Salituro v. Salituro, 2015 ONSC 3010
BARRIE COURT FILE NO.: FC-13-1718
DATE: 20150514
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARY SALITURO, Applicant
AND:
JOSEPH SALITURO, Respondent
BEFORE: The Hon. Mr. Justice R.E. Charney
COUNSEL: A. Chapman Counsel, for the Applicant
Self-Represented, for the Respondent
HEARD: April 30, 2015
ENDORSEMENT
Introduction
[1] This motion is brought by the Applicant Mary Salituro to find the Respondent Joseph Salituro in contempt of court as a result of his having breached the Order of Madam Justice Quinlan dated October 30, 2014. The motion was originally part of a larger motion that was returnable on March 12, 2015, but only part of the motion could be reached that day and the contempt portion of the motion was adjourned to April 30. The specific provisions of the October 30, 2014 Order (made pursuant to Minutes of Settlement of the same date) that the Respondent is alleged to have breached are as follows:
(i) (Para. 4)The Respondent shall provide the Applicant with a TD Visa card today, Thursday October 30, 2014, to be used for gas purchases until the home sells and closes, at which time the TD Visa card shall be returned to the Respondent.
(ii) (Para. 5)The Respondent shall provide the Applicant with an interim support payment, in the amount of $200.00 per week, in addition to paying the ongoing mortgage and expenses related to the home. The $200.00 is payable every Friday, commencing on Friday October 31, 2014, until the matrimonial home sale closes.
(iii) (Para. 11)The parties require a new real estate agent to list their home at 18 Sandalwood Court, Barrie, for sale. The property shall be listed with Karen and Robert Johnston on or before November 8, 2014. Both parties shall be in attendance at the appointment to discuss the listing of the property on November 8, 2014 at 3:00 p.m. The parties shall work together to ensure the property is cleaned, listed, and ready for sale by November 8, 2014.
(iv) (Para. 12) The Respondent shall provide a dumpster to the home on Saturday November 2, 2014 to remove any unwanted furniture and other items, as agreed between the parties.
(v) (Paras. 2, 3, 6, 8, and 13) These paragraphs all relate to Orders for the Respondent to make payments for the benefit of their son, Joseph Salituro, and for the benefit of the Applicant, upon the sale of the matrimonial home. These payments include the contribution of $15,000 from his share of the sale proceeds of the matrimonial home to set up an education savings account in Joseph’s name, payment of a proportionate share of extraordinary expenses related to post-secondary education in accordance with s.7 of the Child Support Guidelines, payment of retroactive child support of $10,000 from his share of the proceeds of the matrimonial home, a lump sum payment of $65,000 to the Applicant from the Respondent’s share of the proceeds of the matrimonial home, and, a lump sum equalization payment to the Applicant in the amount of $15,000 from the Respondent’s share of the proceeds of the sale of the matrimonial home.
[2] For the reasons set out below this motion is dismissed.
Background Facts
[3] The parties separated in June of 2013. From the outset the parties have agreed that the matrimonial home was in need of substantial repairs that were to be completed before it could be sold. These repairs and the agreed sale of the matrimonial home have been the subject of minutes of settlement and Court Orders dating April 9, 2014 and July 30, 2014. Despite these Court Orders, when the matter came back before the Court on October 30, 2014, the house had not yet been listed for sale. That resulted in the October 30, 2014 Order. Each party blamed the other for the failure to list the property. The Respondent alleges that the Applicant cancelled the meetings with the real estate agents; the Applicant alleges that the Respondent failed to pay for telephone and internet thereby making it impossible for her to communicate with the real estate agents. The Applicant’s contempt motion was originally scheduled for March 12, 2015. On that date Justice Quinlan’s Order included the following provisions:
(1) The matrimonial home is directed to be sold.
(2) The Applicant is authorized to execute any and all documentation necessary to complete the sale of the matrimonial home on her behalf and on behalf of the Respondent, including the listing agreement and acceptance of the offer of purchase and all closing documents.
(3) The Applicant shall choose a real estate counsel to act on behalf of the sale without involvement of the Respondent.
(4) The sale proceeds shall be held in trust by real estate counsel until the payout figures are confirmed by the Applicant’s counsel in accordance with the October 30, 2014 Order.
[4] The balance of the contempt motion was adjourned to April 9, 2015, where it was to be heard by Justice McDermot who felt he could not hear the matter because he was a former associate of the Applicant’s counsel. Accordingly he adjourned the balance of the motion to April 30. The Applicant advised Justice McDermot, and the Respondent admitted, that the Respondent had failed to pay the utilities at the property, and that the electricity had been cut off. Justice McDermot was concerned that this would put the property at risk, and ordered the Respondent to pay the Hydro bill and reconnection fee of $350 forthwith. I am advised that the Respondent did pay this amount two days later.
