orders or orders akin to them, gave the words "payment of money" or "payment of a sum of money" their plain meaning and did not contemplate creating judicial exceptions to them for family law matters. The exceptions were, in fact, created by Parliament in both ss. 4 and 5 of the Debtors Act, 1869. Section 5 dealt with the power to commit in cases of county court judgments which did not exceed 50 pounds.

[42] I turn now to authority to the contrary of the above decisions. The most significant decision is that of Wright J. in Kapis v. Kapis (1977), 1977 1042 (ON SC), 15 O.R. (2d) 722 (H.C.J.). This was a motion to commit the respondent husband for non-payment of maintenance. Wright J. was of the view that Freedman v. Freedman was wrongly decided and that High Court judges had the power to commit for contempt defaulters under support orders. I set forth an outline of his reasons:

(1) Wright J. noted that there was a general understanding among the members of his court that there was power to commit persons who failed to comply with alimony or maintenance orders (p. 774).

(2) Next, he noted that the power may be in conflict with rule 569 (the then equivalent of present rules 60.05 and 60.11(1)) and with s. 12 of the Fraudulent Debtors Arrest Act, R.S.O. 1970, c. 13, the terms of which I have quoted earlier in these reasons (pp. 774-75).

(3) Wright J. then turned to Freedman v. Freedman, supra, a decision which he considered to be "one binding on me" (p. 775). He quoted the essence of Smith J.'s reasons and then referred to Lynch v. Lynch, supra and Bates v. Bates, supra. At p. 777, he indicated that the lesson which he drew from these two decisions was as follows:

If that be the law of Ontario then orders to pay maintenance in family law cases in the Supreme Court and the County or District Courts should be reinforced by an order to give security for maintenance. This I propose to do in this and future cases, for the authority of the Court's orders must be maintained.

(4) He then immediately turned to the heart of his reasons at pp. 777-78:

They [orders to pay maintenance in family law cases] should not need such aid. There is a straightforward interpretation of Rule 569 and s. 12 of the Fraudulent Debtors Arrest Act, R.S.O. 1970, c. 183. They are the successors of the mid- nineteenth century legislation in England and Canada designed to restrict or abolish imprisonment for debt. Cotton, L.J., in Bates v. Bates, at p. 19, put it in plain terms: "The object of the Act was to prevent the imprisonment of persons for non-payment of ordinary debts." I have no doubt that is the object of the provisions I am now considering.

It was this abuse that the legislation was enacted to remedy. That was the mischief and evil before the Debtors Act. It was at no time designed to support those who contemptuously defied the Courts and made a law for themselves.

Nor have alimony and maintenance ordered by the Courts been considered a debt. Alimony is a personal allowance. It cannot be alienated or released. Maintenance is not really a debt but a duty which the Court for convenience and simplicity estimates in terms of money. When it is not paid by persons able to do so, it is not essentially a failure to pay money but a failure to maintain the person who is the object of the order. Neither alimony nor maintenance can be proven as debts in bankruptcy, or released by discharge in bankruptcy. Both remain subject to variation by the Court. They are not final.

(5) Wright J. then referred to several Ontario statutes, beginning with the Deserted Wives and Children's Maintenance Act, R.S.O. 1970, c. 128, s. 12 which gave power to provincial judges presiding in the Provincial Court (Family Division) to imprison persons for default in payment of maintenance orders. He then said at p. 778:

I find it hard to conclude that these powers were conferred on the Judges of the Provincial Courts (Family Division) without the Legislature recognizing that the respective Judges of the other Courts have always had inherent or implied power to imprison for contempt for non-payment of alimony or maintenance ordered in orders or judgments of the Supreme Court of Ontario or the County or District Courts or of the Surrogate Courts. To hold otherwise would be to conclude that the orders for maintenance of Courts in other Provinces or in lesser Courts can be enforced by imprisonment in Ontario but that contempt of such orders made by the higher Courts in Ontario cannot be punished by imprisonment.

In the blunt words of s. 35(1) of the Judicature Act, R.S.O. 1970, c. 228, I consider the decision in Freedman v. Freedman, supra, to be wrong and of sufficient importance to be considered in a higher Court.

[43] It would appear that Wright J. never had the opportunity to refer Freedman v. Freedman to the Court of Appeal.

