CITATION: Mantella v. Mantella, 2009 ONCA 194
DATE: 20090304
DOCKET: C49497 & M37179
COURT OF APPEAL FOR ONTARIO
Rosenberg, MacPherson and Rouleau JJ.A.
BETWEEN:
Lisa Mantella
Applicant (Respondent)
and
Robert Mantella
Respondent (Appellant)
Gerald P. Sadvari, for the appellant
Harold Niman and Katharine Rajczak, for the respondent
Heard: February 3, 2009
On appeal from the order of Justice Francine E. Van Melle of the Superior Court of Justice dated September 22, 2008 and reported at 2008 48648 (ON S.C.).
Rouleau J.A.:
OVERVIEW
[1] The appellant, Mr. Mantella, appeals the order of Van Melle J. ordering him to pay the respondent, Ms. Mantella, a fine of $185,000 as a result of his delay in producing documents the court had previously ordered be produced by a certain date.
[2] At the oral hearing of this appeal, the respondent brought a motion to quash the appeal on the basis that Van Melle J.’s order was interlocutory and not final. An appeal from an interlocutory order lies to the Divisional Court with leave. On February 3, 2008, we quashed the appeal with reasons to follow. These are those reasons.
FACTS
[3] The parties were married in 1993. In 2003, they separated and entered into a separation agreement. They were divorced in 2004.
[4] In January 2005, the respondent commenced proceedings to set aside the separation agreement. Her claim is based principally on the appellant’s alleged failure to fully disclose his financial circumstances.
[5] The proceedings have not progressed smoothly and numerous orders have been made. Several of these orders relate to the lack of financial disclosure by the appellant.
[6] On January 16, 2008, Corbett J. ordered the appellant to disclose various financial documents that were considered central to the issue in the proceedings.
[7] On April 22, 2008, the respondent sought to have the appellant’s pleadings struck for failure to produce the required documents. Corbett J. rejected the appellant’s explanation for the delay and ordered disclosure of the documents by April 25, 2008, failing which the appellant was to pay a fine of $2,500 per day for every day that the documentary disclosure was not made.
[8] By June 2008, the ordered disclosure had not been made. The respondent filed a further motion seeking to strike the appellant’s pleadings, and for an order that the appellant pay her the $2,500 fine per day for each day of non-disclosure following the April 25, 2008 deadline.
[9] On July 8, 2008, before the return date of the motion, the appellant made the requisite disclosure. Van Melle J. heard the motion and, on September 22, 2008, ordered the appellant to comply with the fine provision of Corbett J.’s order by paying to the respondent a fine in the amount of $185,000. This total represented a fine of $2,500 per day for the appellant’s 74-day delay in producing the documents.
[10] The appellant appealed the order to this court. The principal basis advanced for the appeal is that payment of a fine can only be ordered following a finding of contempt. Contempt proceedings are provided for in Rule 31 of the Family Law Rules, O. Reg. 114/99. Since no motion for contempt was brought by the respondent and the procedure set out in Rule 31 was not followed, the appellant argues that the motion judge did not have the jurisdiction to order payment of a fine.
[11] On the date set for the appeal, the respondent brought a motion to quash the appeal on the basis that the order under appeal is interlocutory. She submits that an appeal from the order lies not to this court, but to the Divisional Court with leave.
DISCUSSION
[12] Subsection 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from a final order of a judge of the Superior Court of Justice. Subsection 19(1)(b) of the Courts of Justice Act further provides that an appeal from an interlocutory order of a judge of the Superior Court of Justice lies to the Divisional Court, with leave of that court.
[13] For purposes of the Courts of Justice Act, an order is generally considered final if it finally determines the real matter in dispute between the parties or deprives a defendant of a substantive right which could be determinative of the action: see Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 2403 (ON CA), 19 O.R. (3d) 97 (C.A.).
[14] An interlocutory order, however, is an order which “does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined”: Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678.
