ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-372987
DATE: 20120130
BETWEEN:
Sherry lynne sutherland-yoest Applicant – and – David Sutherland-yoest Respondent
H. Niman and D. MacKenzie , for the Applicant
G. Sadvari and M. Edmiston , for the Respondent
HEARD: January 26, 2012
KITELEY J.
Background
[ 1 ] The husband and wife were married in 1980. They have one adult child. In 2008, they separated and then resumed cohabitation. The husband has been a senior executive in the waste management business. Without warning to the wife, on March 17, 2011, the husband left his employment. On April 17, 2011, the husband gave to the wife a letter dated February 22, 2011 from Mr. Sadvari in which Mr. Sadvari informed the wife that her husband wished to separate. April 17 th is considered the date of separation.
[ 2 ] In May 2011, Mr. Niman and his associate began asking for financial disclosure. The husband was not responsive. The information to which the wife did have access caused her to be concerned about what he was doing with substantial amounts of money. The husband would not satisfy concerns raised about what he was doing with assets in his name and her name and the name of their daughter.
[ 3 ] On October 17, 2011, the wife issued an application seeking a divorce, spousal support, a restraining order/non-harassment order, equalization of net family properties, exclusive possession of the matrimonial home, an order freezing assets, damages for intentional infliction of physical and emotional harm during the marriage and damages for emotional harm following separation and other relief.
[ 4 ] On October 17, 2011, Czutrin J. made an order ex parte in which he restrained the husband from depleting or dissipating property or disposing of property. He also ordered that the husband not to “have any communication with the applicant except through counsel”.
[ 5 ] In an affidavit dated October 26, 2011 and apparently signed in Toronto the husband said that his wife’s fears about money disappearing were “fabricated and inaccurate” and that while he had not produced his disclosure “as rapidly as she apparently wants, she knows that I have been extremely distracted this year with the problem with my hands that have required multiple trips to California for surgery and physiotherapy”. He said that there was no urgency to the motion. He observed that since the family home and the family cottage were in her name, the wife would owe him a substantial equalization payment. He insisted that she had no reason to be concerned about money disappearing. He said that her motion was “an attempt to take advantage of her pretended ignorance, to my detriment, and jump the queue over more deserving cases”. In his affidavit he responded to the relief sought by his wife. He said that there was no need to proceed with a motion without a case conference. He agreed to the following: that he would produce documents forthwith and whatever else was needed beyond what was included in the affidavit, within 30 days; that he could account for income through his tax returns “as there are virtually no other sources, within 30 days”; he could produce a financial statement within 10 days; if permitted to access funds for ordinary bills, he could pay the mortgage “for the time being”. The affidavit provided some disclosure and attached some documents.
[ 6 ] On October 27, 2011, a consent order was made that contained the following:
(a) a case conference was scheduled for January 13, 2012;
(b) the ex parte order made October 20 th continued in full force and effect;
(c) the wife was required to preserve assets in her possession;
(d) the parties would continue to have access to their bank accounts and investments for the purpose of paying day-to-day household bills and immediate living expense, legal and accounting fees, as they came due and “without limiting the generality of this statement, the Respondent shall continue to pay the mortgage” on the matrimonial home;
(e) the wife had temporary exclusive possession of the matrimonial home. The wife had temporary exclusive possession of the cottage and the husband had temporary exclusive possession of the boathouse;
(f) the husband shall serve and file a sworn financial statement within 21 to 30 days;
(g) the husband “shall produce all disclosure relevant to the determination of his income and net family property within 30 days and without limiting the generality of this statement, he shall provide a full and complete accounting of all corporate and personal holdings, business interests and properties in which he has an interest in any jurisdiction, whether such interest is direct or indirect, legal or beneficial”;
(h) within 30 days the husband shall “disclose and provide particulars of all transactions entered into by him in the name of the wife or their daughter within the past 3 years”;
(i) within 30 days the husband shall provide “an accounting of funds he has received from all sources for the past three years”.
