ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 649-13
DATE: May 30, 2014
BETWEEN:
Betty Szyngiel
Applicant
– and –
Kevin Donald James Rintoul
Respondent
Peter S. Mirsky, for the Applicant
Philip Augustine, for the Respondent
RULING ON MOTION
QUIGLEY, J
[1] This is a contempt motion brought by the Applicant, Betty Szyngiel, against the Respondent, Kevin Donald James Rintoul, alleging failure by the Respondent to comply with certain terms of an Order made by Justice J.M. Johnston, dated January 31st, 2014.
[2] In support of her motion, the Applicant filed an affidavit, which is contained at Tab 2 of the Motion Record.
[3] The Applicant specifically claims that the Respondent had failed to comply with the Order and to provide items listed in Schedule A of her affidavit.
[4] The Applicant further states that she has fully complied with Justice Johnston’s Order.
[5] The Applicant further states that her counsel demanded compliance by the Respondent, through letters to his counsel, dated January 31st, February 10th, February 25th and March 5th, 2014. The letters are located as Exhibits 2, 3, 4 and 5 of the Applicant’s affidavit.
[6] The Respondent’s responses to those letters are found in Exhibits 6 to 10, inclusive, in the Applicant’s affidavit.
[7] The Applicant’s affidavit is dated March 27th and as of that date, the Respondent had failed to provide an Affidavit of Documents as required by the court Order.
Background
[8] By way of background, the parties lived in a conjugal relationship from January, 2001 until October 31st, 2009 at 1406 Quarry Road, Carleton Place, Ontario. On separation, the Respondent moved into a property registered in the name of the Applicant, at 151 Santiago Street, Carleton Place. The applicant is paying all the expenses on the Santiago Street property, including the mortgage payments. The Respondent has made no financial contribution to the expenses of the property. The Respondent claims his income is $10,000 per year.
[9] The Respondent claims that the parties continued to live together under the same roof for four years after separation. On June 24, 2013, the Respondent claims that the Applicant unilaterally and without notice change the locks at the residence.
[10] The Respondent claims that the Applicant has been unjustly enriched by contributions to the two properties mentioned earlier in this application which are registered in the name of the Applicant. The Respondent further claims that the production of the documents and records in question is a large undertaking involving voluminous quantities of receipts and financial records.
[11] The Respondent further claims that the disclosure of documents, from 2001 to 2003, were destroyed in a fire at his workshop. He further claims that documents from October 6, 2003, to February 28, 2006 are in the possession of the Applicant and that she refuses to return them to the Respondent.
[12] The Respondent is seeking an order dismissing the contempt motion with costs of the motion payable to the Respondent on a substantial indemnity basis.
[13] As of the date of service of the motion, the Respondent had not complied with the Affidavit of Documents required in Justice Johnston’s order, but had complied with many of the disclosure requirements of the said order.
[14] A chronology was filed by the Respondent’s counsel on this motion.
The law
[15] Rule 31 of the Family Law Rules governs contempt of court motions: “An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.” (Family Law Rules. O.Reg.439/07, s.1, Rule 31(1).)
[16] The Ontario Court of Appeal outlined the primary object of contempt in family law matters, as follows:
The court’s jurisdiction in respect of civil contempt is primarily remedial, the basic object being to coerce the offender into obeying the court judgment or order… (Kopaniak v. MacLellan (2002), 2002 44919 (ON CA), 27 R.F.L. (5th) 97, (Ont. C.A.)).
[17] The Ontario Court of Appeal set out the following principles in Hefkey v. Hefkey, (2013) ONCA 44 (Ont. C.A.).
The civil contempt remedy is one of last resort
A contempt order should not be granted where other adequate remedies are available to the aggrieved party, i.e. in relation to an alleged access denial, a variation or enforcement of the access order;
Great caution should be exercised when considering contempt motions in family law cases;
Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.
[18] In L.(A.G.) v. D.(K.B.), 2009 14788 (ON SC), [2009] O.J. No. 1342 (Ont.S.C.J.), the court said that in relation to each of the alleged breaches, the court must make the following findings:
That the relevant order was clear and ambiguous;
The fact of the order’s existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
That the respondent was given proper notice of the terms of the order. (Haywood v. Haywood, 2010 ONSC 5615, [2010] O.J. No. 4317, paras. 41-43 (S.C.J.))
