CITATION: Allan v. Dabor, 2015 ONSC 7949
COURT FILE NO.: CV-15-0090-02
DATE: 2015/12/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brooklyn Sarah Allan
Applicant
– and –
Gregory Michael Dabor
Respondents
John Mastorakos, for the Applicant
Self-represented
HEARD AT BELLEVILLE: November 17 and 20, 2015
REASONS FOR DECISION
KERSHMAN J.
Introduction:
[1] A motion was brought by the Applicant (“Ms. Allan”) for a finding that the Respondent (“Mr. Dabor”) is in contempt of an order granted by the Honourable Justice Belch on June 2, 2015 (“Belch Order”).
[2] A cross-motion was brought by Mr. Dabor seeking to consolidate and transfer the within to a Cobourg Action 208/15 which was commenced by him on August 31, 2015 and directing that the land be listed for sale after the parties enter into a separation agreement or attend a case file in the Cobourg action.
Factual Background
[3] The parties are former common law partners who separated in June 2014.
[4] Ms. Allan filed an application to obtain an order for sale of the residence municipally known as 13515 County Road 24, Warkworth, Ontario, owned jointly by her and Mr. Dabor.
[5] The matter was heard by the Honourable Justice Belch on June 2, 2015. On that date, Mr. Dabor was present in court with his lawyer David Cavanagh. Following negotiations between Mr. Cavanagh and Mr. Mastorakos, the parties consented to the Belch Order listing for sale the property as of July 3, 2015.
[6] As part of the settlement that led to Mr. Dabor consenting to the Belch Order, Mr. Dabor was given until July 2, 2015 to obtain financing to buy out Ms. Allan’s interest. Unfortunately, he was unable to obtain the financing.
[7] Subsequent to July 3, 2015, Mr. Dabor would not sign any documentation to list the property.
[8] Paragraph 4 of the Belch Order required that all of the parties’ claims be adjourned to July 28, 2015. On July 28, 2015 the matter was adjourned to September 1, 2015 at the request of the court office.
[9] On September 1, 2015, Mr. Dabor refused to cooperate in listing the house for sale. Mr. Dabor sought to set aside the Belch Order as he didn’t want the house to be sold.
[10] On September 1, 2015, the Honourable Justice T. Ray adjourned the matter to November 17, 2015 to allow Ms. Allan to bring a motion for contempt given the lack of compliance with the Belch Order.
[11] The matter was argued on November 17, 2015. At that time, after Mr. Dabor had heard the argument of Mr. Mastorakos on behalf of Ms. Allan, he advised the Court that he would sign the listing agreement. The matter was adjourned to November 20, 2015. On that day, the listing agreement was presented to Mr. Dabor, having just been completed by the listing agent. After some discussion, Mr. Dabor signed the listing agreement.
Contempt Motion
Applicant’s Position
[12] Ms. Allan argues that by not signing the listing agreement as required by the Belch Order, Mr. Dabor should be found in contempt of court.
Respondent’s Position
[13] Mr. Dabor argues that he was entrapped into signing the consent that led to the Belch Order. He indicates that he signed the consent because he was told that if he didn’t, he would face costs consequences. He does not provide any evidence to that effect.
[14] Mr. Dabor also argues that he was not afforded the opportunity to purchase Ms. Allan’s interest in the property.
[15] Lastly, he argues that the evidence of contempt must be proven beyond a reasonable doubt. He said that there is no evidence that goes beyond a reasonable doubt and relies on Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para. 32.
The Law
[16] The leading case in the area of contempt is G. (N.) c. Services aux enfants & adultes de Prescott-Russell, 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 669 (C.A.), which is a French decision of the Ontario Court of Appeal. The English version is indexed as G. (N.) c. Services aux enfants & adultes de Prescott-Russell, 82 O.R. (3d) 686 (C.A.). The Court sets out a three-pronged test at paragraph 27 as follows:
[27] The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order. See 884772 Ontario Ltd. (c.o.b. Team Consultants) v. SHL Systemhouse Inc., [1993] O.J. No. 1488, 41 A.C.W.S. (3d) 505 (Gen. Div.), at para. 18; Children's Aid Society of Ottawa v. C.B., [2003] O.J. No. 1451, 121 A.C.W.S. (3d) 1043 (S.C.J.); Children's Aid Society of Ottawa-Carleton v. D.S., 2001 CanLII 28152 (ON SC), [2001] O.J. No. 4585, 22 R.F.L. (5th) 14 (S.C.); L.J. v. G.B., [2000] O.J. No. 3030 (S.C.J.); Melville v. Beauregard, [1996] O.J. No. 1085, 62 A.C.W.S. (3d) 127 (Gen. Div.), at para. 13. [page 696]
[17] In the case of Children’s Aid Society of Ottawa-Carleton v. S. (D.) (2001), 2001 CanLII 28152 (ON SC), 22 R.F.L. (5th) 14 (Ont. S.C.), Linhares de Sousa J. sets out the test for establishing contempt at paragraph 7.
[7] Counsel to the motion did not disagree on the test to be applied for establishing contempt of court in child protection matters. It is the same test that would be applied in any other matter. Given the criminal nature of contempt proceedings and the potentially severe consequences, including incarceration, for a finding of contempt, the test is a very stringent three-pronged one. In 884772 Ontario Ltd. (c.o.b. Team Consultants) v. SHL Systemhouse Inc., [1993] O.J. No. 1488 (Gen. Div.) at para. 18, Mr. Justice Chadwick stated it as follows:
In satisfying the test relating to contempt of court, the order itself must be clear and unequivocal and not open to various interpretations. Secondly, the party disobeying the contempt order must do so in a deliberate and wilful fashion in order to satisfy the criminal nature of the contempt proceedings. Thirdly, in considering the evidence as to whether there has been a deliberate breach of the court order it must be proven beyond a reasonable doubt as opposed to just on a balance of probabilities. It is obvious that any doubt must be exercised in favour of the person alleged to be in breach of the order.
