SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-09-65736-00
DATE: 2014 04 29

RE: ROSE FRATIANNI – and – PETER D’AMBROSIO

BEFORE: EMERY J.

COUNSEL:
Joel Skapinker, for the Applicant
Peter D’Ambrosio, on his own behalf

HEARD: March 19, 2014

ENDORSEMENT

[1] The respondent Peter D’Ambrosio brings a motion asking the court to find the applicant, his former wife and co-combatant Rose Fratianni, in contempt of court. He lists seven reasons why she should be found in contempt in his Form 31: Notice of Contempt Motion:

1. failure to provide disclosure

2. failure to comply with the Family Law Rules

3. failure to comply with court orders

4. perjury, deception and fraudulent misrepresentation

5. abuse of process

6. obstruction of justice

7. misrepresentations made in her financial statements.

[2] Mr. D’Ambrosio filed a detailed affidavit sworn on January 15, 2014 in support of his motion. In that affidavit he lists other orders he seeks, including an order that Ms. Fratianni return $60,751 allegedly paid out to her or for her benefit from the net sale proceeds of the matrimonial home. He also requested an order relieving him from making further spousal support payments to Ms. Fratianni in the affidavit, and a claim for relief in these proceedings under the Canadian Charter of Rights and Freedoms, among many other orders relating to the litigation.

[3] There are three court orders on which Mr. D’Ambrosio bases his motion. The first is the order made on consent by Justice Mossip dated on July 28, 2009, which required the parties to make disclosure according to a list each of them compiled for the other that they attached to the order.

[4] The second was the order of Justice Snowie made on consent and dated June 3, 2011. In that order the parties were to make further disclosure to each other according to deficiency lists they were to exchange alleging what they perceived to be disclosure not made by the other party under Justice Mossip’s order.

[5] The third was the order of Justice Belleghem made on September 18, 2009 that, in addition to child support Mr. D’Ambrosio was to pay for the one child of the marriage, he pay $850 a month in spousal support to Ms. Fratianni, provided that she pay all household costs pending sale of the matrimonial home. That property was sold on January 15, 2010.

[6] Mr. D’Ambrosio and Ms. Fratianni were married on May 22, 2004. They separated on March 1, 2008. Mr. D’Ambrosio states that prior to the marriage, he had accumulated assets, a good credit rating and earned a respectable salary. He alleges that in the course of the marriage, Ms. Fratianni used up his credit to finance the business she owns and to service previous indebtedness. Mr. D’Ambrosio states that he ended the marriage when he detected the dire financial circumstances in which they ultimately found themselves as a couple because of her spending. This discovery was accompanied by Mr. D’Ambrosio’s belief that Ms. Fratianni had deceived him as to her financial circumstances prior to marriage, and his disappointment that she had broken her promises to reimburse him for funds she had borrowed from him or on his credit.

[7] In response, Ms. Fratianni filed an affidavit dated February 26, 2014 deposing that she has complied with all court orders. She states that the $60,751 Mr. D’Ambrosio alleges she was paid to her or for her benefit from the net proceeds of sale of the matrimonial home was in fact never released to her. She deposes that funds in that amount were used to pay off the mortgage and other encumbrances against title when the matrimonial home was sold. Ms. Fratianni states that Mr. D’Ambrosio as a mortgagor had full knowledge of the balance owing that would have to be paid under the mortgage to obtain a discharge. She deposes that she has disclosed all bank accounts as ordered. She denies any basis for this court to make a finding of contempt against her.

[8] Ms. Fratianni takes the position that any of the orders described in Mr. D’Ambrosio’s affidavit or contempt motion are not properly before the court. When asked, her counsel would not consent to amending the notice of motion to incorporate the orders requested in the affidavit by reference so that any one or more of them could be considered by this court on the motion.

[9] Counsel for Ms. Fratianni also referred me to the photocopies of cheques Ms. Fratianni has produced from the account of her business, Merle Norman Cosmetics for the year 2004 in which the parties were married, and for 2008 in which the parties separated. Mr. D’Ambrosio has derived information from this disclosure to prepare the tables and charts that he attaches as exhibits throughout his affidavit in support of the contempt motion.

Analysis

[10] Mr. D’Ambrosio has brought his motion against Ms. Fratianni using Form 31, and relies upon Rule 31 of the Family Law Rules. Under Rule 31, a contempt order may be made to enforce an order made by the court, other than a payment order. If the court finds a person in contempt of the court, the court may in its discretion make any one of a number of orders, subject to the limitations provided under Rule 31(7).

[11] The law is clear that a motion for a finding of contempt in a civil proceeding should only be used as a last resort. Further, the contempt remedy should neither be sought or granted in family law cases where other remedies are better suited or otherwise available under the circumstances: Hefkey v. Hefkey, [2013] O.J. No. 1697, 2013 ONCA 44.