[ 7 ] On November 21 st , 2011, Mr. Sadvari forwarded a financial statement but the valuation date of July 2008 (the earlier separation date) was used. The statement was useless.
[ 8 ] On December 16, 2011, the wife swore an affidavit in support of the motion for contempt. The notice of motion was served on December 21 st and was returnable January 17 th .
[ 9 ] On December 16, 2011, the husband signed a sworn financial statement with the proper valuation date. He was in New Jersey at the time. He disclosed his income in the prior year at over $14 million dollars. His 2010 income tax return was attached. His income for the current year was “TBD”. The letter from Mr. Sadvari to Ms. MacKenzie enclosing that financial statement is dated December 19 th but I cannot determine whether it was served that day.
[ 10 ] On January 11 th , a notice of motion was prepared on behalf of the husband returnable January 17 th in which he asked to vary the order of October 27 th to provide him with exclusive possession of the cottage during the winter season and an order that the wife list the matrimonial home for sale and on closing pay him an advance of the equalization payment in the amount of $5 million. His affidavit in response to his wife’s motion for contempt and in support of his motion was sworn on January 10, 2012. He was in Queens County, New York State at the time.
[ 11 ] On January 23 rd , the wife swore an affidavit in response to his. In the late evening of January 25 th , Mr. Sadvari served an affidavit signed by the husband in California.
[ 12 ] There has been additional disclosure by the husband which I will not detail.
Contempt of Court
[ 13 ] According to Rule 31 of the Family Law Rules, an order, other than a payment order, may be enforced by a contempt motion.
[ 14 ] The court must apply a three pronged test in that the moving party must establish that the order that was breached must state clearly and unequivocally what should and should not be done; the party who disobeyed the order did so deliberately and willfully; and the evidence must show contempt beyond a reasonable doubt.
[ 15 ] The allegations of contempt are threefold: breach of the order prohibiting communication with the wife; breach of the order directing payment of the mortgage; breach of the order as to disclosure.
A. Breach of the order prohibiting communication with the wife
[ 16 ] The Notice of Contempt Motion indicated that the husband had breached the order made on October 20 th in that he had contacted her directly as prohibited by paragraph 5 of the order.
[ 17 ] In her affidavit sworn December 16 th , the wife said at paragraph 11 that her husband had tried to contact her directly on numerous occasions and that she was frightened by his behavior. She found his disrespect for her and for the court alarming.
[ 18 ] In his affidavit sworn January 10 th , he said that “bringing motions for contempt ignores these facts and is a waste of time and money”. He said he would continue to do his best to obey all court orders and meet their expenses but he could not do “the impossible”. At paragraphs 9 and 10 he said the following:
As for contact with Sherry, they consist of two calls and 5 text messages over the last 4 months. Sherry knowingly answered my call in November and we had a very pleasant conversation lasting about 15 minutes. I also briefly mentioned that I would like to use the kitchen of the main cottage; this was before I learned that she had changed the locks even though she doesn’t use the cottage all winter.
The text messages were requests for her to call me (August 27 and October 4), sending her pictures of our beloved shared pet, Pearla (2 on December 11) in which I also asked if she want to reconcile, and on January 1, 2012, “Dear Sherry, Wishing you all happiness, always and forever. Love David.” If this is harassment I am sorry but did not consider it to be so and if Sherry doesn’t want to try to reconcile and she actually considers this any type of harassment I will, of course, stop even directly wishing her well.
[ 19 ] In her affidavit sworn January 23 rd at paragraphs 6 and 7, the wife describes events that occurred on January 18 th . She saw that an incoming call was from him and did not answer it. He left a voicemail message which was recorded on her answering machine. It was transcribed in paragraph 6 of that affidavit as follows:
Sherry. Hey call me back. We don’t need all these lawyers. I talked to Gerry this morning and I know he talks to Harold all the time. I know what is going on with all of the legal stuff. We don’t need them. I just need to talk to you. I’m in California. I am going to see Don in Texas and then to New York and then I’m going to come up to Toronto next week to see you. Call me back! I don’t care about whatever the court order is, the restraining order and all that stuff. It’s all fine. It doesn’t hit my radar screen. You do. Call me back. I’ve got a - I want to talk to you. I want you to be happy. I love you. Ok bye.
