COURT FILE NO.: FC-R06-24115-01
DATE: 20130110
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Francesca Anna Quercia, Applicant
AND:
Sebastiano Francioni, Respondent
BEFORE: The Honourable Madam Justice H. McGee
COUNSEL: Sender Herschorn, Counsel for the Applicant
Sebastiano Francioni, Self-represented
HEARD: January 9, 2013
ENDORSEMENT
McGEE J.
[1] This is the applicant’s Rule 31 Motion for Contempt served November 16, 2012. The respondent replied by Affidavit sworn December 17, 2012.
[2] The respondent appeared in person after having an opportunity to speak to duty counsel. He appeared unable to organize his thoughts, or focus on the issues before the Court. He spoke in short sentence fragments with frequent gaps. When questioned, he stated that he was not under any disability and that any medical issues were between him and his physician.
[3] The findings of contempt set out in paragraphs 2(a), (c) and (d) of the applicant’s motion are unavailable by operation of Rule 31(1.) The remaining three grounds relied upon are:
(a) Breach of paragraph 1(h) of my Final Order dated November 22, 2011 (to provide the applicant with his annual income information, including his Income Tax Returns, Notices of Assessment and 3 recent pay stubs by May 15th of each year, commencing in May 2012.)
(b) Breach of an obligation to submit insurance claims to his insurance provider, and for the applicant to be reimbursed by the insurance company directly without he respondent’s consent.
(c) Breach of an obligation to attend at Examinations in Aid of Execution on August 29, 2012 and September 27, 2012.
The Law
[4] The wilful disobedience of a court order is a serious matter. Although the contempt power is to be used with restraint and in exceptional circumstances, it is often the only reasonable means to send a message to a litigant that court orders are not to be flaunted.
[5] In such cases, the burden of proof rests on the party alleging the contempt:
L. (A.G.) v. D. (K.B.), [2009] O.J. No. 1342, 65 R.F.L. (6th) 182, 176 A.C.W.S. (3d) 386, 2009 CarswellOnt 1764 (Ont. S.C.J.), para. 29.
[6] Civil contempt, under Rule 31 of the Family Law Rules, is a quasi-criminal matter:
Fisher v. Fisher, [2003] O.J. No. 976, 2003 CarswellOnt 1170 (Ont. S.C.J.); L.(A.G.) v. D. (K.B.), supra, para.29. The allegations must be proved beyond a reasonable doubt: Fisher v. Fisher, supra, para 12, 15.
[7] The evidence put forth to support a finding of contempt must satisfy the court beyond a reasonable doubt of each of the following:
(a) there is a court order to be enforced;[^1]
(b) the terms of that order are clear and unambiguous;
(c) the party was given proper notice of the terms of the order;
(d) there has been a disobedience of that court order at a time when the order's existence was within the knowledge of the party at the time of the alleged breach;
(e) the party disobeying the order has done so in a deliberate and wilful fashion.
[8] Any doubt about those elements is to be exercised in favour of the person alleged to be in breach of the order:
G. (N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 82 O.R. (3d) 686 (Ont. C.A.)
Analysis and Decision
Breach of paragraph 1(h) of the Final Order of November 22, 2011
[9] The respondent received a copy of the Final Order and has been under notice of his obligation to provide annual disclosure as set out in paragraph 1(h) of my Final Order dated November 22, 2011. The terms are clear and unambiguous. The respondent’s sworn affidavit of December 17, 2011 is wholly non-responsive to the obligation under paragraph 1(h) of the Order, but for an unevidenced statement as to his 2011 income.
[10] The respondent’s submissions today, such as they were, is that he is aware of his obligation, but that disclosing his income is conditional. It is not.
[11] The respondent was served with a Form 27 Request for Financial Statement in July of 2012. I am satisfied that he has been is continues to be aware of his obligation to satisfy the terms of the order at the same time that he has deliberately and wilfully failed to do so.
[12] There will be a finding of contempt on the respondent’s breach of paragraph 1(h) of my Final Order dated November 22, 2011, which finding may be cured by:
(a) delivery on or before February 15, 2013:
i. Sworn Financial Statement,
ii. the respondent’s 2011 Income Tax Return and attachments,
iii. proof of 2012 income;
iv. copy of all tenancy agreements/leases currently held
(b) delivery within seven days of receipt of the Notice of Assessment of the 2011 Income Tax Return.
(c) delivery within three days of filing, the respondent’s 2012 Income Tax Return;
(d) delivery within seven days of receipt of the Notice of Assessment of the 2012 Income Tax Return.
[13] This motion may be returned for sentencing should the respondent fail to satisfy the above terms.
Insurance claims
[14] The respondent’s insurer is prepared to reimburse the applicant directly for any expenses incurred after the date of my Final Order; but not before November 22, 2011 absent consent of the respondent or further court order.
[15] The respondent is not prepared to consent. There is no court order requiring him to so consent, therefore, the remedy of contempt is not available.
[16] I am prepared to correct the deficiency as it was my intention in making the order of November 22, 2011 that all eligible health, medical , drug and dental expenses be reimbursed directly to the applicant; not just those submitted after the date of the order.
[17] Order to go that all eligible health, medical, drug and dental claims be reimbursed directly to the applicant, Ms. Francesca Anna Quercia for the period from January 1, 2008 to November 22, 2011. The respondent, Mr. Sebastiano Francioni’s consent to direct reimbursement is hereby dispensed for the period prior, and after the order of November 22, 2011.
Examinations in Aid of Execution
[18] The respondent has been served with notices to attend for examination on both August 29, 2012 and September 27, 2012. On both occasions, a Certificate of Non-Attendance was issued. Contempt is a remedy only available on a breach of a court order. There is not yet an order compelling attendance.
[19] Should the applicant seek an order compelling attendance she can proceed in the ordinary course per Rule 60.18 of the Rules of Civil Procedure.
Costs
[20] The applicant seeks costs of $4,000.00 on this motion. No offer to settle was served.
[21] The applicant has been successful on one of the advanced claims for a finding. Success creates a presumption for costs per Rule 24(1) of the Family Law Rules.
[22] Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (5) states:
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).
[23] Much of this motion for contempt was fashioned on the failure to pay monies, a ground outside the operation of Rule 31. Of the remaining three grounds, two were unavailable as there was no court order that had been breached. Only one ground was eligible for a finding of contempt.
[24] The sentence on a finding of contempt that was sought by counsel was incarceration. Indeed, counsel represented twice during submissions that had the respondent not appeared, he would have simply asked for a term of imprisonment.
[25] Upon reflection, applicant’s counsel was seeking incarceration for the failure to provide financial disclosure. He sought findings of contempt on five out of six grounds that were not amenable to the operation of Rule 31. Such is not a reasonable course of litigation as contemplated in section 24(5.) Contempt is a most serious remedy, to be used only in exceptional circumstances. It is a remedial statute intended to coerce compliance. It is not a remedy to be advanced lightly.
[26] In my view, to advance a motion for contempt on grounds that are not within the operation of the statute, and then seek the most extreme sentence of incarceration is unreasonable conduct under Rule 24. There shall be no order for costs.
[27] Costs on sentencing resulting from paragraph 13 above shall be separately determined.
Justice H. McGee
Date Released: January 10, 2013
[^1]: Emphasis added