[12] In view of the serious nature of the remedy for a finding of civil contempt, any motion seeking a finding of contempt must meet the strict test for an adverse party to be found in contempt. In Prescott-Russell Services for Children and Adults v. G.(N.), (2006) 2006 81792 (ON CA), 82 O.R. (3d), 686 (Ont. C.A.), the Court of Appeal set out the following three-part test that must be met to make a finding of contempt in a family case:

1. The order allegedly breached must state clearly and unequivocally what should and should not be done.

2. The party who allegedly disobeyed the order must have done so deliberately and willfully.

3. The evidence must show contempt beyond a reasonable doubt.

[13] Further, any reasonable doubt whether any of those factors have been satisfied must be resolved in favour of the party who is alleged to have breached the order on which the motion for contempt is based.

[14] I now turn to the application of these principles to those grounds cited by Mr. D’Ambrosio in his notice of motion to support his request that the court find Ms. Fratianni in contempt.

Failure to Provide Disclosure

[15] Ms. Fratianni has filed affidavit evidence of her significant efforts to comply with Justice Mossip’s order made on July 28, 2009. She has provided cheques from the account for her business for the years 2004 and 2008. I cannot tell from the language used to compile the disclosure list of documents required from Ms. Fratianni if these cheques are sufficient to directly or indirectly answer the disclosure of information the order requires from her. Ms. Fratianni has deposed that she has produced the documents described in her affidavit filed in response to the motion. I do not find that Ms. Fratianni has wilfully or deliberately disobeyed the terms of that order beyond a reasonable doubt.

[16] The order made by Justice Snowie on July 3, 2011 did not require additional disclosure from either Mr. D’Ambrosio or Ms. Fratianni. That order was derived from Justice Mossip’s order and required the parties to advise each other as to the perceived deficiencies of disclosure made to date. It is unclear from the motion materials whether Mr. D’Ambrosio actually provided a list of the perceived deficiencies in the disclosure made by Ms. Fratianni up to that time pursuant to Justice Snowie’s order. This appears to me to be a condition for the further enforcement of that order. Therefore, I do not consider the nature of the order made by Justice Snowie to have the substance or clarity required as a basis for a contempt finding.

Failure to Comply with the Family Law Rules

[17] Rule 31 specifically states that the court may find a party in contempt for breach of a court order. Less severe orders a party might seek for the other party’s failure to comply with disclosure requirements are available under the Rules. These other Rules include Family Law Rules 1(8) and 19(10). Therefore, I do not consider failure to comply with the Family Law Rules to be a proper ground for Mr. D’Ambrosio’s motion for contempt.

Perjury, Deception and Fraudulent Misrepresentation

[18] Mr. D’Ambrosio’s affidavit does not prove any of these allegations against Ms. Fratianni. In any event, neither of these complaints is a recognized ground for making a finding of contempt in the context of a family law case at this stage. In fact, his affidavit is so detailed about how Ms. Fratianni has committed perjury, acted deceptively or made fraudulent misrepresentations as distinct from the facts he compares them to that he has shown himself to have significant information and admissions from her to answer many of his disclosure requirements. If he is able to set the bitterness aside that pervades his affidavit, he may should consider whether he even needs further evidence from Ms. Fratianni before proceeding to trial.

Abuse of Process, Obstruction of Justice and Misrepresentation in a Financial Statement

[19] Neither of these grounds was established with sufficient particularity by Mr. D’Ambrosio to meet the test set out in Prescott Russell, supra. In any event, allegations of this nature are not grounds recognized under Rule 31 for the court to find a party in contempt. I also note that Ms. Fratianni has now filed an updated financial statement sworn on February 26, 2014 for this motion. Mr. D’Ambrosia has not attacked that financial statement on this motion.

The Charter

[20] Mr. D’Ambrosio raises a claim under section 15 of the Canadian Charter of Rights and Freedoms that he is somehow being treated unequal to Ms. Fratianni in this legal proceeding. He states that he seeks a remedy for this breach under section 24 of the Charter. He states that his rights to equal treatment under the law have been breached in two ways.

[21] First, he says that failure of Ms. Fratianni to deposit “family property into trust pending a ruling” constitutes unequal treatment. I understand from that submission that he is referring to the $60,751 he alleges Ms. Fratianni received in cash or kind while another $60,000 remains in trust at the real estate lawyer’s office and beyond his reach.

[22] Second, he refers to the perceived unfairness of Justice Belleghem’s order that granted Ms. Fratianni spousal support without first making a finding of entitlement. He states that the order that he pay spousal support was intended as an offset for his share of the household expenses he would otherwise have paid before the matrimonial home was sold in January 2010.