[44] With great respect for Wright J.'s thorough and conscientious analysis, I am obliged to say that I do not agree with it. Regardless of what the motivation behind the legislation may have been, its wording is too clear and comprehensive to allow for Wright J.'s exception for support orders. It relates to an order for "the payment of money" regardless of the nature of the claim which results in the order. The preceding claim could be based on intentional tort, negligence, defamation, breach of contractual obligations, obligation to support, etc.

[45] This point is dealt with by Lush J. in R. v. Pratt (1870), L.R. 5 Q.B. 176 at p. 182:

The words in the enacting part [of s. 4 of the Debtors Act, 1869] -- "default in payment of a sum of money" -- are advisedly used instead of "debt", in order to include cases which might not properly have been called cases of debt, such as costs on a judgment of non-suit, or costs on a verdict for the defendant, or damages in an action of tort, or costs under a rule of court. The enacting part, therefore, uses the words "sum of money" and this clearly applies to and includes costs . . . .

This was quoted with approval by Wills J. for the Queen's Bench Division in Buckley v. Crawford, [1893] 1 Q.B. 105 at pp. 107-08, 62 L.J.Q.B. 87.

[46] Related to this, I do not think that a passage in the reasons of Cotton L.J. in Bates v. Bates, supra -- "[t]he object of the Act was to prevent the imprisonment of persons for non-payment of ordinary debts" -- properly interpreted, supports Wright J.'s conclusion. In its context, the statement of Cotton L.J. should be interpreted as referring to judgment debts -- money owing by one party in a proceeding to the other. It did not cover, in the facts of Bates v. Bates, an order to give security.

[47] Further, it would appear that Wright J. may not have appreciated that it was not only Freedman v. Freedman that he was saying was wrong but, also, all of the earlier authorities to the same effect.

[48] With respect to the provincial legislation to which Wright J. referred in showing the incongruity of a conclusion that superior court judges lack contempt powers, it should be taken into account that at that time Supreme Court maintenance and alimony orders were in fact capable of being enforced by the exercise of contempt powers under the Deserted Wives and Children's Maintenance Act, R.S.O. 1970, c. 128, s. 12 after they had been filed in the Provincial Court under s. 28 of the Provincial Courts Act, R.S.O. 1970, c. 369. I shall deal later in my reasons with the current version of this power.

[49] As far as I have been able to determine, four subsequent cases have referred to Kapis v. Kapis. In none of them was it followed and applied in the result. In Weinert v. Weinert (1982), 1982 1782 (ON SC), 38 O.R. (2d) 779, 138 D.L.R. (3d) 186 (H.C.J.) a county court judge sitting as local judge of the Supreme Court of Ontario, in the course of holding that a local judge did not have the power to commit for contempt of interim orders of support, referred to Kapis, at p. 782, as holding that alimony and maintenance were not debts but personal allowances. But for the limitation on the powers of a local judge, it appears that Kapis would have been applied.

[50] In Harris v. Harris (1982), 1982 1708 (ON SC), 37 O.R. (2d) 552 (U.F.C.) it was observed at p. 554 that Kapis was "overruled" in Cohen v. Cohen (1979), 1979 3668 (ON CA), 10 R.F.L. (2d) 169 (Ont. C.A.) (to which I shall refer shortly) without the court "expressly stating so". In Craft v. Craft, supra, Kapis is referred to as disagreeing with Freedman v. Freedman, followed by the observation at p. 714 that "[t]he issue does not appear to have been resolved by the Ontario Court of Appeal."

[51] In Olteanu v. Olteanu (1985), 1985 5115 (ON SC), 47 R.F.L. (2d) 100 (H.C.J.) at p. 103 a local judge of the Supreme Court agreed with the view that Kapis v. Kapis was "concluded . . . incorrectly" and said that Cohen v. Cohen, "in effect, overrules the Kapis decision."