[5] On April 28, 2015 the house was listed for sale by the Applicant pursuant to the March 12, 2015 Order.
[6] The Respondent did provide the Applicant with a TD Visa credit card (with $500 maximum credit limit) in accordance with the October 30 Order, but acknowledges that he cancelled the card when it reached its credit limit. The Applicant alleges that the Respondent made only two of the $200 weekly payments required by the October 30 Order. The Respondent claims to have made more than two such payments, although he has provided no evidence of any other payments and I find that only two such payments were made. In any event, the Respondent admitted that he stopped making those payments even though the matrimonial home has not sold. In addition, the Respondent admits in his affidavit that he deliberately stopped making mortgage payments on the home in order to put the mortgage into default. He alleges that the Applicant cancelled the November 8 meeting with the real estate agents ordered in para. 11 of the October 30, 2014 Order, that she did not cooperate in the sale of the home, and so he took matters into his own hands by putting the mortgage into default in order to force the sale of the home.
The Law of Contempt
[7] Contempt is a serious remedy and is not to be granted lightly: see Fisher v. Fisher, 2003 CanLII 2119 (ON SC), [2003] O.J. No. 976 (S.C.J.). It is a quasi-criminal proceeding and subject to the criminal standard of proof beyond a reasonable doubt. Often, although not always, a trial is necessary to establish the alleged contempt beyond a reasonable doubt: see Coletta v. Coletta, 2003 CanLII 2412 (ON SC), [2003] O.J. No. 81 (S.C.J.). The cases state that the civil contempt remedy is one of last resort and that great caution must be exercised when considering contempt motions in family law proceedings. Any doubt must be exercised in favour of the person alleged to be in breach of the Order. (see: Prescott Russell Services for Children and Adults, (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (Ont.C.A.), Hefkey v. Hefkey, 2013 ONCA 44, Chilren’s Aid Society of Ottawa v. S.(D.), 2001 CanLII 28152 (ON SC), [2001] O.J. No. 4585. Finally, and as set out Bowman v. Bowman, [2009] O.J. No. 2993 (S.C.J.) at para. 17, to make a finding of contempt, the Court must be satisfied as to three elements of the alleged contempt :
a. The order must be clear and not subject to different interpretations;
b. The acts stated to constitute the contempt must be wilful rather than accidental; and
c. The events of contempt must be proven beyond a reasonable doubt.
(see also: Prescott Russell Services for Children and Adults v. G(N) supra and Davydov v. Kondrasheva, 2012 ONCA 488).
[8] I will examine the claims of contempt in light of these principles. First, however, it is necessary to determine whether an order of contempt is available to enforce the specific orders in question.
[9] The availability of a contempt order to enforce a Court Order is set out in s. 31(1) of the Family Law Rules, which provide:
- (1) 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.
[10] Both sections 31(1) and 26 (4) of the Family Law Rules confirm that a payment order cannot be enforced by a contempt order (Murano v. Murano, 2002 CanLII 49352 (ON CA), [2002] O.J. No. 3632 (C.A.)).