[ 20 ] Later the same day she received a text message from him that was also transcribed in that affidavit at paragraph 7. I will not quote the entire text. Suffice it to say that it begins with his statement that he is still in love with her then disparages Mr. Niman in a manner that can only be meant to undermine her confidence in her counsel. It ends with this sentence:
If this text violates some order of the court, then I apologize to the justice.
[ 21 ] In his January 25 th affidavit, the following appears at paragraphs 8 and 9:
I still love my wife and this separation has been hard for me. However, I understand that I should not have contacted Sherry and that our lawyers do not want me to speak with her.
I sincerely apologize to the court and to her.
[ 22 ] On January 26, 2012, I conducted a hearing. The wife attended. The husband did not. Mr. Sadvari noted that his client has been “criss-crossing the continent in his efforts to launch a new enterprise” as soon as his one year non-compete clause expires in March 2012. While it is desirable that he make such efforts and is in the interests of his wife that he do so, it is unfortunate that he chose not to attend the hearing. He chose not to attend the case conference on January 13 th , although as indicated above, in his affidavit sworn October 26 th , he insisted that there was no need to proceed with a motion without a case conference. His January 25 th affidavit was signed in California. But in his January 18 th message he said he was expecting to be in Toronto the following week. I infer that the case conference and the motion for contempt did not “hit his radar screen” and he chose not to attend. With the agreement of counsel, the hearing was conducted in his absence.
[ 23 ] If the evidence consisted only of paragraph 11 in the wife’s affidavit sworn December 16 th that would not have met the heavy onus required to make out contempt. However, based on all of the evidence and particularly paragraphs 6 and 7 of her affidavit sworn January 23 rd and paragraphs 8 and 9 of his affidavit sworn January 25 th I make the following findings:
(a) The order dated October 20 th , 2011 prohibiting communication is clear and unequivocal.
(b) The husband’s violation of the order was deliberate and willful. The recording of the phone message was played in court. As the recording and the accurate transcript indicates, on the eve of a motion that he be found in contempt, he was defiant of the order in that it did not hit his “radar screen”.
(c) The husband demonstrated astonishing arrogance by leaving the voice mail and text message knowing that both created a record of his contemptuous behaviour.
(d) I infer that in paragraphs 8 and 9 of the January 25 th affidavit he was attempting to make amends for a clear breach of the order prohibiting communication. However he did not refer to the order prohibiting communication, he did not acknowledge its existence, he did not acknowledge that he had breached the order and he did not accept responsibility for having breached a court order. While it contains an apology, it appears to be an apology for contacting his wife when “our lawyers” did not want them communicating which is a far different reason than having been prohibited by court order.
(e) As indicated in other references in his affidavits, he is generally very dismissive of the motion for contempt. In that context, I cannot accept his halfhearted apology as indicative of his appreciation of the seriousness of his conduct.
(f) In her evidence, the wife describes her fragility and vulnerability. As indicated above, I would not have made a finding of contempt on the basis of paragraph 11 of her December 16 th affidavit. His breaches of the non-communication order after October 20 th and prior to December 16 th , as explained in paragraphs 9 and 10 of his January 10 th affidavit were serious but would not have attracted a finding of contempt. However, in the face of a pending motion for contempt on that and on other grounds, his demonstrated defiance served to reinforce her existing fears and drive her to the conclusion that she would remain vulnerable notwithstanding orders designed to protect her. She is entitled to expect that she will be protected from such breaches.
[ 24 ] I refer to the often-quoted passage from Surgeoner v. Surgeoner [1992] O.J. No. 299 :
. . . No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its courts’ orders at their whim because in their own particular view it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice.
The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness”. In this environment it is all too easy for a spouse to believe that he or she “knows what is right”, even after a matter has been determined by the Court, and to decide to ignore, disobey or defy that determination.
Those who choose to take this tack must know that it will not be tolerated.
