COURT FILE NO.: FS-11-4991
DATE: 2012-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Steven French
Stephen Lundin for the Applicant
Applicant
- and -
Ashlee Ann Marie McLaughlin
Mark Mymko, for the Respondent
Respondent
HEARD: April 5, 2012
at Kenora, Ontario
Justice E. W. Stach
Reasons on Motions
[1] Two motions came before the court on April 5, 2012, both brought by Steven French. The first was a motion for a temporary order for specified access; the second sought to have Ashlee McLaughlin cited for contempt for failure to comply with an order of this court made February 15, 2012.
[2] Moments before the motion for access was to be argued, counsel advised that terms satisfactory to their clients had been agreed to in reference to the access issue. On consent, I made an order for temporary access on terms set out in paragraph 2 (a), (b) and (c) of the Notice of Motion.
[3] Upon hearing the submissions of counsel with reference to enforcement of the access order and, more particularly, after hearing their submissions on the contempt motion, I reserved decision, in part, to permit my further consideration of those issues and, in part, to permit counsel a further opportunity of some days to explore resolution. My reasons on the contempt motion and on the corollary matters of enforcement now follow:
motion for contempt
[4] The parties are common-law spouses. They began living together in 2007. They are the joint owners of a residential property located in Balmertown, Ontario. They separated on July 28, 2010. Ashlee McLaughlin remained in the residential property. Steven French moved to Dryden, Ontario.
[5] Some disposition of the residential property in Balmertown has been in the conversation of the parties since at least September 2011, and probably before then. Early on, Ashlee McLaughlin expressed an interest in acquiring the home in her own name by means of assuming the mortgage with assistance from family members, and by obtaining the release of Steven French from any continuing obligation under it. That plan, repeatedly discussed, never came to fruition.
[6] On January 18, 2012 Steven French brought a motion in which the following relief was sought:
an order that the jointly owned home be listed for sale and sold upon receipt of the first reasonable offer to purchase;
an order that Ashlee McLaughlin cooperate in the listing and sale of the home;
an order that Ashlee McLaughlin vacate the home to permit its sale.
[7] That motion was not argued. On February 15, 2012 Ashlee McLaughlin consented to an order of the court, made by Justice McCartney, on the following terms:
• that the home owned jointly by Steven French and Ashlee Ann Marie McLaughlin, municipally known as 78 Dickenson Road in Balmertown, Ontario, be listed for sale and sold upon receipt of the first reasonable offer to purchase;
• that Ashlee Ann Marie McLaughlin and Steven French cooperate with the listing and sale of the home.
[8] It is for her alleged failure to comply with the terms of this court order that a finding of contempt is sought against Ashlee McLaughlin.
[9] Instead of complying with the order outlined above, Ashlee McLaughlin resurrected the notion that she would acquire the home with the assistance of her family. In her affidavit sworn March 28, 2012 she makes the following statement:
“The realtor did contact me and I advised that my family was going to purchase the home and that my lawyer was negotiating this so it would be a waste of time to list the home since it was going to be purchased.”
[10] The material filed on the motion makes it clear that, for reasons of her own, Ashlee McLaughlin frustrated the “listing” obligation.
[11] The court has heard no word of any resolution of the issue.
[12] Inasmuch as I am persuaded beyond a reasonable doubt that;
there is a court order to be enforced;
having been made on consent and with the benefit of counsel, the terms of that order are clear and not open to a variety of interpretations;
Ashlee McLaughlin, a party to the order, was put on proper notice, fully and clearly particularized, of a motion to find her in breach of that order;
she has failed to comply with that order and has done so in a deliberate and wilful fashion.
[13] In the result, I find Ashlee Ann Marie McLaughlin in contempt of the order of the court made February 15, 2012. I direct as follows:
Ashlee Ann Marie McLaughlin vacate the residential premises municipally known as 78 Dickenson Road, Balmertown, Ontario on or before 12:00 o’clock noon on April 30, 2012;
that a writ of temporary seizure may issue forthwith if Ashlee Ann Marie McLaughlin fails to vacate the premises by this time;
that the Ontario Provincial Police may be called upon to enforce this order;
that a failure on the part of Ashlee Ann Marie McLaughlin to give up vacant possession of that residence on or before the prescribed time shall result in a penalty of $200.00 per day, measured from April 30, 2012, to be paid into court to the credit of Steven French in this action, and realizable from the interest of Ashlee Ann Marie McLaughlin in the proceeds of sale or other disposition of the jointly owned residential premises;
enforcement of the temporary access order
[14] In partial oral reasons given at the conclusion of counsel’s submissions on April 5, 2012, I made plain my abiding reluctance to involve police officers in the enforcement of an access order respecting a child. I still hold that view. I am cognizant, however, that in some circumstances there is no other option. Accordingly, I direct that, as a last resort, the Ontario Provincial Police may be called upon to enforce the temporary access order made on consent on April 5, 2012.
Costs
[15] Counsel may speak to the costs of these motions by teleconference at a time to be arranged through the Trial Coordinator at Kenora. Each of the parties shall submit a draft bill of costs at least two days in advance of the date scheduled for such hearing.
Justice E. W. Stach
Released: April 12, 2012
COURT FILE NO.: FS-11-4991
DATE: 2012-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Steven French
Applicant
- and –
Ashlee Ann Marie McLaughlin
Respondent
REASONS ON MOTIONS
Stach, J.
Released: April 12, 2012
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