[11] A “payment order” is defined in s.2 of the Rules:
“payment order” means a temporary or final order, but not a provisional order, requiring a person to pay money to another person, including,
(a) an order to pay an amount under Part I or II of the Family Law Act or the corresponding provisions of a predecessor Act,
(b) a support order,
(c) a support deduction order,
(d) an order under section 60 or subsection 154 (2) of the Child and Family Services Act, or under the corresponding provision of a predecessor Act,
(e) a payment order made under rules 26 to 32 (enforcement measures) or under section 41 of the Family Responsibility and Support Arrears Enforcement Act, 1996,
(f) a fine for contempt of court,
(g) an order of forfeiture of a bond or recognizance,
(h) an order requiring a party to pay the fees and expenses of,
(i) an assessor, mediator or other expert named by the court, or
(ii) a person conducting a blood test to help determine a child’s parentage, and
(i) the costs and disbursements in a case;
Analysis
[12] Paragraph 5 of the October 30, 2014 Order (The Respondent shall provide the Applicant with an interim support payment, in the amount of $200.00 per week, in addition to paying the ongoing mortgage and expenses related to the home) is a payment order within the meaning of s. 31(1) of the Family Law Rules, and is therefore not enforceable by a contempt order. Each element of that Order – the support payment of $200 per week, the mortgage payments and the expenses payments – is a “fixed monetary obligation between a debtor and a creditor”. In Dickie v. Dickie 2006 CanLII 576 (ON CA), [2006] O.J. No. 95 (Ont. C.A.) the Court of Appeal explained that the purpose of s.31(1) of the Family Law Rules, like Rule 60.11 of the Rules of Civil Procedure, is “to ensure that people are not imprisoned because they have not satisfied monetary obligations” per Juriansz J.A. at para. 53, and “We no longer imprison people for their failure to pay a civil debt” per Laskin J.A. at para. 103. Both provisions have their origin in the Debtors Act, 1869, 32 & 33 Vict., c. 62 (Forrest v. Lacroix (Estate) 2000 CanLII 5728 (ON CA), 48 O.R. (3d) 619 at para. 36.)[^1]
[13] The definition of “payment order” refers to an order “requiring a person to pay money to another person”, it is not limited to an order requiring a party to pay money to another party. The fact that the mortgage payment is made to a third party creditor does not, in my view, take it outside of the definition of “payment order” ( see Sutherland-Yoest v. Sutherland-Yoest 2012 ONSC 663, at para. 38-39, where this issue is raised but not decided). Regardless of how contemptible the Respondent may have been in deliberately refusing to pay support, the mortgage and utilities, s. 31(1) of the Family Law Rules has withdrawn a contempt order as a possible remedy for that refusal. Payment orders may be enforced by the methods set out in s.26 (3) of the Family Law Rules. See for example Justice Quinlan’s Order of March 12, 2015, which requires that the proceeds of the sale be held in trust to satisfy these outstanding payments.
[14] Paragraphs 2, 3, 6, 8, and 13 of the October 30, 2014 Order all relate to Orders for the Respondent to make payments for the benefit of their son, Joseph Salituro, and for the benefit of the Applicant, “upon the sale of the matrimonial home”. Since the sale of the matrimonial home has not yet taken place, this aspect of the motion is premature. As indicated above Justice Quinlan’s Order of March 12, 2015 refined the October 30, 2014 Order by requiring that the sale proceeds be held in trust by the real estate counsel until payout figures are confirmed by the Applicant’s counsel and the Applicant’s counsel has directed such payments be made pursuant to the October 30 Order or further court order or other directions by Applicant’s counsel. This order imposes an obligation on the real estate counsel to hold funds in trust and distribute the funds in accordance with a court order. It is clearly not a “payment order” within the meaning of s.31(1), because the real estate counsel is not a “debtor” making payments to a “creditor”, but someone who holds the funds in trust. Accordingly if there is any breach of that Order once the house is sold, it could be enforced by a contempt order.
[15] Paragraph 4 of the October 30, 2014 Order required the Respondent to provide the Applicant with a TD Visa card as of Thursday October 30, 2014, to be “used for gas purchases until the home sells and closes, at which time the TD Visa card shall be returned to the Respondent”. The Order also provided that the house was to be “cleaned, listed and ready for sale” by November 8, 2014. As indicated above, the Respondent did provide the Visa card (with a $500 maximum credit limit), but acknowledges that he cancelled it after the credit limit was reached. It is his position that his agreement to the Visa card was based on the timely listing and sale of the matrimonial home. As indicated above, he alleges that the Applicant was responsible for the failure to list the home in accordance with the schedule established in the October 30 Order. There is no suggestion in any of the material before me that the Applicant misused the credit card. Her uncontested evidence is that she spends upwards of $100 per week on gas to take her son to school in Richmond Hill, Ontario. While the October 30 Order did not place any monetary limit on these gas purchases, it did not impose any minimum credit limit on the credit card.
[16] The first issue is whether the Order to provide a Visa card is a “payment order” within the meaning of s.31(1) of the Family Law Rules. A similar issue arose in the case of Dickie v. Dickie, supra, where the Court ordered the Appellant to provide an Irrevocable Letter of Credit in favour of the Respondent in the amount of $150,000 to secure his spousal and child support obligations which had accumulated, but remained unpaid, pursuant to an earlier Order. The majority of the Ontario Court of Appeal held that the letter of credit was a payment order and therefore not subject to contempt proceedings. The majority stated that consideration must be given to the “true nature and substance of the irrevocable letter of credit”, which was to secure the support order. The respondent could draw upon the letter at any time, so that it became “identical to cash to its full face value at the moment it is given” (paras. 48, 50) the majority stated:
[A]n order that a person provide irrevocable security ‘identical to cash to its full face value at the moment it is given’ is indistinguishable from an order requiring the payment of money. The order clearly and directly addresses the satisfaction of a monetary obligation. (para. 53)
[17] In his dissenting opinion Justice Laskin stated that “where the effect of the order is not to create a fixed debt obligation but to secure a debt obligation, then the order is not an order for the payment of money under Rule 60.11(1)” of the Rules of Civil Procedure. Accordingly Justice Laskin would have held that ordering the letter of credit was a form of security and not a payment order. An order for security is a means of enforcing a payment order, but is not itself a payment order. He concluded (at para. 116):
[T]he exclusion in rule 60.11(1) refers only to orders for the payment of money; the rule does not exclude the use of the contempt power for breach of an order to post security. I therefore do not think that my colleague’s interpretation of the exclusion is justified, even for an order for security that amounts to money or money’s worth.
