SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-06-58306-00
DATE: 2013-02-08
RE: HANG SOON KIM v. DU WON KIM
BEFORE: Justice E.R. Tzimas
COUNSEL: Both Parties Self-Represented
HEARD: January 24, 2013
E N D O R S E M E N T
INTRODUCTION
[1] This latest motion for contempt, brought by Mrs. Kim against Mr. Kim builds on a very unfortunate litigious trajectory that started in October 2006. Prior to the trial of this case, there were 35 separate court attendances with orders. Since the trial, there have been a further two motions. The first was by Mr. Kim for the production of the transcripts from the trial before Justice Snowie. This current one is a motion for contempt, brought by Mrs. Kim against Mr. Kim for his failure to comply with certain requirements of the Final Order of Justice Snowie of September 3, 2010.
[2] Justice Snowie’s judgment contained 22 specific orders relating to spousal support, child support, section 7 payments, equalization, and the treatment of arrears.
[3] Of those requirements, Mrs. Kim submits that Mr. Kim has failed to meet his obligations pursuant to paragraphs 3, 6-10, 12, and 17-20 of the said order. Those paragraphs may be summarized as follows:
The Respondent, [Mr. Kim], shall pay to the Applicant, [Mrs. Kim] arrears of section 7 expenses in the amount of $35,002.64;
The Applicant and Respondent shall continue to pay the child’s section 7 expenses in proportion to their respective incomes. Respondent - $40,000.00 plus renewal commissions per year $30,000.00 disability (no tax) = $40,000.00 (gross) = $80,000.00. Applicant – no income. As such, at the present time the Respondent shall continue to pay 100% of the child’s section 7 expenses;
The Respondent shall pay to the Applicant future spousal support in a lump sum amount, (not taxable in the Applicant’s hands), of $480,000.00 forthwith ($24,000.00 x 20 years);
The Respondent shall remove the Applicant’s name from any and all joint lines of credit loans and credit cards immediately and shall hold the wife harmless with respect to the same;
17–20. The ownership of two separate insurance policies with Manulife Financial Life was to be transferred immediately and absolutely to Mrs. Kim, including any and all fund value. The ownership of two other insurance policies, one with Manulife Financial and the other with Equitable Life Insurance Company of Canada, was to be transferred immediately and absolutely to the daughter Tara Young Kim, and they were to include any and all fund value. In both instances, Mrs. Kim and Tara respectively would be free to change the beneficiaries of the policies. In addition, the signature and consent of Mr. Kim for the said transfers were to be dispensed with.
[4] In addition, the trial judge dealt with an accumulation of Mr. Kim’s failure to comply with 10 interim Orders leading up to trial. In the result, the trial judge made a finding of contempt and ordered in paragraphs 23 and 24 of her order the following:
The respondent shall pay to the applicant the sum of $30,000.00. These are the damages I have assessed to the applicant flowing from the respondent’s misconduct. There is jurisprudence in support of awarding a penalty for contempt to a party where the other parties’ actions were directed to prejudice and wear down the party as is the case here. The $30,000.00 is for the stress, anxiety, trouble and frustration that the respondent’s contempt has caused the applicant.
The respondent shall be imprisoned continuously for a period until 60 days has expired or until the $30,000.00 is paid in full to the Applicant. If the respondent has not paid to the Applicant $30,000.00 by September 8, 2010, a warrant for his arrest shall be issued and he shall be incarcerated for the aforesaid 60 day period of time.
ANALYSIS
[5] With respect to Mr. Kim’s failure to comply with the paragraphs noted above, Mrs. Kim, through her supporting affidavit and through the submissions of her daughter who acted as her Agent, explained the following:
a) Bank accounts, lines of credit, and visas: Mrs. Kim’s name remains on at least two accounts. One is TD Line of Credit. The other is also a line of credit with the Royal Bank. The TD account appears to be especially pressing because of an accumulating debt of $22,621.60, (as of January 5, 2012), and a demand for payment by the bank to Mrs. Kim. According to Mrs. Kim, the bank then proceeded to report the delinquency to the Credit Bureau and that has affected her ability to obtain any financing to support herself and to obtain loans to support her daughter’s education. There is nothing further in the record as to where the bank’s collection efforts stand and whether the bank has taken additional steps. Nor was there any evidence about what exchanges Mrs. Kim might have had to bring the Order of September 3, 2010 to the attention of the bank. Instead, what is clear is that Mrs. Kim’s name was not removed from the noted accounts. Nor is she being protected against the liabilities of Mr. Kim as the Order required. She remains exposed to Mr. Kim’s accumulated debts.
b) Transfer of the insurance policies: The submissions concerning these accounts were somewhat confusing but in a nutshell, Mrs. Kim says that Mr. Kim failed to comply. In particular, it would appear that the policies were eventually transferred on paper. However, Mrs. Kim discovered that two of the policies had lapsed. To be reinstated, each would require a payment of approximately $7,000.00. In addition, for all four of the policies, significant loans were taken out against the policies so that their respective values were depleted by Mr. Kim before their transfer to Mrs. Kim. The Order of September 3, 2010 required that the policies be transferred with their full value. There was no evidence before the court as to where the values of the policies stood and at what point in time between September 2010 and the present the funds were dissipated. Nor did Mrs. Kim provide any evidence as to when the two policies lapsed.
c) Regarding the various orders pertaining to support payment obligations, equalization and the payment of section 7 obligations, it would appear that a substantial sum of that debt was satisfied through the garnishment of various accounts and through the efforts of the Family Responsibility Office. As of July 31, 2012, FRO was reporting support arrears in the sum of $131,343.36.
d) Finally, with respect to the $30,000.00 penalty on account of Mr. Kim’s previous findings of contempt, Mr. Kim did not, and has not paid that sum. Instead, he served the 60 days in jail as was contemplated by the September 2010 order.