[15] Quite apart from the jurisprudence under the Courts of Justice Act, Rule 2(1) of the Family Law Rules provides a definition of the term final order as follows:
“final order” means an order, other than a temporary order, that decides a claim in an application, including,
a) an order made on motion that changes a final order,
b) a judgment, and
c) an order that decides a party’s rights, in an issue between the parties or between a party and a non-party;
[16] Notwithstanding the appellant’s claim that, on the basis of the proceedings and material before her, Van Melle J. could not and in fact did not make a finding of contempt, his position that the order under appeal is a final order rests on the assumption that it is, in substance if not in form, a contempt order. He argues that Rule 31, which allows the court to impose a finding of contempt against a party in breach of an order, is the only provision of the Family Law Rules that allows for the imposition of a fine or monetary penalty. Because a fine was imposed by Van Melle J., the order must therefore be a contempt order.
[17] A finding that a party is in contempt of court “is a serious matter that is quasi-criminal in nature”: Bell Express Vu Limited Partnership v. Corkery, 2009 ONCA 85, at para. 20. The significance of this is such that a contempt order is considered to be a final order, an appeal from which lies directly to this court: Bush v. Mereshensky (2007), 2007 ONCA 679, 43 R.F.L. (6th) 267 (Ont. C.A.), at para. 10.
[18] However, the respondent argues that Van Melle J.’s order cannot be considered a contempt order. A finding of contempt was not sought in any of the motions before Van Melle J. or Corbett J. In any event, neither Van Melle J. nor Corbett J. addressed the issue of contempt or made findings in that regard.
[19] The respondent submits that the authority for imposing a fine exists quite apart from the contempt provisions of the Family Law Rules. Specifically, she refers to three provisions of the Family Law Rules which she claims support her position that the court was entitled to make any order it considered appropriate in view of the appellant’s failure to obey Corbett J.’s disclosure order:
Rule 1(8) provides that the court may, where an order has not been complied with, make “any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including …”
Rule 14(23) provides that on a motion for failure to obey an order that was made on motion, the court may “in addition to any other remedy allowed under these rules,
(c) make any other order that is appropriate, including an order for costs.”
- Rule 19(10) provides that the court may, on motion, make various orders where a party has failed to comply with an order to disclose documents. Such orders include a contempt order, but also include “any other order that is appropriate.”
[20] The respondent argues that any of these rules gave Corbett J. the necessary authority to order the appellant to pay a fine in the event that he failed to comply with the disclosure order and produce the required documents. Van Melle J.’s order for payment of the fine did no more than apply the terms of Corbett J.’s order. The respondent submits that no finding of contempt was sought or made and the order for the payment of the fine did not finally dispose of any issue in the proceedings. I agree.
[21] In my view, the order under appeal is not final. It is clear from the record that neither Corbett J. nor Van Melle J. made a finding of contempt. Further, the order does not, in any way, finally dispose of an issue in the proceeding nor does it deprive the appellant of a possible defence.
[22] The parties argued the motion principally on the basis that the definition of a final order in Rule 2(1) of the Family Law Rules should be applied to determine whether Van Melle J.’s order is final or interlocutory. Assuming without deciding that this definition applies, I reach the same conclusion whether Rule 2(1) of the Family Law Rules or the case law developed under the Courts of Justice Act is applied. The order under appeal is interlocutory and the appeal lies to the Divisional Court, with leave of that court.
[23] The central issue raised in this appeal is whether, absent a finding of contempt, a judge has the jurisdiction under the Family Law Rules to impose and order payment of a fine as part of the case management process. In other words, as submitted by the respondent, is the authority conferred by any of Rules 1(8), 14(23) or 19(10) broad enough to allow for the making of such orders? Whether a fine or penalty can be imposed absent a finding of contempt, and to whom the fine is payable, are novel issues and are important. The novelty and importance of the issues do not, however, make the order into a final one for purposes of appeal.
[24] In conclusion, the motion to quash is allowed. The appeal is quashed with costs to the respondent fixed in the amount of $7,500.
“Paul Rouleau J.A.”
“I agree M. Rosenberg J.A.”
“I agree J.C. MacPherson J.A.”
RELEASED: March 4, 2009