[52] I have found six subsequent cases which have referred to Freedman v. Freedman. They are Mihalko v. Mihalko, 1974 949 (SK QB), [1974] 2 W.W.R. 740 (Sask. Q.B.); Olteanu v. Olteanu (1985), 1985 4957 (ON SC), 3 C.P.C. (2d) 215, 47 R.F.L. (2d) 96 (Ont. H.C.J.) (a decision earlier than the one in Olteanu v. Olteanu, referred to above); Harris v. Harris, supra; Kapis v. Kapis, supra; Hanley v. Hanley, [1950] O.W.N. 470 (H.C.J.); and Craft v. Craft, supra. I shall not discuss any of them. I merely note that only one of them, Kapis v. Kapis, expresses disagreement with Freedman v. Freedman.

[53] I turn now to Cohen v. Cohen, supra, a decision of this court which bears directly on the court's contempt power to enforce maintenance orders. The court set aside an order of Boland J. made on an application to commit the payor spouse, Mrs. Cohen, for non-payment of maintenance. Jessup J.A., for the court, said at p. 171:

. . . we . . . think that s. 12 of the Fraudulent Debtors Arrest Act, R.S.O. 1970, c. 183 takes away from this court the power to commit to gaol for contempt for non-payment of a sum of money arising under a judgment, whether that judgment is for payment of maintenance or otherwise.

(Emphasis added)

[54] I have previously noted that the Fraudulent Debtors Arrest Act was repealed in 1991 and that the reason for the repeal could not have been to restore the power of the court to commit judgment debtors to jail. Although the statutory basis of the conclusion in Cohen v. Cohen has disappeared, it seems to me that its reasoning is equally applicable to rules 60.05 and 60.11(1). The wording and policy of s. 12 of the Fraudulent Debtors Act is the same as the wording and policy of the rules. It will be recalled that in Kapis v. Kapis, at p. 777, Wright J. interpreted s. 12 of the Fraudulent Debtors Arrears Act as admitting an exception in the case of orders of alimony or maintenance. Cohen v. Cohen, although it did not refer to Kapis v. Kapis, or to Freedman v. Freedman, for that matter, clearly decided there was no such exception.

[55] The subsequent decision of this court in Atkinson v. Atkinson, 1987 3992 (ON CA), [1987] O.J. No. 292 appears to be to the same effect as Cohen v. Cohen. The brief endorsement of Martin J.A. for the court on the appeal record reads:

We are all of the view that Bolan D.C.J. had no jurisdiction to commit the appellant for contempt, and the appropriate procedure for the enforcement of the order for the payment of $12,000 was by an application to commit the appellant in the Provincial Court (Family Division) under s. 11(6) of the Support and Custody Orders Enforcement Act.

The appeal is allowed, the order of Boland D.C.J. is set aside without prejudice to the right of the respondent to take enforcement proceedings in the Provincial Court.

[56] I turn now to the decisions cited in Valin J.'s reasons in this proceeding.

[57] In none of them was there a reference to either Freedman v. Freedman or Kapis v. Kapis. In Surgeoner v. Surgeoner (1991), 6 C.P.C. (3d) 318 (Ont. Gen. Div.), R.A. Blair J. clearly held that he had the power to commit for contempt of several orders of the court which included an order for payment of support. It appears from the reasons that the court's power to commit for non-payment of support was not challenged. No reference is made to rules 60.05 and 60.11(1). R.A. Blair J. did refer to Tilco Plastics v. Skurjat (Ontario (Attorney General) v. Clark), 1966 235 (ON SC), [1966] 2 O.R. 547 (H.C.J.) in which Gale C.J.H.C. relied upon the inherent jurisdiction of the court to proceed summarily (i.e., in a proceeding commenced by way of originating notice of motion compared to proceeding by indictment) to commit the respondents for violation of a labour injunction. While it is the case that the contempt power originated as part of the inherent jurisdiction of the court, it is a power that may be, and the case of enforcing orders for the payment of money is, as I have said, controlled by legislation.

[58] It is next convenient to consider Pilpel v. Pilpel (1993), 27 C.P.C. (3d) 157 (Ont. Gen. Div.). In this case the husband was found to be in contempt of four orders. He was given time to purge his contempt failing which he was committed to jail. His counsel raised the question of the court's jurisdiction to imprison someone for non-payment of money. Three of the four orders in question clearly did not involve the payment of money. Accordingly, this argument must have related to what was considered to be an order for the payment of money within the meaning of the legislation. Beaulieu J. quoted from the passage in Cohen v. Cohen, supra, set forth earlier in these reasons and, also, set forth the terms of rule 60.11(1).