[6] In light of Mr. Kim’s failure to meet the noted obligations, Mrs. Kim seeks a finding against Mr. Kim of contempt. She asks that he remove her name from the accounts immediately and pay all outstanding debts. She would also like the maximum penalties and fines ordered on account of Mr. Kim’s conduct. Mrs. Kim also seeks an order that Mr. Kim provide Mrs. Kim with a letter of credit in the aggregate amount of $131,343.36 to secure the payment of the support arrears that remain outstanding. Finally, she seeks costs of $3,000.00 on account of costs she has incurred to bring this motion before the court. Through her daughter, Mrs. Kim explained that although she is self-represented, she has had the guidance of a lawyer and she has had to pay costs of $3,000.00. Mrs. Kim did not provide any invoices or other material to support her claim.
[7] Mr. Kim, also self-represented, attended in court. In his responding submissions and his affidavit, he essentially explained that he has no money to satisfy his debt obligations. He said that he asked the banks to remove Mrs. Kim’s name from the accounts but the banks refused because there were unpaid debts. He said that, in the case of the TD account, there was an outstanding debt of $18,000.00 and, in the case of the Royal Bank, there was a debt of $11,600.00. When he was told that he had an obligation to meet the requirements of the court order, he gave a convoluted response that was somewhat difficult to understand. Essentially, it came down to him not having the money to pay the said debts. Mr. Kim also kept making references to his alter ego New Seoul Insurance Corporation, suggesting perhaps that the debts were not his but those of his company. However, in effect, he admitted that he had not removed Mrs. Kim’s name from the accounts nor did he protect her from any liability accruing from those accounts. As part of his financial difficulties and inability to meet his obligations, Mr. Kim seemed to be blaming the Family Responsibility Office. He also said that his accounts were all garnished and that his only current income is $834.00 per month.
[8] With respect to the insurance policies, his explanation as to what was or was not transferred, what policies lapsed and when were the loans taken out, was very confusing to follow. This was not due to any language barrier but rather to a largely incoherent submission. As with the other debts, there were references to accounts being garnished by FRO and the involvement or indebtedness of the New Seoul Insurance Company. It should be noted that Mr. Kim suffers from severe depression and is on substantial medications, as suggested by the materials he filed. I am not certain if the medication he is taking contributed to his convoluted explanation or not. It should, however, be noted that on balance he presented well. The confusion prevailed when the questions that were asked were perhaps difficult to answer.
[9] Finally, Mr. Kim indicated that he was still seeking to appeal the Order of September 3, 2010. It should be noted that Justice Land dismissed his motion for leave to extend the time for Mr. Kim to commence an appeal of the September 2010 order in July 2012. Mr. Kim then tried to appeal his case to the Supreme Court of Canada. That Court responded that he did not have a final judgment from the Court of Appeal that could be the subject of an appeal and he was told to exhaust his remedies with the Court of Appeal of Ontario. Mr. Kim seemed to suggest that he is now in the process of seeking to appeal the order of Justice Lang.
[10] In light of the foregoing, I conclude and order as follows:
There is sufficient evidence before this court to find Mr. Kim in contempt of Justice Snowie’s orders of September 3, 2010.
Mr. Kim is to be extended 60 days to purge his contempt. He is to attend in court before me on April 2, 2013 to confirm the purging of his contempt or, alternatively, to explain himself should he continue to disobey the requirements of the September 2010 orders.
Mrs. Kim is to contact the appropriate bank branches of the TD Bank and the Royal Bank where Mr. Kim holds lines of credit and she is to serve them with a copy of Justice Snowie’s judgment of September 3, 2010 and a copy of this endorsement and Order.
In light of Mr. Kim’s representation to the court that he attempted to remove Mrs. Kim’s name from his lines of credit but that the banks refused his request, a representative from each of the TD Bank and the Royal Bank of Canada is to attend at Mr. Kim’s hearing date of April 2, 2013 to explain the reason for not removing Mrs. Kim’s name from the lines of credit belonging to Mr. Kim.
Costs of this motion are reserved to the hearing on April 2, 2013. Mrs. Kim is to file with the court a bill of costs supporting her claim for costs, both for the hearing of this motion and the costs of attendance on April 2, 2013.
Tzimas J.
DATE: February 8, 2013
COURT FILE NO.: FS-06-58306-00
DATE: 2013-02-08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HANG SOON KIM
- and -
DU WON KIM
BEFORE: Justice E.R. Tzimas
COUNSEL: Both Parties Self Represented
ENDORSEMENT
Justice E.R. Tzimas
DATE: February 8, 2013