[18] On appeal, the Supreme Court of Canada (2007 SCC 8) stated that it was “in substantial agreement with the reasons of Laskin J.A.” and reinstated the Superior Court’s contempt order.
[19] The question is whether the order to provide the credit card is a “payment order” or an order to secure a debt obligation like the letter of credit at issue in Dickie. In other words, was the credit card provided to the Applicant as a means of securing the debt, or simply a convenient means of making the payment? In Dickie the letter of credit was not the means of making the support payments, it was essentially a fall back in the event that Mr. Dickie failed to make the support payments that had already been ordered. The letter of credit was security for the payment, and only became the payment itself when the debt was not paid. The fact that the security was money rather than property did not change its characterization as security. In the case of the October 30 Order, the credit card was in fact the means of making the payment for gas purchases, not security for a payment that was already ordered. None of the previous Court Orders required the Respondent to pay for gas purchases, so the October 30 Order could not have been security for a debt obligation already owing as was the letter of credit in the Dickie case. Nor did the October 30 Order state, for example, that the credit card could be used if the Respondent failed to make certain payments directly to the Applicant.
[20] Accordingly, I find that the Order to provide a Visa card for gas purchases in para. 4 of the October 30 Order was an “order for payment” within the meaning of s.31(1) of the Family Law Rules and therefore cannot be enforced by a contempt order.
[21] Paragraphs 11 and 12 of the October 30 Order relate to the sale of the matrimonial home, and the evidence before me is that the home did not sell in accordance with schedule established by that Order. The Applicant alleges that the Respondent refused to effect the repairs, to pay for the repairs and to meet with the real estate agent to fulfil the agreement and list the house on the market. That is why the Applicant moved to obtain the March 12, 2015 Order giving her authority to list and sell the house without his involvement. While the March 12, 2015 Order provided a remedy for the Respondent’s alleged failures, the Applicant seeks a further remedy in the form of a contempt order. Her latest affidavit is unclear with regard to whether repairs were done by the Respondent (“regardless of the repairs to be done that were or weren’t done by him”), and complains of “a leaky shower in the master ensuite”, although this specific repair is not referred to in any of the previous Court Orders that specify the repairs to be made in advance of the sale. There is no evidence either way about whether a dumpster was provided in November 2014.
[22] The Respondent alleges that he did provide the Applicant with funds to make repairs to the property and hired a handy man to make other repairs. He alleges that it was the Applicant who cancelled the November 8, 2014, appointment with the real estate agents, as well as three other appointments.
[23] Given the competing affidavit evidence I am unable to conclude that the Applicant has proven the facts of this alleged contempt beyond a reasonable doubt. There are some aspects of the Respondent’s affidavit that are not expressly contradicted by the Applicant, and, based on the record before me, I cannot conclude that the Respondent was responsible for the failure to comply with, or that he deliberately disobeyed, paragraphs 11 and 12 of the October 30, 2014, Order.
[24] In making these findings I should not be taken as condoning the conduct of the Respondent in these proceedings. If an Order for contempt were available for the breaches of paragraph 4 and 5 of the October 30 Order I may well have made such an Order. It appears, however, that, as a practical matter, Justice Quinlan’s Order of March 12, 2015 has dealt with the most serious consequences of the Respondent’s breaches.
Order
[25] For these reasons the motion for contempt is dismissed.
[26] The parties may file written submissions for costs of this motion of no more than 5 pages in length within ten days of the issuance of the endorsement.
CHARNEY J.
Date: May 14, 2015
[^1]: Notwithstanding this purpose, imprisonment is a potential remedy under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c.31, s.41(10) (h) and (i). It is only through this enforcement mechanism that a person can be imprisoned for failure to pay support. (see Forrest v. Lacroix, supra, at paras. 28 and 70)