[ 25 ] In Gordon v. Starr 2007 35527 (ON SC) , 2007 CarswellOnt 5438 at para 23 , in the context of whether a party in breach of a court order should be entitled to ask for relief, the court held as follows:
Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family law proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders.
[ 26 ] Mr. Sadvari argued forcefully that I ought not to make a finding that the husband is in contempt of a court order because that label will be a burden for him to carry not only in this litigation but potentially elsewhere. I agree that such a finding is very serious. However, as the passage in Surgeoner indicates, the husband’s conduct compels me to do so.
[ 27 ] I find David Sutherland-Yoest (date of birth April 29, 1956) in contempt of paragraph 5 of the order of Czutrin J. dated October 20th, 2011, as continued pursuant to paragraph 2 of the order of Czutrin J. dated October 27, 2011.
[ 28 ] I turn now to the remedy. According to Rule 31, if a person is found in contempt, the court may order imprisonment, payment of a fine, payment of an amount to a party as a penalty or other sanctions.
[ 29 ] Orders prohibiting communication between spouses are frequently made in divorce proceedings. It is imperative that individuals against whom such orders are made comply and that the individual be deterred from repeating such behavior. It is equally as imperative that others against whom such orders are made understand the consequences of failure to comply. As in the criminal context, individual and specific deterrence are relevant factors in arriving at an appropriate penalty.
[ 30 ] Mr. Niman made the submission that pursuant to Rule 31(5)(c), I should order the husband to pay a penalty of $10000 to his wife. Given his substantial means, a penalty in that amount would be insignificant. At this point, I am not satisfied that that is an appropriate penalty.
[ 31 ] In any event, before establishing a remedy, I must afford an opportunity to the husband to purge his contempt.
[ 32 ] During submissions, while continuing to vigorously resist a declaration that he be found in contempt, Mr. Sadvari suggested that the remedy would be to make a finding that the husband had breached a court order. He agreed that his client should pay a fine. I indicated to Mr. Sadvari my inclination to make a finding of contempt and to require the husband to attend for the purpose of purging his contempt. Mr. Sadvari will be away from February 10 th for 3 weeks and he anticipated that his client would expect his presence. Mr. Sadvari offered February 9 th as a date for the attendance.
[ 33 ] ORDER TO GO AS FOLLOWS :
(a) On February 9 th , 2012 at 10:00 a.m., Mr. Sutherland-Yoest shall attend before me at 393 University Avenue in Toronto for purposes of purging his contempt from the finding in paragraph 27 above;
(b) On that occasion, Mr. Sutherland-Yoest shall give evidence. While I do not dictate what he will say because it is up to him to decide, at minimum I would expect him to acknowledge that two court orders prohibit him from communicating with his wife; that he deliberately and willfully breached those orders twice on January 18, 2012; that he apologizes to the court and to his wife; and that he provides assurances that such conduct will not be repeated.
(c) Following that evidence and any other evidence Mr. Sutherland-Yoest wishes to call, I will hear brief submissions from counsel as to what remedy I should impose.
B. Breach of the order directing payment of the mortgage
[ 34 ] The matrimonial home is registered in the name of the wife and is valued at approximately $10 million. As indicated above, the wife has temporary exclusive possession pursuant to the consent order of Czutrin J. dated October 27, 2012. In August 2009, the husband required that she sign documents to increase the Secured Line of Credit and Mortgage to $4,250,000.
[ 35 ] As indicated above, in his October 26 th affidavit, the husband said that he would pay the mortgage “for the time being”. Paragraph 4 of the consent order made October 27 th directed him to “continue to pay the mortgage”. In his affidavit sworn January 10 th , the husband said in paragraph 7 that he had been using up capital and
as my financial statement demonstrates, I am unable to continue to meet the mortgage payments on the matrimonial home, the only specific expense referred to [in the order]. Fortunately the lender, the Royal Bank, with whom I have spoken, is understanding and will not be taking any steps to enforce arrears as they realize they have no exposure given the substantial equity in the property, as well as their confidence in me to pay my just obligations when I am able.
