SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-89-12
DATE: 2015-07-03
RE: Larry Daniel Straus, Applicant
AND:
Eva Maria Pocsai, Respondent
BEFORE: The Honourable Mr. Justice P.J. Flynn
COUNSEL:
William R. Clayton, for the Applicant
Amy A. Green, for the Respondent
HEARD: June 23, 2015
ENDORSEMENT
[1] The Applicant brings this motion seeking several heads of relief, namely:
(a) an order that the Respondent be found in contempt of paragraph 11 of the Order of Sloan J. dated February 5, 2013, as well as paragraph 20 of Glithero J.’s Order dated February 26, 2014 and as a result of such a finding of contempt, pay a fine in the amount of $2,000 within 30 days;
(b) an order requiring the Respondent to fully reimburse the Applicant for the cost of the servicing and maintenance work required on his 2006 Ford Expedition;
(c) an order granting the Applicant leave to attend at 16 Merner Place, New Hamburg on 24 hours’ notice to the Respondent with a police escort to recover items listed in Exhibit 9 from the trial, on condition that the Respondent remove herself no less than 100 metres from the house while the Applicant removes his personal belongings;
(d) an order that paragraph 4 of the Order of Glithero J. dated February 26, 2014 be modified as set out in the Factum of the Applicant with respect to the transfers of the child Halen before and after school; and
(e) an order obliging the Respondent to pay forthwith to the Applicant costs on a full indemnity basis fixed at $5,000.
[2] At the commencement of the hearing the parties concluded Minutes of Settlement varying the access provisions of the Order of Glithero J. made February 26, 2014, dealing with the transfer of the child, Halen, on alternative Thursdays and also dealing with certain defined access periods.
[3] As to the access regime, the sole argument heard by me was as to the variation of the terms of transfer of Halen on alternate Mondays.
[4] After hearing from the parties on this issue, I am not satisfied that the best interests of the child require or justify any variation to the said Order of Glithero J.
[5] Accordingly, the Applicant must fail on this score.
The Contempt Motion – Order of Glithero J. February 26, 2014
[6] Paragraph 20 of the Glithero J. Order states as follows:
The Applicant shall be at liberty to pick up the items set out in Schedule A hereto (Exhibit 9 filed at trial) from the Merner Place house on Saturday, March 15, 2014 at 2:00 p.m. or such other date and time as may be agreed upon between the parties.
[7] The Applicant attended at 16 Merner Place on March 15th as set out, for the purpose of picking up those items, but as he alleges because of the wilful and deliberate behaviour of the Respondent, he was unable to take possession of all the items on the list.
[8] To date the parties have not agreed upon another date and time for the Applicant to attend at the house to retrieve the items.
[9] Mr. Clayton made a forceful argument: Obey or appeal! But the Respondent did neither and the Applicant argues that the Respondent has wilfully withheld many of the items on the list, thus breaching the Order. He argues that the Order was clear and unequivocal and that the Respondent disobeyed it deliberately and wilfully and that the evidence shows contempt beyond a reasonable doubt. Accordingly, he asked the court to impose a $2,000 fine on the Applicant.
[10] On the other hand, Miss Green says that the subject Order (in particular, the list) is not without ambiguity and that there are many items on the list which could only have meant to be sorted by “his” or “hers”.
[11] For example, “Corelle kitchen dishes”, “Christmas decorations”, “CDs and DVDs” would fit into that category. Miss Green argues, inter alia, that these listed items are not clear and unequivocal and complains that there is already an order to pay $500 to replace the Corvette keys (which because it is a payment order can’t be enforced).
[12] She also sets out that Miss Pocsai doesn’t have the Applicant’s tools to return.
[13] But Miss Green concedes that her client still has several of the items on the list, like the 32” TV, the armoire and dresser, the upright freezer and the baseball equipment and offers no reason as to why these haven’t been surrendered, except to make an argument that the Applicant doesn’t come to court with clear hands. Of course, she hasn’t brought an application against the Applicant and there is no court order in which he would be in breach.
[14] In respect of those items which the Respondent admits withholding, I make a finding beyond reasonable doubt that she did this deliberately, in full knowledge of the clear court Order and is accordingly in contempt of some parts of Glithero J.’s Order.
[15] Contempt is a serious charge and must have consequences.
[16] Accordingly, I levy a fine of $500 on the Respondent which must be paid by July 31, 2015. As well, on or before July 31, 2015, the parties through their counsel must arrange a time and method to complete the surrender of the items on the list not yet delivered by the Respondent.
The Order of Sloan J, Dated February 5, 2013
[17] The Applicant argues that the Respondent is in contempt of paragraph 11 of the Order of Sloan J. made February 5, 2013, by deliberately failing to service and maintain the 2006 Ford Expedition when it was in her possession. For this wilful and deliberate contempt of the Order, the Applicant seeks an order requiring the Respondent reimburse the Applicant for the costs of servicing and maintenance work required on the truck in accordance with “invoices” attached to his Factum, which amount to more than $4,000.
[18] But I have doubts that those invoices are “invoices” at all. They are more likely estimates of work on a 9 year old vehicle whose value, in my view, would not allow for such excessive improvements. Is the Respondent in contempt of this Order? I think not.
[19] In my view, the Order doesn’t say what the Applicant argues it does. It simply requires the Respondent to pay all operating, maintenance and insurance costs while she has the truck to use.
[20] Moreover, even if the Order were clear, because it is an Order to pay, it can’t be enforced by a finding of contempt.
[21] So this part of the Applicant’s motion must also fail.
Costs
Both parties had some success on this motion. Accordingly, there will be no order for costs.
P.J. Flynn J.
Date: ** July 3, 2015**