SUPREME COURT OF CANADA

Citation: Dickie v. Dickie, [2007] 1 S.C.R. 346, 2007 SCC 8

Date: 20070209

Docket: 31350

Between:

Leaka Helena Delia Dickie

Appellant

and

Kenneth Earle Dickie

Respondent

‑ and ‑

Women’s Legal Education and Action Fund

Intervener

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment:

(paras. 1 to 7)

The Court

Dickie v. Dickie, [2007] 1 S.C.R. 346, 2007 SCC 8

Leaka Helena Delia Dickie Appellant

v.

Kenneth Earle Dickie Respondent

and

Women’s Legal Education and Action Fund Intervener

Indexed as: Dickie v. Dickie

Neutral citation: 2007 SCC 8.

File No.: 31350.

2007: January 17; 2007: February 9.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for ontario

Courts — Jurisdiction — Enforcement of orders — Contempt order — Husband found in contempt of court for failure to secure support obligations with irrevocable letter of credit and to post security for costs — Motions judge having jurisdiction to make contempt order because neither security order amounted to order of “payment of money” within meaning of Rule 60.11 of Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Courts — Appellate courts — Jurisdiction — Husband found in contempt of court for failure to secure support obligations with irrevocable letter of credit and to post security for costs — Husband appealing finding to Court of Appeal — Court of Appeal would have had discretion to refuse to entertain appeal based on record showing husband’s continuing disobedience with court orders — Preliminary question whether to entertain appeal now moot.

Held: The appeal should be allowed.

Statutes and Regulations Cited

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 60.11.

APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Sharpe and Juriansz JJ.A.) (2006), 2006 576 (ON CA), 78 O.R. (3d) 1, 262 D.L.R. (4th) 622, 206 O.A.C. 257, 22 C.P.C. (6th) 36, [2006] O.J. No. 95 (QL), reversing a decision of Stewart J. (2004), 2004 66348 (ON SC), 1 R.F.L. (6th) 167. Appeal allowed.

Harold Niman, David Stratas and Daryl L. Gelgoot, for the appellant.

Rochelle F. Cantor and Marie‑France Major, for the respondent.

E. Llana Nakonechny and Gillian Calder, for the intervener.

The following is the judgment delivered by

1 The Court — The respondent, Kenneth Earle Dickie, was found in contempt of court for failing to comply with court orders requiring him to secure his support obligations by providing an irrevocable letter of credit and to post security for costs. The motions judge imposed a sentence of 45 days in jail for that contempt ((2004), 2004 66348 (ON SC), 1 R.F.L. (6th) 167), which Dr. Dickie served immediately. He then pursued his appeal against the finding of contempt to the Court of Appeal for Ontario, arguing that the motions judge had no jurisdiction under rule 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to make a contempt order because the underlying orders were orders requiring him to make a “payment of money”. He argued further that he was denied procedural fairness.

2 As a preliminary matter, the appellant, Leaka Helena Delia Dickie, invoked the Court of Appeal’s authority under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, asking it to decline to hear Dr. Dickie’s appeal on the basis that he continued to flout, not only the orders for security which were the subject matter of the contempt motion, but also the underlying support orders.

3 The Court of Appeal, by majority decision, dismissed Mrs. Dickie’s preliminary motion, holding that the fact that Dr. Dickie was challenging the jurisdiction of the court to find him in contempt was reason enough to hear his appeal ((2006), 2006 576 (ON CA), 78 O.R. (3d) 1). The court then allowed Dr. Dickie’s appeal and set aside the finding of contempt on the basis that rule 60.11 of the Rules of Civil Procedure cannot be used to enforce either security order because each was an order for the “payment of money”. The court granted costs to Dr. Dickie in the amount of $15,000.

4 Laskin J.A., in dissent, was of the view that the court had a discretion to refuse to entertain Dr. Dickie’s appeal and that, based on the record showing continuing disobedience with court orders, it should have exercised that discretion. Hence, he would have adjourned Dr. Dickie’s appeal until Dr. Dickie had taken steps to comply with the court orders below. However, assuming the court was correct in entertaining the appeal, Laskin J.A. would have dismissed Dr. Dickie’s appeal, finding that neither order for security amounts to an order for the “payment of money” within the meaning of rule 60.11, and that Dr. Dickie was afforded procedural fairness.

5 Mrs. Dickie appeals to this Court.

6 In our view, the Court of Appeal had the authority to refuse to entertain Dr. Dickie’s appeal and, had it exercised its discretion as proposed by Laskin J.A. and for the reasons he gave, we would have found no basis to interfere with the result. However, the Court of Appeal having otherwise exercised its discretion and heard the appeal, this preliminary question is now moot.

7 On the appeal from the decision on the contempt motion, we are in substantial agreement with the reasons of Laskin J.A. Consequently, the appeal is allowed, the order of the Court of Appeal is set aside, Dr. Dickie’s appeal from the contempt order is dismissed, and the motions judge’s order reinstated. Mrs. Dickie is awarded her costs before this Court on a solicitor and client basis and in the Court of Appeal on a substantial indemnity basis.

Appeal allowed with costs.

Solicitors for the appellant: Niman Zemans Gelgoot, Toronto.

Solicitor for the respondent: Rochelle F. Cantor, Toronto.

Solicitor for the intervener: Women’s Legal Education & Action Fund, Toronto.