[19] The onus is on the person alleging contempt to prove it beyond a reasonable doubt—Fisher, as well as Einstoss v. Starkman 2003 20593 (ON CA), [2003] O.J. No. 3297 (SCJ). Hearsay evidence is not admissible, Stupple v. Quinn 1990 1217 (BC CA), [1991] 30 RFL (3d) 197 (BCCA).
[20] The order must be expressed in clear, certain and unambiguous language. The person affected by the order should know with complete precision what he or she is required to do or to abstain from doing. Implied terms cannot be read into the order. If the order alleged to be breached is ambiguous, the alleged contemnor is entitled to the most favourable construction. (A.G.L. v. K.B.D. 2009 14788 (ON SC), [2009] O.J. No. 1342 (SCJ)).
[21] The contempt power is to be used with restraint and in exceptional circumstances essentially to respond to circumstances where it appears to be the only reasonable means to send a message to the litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules as a whole to enable a court to deal with a case justly, with particular attention to subrule 2(3) and 2(4) of the Rules. (Ricafort 2006 ONCJ 520, [2006] O.J. No. 5332 (OCJ)). The nature of family requires restraint – children are better off if their parents are not in jail or paying fines (Genua [1979) 1979 3622 (ON CJ), 12 RFL (2d) 85 (SCJ)).
[22] Restraint should be reserved for those serious breaches which justify serious consequences. (Fisher v. Fisher 2003 2119 (ON SC), [2003] O.J. No. 976 (SCJ)).
[23] In order to prove a breach of an Order, a specific breach is not required: “It is sufficient if the actions are designed to obstruct the course of justice by working or attempting to thwart a Court Order”. (Skalitzky v. Skalitzky [2010] ONSC 7150).
[24] There are situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order.
[25] Courts have stated that the sanction imposed upon a finding of contempt must be significant and of such consequence as to ensure the administration of justice is not brought into disrepute. As noted in Itrade Finance Inc. v. Webworx Inc. [2005] O.J. No. 3492, at para. 20 (ONSC), “the others who may be tempted to flout an Order of this Court and frustrate its process must appreciate that they cannot benefit from such conduct.”
[26] Sentencing in contempt proceedings, particularly in family law proceedings, should be comprised of two components. It should be restorative to the victim of the contempt and punitive to the contemnor. To accomplish the former requires the sentence to correlate to the conduct that produced the contempt and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances. (See Germia v. Herb.)
[27] In determining an appropriate sentence in the present case, considerations have included the following:
(a) The available sentences;
(b) The proportionality of the sentence to the wrongdoing;
(c) The similarity of sentences in like circumstances;
(d) The presence of mitigating factors;
(e) The presence of aggravating factors;
(f) Deterrence;
(g) The reasonableness of a fine;
(h) The reasonableness of incarceration.
[28] In Surgeoner v. Surgeoner, [1991] 6 C.P.C. (3rd) 318 (Ont. Gen. Div.), R.A., Blair J. stated:
No society that believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court’s orders at their whim because in their own particular view, it is right to do so. A society that 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 that 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.
[29] I have little difficulty in finding that the Respondent knowingly and willingly failed to comply with Justice Johnston’s Order. I find further that the Applicant has proved her allegations of contempt of court with respect to this Order beyond a reasonable doubt.
[30] The Respondent’s assertion that he has not disobeyed the order of the court in any deliberate or wilful manner is at odds with the evidence in this motion.
[31] The only reasonable inference that I can draw from the Respondent’s failure to comply with this Order is that he was seeking a tactical advantage in this litigation. This conduct is not only blameworthy but, in my view, worthy of a finding of contempt by the Respondent.
[32] I am well aware that in family law cases, a finding of contempt should be used sparingly and with restraint. I find the circumstances of this case warrant such a finding.
[33] I find that the Applicant had no alternative, in the circumstances, but to commence a contempt motion to force compliance of the court order.
[34] Since the Respondent appears to have purged his contempt as of the date of the hearing of this motion, a finding by this court of the Respondent’s contempt, in my view, is sufficient penalty.
[35] If the parties are unable to agree on costs by June 16th, 2014, I will make an order in accordance with the submissions on costs and offers to settle previously tendered.
The Honourable Mr. Justice Michael J. Quigley
Released: May 30, 2014
COURT FILE NO.: 649-13
DATE: May 30, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Betty Szyngiel
Applicant
– and –
Kevin Donald James Rintoul
Respondent
RULING ON MOTION
Quigley, J.
Released: May 30, 2014