ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-3322
DATE: 2012/02/17

BETWEEN:

LANITA LUCKMAN Applicant – and – BRENT LUCKMAN Respondent

Leighann Burns, for the Applicant
Peter Burnet, for the Respondent

HEARD: January 11, 2012 (Ottawa)

DECISION ON MOTION

Kershman J.

[ 1 ] Two contempt motions were brought by the Applicant against the Respondent. The first Notice of Motion was issued on October 21, 2011 and the second was issued on December 15, 2011. Both Notices of Motion were served on the Respondent.

[ 2 ] The second Notice of Motion includes the relief claimed in the first Notice of Motion as well as further relief claimed in paragraphs 4, 5, 6 and 7.

[ 3 ] The first Notice of Motion states in part:

A motion will be made by Lanita Luckman for a finding that you are in contempt of court because you:

1. Deliberately misled the Court by stating that the land on chemin Forester in Pontiac, Quebec, known as Lot 1, Range 4 at the official cadastre of township of Dorion, land registry of Pontiac, municipality of Lac Cayamant, province of Quebec, was still in your possession when you agreed to secure outstanding child support payments against it when you had already sold it.

2. Child support payments that were to be secured against the land are as follows:

$8000 on May 12, 2011, being child support payments for April 2010 – November 2010, $2000 on June 1, 2011, $5000 on July 18, 2011 and $5000 on September 14, 2011, and ongoing monthly child support payments of $2000 per month commencing June 1, 2011.

3. Failed to provide the outstanding disclosure including but not limited to:

i. All records, bank statements, list of owners and directors and shareholders, proof of sales, revenue, expenses, shareholder agreements and financial statements for all companies you are operating or working for, including, but not limited to 1605798 Ontario Inc., Maxa Corporation, DDCI, LLC in Delaware, U.S.A., Dymon Data Centers Inc. at 580 Hunt Club Road, Ottawa, or any other place these companies are located;

ii. Proof of rent payments for the home you rented at 943 Scala Avenue in Orleans, Ontario such as receipts and bank statements showing funds withdrawn or transferred;

iii. Contact information for each party that made a loan to you and a signed letter from Mark Green regarding the loan he made to you;

iv. Proof of account you were seen using at Zellers on January 24, 2010 or name, contact information for the card owner of the card you were seen using and their relationship to you and proof of the transaction from that account;

v. Proof of wine sale from Dymon Capital;

vi. Proof of how you or your company paid for the purchase orders you provided in your affidavit sworn March 23, 2011.

[ 4 ] The second Notice of Motion deals with the issue of access (paragraph 4); information while on a trip over the summer to California, Italy and Russia (paragraph 5); failure to provide copies of new lease and proof of payments (paragraph 6); and failure to provide information regarding the Respondent’s place of residence (paragraph 7).

[ 5 ] Having reviewed the two Notices of Motion, the Court finds that this hearing will only deal with paragraphs 1-3 and will not deal with paragraphs 4-7 of the second Notice of Motion.

Factual Background

[ 6 ] The parties were married on December 6, 2003 and separated on November 22, 2008. There are two children of the marriage. By order of Kealey J. dated April 9, 2010, Mr. Luckman was ordered to pay $2,000.00 per month as child support for the two children. To date, the amount of child support paid is $40,000.00: $32,000.00 from the sale proceeds of the matrimonial home, and a further $8,000.00 lump sum.

[ 7 ] As of January 11, 2012, Mr. Luckman was in arrears of child support of approximately $20,000.00. These arrears are being pursued by the Family Responsibility Office.

Applicant’s Position

[ 8 ] The Applicant argues that the Respondent is in contempt for not providing the appropriate disclosure in a timely fashion in relation to paragraph 3 of the two Notices of Motion.

[ 9 ] The Applicant argues that the very recent disclosure made by Mr. Luckman has been very long in coming. It is noted that Mr. Luckman through his new counsel, Mr. Burnet, has provided a large binder of additional documentation within the last few days in an attempt to, as Mr. Burnet calls it, “to purge his contempt.”

[ 10 ] In addition, the Applicant argues that Mr. Luckman deliberately mislead the Court by stating that a piece of property on chemin Forester in Pontiac, Quebec known as Lot 1, Range 4, at the official cadastre of township of Dorion, land registry of Pontiac, municipality of Lac Cayamant, province of Quebec (“Property”), was still owned by him when he agreed to use it to secure outstanding child support obligations. The Applicant’s position is that at a contempt hearing before Robertson J. on March 25, 2011, Mr. Luckman was asked directly if the Property was in his name and he replied that it was. Thereafter the parties entered into Minutes of Settlement based on using the Property as security for outstanding child support.