[ 36 ] In his submissions, Mr. Sadvari argued that pursuant to Rule 31, a motion for contempt was not available when the order was a “payment order”. Furthermore, while he acknowledged that he was in breach of the order, Mr. Sadvari took the position that the husband was not saying that he was not responsible to pay the mortgage. He said that the bank simply did not care whether the payment was made. He suggested that there should be no penalty for not paying the mortgage until April when it is expected that his new enterprise will be under way.
[ 37 ] In his proposed draft order, Mr. Niman submits that I find the husband in contempt for failure to pay the mortgage since November 2011 and continuing until the payments are made by him. He suggests that I order the husband to reimburse the wife for any mortgage payments made by her either directly or by funds being withdrawn from her account from and after November 26, 2011.
[ 38 ] Rule 31 is clear that a motion for contempt is not available for a “payment order”. Arguably, the order is not a “payment order”. It is an order that was made on consent by which the husband was required to meet a legal obligation that he and the wife had to a third party financial institution. That may be found to be within the parameters of Rule 31. If so, I would find that the order requiring him to fulfill that legal obligation was clear and unequivocal and that his breach was deliberate and willful.
[ 39 ] However, having made the finding that he is in contempt of the non-communication order, I am not persuaded that another finding of contempt would serve any purpose.
[ 40 ] I find that David Sutherland-Yoest is in breach of paragraph 4 of the order of Czutrin J. dated October 27 th in that he has failed to pay the mortgage.
[ 41 ] The issue is remedy.
[ 42 ] The husband is quite cavalier about the failure to fulfill this obligation. His excuses include “the bank doesn’t care” and, in his October 26 th affidavit, he only said he would pay “for the time being” and, “in April, we’ll see if he can fulfill the obligation”.
[ 43 ] That defiance and arrogance is astonishing. I note that in paragraph 7 of his January 10 th affidavit, he did not identify who he spoke to at the Royal Bank so the assertion cannot be confirmed. He ignores that the “substantial equity” in the property belongs to his wife: his claim is limited to an equalization of net family property. He fails to indicate the basis on which the Bank agreed not to “take any steps to enforce arrears” and whether he represented to the Bank that the home would be listed for sale in the immediate future which is clearly his wish. While his affidavit dated October 26 did qualify his willingness to pay “for the time being”, paragraph 4 of the order made by Czutrin J. on October 27 is not so limited. He seems not to appreciate that he must comply with the order as opposed to fulfill his own affidavit – whatever “for the time being” means. As for waiting for April, by then the mortgage may be in arrears 6 months putting the wife at greater risk.
[ 44 ] As his evidence indicates, he is “criss-crossing” the continent. I repeat that it is prudent for him to seek to begin a new enterprise and it is in the interests of the wife that he do so. But I infer from the evidence that his deliberate and willful decision not to pay the mortgage was simply a question of priorities for him: he has resources to fund his “criss-crossing” but he suggests he doesn’t have resources to meet a legal obligation his wife shares with him. Furthermore, by not paying, I infer that that would have the desired effect of putting pressure on his wife.
[ 45 ] For this flagrant breach of the order, the only option is compliance.
[ 46 ] ORDER TO GO AS FOLLOWS :
(a) By February 8, 2012 the husband shall provide proof in writing from the Royal Bank confirming that the mortgage is in good standing;
(b) If mortgage payments have been made by the wife directly or by funds withdrawn from an account in her name, by February 8, 2012 the husband shall pay to her whatever amount is required to reimburse her;
(c) The husband shall pay the mortgage on the matrimonial home as each payment falls due.
C. Breach of the order for disclosure
[ 47 ] In the October 27 th consent order, the following appears at paragraphs 9, 10, 11 and 12:
The Respondent shall serve and file a sworn financial statement within 21 to 30 days.
The Respondent shall produce all disclosure relevant to the determination of his income and net family property within 30 days and without limiting the generality of this statement, he shall provide a full and complete accounting of all corporate and personal holdings, business interests and properties in which he has an interest in any jurisdiction, whether such interest is direct or indirect, legal or beneficial.
