Court File and Parties
Citation: Bernardi v. Bernardi, 2009 ONCA 853 Date: 2009-12-03 Docket: C50060 Court of Appeal for Ontario
Before: Doherty, Feldman and Watt JJ.A.
Between: Roy Frank Bernardi, Applicant (Appellant) and Marisa Bernardi, Respondent
Counsel: Allan D. Brock and James L. McDonald, for the appellant Denis Burns, for the respondent
Heard and orally released: November 27, 2009
On appeal from the order of Justice K.A. Gorman of the Superior Court of Justice dated January 14, 2009.
Endorsement
[1] The motion judge correctly observed that the validity of the order of Justice Ducharme could not be challenged in the contempt proceeding before her. The contempt proceeding arose out of the appellant’s alleged non-compliance with three paragraphs of the order of Justice Ducharme.
[2] The motion judge did not, however, preclude counsel for the appellant from putting forwarding the position that the appellant did not have some of the property referred to in the order at the time the order was made and, therefore, was not in wilful breach of that order by not turning the property over to the respondent. The appellant testified to that effect and offered some documentary support for his position.
[3] Ultimately, the trial judge held:
I am, however, satisfied that the Respondent has met the three-pronged test in respect of Mr. Bernardi’s failure to deliver the enumerated jewellery and specified works of art. The order of Ducharme J. was clear and unequivocal. A preservation order in respect of the artwork was continued to October 2003. After that, there was an agreement in place between counsel that the artwork would not be disposed of, pending ongoing litigation. Mr. Bernardi was a party to this agreement. I am satisfied that the non-delivery of the various pieces of jewellery and artwork was both deliberate and wilful. Accordingly, I find that the Respondent, Mrs. Bernardi, has proved Mr. Bernardi’s contempt, beyond a reasonable doubt. [Emphasis added.]
[4] The motion judge’s conclusion constitutes an implicit rejection of the appellant’s evidence that he did not have some of the property referred to in the order and, therefore, could not be faulted for not turning it over to the respondent. There was ample reason for the motion judge to disbelieve the appellant’s evidence.
[5] The appellant also appeals the 75 day sentence imposed by the motion judge. The motion judge split her sentence into two parts. She imposed a sentence of 30 days for non-delivery of the jewellery referred to in the order of Justice Ducharme and a consecutive sentence of 45 days for non-delivery of some of the artwork referred to in his order.
[6] Dealing first with the jewellery, although we are satisfied that the motion judge correctly held that the appellant was in breach of that term in that he was in possession of some of the listed jewellery and had not turned it over to the respondent, the extent of that breach is unclear on the record. It is conceded that the respondent had some of the jewellery (at least three rings) in her possession at the time Justice Ducharme made his order. Because the extent of the breach of this part of the order is unclear, we do not think that a jail term was warranted. We would set aside the 30 day term of imprisonment ordered by the motion judge in connection with the non-delivery of the jewellery.
[7] The artwork is a different matter. We are satisfied that a jail term was an appropriate sanction for the appellant’s failure to comply with this part of the order. We, however, agree with counsel for the appellant’s submission that 45 days was beyond the range of sentence that is imposed for civil contempts of this kind. The manner in which the sentence was imposed also deprived it of its potential coercive value in that there was no term of the sentencing that would encourage the appellant to return the property that was the subject of the order.
[8] We would impose the following penalty for non-compliance with the provision of the order of Justice Ducharme relating to the artwork. The appellant shall be sentenced to 15 days incarceration to commence on December 3, 2009. The term of imprisonment will be set aside if before December 3rd, he delivers to counsel for the respondent the Dzama drawings and the painting referred to as “Woman in Red”. The sentence will commence on December 3rd if those two items are not returned to the respondent. The appellant will, however, be released from custody before the 15 days has expired if during that time he delivers the two items described above to counsel for the respondent.
[9] We would note, however, and this is primarily for the benefit of the appellant himself, that should he serve the 15 days and not deliver the material, he could be subject to further contempt proceedings in relation to the order of Justice Ducharme both as it relates to jewellery and to the artwork. The appellant should not mistakenly believe that if he serves this 15 day sentence, but does not comply with the order, this matter is necessarily over for him.
[10] The appeal is allowed to the extent that the sentence is varied in accordance with the reasons above. We agree that the appellant has had some success on the appeal, however, the respondent has still successfully defended the contempt order. In our view, the respondent should have her costs on the appeal in the amount of $3,500, inclusive of GST and disbursements.
“Doherty J.A.”
“K. Feldman J.A.”
“David Watt J.A.”