[ 11 ] Shortly, thereafter, on April 1, 2011, Mr. Luckman provided what he claimed to be was proof of his ownership of the Property from his accounting firm, Parker Prins Lebano. An e‑mail was received from Brad Fisk of the accounting firm dated April 1, 2011 which attached the deed.

[ 12 ] Counsel for the Applicant conducted a property search through Quebec’s online Land Registry and found that Mr. Luckman had sold the land on December 21, 2009. The Applicant argues that Mr. Luckman deliberately misled the Court and has demonstrated that he has no respect for the law or the rules of the Court.

Respondent’s Position

[ 13 ] Counsel for the Respondent cited Les services aux enfants et adultes de Prescott-Russell c. G. (N.) , 2006 (ON CA) , 82 O.R. (3d) 669 (C.A.), which is a French decision of the Ontario Court of Appeal. The English version is indexed as Prescott-Russell Services for Children and Adults v. G. (N.), 82 O.R. (3d) 686 (C.A.) . The Court sets out a three‑pronged test at para. 27 as follows:

[27] The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order. See 884772 Ontario Ltd. (c.o.b. Team Consultants) v. SHL Systemhouse Inc. , [1993] O.J. No. 1488 , 41 A.C.W.S. (3d) 505 (Gen. Div.), at para. 18 ; Children's Aid Society of Ottawa v. C.B. , [2003] O.J. No. 1451 , 121 A.C.W.S. (3d) 1043 (S.C.J.) ; Children's Aid Society of Ottawa-Carleton v. D.S. , 2001 (ON SC) , [2001] O.J. No. 4585 , 22 R.F.L. (5th) 14 (S.C.); L.J. v. G.B., [2000] O.J. No. 3030 (S.C.J.) ; Melville v. Beauregard , [1996] O.J. No. 1085 , 62 A.C.W.S. (3d) 127 (Gen. Div.), at para. 13 . [page 696]

[ 14 ] Counsel also cited the case of Children’s Aid Society of Ottawa v. D.S. (2001), 2001 (ON SC) , 22 R.F.L. (5th) 14. In that case, Linhares de Sousa J. sets out the test for establishing contempt at para. 7.

7 Counsel to the motion did not disagree on the test to be applied for establishing contempt of court in child protection matters. It is the same test that would be applied in any other matter. Given the criminal nature of contempt proceedings and the potentially severe consequences, including incarceration, for a finding of contempt, the test is a very stringent three-pronged one. In 884772 Ontario Ltd. (c.o.b. Team Consultants) v. SHL Systemhouse Inc. , [1993] O.J. No. 1488 (Gen. Div.) at para. 18 , Mr. Justice Chadwick stated it as follows:

In satisfying the test relating to contempt of court, the order itself must be clear and unequivocal and not open to various interpretations. Secondly, the party disobeying the contempt order must do so in a deliberate and wilful fashion in order to satisfy the criminal nature of the contempt proceedings. Thirdly, in considering the evidence as to whether there has been a deliberate breach of the court order it must be proven beyond a reasonable doubt as opposed to just on a balance of probabilities. It is obvious that any doubt must be exercised in favour of the person alleged to be in breach of the order.

[ 15 ] At para. 9, Madam Justice Linhares de Sousa goes on to say:

[9] The court should be cognizant of this restraint. However, there are a number of cases where the court found that resorting to contempt powers in family law matters was both necessary and appropriate. See Manolescu v. Manolescu (1991), 1991 (BC SC) , 31 R.F.L. (3d) 421 (B.C.S.C.) and L.J. v. G.B., [2000] O.J. No. 3030 (S.C.J.) .

[ 16 ] The Respondent’s counsel also cites the case of Fisher v. Fisher (2003), 2003 (ON SC) , 37 R.F.L. (5th) 108, wherein Chadwick J. at para. 11 states:

[11] Contempt of Court is the big stick of civil litigation. It should be used sparingly and only in the most clear cut of cases. There are other procedures available to enforce orders; other than a contempt motion. To use contempt motions to enforce minor but annoying breaches of a Code of Conduct, takes away and waters-down the effectiveness of the contempt procedure. Contempt should be reserved for those serious breaches, which justify serious consequences.

[ 17 ] The Respondent argues that these are quasi‑criminal proceedings which require proof beyond a reasonable doubt. He says that the three-prong test has not been proven by the Applicant beyond a reasonable doubt.

[ 18 ] Mr. Luckman’s counsel also argues that pursuant to Rule 31 of the Family Law Rules , contempt cannot be found for non-payment of support.