Within 30 days the Respondent shall disclose and provide particulars of all transactions entered into by him in the Applicant’s name or in the name of the parties’ daughter. . . within the past 3 years.
Within 30 days the Respondent shall provide an accounting of funds he has received from all sources for the past three years.
[ 48 ] Mr. Niman concedes that the husband provided a financial statement sworn December 16 th and served on or about December 19 th . He pointed out that while the first financial statement was provided on November 21 st , it contained the wrong valuation date. Mr. Sadvari takes full responsibility for that error. However, Mr. Niman pointed out that it demonstrates how little attention the husband pays to what he is signing when he did not read it closely enough to observe the unmistakeable error.
[ 49 ] Mr. Niman agrees that he has received a variety of documents from the husband. But when the sworn financial statement was received on or about December 19 th , it indicated income for the last year (which we know meant 2010) was $14 million but was shown as “TBD” for the current year or 2011 when he was employed for 2.5 months in 2011 and when he failed to indicate any other sources of income for the entirety of the year. In the December financial statement, the husband disclosed an RRSP but indicated the value was TBD because he did not have access to records in the matrimonial home while in a letter dated November 25 th , 2011, Mr. Sadvari indicated that, in the context of the original financial statement, the husband was unable to obtain the information about value because of the American Thanksgiving holiday. In the December financial statement, the husband also disclosed warrants with TBD as the value. It was only on January 20 th that Mr. Niman received a letter providing particulars of the RRSP and the warrants which collectively had a before tax value of almost $660,000 together with disclosure of restricted stock units which he said had no value.
[ 50 ] Mr. Niman also observed that he received key documents only late in the evening of January 25 th attached to the affidavit sworn that day, namely a copy of a letter dated August 4, 2011 from counsel for his former employer which provides information about the financial consequences of his resignation dated March 17 th , 2011 (and which refers to an employment agreement which had been the subject of disclosure but was even now not produced) as well as a letter from an attorney in New Jersey who provided vague details about the new venture he is pursuing. Mr. Niman noted that he had been asking for financial disclosure since May 2011. Mr. Niman argued that his failure to comply with the timetable to which he consented in paragraphs 10 and 12 along with the extent to which he had complied with other disclosure indicated a deliberate and willful breach of those paragraphs of the order and that his conduct was similar to that described in Leskun v. Leskun 2006 SCC 25 () , [2006] S.C.J. No. 25.
[ 51 ] The motion with respect to the non-disclosure had been launched in the context of seeking a finding of contempt. However, Mr. Niman did not ask that I make that finding. He did ask that I find that the husband breached the order. In his draft order at paragraph 3, Mr. Niman proposes that I order the husband as follows:
The Respondent shall, by sworn affidavit and with all relevant supporting documents attached as exhibits, provide the following information within 15 days:
(a) Particulars of his income from all sources for 2011 and 2012 to date;
(b) Particulars of all transactions entered into by him in the Applicant’s name and in the name of their daughter, from October 28 th , 2008 up to and including today;
(c) An accounting of all funds he has received from all sources from October 28, 2008 up to and including today, which accounting shall detail where the funds were deposited and detail the disbursement of the funds.
[ 52 ] Mr. Sadvari takes a different view of what has transpired. He says that his client has largely complied with his obligations and that to the extent that he has not complied it is because the time frame to which the husband consented on October 27 th was “optimistic”. It was in this context that he said his client was “criss-crossing the continent” trying to become established in his new venture and the inference was that he was occupied with more important matters. He argued that Mr. Niman is trying to conduct questioning under the guise of disclosure. Mr. Sadvari accepted responsibility for the error in the valuation date on the first financial statement but said it had been replaced promptly. He asserted that the primary objective of the Family Law Rules is not achieved by a motion such as this which he described as a “waste of the court’s time”. Mr. Sadvari referred to the reasons for decision in Fisher v. Fisher 2003 2119 (ONSC) where at paragraph 11 the court noted that “contempt of Court is the big stick of civil litigation” that “should be used sparingly and only in the most clear cut of cases”. He argued that this motion for contempt for failing to comply with his disclosure obligations was “using a hammer to kill a flea”. He insisted that his client was not acting in bad faith, he was not flouting any orders, this was not a “flagrant attempt to ignore court orders” but a question of “finding the time to comply with the court order”. He conceded that there had been some delay. He agreed that the August 4, 2011 letter that had been produced the evening before the motion should have been provided earlier. He insisted that this was not a situation even close to Leskun v. Leskun .