[59] Beaulieu J.'s response to the jurisdictional challenge took the form of quoting from a passage in the reasons of Wilson J. in Estrien v. Estrien, December 9, 1992, Doc. ND178058/90Q at p. 166. It reads:

I find, however, that s. 12 of the Fraudulent Debtors Arrest Act is not applicable if terms are imposed to allow the husband to purge his contempt as contemplated by rule 60.11 of the Rules of Civil Procedure, particularly rule 60.11(5). I find that the reasons given by Blair J. in Surgeoner v. Surgeoner (1991), 6 C.P.C. (3d) 318 (Ont. Gen. Div.) are applicable. The husband's conduct in this case is in flagrant disregard of court orders and his own agreement and borders on fraud. There must be power in this court, particularly in family law, to control its own process.

[60] With great respect, I do not understand what bearing the allowing of a contempt which has been properly found to be purged could have on answering the prohibition of imprisonment in the Fraudulent Debtors Arrest Act. I have noted, as indicated earlier in these reasons, that this Act was repealed in 1991 but I take it that the quoted reasons were also intended to be applicable to rule 60.11(1).

[61] Beaulieu J. then referred at pp. 166-67 to the judgment of Smith J. in Merklinger v. Merklinger, May 3, 1993 (Ont. Gen. Div., No. 58885/90Q) in which she sentenced Mr. Merklinger to 90 days in jail for contempt, which judgment was upheld by this court on May 26, 1993 (Doc. C.A. C15269). It appears that the contempt in that case involved the non-discharge of an encumbrance on property. Accordingly, it would appear that the money judgment exception in the rules would not be applicable: see Berry v. Donovan (1893), 21 O.A.R. 14.

[62] The foregoing covers the jurisdictional decisions referred to by Valin J. in the present case and, for the reasons I have given, I do not think that they support a conclusion that there is a "family law" exception relating to the application of rules 60.05 and 60.11(1).

[63] Before concluding my consideration of the case law, I should mention a decision of this court which has been referred to as supporting the family law exception, that of Osborne J.A., in chambers, in Estrien v. Estrien (1995), 1995 1481 (ON CA), 10 R.F.L. (4th) 321 (Ont. Gen. Div.). In this decision, Osborne J.A. dismissed a motion to stay contempt and committal proceedings pending an appeal from the dismissal of the husband's application to vary a support order. The particular contempt order which the husband sought to have stayed was an order of Wilson J., made some 12 days after the contempt order referred to earlier in these reasons, that a warrant of committal issue.

[64] Osborne J.A. dismissed the motion to stay. Although he noted at p. 326 that "any reasonable review of the record, in my view, supports Wilson J.'s finding of contempt" he pointed out that "the finding of contempt and the penalty imposed are not now subject to appellate proceedings".

[65] In Jeffrey Miller's The Law of Contempt in Canada (Toronto: Carswell, 1997), at p. 97, he observes:

Although s. 12 of Ontario's Fraudulent Debtors Arrest Act prohibits the jailing of debtors other than those guilty of criminal acts, in Estrien v. Estrien [(1995) 1995 1481 (ON CA), 10 R.F.L. (4th) 321 (Ont. C.A.)], Osborne J.A. upheld the committal of a husband for contempt because of his failure to obey a support order.

[66] Later at pp. 97-98, he suggests that it "might well be the case . . . that at common law the contempt of a family law support order is different in specie from that of other orders creating judgment debts" but that "one is still left with the obstacle of Ontario Rule 60.11(1)".

[67] Mr. Miller refers to James G. McLeod's annotation to the report of Osborne J.A.'s reasons. Professor McLeod had observed that in light of s. 12 of the Fraudulent Debtors Arrest Act, "the statutory basis to order the husband to jail for non- payment of support would seem to be questionable" and, also, that the result seemed to be at odds with the language of rule 60.11 (at p. 322 R.F.L.). I note, simply, that there was no appeal from the contempt order before the Court of Appeal and, although Osborne J.A. did approve of Wilson J.'s order, this was in relation to the merits of the case. It does not appear that Wilson J.'s jurisdiction to make the order was raised before the court and, therefore, I would not regard Osborne J.A.'s reasons as being a decision on the point. (I would observe that there was no need to refer to the Fraudulent Debtors Arrest Act because, as I have noted several times, it was repealed in 1991.)