[ 19 ] As to the allegation made by the Applicant concerning the Property, Mr. Luckman in his affidavit sworn on January 9, 2012 states at para. 11(n):

n) Concerning items 1 and 2 of the Notice of Contempt Motion, the allegation in paragraph 1 is that I deliberately misled the court respecting property in Quebec. This is a very serious charge that I am advised is not the proper subject matter of a civil contempt motion brought by an opposing counsel. There is no violation of any court order alleged, and any consequences of the allegation would be a matter for court and public authorities to deal with, not the Applicant by way of a civil contempt motion.

Analysis

Disclosure

[ 20 ] This Court accepts that a party can purge their contempt by satisfying outstanding disclosure issues.

[ 21 ] Without reviewing every matter of disclosure disputed by the Applicant, based on the disclosure binder being provided just prior to the hearing of the motion, this Court finds that, if any disclosure is outstanding, such disclosure must be satisfied within the next 30 days, failing which the Applicant can bring a further contempt motion. Any further contempt motion can include any outstanding matters set out in paragraphs 4‑7 inclusive from the Notice of Motion issued on December 15, 2011.

Ownership of the Property

[ 22 ] The Court has reviewed a copy of the transcript of the contempt motion before Robertson J. on March 25, 2011. The following is a portion of the transcript:

THE COURT: Hello there. So I see you’ve made some progress.

MR. B. LUCKMAN: Yes.

THE COURT: And you’re agreeable to this?

MR. B. LUCKMAN: On everything but one point.

THE COURT: Okay.

MR. B. LUCKMAN : I would just like to be given the benefit of making the payment in April and May without securing the land. That’s the only thing I request. If it doesn’t I will totally comply with putting the land up for June 1 st .

THE COURT: Okay. Well, here’s what we can do, is we can secure it but the security isn’t executed until June 1 st .

MR. B. LUCKMAN: That would be great with me.

THE COURT: Is that all right? Is the Quebec property in your name?

MR. B. LUCKMAN: Yeah.

THE COURT: You’re not going to do something like transfer it?

MR. B. LUCKMAN: No, not at all. And I have one other question when you’re done.

THE COURT: Just a second. The security shall what? Shall be -- is enforceable as no payment by June 1 st ?

MR. L. BURNS: Yes, please.

THE COURT: So the security shall be enforceable if the payments in full under this order are not made by June the 1 st .

MR. B. LUCKMAN: Correct.

THE COURT: Okay. Do you guys want to sign this?

[ 23 ] In that transcript, Robertson J. specifically asked Mr. Luckman if the Property was in his name and he said “Yeah.” The Court asked him “you’re not going to do something like transfer it?”, and Mr. Luckman’s reply was “no not at all.”

[ 24 ] The evidence before the Court is that Mr. Luckman purchased the Property by a deed registered in September, 2005.

[ 25 ] There is an e‑mail from Mr. Luckman to his accountant Brad Fisk dated April 1, 2011 stating, “here is proof of ownership of my land deed picked up from my attorneys in Quebec.”

[ 26 ] A copy of the deed was sent by e‑mail from Brad Fisk to Applicant’s counsel stating, “Please find attached a copy of the deed for proof of ownership of land requested in point 5 on Court File No.: 08-3333.”

[ 27 ] These e-mails together with a copy of deed strongly implied to Ms. Burns and this Court that Mr. Luckman was still the current owner of the Property.

[ 28 ] A subsequent search by Ms. Burns indicated that the Property had been sold by Brent Luckman to Roger Dugas by deed number 16 824 180 on December 21, 2009 for $56,500. The result is that Mr. Luckman sold the Property at least 530 days before he appeared in Court on March 25, 2011. In Court on March 25, 2011 Mr. Luckman agreed to post the land as security for child support knowing full well that he no longer owned the Property and had not owned it for a lengthy period of time.

[ 29 ] Having reviewed the case law cited by the Respondent herein, this Court agrees that there is a three prong test in order to prove contempt. The Court will analyze each prong.

First Prong of Test

[ 30 ] The first prong is that the order itself must be clear and unequivocal and not open to various interpretations. The order in question is that of Robertson J. dated March 25, 2011.

[ 31 ] Paragraphs 1 through 7 of the order are set out below and are based on Minutes of Settlement filed by the parties:

1. Pursuant to the order of Justice Kealey dated April 9, 2010 the Respondent shall pay child support for the children of the marriage, namely Kennedy Luckman, born April 27, 2004 and Kade Luckman, born April 8, 2006, in the amounts of $8000 on April 15, 2011 and $8000 on May 12, 2011, being child support payments for April 2010 – November 2010.

2. The Respondent shall make arrangements to pay all outstanding child support arrears in writing by no later than March 31, 2011, such payments to commence no later than June 1, 2011.

3. The Respondent shall provide all outstanding disclosure to the Applicant through counsel by no later than April 8, 2011 and shall meet all future disclosure requests in writing within 15 days of the request being made.