[ 53 ] As for paragraph 3(a) of the proposed draft order, Mr. Sadvari said that his client would provide documentation with respect to his 2011 income when he received his T4’s and other slips, which we know are required by the end of February. He pointed out that the reference in 3(a) to 2012 income was not included in the October 27 th order and is not relevant to this motion. As for paragraph 3(b), namely providing particulars of all transactions, he said that had been done. As for paragraph 3(c), namely an accounting of all funds, I understood him to say that it was a work in progress. He observed that the closing words requiring details as to deposits and disbursements were not included in the October 27 th order.
[ 54 ] In Leskun , the Supreme Court rejected the appellant’s objection that the judge at first instance erred in calculating his net worth. As the Supreme Court noted, the judge at first instance had commented that the appellant had been less than forthright in his evidence. After quoting from the original decision, the Supreme Court concluded that the appellant had a “poor platform from which to launch an attack against the trial judge’s conclusion regarding his assets and liabilities” and quoted with approval from Cunha v. Cunha (1994) 1994 3195 (BC SC) , 99 B.C.L.R. (2d) 93 (S.C.) at para. 9 :
Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlement which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained women simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done.
[ 55 ] Motions involving disclosure obligations (whether for a finding of contempt or a finding of breach) are more challenging because of the difficulty in establishing that the order was “clear and unequivocal” and the breach was “deliberate and willful”. In this case, I agree that it is not appropriate to find that the husband is in contempt of the disclosure order. I do find as follows:
(a) I find the husband in breach of paragraph 9 of the order of Czutrin J . in that he served a sworn financial statement on or about December 19 th , which was beyond the 21 to 30 days required by the order. However, I do not agree that that was deliberate and wilfull, rather it was negligent and cavalier and irresponsible.
(b) I find the husband in breach of paragraph 10 of the order in these respects: he provided the letter dated August 4 th , 2011 and the two letters dated January 20th significantly beyond the deadline. He used the excuse of lack of access to records in the matrimonial home when he had earlier indicated the RRSP information would be available elsewhere. He may well be in breach of other aspects of paragraph 10 but since he has not fully complied, it is impossible to ascertain the extent of his non-compliance.
(c) I find the husband in breach of paragraph 11 of the order . One of the serious concerns raised by the wife in paragraph 9 of her affidavit sworn October 19 th was that, in the documents that she was able to access, she identified certain transactions in her personal account or their joint account or her brokerage account that totaled millions of dollars that the husband had orchestrated for which she required an explanation. That has not been done. Mr. Sadvari took the position that it had been done. I accept that the breach was negligent not deliberate.
(d) As conceded by Mr. Sadvari, I find the husband in breach of paragraph 12 . Given that his excuse appears to be not having made the time to fulfill this obligation, I conclude that it was deliberate.
(e) The husband has made some efforts. I agree that this is not a situation such as that in Leskun . However I do not agree with Mr. Sadvari that counsel for the wife is attempting to conduct questioning in the guise of disclosure. For questioning to be informative and useful, it must be preceded by production of documents.
[ 56 ] The issue is the remedy for these breaches. I agree with Mr. Sadvari that in several respects he identified the draft order seeks disclosure which was not the subject matter of the October 27 th order. In order to ensure that there is no excuse for non-compliance based on lack of clarity of the obligation, it is prudent for Mr. Niman to make a fresh list of documentation required. While Mr. Sadvari did not indicate when compliance might be expected, my impression was that the husband wanted to concentrate on his efforts to re-establish a business which he expects to launch in April. I intend to impose dates for compliance that gives priority to two aspects of the existing order but also gives him time within which to launch his business while still working with accountants and other advisors to ensure compliance.