[23] The Charter of Rights and Freedoms does not apply to individuals involved in a family law case. Section 32 of the Charter specifies what actors and entities are subject to the Charter, and to whom the Charter will apply. Those entities and actors are the legislative, executive and administrative branches of government. The basis for asserting a right and a remedy under the Charter requires a foundation of some government action which allegedly infringes on a guaranteed right or freedom under the Charter. See Retail Wholesale and Departments Store Union, Local 580 [R.W.D.S.U.] v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573 (S.C.C.), at para. 34. Therefore, some governmental intervention allegedly having an impact on a right or freedom given under the Charter is necessary to make the Charter applicable, and for a court to grant any remedy with respect to a proven breach of a Charter right or freedom given.

[24] Here the parties are private litigants in a family law case. The Charter has no application to the issues on this motion.

[25] I have not yet discussed Justice Belleghem’s order made on September 18, 2009 and any alleged breach by Ms. Fratianni of it as a ground for contempt. I can find no obligation in that order for which Ms. Fratianni could be found in breach. Mr. D’Ambrosio argued that after the matrimonial home was sold, Ms. Fratianni breached that order by omitting to take any step to suspend or revoke the spousal support ordered because there were no longer household expenses to offset. Mr. D’Ambrosio has paid spousal support ever since, but has never brought a motion to vary Justice Belleghem’s order. That would be a step for him to take. It is not something he can hold against Ms. Fratianni, at least not on a motion for contempt.

[26] Mr. D’Ambrosio’s motion for a finding that Ms. Fratianni is in contempt of court is therefore dismissed.

The Orders requested in the Affidavit

[27] Mr. D’Ambrosio is clearly seeking some or all of the other orders he listed in his affidavit. The question remains whether this court can consider making any of those orders even though they were not requested or framed in the notice of motion. Mr. D’Ambrosio is seeking various orders that are temporary in nature including orders having to do with disclosure, reimbursement of certain proceeds of sale paid to or on behalf of Ms. Fratianni, and a variation of the interim spousal support ordered by Justice Belleghem.

[28] I do not know of any provision under the Family Law Rules that requires the moving party to specify the precise relief in the notice of motion itself. The closest case to it is MacDonald v Isnor, 2005 3469, where the court addressed an application to recognize an extra-provincial order. In that case, Justice J.W. Quinn held that an application should specify the relief requested by the applicant. In a footnote, Justice Quinn stated that his comments regarding an application should apply equally to a notice of motion.

[29] I agree. Although Justice Quinn’s footnote may be considered obiter dictum to his decision in MacDonald, my interpretation that Rule 14(9) requires a party to set out the precise relief he or she is seeking in the notice of motion, as well as the grounds for seeking that relief is dispositive of the issue here for the following reasons.

[30] Subrule 14(9) specifies that a motion for temporary relief requires a notice of motion and an affidavit, and may be supported by additional evidence. The rule does not appear to require that the specific relief the moving party is seeking be described in the notice of motion. However, Rule 1(7) provides that where matters are not covered in the Family Law Rules adequately, the court may give directions and the practice shall be decided by analogy to, if the court considers it appropriate, the Rules of Civil Procedure. Rule 37.06 of the Rules of Civil Procedure provides as follows:

CONTENT OF NOTICE

37.06 Every notice of motion (Form 37A) shall,

(a) state the precise relief sought;

(b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and

(c) list the documentary evidence to be used at the hearing of the motion.

[31] I find by analogy to Rule 37.06 of the Rules of Civil Procedure that a notice of motion under the Family Law Rules should provide the precise relief requested. Doing so gives the opposing party and any interested party notice of the nature of the motion and the basis for making it. The notice of motion is the instrument authorized by the Family Law Rules for one party to seek temporary relief against another. It gives notice to the opposing party of the case it has to meet on the motion. It is also the instrument in which the moving party sets out the factual and legal grounds for the motion, and provides the statute, rule or other source of law that gives the court what power is necessary to grant the relief requested. If a moving party were permitted to sprinkle the relief requested throughout an affidavit filed in support of the motion, oblique references to orders requested and the prospect of ambiguity would offend the practice within our court system to clearly identify to the opposing party and to the court what the motion is about.

[32] Mr. D’Ambrosio did not include those other orders in the relief he requested in his notice of motion for contempt. Nor did he bring a parallel notice of motion to specifically seek those orders as an alternative to his motion for contempt. I therefore find that I do not have jurisdiction to consider the orders he describes in his affidavit. I say this without prejudice to Mr. D’Ambrosio’s right to bring a motion for any one or more of those orders or any other order he considers appropriate prior to trial in a proper manner. It is also open for either party to engage the steps necessary to list this proceeding for trial on the first available sittings.

[33] If costs are sought and cannot be agreed upon, I can be spoken to at an appointment to be arranged through the trial coordinator’s office.

Emery J.

DATE: April 29, 2014