4. The Respondent shall commence payment of ongoing child support payments of $2000 per month on June 1, 2011.

5. The Respondent’s child support payments shall be secured against the land on chemin Forester in Pontiac, Quebec. The Respondent shall provide proof of ownership of such land within 7 days of this date. The security shall be enforceable if payments in full not made by June 1, 2011.

6. The Respondent shall provide all records, bank statements, list of owners and directors and shareholders, proof of sales, revenue, expenses, shareholder agreements and financial statements for all companies, he is operating or working form, including, but not limited to 1605798 Ontario Ltd., Maxa Corporation, DDCI, LLC in Delaware, U.S.A., Dymon Data Centers Inc. at 580 Hunt Club Road, Ottawa, or any other place these companies may be located.

7. Costs of this motion are fixed at $2000 to be paid forthwith by the Respondent to the Applicant.

[ 32 ] This Court has reviewed the Robertson J. order and notes that the Respondent’s child support payments were to be secured by the Property. The Respondent was to provide proof of ownership for such land within seven days of the date the security was to be enforceable and if payments in full were not made by June 1, 2011.

[ 33 ] The payments were not made by June 1, 2011, and Mr. Luckman was to provide the Property as security. Mr. Luckman went so far as to send a copy of the deed for the Property via his accountant as evidence that the he owned it, when in fact he had sold it approximately 530 days before that.

[ 34 ] In regard to Mr. Luckman’s statements made to Robertson J. on March 25, 2011, in the transcript, he specifically acknowledged that he owned the Property. He was specifically asked if he was going to transfer the Property, and he said that he was not. He was being truthful in this regard but deceived the Applicant and the Court into believing that he still owned the Property when he did not. The wording of the Robertson J. order in para. 5 is clear and unequivocal. Therefore, this Court finds that, taking into account all of the circumstances, the first prong of the test has been satisfied.

Second Prong of Test

[ 35 ] The second prong is that the party disobeying the order must do so in a deliberate and wilful fashion in order to satisfy the criminal nature of the contempt proceeding. In court, before Robertson J., Mr. Luckman agreed to provide the security as set out in Minutes of Settlement dated March 25, 2011 signed by both parties which was then turned into a court order. On March 25, 2011, Mr. Luckman knew full well that he had sold the Property to Mr. Dugas on December 26, 2009. Therefore, this Court finds that Mr. Luckman disobeyed the Robertson J. order in a deliberate and wilful fashion. Therefore, this Court finds that the second prong of the test has been satisfied.

Third Prong of Test

[ 36 ] The third prong is that, in considering the evidence as to whether there has been a deliberate breach of the court order, it must be proven beyond a reasonable doubt as opposed to just on the balance of probabilities.

[ 37 ] The evidence before the Court is that Mr. Luckman did not own the Property on March 25, 2011. Furthermore, he did not provide the Property as security. This was a deliberate breach of the court order that was proven beyond a reasonable doubt. Therefore, this Court finds that the third prong of the test has been satisfied.

Result

[ 38 ] The Court rejects the Respondent’s argument that this matter is not subject to a civil contempt motion. This matter was before the Court on March 25, 2011. Mr. Luckman deliberately and wilfully misled the Court at that time about his ownership of the Property. This Court finds that the contempt in relation to the ownership of the Property is properly before this Court.

[ 39 ] The Court is satisfied beyond a reasonable doubt that Mr. Luckman has deliberately and wilfully misled both the Applicant and Robertson J. on March 25, 2011 that he owned the Property and would pledge it as security when he, in fact, did not own the Property. Accordingly, the three prongs of the test have been met.

[ 40 ] Based on the three prong test and the evidence before the Court, this Court finds Brent Luckman guilty of contempt.

Sanctions

[ 41 ] Rule 31(5) of the Family Law Rules , specifically sets out the sanctions for a finding of contempt:

CONTEMPT ORDERS

31 (5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order. O. Reg. 114/99, r. 31 (5) .

[ 42 ] In this particular case, the Court will deal with the appropriate sanctions once Mr. Luckman has deposited with the Court the following documentation in accordance with Rule 31(5) (d) and (e):

1. Any and all original passports and green cards in his name and/or an alias name, whether issued by Canada or any other authority;

2. Any and all original driver’s licences in Mr. Luckman’s name and/or an alias name, issued by either the Province of Ontario and/or any other governing authority.

[ 43 ] These documents are to be deposited with the court within the next seven days. Failure to provide the documents will be dealt with at the sanctions hearing. The date of the sanctions hearing is set for Monday, March 12, 2012 at 9:30 a.m.

[ 44 ] At the hearing, counsel will provide submissions as to the sanctions to be considered by the Court.

[ 45 ] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: February 17, 2012