DATE: 20020919 DOCKET: C38639

COURT OF APPEAL FOR ONTARIO

RE: SCOTT KITCHING (Appellant) v. DIRECTOR, FAMILY RESPONSIBILITY OFFICE for the benefit of Janet Cecelia Kitching (Respondent)

BEFORE: ABELLA, MOLDAVER AND BORINS JJ.A.

COUNSEL: David S. Godard, for the appellant

Michael Marra, for the respondent

HEARD: September 13, 2002

On appeal from the order of Justice Kenneth A. Langdon of the Superior Court of Justice dated July 26, 2002.

E N D O R S E M E N T

Released Orally: September 13, 2002

[1] [1] This is an appeal by Mr. Kitching from the judgment of Langdon J., who dismissed his appeal from the judgment of Agro J. In enforcement proceedings under s.41 of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, C. 31, and pursuant to s.41(9)(g) of the Act, Agro J. ordered the imprisonment of the appellant for 90 days. The proceedings before Agro J. were as a result of the Mr. Kitching’s breach of the order of the Ontario Superior Court of Justice that he pay child and spousal support. As of September 3, 2002, the amount of the arrears was $58,700.03.

[2] [2] Mr. Kitching has served 30 days of his imprisonment. Justice Agro’s order was stayed to permit Mr. Kitching to appeal. Since the dismissal of his appeal by Langdon J., Mr. Kitching has not surrendered into custody to serve the remainder of his imprisonment.

[1] [3] When the appeal came before this court yesterday, we were informed that Mr. Kitching had not surrendered into custody. Accordingly, an order was made that he surrender into custody by 6:00 p.m. yesterday, September 12, 2002 at the Maplehurst Correctional Centre. We were advised today by the authorities at the Centre that he did not comply with this order.

[2] [4] Therefore, Mr. Kitching is now in breach of the order of this court that required him to surrender into custody. We were advised by his counsel that he was made aware of this order and had decided that he would not obey it.

[3] [5] Disobeying a court order not only shows contempt for the court, but also constitutes a breach of s. 127(1) of the Criminal Code. Parliament has recognized the seriousness of the failure of an individual to obey a court order by creating a criminal offence that carries a penalty of 2 years.

[4] [6] In the face of Mr. Kitching’s failure to surrender, we had serious reservations about whether we should hear the appeal on its merits today. Nonetheless, we permitted his counsel to proceed. The sole ground of appeal is that the 90 days imprisonment imposed by Justice Agro is excessive, and that Justice Langdon erred in dismissing an appeal from her disposition.

[5] [7] In our view, the appeal is without merit. There is a lengthy history of the appellant’s attempts to evade the payments ordered by the Superior Court for child and spousal support, including the fact that under a previous order pursuant to s. 41(1)(g) of the Act he has already been imprisoned for 90 days. It was manifestly open to Argo J., in the exercise of her discretion, to impose 90 days imprisonment as an enforcement measure. Langdon J. was correct to dismiss the appeal.

[6] [8] Therefore, the appeal is dismissed with costs fixed at $5,000.

“R. S. Abella J.A.”

“M. J. Moldaver J.A.”

“S Borins J.A.”