[68] A very useful aid to the interpretation of rules 60.05 and 60.11(1) can be found in the corresponding provisions in the Family Law Rules, O. Reg. 114/99. These rules apply to all family law cases in the Family Court of the Superior Court of Justice and in the Ontario Court of Justice (rule 1(2)). These rules make it clear that a "payment order", which is expressly defined to include a "support order" (rule 1(2)), cannot be enforced by a contempt order although an order other than a payment order may be enforced by the contempt process (rule 26(3) and (4)). A support order in rule 2(1) is defined to mean "an order described in subsection 34(1) of the Family Law Act or a support order as defined in section 1 of the Family Responsibility and Support Arrears Enforcement Act, 1996". It is sufficient to say that the scope of "support order" as defined in this Act is wide.

[69] It would be the height of incongruity if Superior Court judges hearing family law cases governed by the Rules of Civil Procedure were considered to have an unlimited contempt power to enforce support orders but that their colleagues in the Family Court branch did not have this power. I think it is clear, without reference to the Family Law Rules, that there is no contempt power to enforce orders for the payment of support under the Rules of Civil Procedure. In addition, however, I think that it makes eminent sense to interpret rules 60.05 and 60.11(1) in harmony with the corresponding provisions in the Family Law Rules: see Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan (Toronto: Butterworths, 1994), at pp. 285-87.

[70] I cannot leave the subject without observing that Superior Court support orders are enforceable, in proper cases, by the exercise of the power to imprison defaulters conferred by s. 41 of the Family Responsibility and Support of Arrears Enforcement Act, 1996. The key provisions read:

41(1) When a support order that is filed in the Director's office is in default, the Director may prepare a statement of the arrears and, by notice served on the payor together with the statement of arrears, may require the payor to deliver to the Director a financial statement and such proof of income as may be required by the regulations and to appear before the court to explain the default.

(2) When a support order that is not filed in the Director's office is in default, the recipient may file a request with the court, together with a statement of arrears, and, on such filing, the clerk of the court shall, by notice served on the payor together with the statement of arrears, require the payor to file a financial statement and appear before the court to explain the default.

(8) At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director's office.

(9) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor,

(g) be imprisoned continuously or intermittently for not more than 90 days unless the arrears are sooner paid;

[71] The "court" in question is the Ontario Court of Justice or the Family Court (s. 40(21)).

[72] This method of enforcement which existed in different forms under earlier legislation, [See Note 1 at end of document] represents a practical answer to the concern expressed by Wright J. in Kapis v. Kapis, supra, respecting the non-enforceability of Superior Court orders in family law matters by the ultimate power of imprisonment and it does it in a way that provides procedural and substantive rules which govern the default hearings and the scope of the contempt power.

[73] The respondent, citing s. 8(2) of the Family Responsibility and Support Arrears Enforcement Act, 1996, which provides that the Director under the Act shall not enforce a support order against the estate of a payor after he or she is notified of the payor's death, submits that the respondent is unable to proceed under the Act. While it is not necessary to resolve the question of the respondent's rights under this Act, it may be noted that the order sought to be enforced in this proceeding is not against the estate but against the appellant personally.

[74] For the foregoing reasons, I would allow this appeal, with costs, set aside the order of Valin J. and in its place make an order dismissing the motion for contempt. According to the reasons of Valin J., which I have set forth above, counsel for the appellant before Valin J. conceded that there was a family law exception to the terms of rules 60.05 and 60.11(1), although he apparently did not concede that this case fell within the exception. Accordingly, I would make no costs respecting the motion.

Appeal allowed.

Notes

Note 1: (Deserted Wives and Children's Maintenance Act, R.S.O. 1970, c. 128, s .12 and Provincial Courts Act, R.S.O. 1970, c. 369, s. 25; Family Law Reform Act, 1978, S.O. 1978, c. 2, ss. 28-29; and Support and Custody Order Enforcement Act, 1985, S.O. 1985, c. 6, s. 11, re-named Family Support Plan Act, 1985 by the Family Support Plan Amendment Act, 1991, S.O. 1991, Vol. 2, c. 5, c. 18)