[ 57 ] ORDER TO GO AS FOLLOWS :
(a) By February 29, 2012, the husband shall comply with paragraph 11 of the order of Czutrin J., namely he shall disclose and provide particulars of all transactions entered into by him in the names of his wife or his daughter for the period October 28, 2008 (the date that was three years prior to that order) to January 31, 2012.
(b) By February 29, 2012, the husband shall comply with paragraph 12 of the order of Czutrin J., namely he shall provide an accounting of funds he has received from all sources for the period October 28, 2008 to January 31, 2012.
(c) On behalf of the wife, counsel will provide a comprehensive list of documents required to be produced. If that list is provided by February 15, 2012, the husband shall comply by April 30, 2012.
(d) By April 30, 2012, the husband shall provide a fresh financial statement with all the requisite information as at date of marriage, valuation date and date of statement.
[ 58 ] I am making an important assumption in establishing the foregoing schedule, namely that the husband complies with paragraph 4 of the order of Czutrin J. dated October 27 th , 2011. I am also assuming that counsel will be able to agree on a timetable for exchange of affidavits of documents, questioning, and a date for a settlement conference. If either of these assumptions proves incorrect, counsel may arrange a case conference before me.
Wife’s intention to sell the cottage
[ 59 ] The Notice of Contempt Motion does not make reference to sale of the cottage. While the husband would prefer that the cottage not be sold, Mr. Sadvari indicated that his client acquiesced in the sale primarily because it was owned by the wife and it was therefore her decision. Mr. Sadvari asked for terms that would allow the husband to enjoy half of the summer at the cottage and that any closing date be postponed until September 30 th 2012. Mr. Niman resists any terms.
[ 60 ] Pursuant to the order dated October 27 th , the wife has temporary exclusive possession of the main cottage and the husband has temporary exclusive possession of the boathouse and contents. The husband is not to enter the main cottage and the wife is not to enter the boathouse.
[ 61 ] In his notice of motion dated January 11 th and returnable at the same time as this motion for contempt the husband asked that that order be varied to allow him exclusive possession of the entire property during the winter season on the basis that the wife does not use it during the winter. Wisely, Mr. Sadvari did not pursue that motion. It is assumed that the temporary order will continue.
[ 62 ] Since the wife is the registered owner and she has the right to make such decisions, an order should be made to ensure that the expectations are clear. Counsel advise that they will be able to agree on the listing agent.
[ 63 ] ORDER TO GO that the cottage shall be listed for sale within 30 days, or such longer period as the wife decides, by an agent to be chosen by counsel for the husband and the wife.
Husband’s motion for sale of the matrimonial home
[ 64 ] As indicated, the husband brought a motion in which he asked to vary the October 27 th order with respect to possession of the cottage. He also asked for an order that the wife be required to list the matrimonial home for sale immediately, and, upon closing, pay to him $5 million as an advance against the equalization payment that she will owe him.
[ 65 ] As indicated in the excerpt from Gordon v. Starr , a party who is in breach of a court order should not be granted an audience to seek relief. While the bringing of the notice of motion raises questions about the husband’s appreciation of the extent to which he was in non-compliance, his counsel prudently has agreed to adjourn the motion sine die.
[ 66 ] ORDER TO GO adjourning the motion by the husband sine die.
Conclusion
[ 67 ] After release of my decision as to the penalty for the husband’s contempt, I will establish a timetable for written submissions as to costs.
[ 68 ] Before the next attendance, counsel for the husband shall arrange for the continuing record to be brought up to date.
[ 69 ] Counsel for the wife shall prepare a draft order which, when approved, may be sent to my attention.
Kiteley J.
Released: January 30, 2012
COURT FILE NO.: FS-11-372987
DATE: 20120130
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:
Sherry lynne sutherland-yoest Applicant – and – David Sutherland-yoest Respondent
REASONS FOR JUDGMENT
Kiteley J.
Released: January 30, 2012