SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV11-431437
DATE: 20130731

RE: Caroline Wilson, Applicant

– AND –

Charmaine Semon and Boundless Beauties Inc., Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Alexander Rose, for the Plaintiff

Charmaine Semon, Defendant in person

HEARD: July 31, 2013

ENDORSEMENT

[1] On June 13, 2013 I found the Defendant, Charmaine Semon, in contempt of court for her ongoing breaches of the orders of Lederer J. dated November 14, 2011 and Master Glustein dated February 12, 2013. I ordered her to provide all relevant banking and financial materials, including those of the corporate Defendant, to Plaintiff’s counsel and to attend at an examination in aid of execution on July 12, 2013.

[2] Ms. Semon did attend at the examination on July 12th, but her financial disclosure was so spotty as to have been virtually non-existent. She produced bank statements from largely irrelevant months but none from the very months that would have assisted in tracing the funds that she received from the Plaintiff and which she has already been ordered to repay. Ms. Semon responds that she has moved a number of times and that her records are in storage or otherwise in a state of disarray.

[3] Mr. Rose, for the Plaintiff, replies that it seems remarkable that her records are inaccessible for the very months that would be relevant to this action, but not for any other time period surrounding those months. He also points out that Ms. Semon has made no effort to request duplicate statements from her bank or to otherwise fill in the gaps in her spotty financial disclosure.

[4] Ms. Semon has partially purged her contempt by attending at the examination in aid of execution. Her failure to provide disclosure of her finances, however, means that she remains in contempt. Indeed, the oddly sporadic and mostly irrelevant disclosure made by Ms. Semon suggests that she is trying to obscure her movement of funds rather than to reveal the whereabouts of her funds.

[5] Mr. Rose does say that he has learned some new information from the examination of Ms. Semon. In fact, he lists five new and important facts that have now come to light:

a. When the Plaintiff terminated her relationship with Ms. Semon and Ms. Semon was asked leave the Plaintiff’s home in June 2011, Ms. Semon took steps to deliberately hide the money she received from the Plaintiff. She incorporated a company called Grand Amusement Park Inc. that carries on no business whatsoever, and passed the funds on to that company. Her sole purpose in forming that company was to keep the money out of the reach of the Plaintiff and her husband.

b. Ms. Semon now concedes that she obtained a portion of the funds from the Plaintiff by misrepresenting that part of the funds were earmarked as HST. In fact, she never submitted any HST to the government, and has kept all of the funds for her own use.

c. In addition to her non-compliance with the orders of Lederer J. and Master Glustein, Ms. Semon also did not comply with the preservation order issued by Chapnik J on October 31, 2011. Ms. Semon conceded on her examination that she pays money to her mother every month, contrary to the order of Chapnik J. that she not dissipate any of her property beyond usual living expenses.

d. Ms. Semon has now disclosed that she is subject to a Small Claims Court judgment and a payment plan in respect of that debt that she had not disclosed previously.

e. Ms Semon now reveals that she made a number of false statements in the Nov. 2011 examination that was ordered by Lederer J. For example, she indicated there that she never received financial assistance from family members, and failed to reveal her financial dealings with her mother (who she claims lent her the money that she now repays on a monthly basis); in addition, Ms. Semon had said that she spent the Plaintiff’s money paying bills, but she now reveals that she gave a substantial portion of the money to a friend or associate named Jennifer Kobol, another portion to her mother, and to yet more to another friend in respect of what she calls a “referral fee” for introducing her to the Plaintiff. She also had stated under oath that she had no other corporations, not disclosing that she owned Grand Amusement Park Inc.

[6] It is apparent to me that Ms. Semon has a long way to go before she has cured the contempt of court in which she has engaged. Mr. Rose submits that, given the repeated and flagrant nature of her breaches, Ms. Semon deserves to receive a term of incarceration as authorized under Rule 60.11(5). He submits that this is the only way to effectively “repair the depreciation of the authority of the court”, as Allen J. put it in Doobay v Diamond, 2011 ONSC 4457, at para 44.

[7] I am inclined to give Ms. Semon one final opportunity to purge her contempt. Among other things, I am concerned that a period of incarceration, while it will send a message of deterrence to the public at large, will do little to assist the Plaintiff in recovering her funds. I therefore order Ms. Semon to produce her personal bank statements, as well as those of Boundless Beauties Inc. and Grand Amusement Park Inc., for the period commencing June 1, 2011 through to the present. This includes each and every bank account owned or operated by herself, Boundless Beauties Inc. or Grand Amusement Park Inc. She is to send these statements to Mr. Rose by one week from today.

[8] If Ms. Semon cannot find each and every one of these monthly bank statements, she is to request duplicates of the missing statements and is to send them to Mr. Rose as soon as the bank provides them to her. By one week from today she must advise Mr. Rose in writing of precisely which statements she could not find and confirm that she has submitted a request for duplicates of those missing statements from the relevant bank. She must also inquire of the banks how long it will take to produce duplicate copies of the bank statements, and must advise Mr. Rose of the banks’ response.

[9] In addition, Ms. Semon is ordered to provide Mr. Rose with precise details of her relationship and financial dealings with Ms. Jennifer Kobol, and is to provide Mr. Rose with a current address for Ms. Kobol or, failing that, is to make her best efforts to find Ms. Kobol’s current address and is to advise Mr. Rose in writing of those efforts. This is all to be sent to Mr. Rose in writing within one week of today.

[10] Within one week of today, Ms. Semon is also to advise Mr. Rose of the details of the loan from her mother. She must provide him with specific details of her alleged repayment of this loan to her mother, including the amounts and dates of each and every payment. She must also provide Mr. Rose with an address for service of her mother. Since it appears that Ms. Semon’s mother received funds from her in breach of the express terms of Chapnik J’s order, the Plaintiff has a right to have her counsel examine Ms. Semon’s mother on the whereabouts of those funds. I leave it to the Plaintiff and her counsel to decide whether they wish to exercise this right and to issue the appropriate Notice and to schedule such an examination at an appropriate time and place.

[11] Further, Ms. Semon is to re-attend at an examination in aid of execution, at a time and date fixed by the Plaintiff’s counsel, in order to answer any further questions arising from this new disclosure or that are otherwise relevant to locating her assets or tracing the funds that she received from the Plaintiff.

[12] In the event that Ms. Semon does not comply with any aspect of this order, the Plaintiff is free to bring this motion back on three days’ notice, in order to seek further penalties under Rule 65. I will emphasize here that time is of the essence in the terms of this order, and so any missed deadline or lateness in compliance with any aspect of this order is deemed to be non-compliance with this order.

[13] Any further appearance must be held at the courthouse at 361 University Avenue. This is important in order to ensure that a period of incarceration is a potential order that the Plaintiff can seek and that the court will at least be in a logistical position to grant.

[14] I will remain seized of any further steps in this contempt motion.

[15] My order of June 13, 2013 that any service on Ms. Semon may be done by regular mail to her post office box at the Mail Slot, with an email to her advising her of the mailing, remains in place.

[16] Counsel for the Plaintiff is at liberty to take out the formal order from this endorsement. Ms. Semon’s approval as to form and content of that order is dispensed with.

Morgan J.

Date: July 31, 2013