[18] At paragraph 9, Linhares de Sousa J. goes on to say:
[9] The court should be cognizant of this restraint. However, there are a number of cases where the court found that resorting to contempt powers in family law matters was both necessary and appropriate. See Manolescu v. Manolescu (1991), 1991 CanLII 802 (BC SC), 31 R.F.L. (3d) 421 (B.C.S.C.) and L.J. v. G.B., [2000] O.J. No. 3030 (S.C.J.).
[19] In the case of Fisher v. Fisher, 2003 CanLII 2119 (Ont. S.C.)37 R.F.L. (5th) 108, Chadwick J. at para. 11 states:
[11] Contempt of Court is the big stick of civil litigation. It should be used sparingly and only in the most clear cut of cases. There are other procedures available to enforce orders; other than a contempt motion. To use contempt motions to enforce minor but annoying breaches of a Code of Conduct, takes away and waters-down the effectiveness of the contempt procedure. Contempt should be reserved for those serious breaches, which justify serious consequences.
Analysis
First Prong of Test
[20] The first prong is that the order itself must be clear and unequivocal and not open to various interpretations. The order in question is the Belch Order.
[21] Paragraphs 1 through 4 of the Belch Order are set out below:
This Court orders that the property known municipally as 13515 County Road 24, Warkworth, Ontario shall be listed for sale on or before July 3, 2015.
This Court orders that the parties shall sign any documents provided or required by the listing agent to give effect to the listing of the property.
This Court orders that the listing agent shall be through/with Remax Campbellford and the sale price shall be set by the listing agent.
This Court orders that all of the claims are adjourned to July 28, 2015.
[22] The parties signed a written consent acknowledging that neither of them was under any disability and signed the consent pursuant to which the Belch Order was taken out.
[23] This Court has reviewed the Belch Order and notes that Mr. Dabor consented to listing the property on or before July 3, 2015, which was not done.
[24] The Court finds that the Belch Order is clear and unequivocal and that the first prong of the test has been satisfied.
Second Prong of Test
[25] The second prong is that the party disobeying the order must do so in a deliberate and wilful fashion in order to satisfy the criminal nature of the contempt proceeding. In court, before Belch J., Mr. Dabor agreed to sign the listing agreement by July 3, 2015. On June 2, 2015, Mr. Dabor knew full well that he was to sign the listing agreement by July 3, 2015. There is no evidence that Mr. Dabor was entrapped into signing the consent – his words not the Court’s.
[26] In addition, there is no evidence that Mr. Dabor was not given time to purchase Ms. Allan’s interest in the property. The evidence is to the contrary. He was given an opportunity to purchase her interest in the property, but he could not come up with either the financing or the funds to do so. Therefore, the Court finds that Mr. Dabor disobeyed the Belch Order in a deliberate and willful fashion. On that basis, the Court finds that the second prong of the test has been satisfied.
Third Prong of Test
[27] The third prong is that, in considering the evidence as to whether there has been a deliberate breach of the court order, it must be proven beyond a reasonable doubt as opposed to just on a balance of probabilities.
[28] The evidence before the Court is that Mr. Dabor had consented in the presence of his own counsel to the Belch Order, which included signing the listing agreement by July 3, 2015, and he did not do so.
[29] The Court is satisfied beyond a reasonable doubt that Mr. Dabor has deliberately and wilfully breached the Belch Order by not signing the listing agreement by the date set out in the Belch Order.
Result
[30] Based on the three-pronged test and the evidence before the Court, this Court finds that Mr. Dabor is guilty of contempt.
[31] On November 20, 2015 in court, Mr. Dabor signed a listing agreement for $189,900. The Court finds that he has now purged his contempt.
Cross-Motion of the Respondent
Respondent’s Position
[32] The Respondent argues that the property should be listed for 30 days after the parties sign a separation agreement or attend a case conference in Cobourg and that a declaration of the property is subject to a resulting or constructive trust from August 31, 2015, the date that he commenced the Cobourg Application.
[33] In addition, he is also seeking consolidation of the within action with the Cobourg action and that the parties follow the Family Law Rules, O. Reg. 114/99, in relation to both actions. He relies on Rule 12(5) of the Family Law Rules and Rule 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[34] The Respondent relies on McDermott v. McDermott (2005), 2005 CanLII 37590 (ON SC), 39 R.P.R. (4th) 218 (Ont. S.C.) and argues that the primary objective of the consolidation is to ensure that the Court deals with cases justly, including ensuring that the procedures are fair to all parties, saving expenses and time as well as dealing with cases in ways that are appropriate to their complexity and importance.
[35] He also relies on the case of Malkov v. Stovichek-Malkov, 2015 ONSC 4836, 66 R.F.L. (7th) 416 [Malkov], where Madam Justice Healy says, at paragraph 16:
[16] In the final result, weighing all of these factors together, I find that it is in the interest of justice to combine the two cases, and the balance of convenience favours such an order.
Applicant’s Position
[36] Ms. Allan’s counsel argues that her case is an Application in the Ontario Superior Court of Justice Civil Division, whereas the Cobourg Application is an application in the Family Division.
Analysis
[37] The Court has reviewed Rules 5(1) and 12(5) of the Family Law Rules. The Court notes that Ms. Allan started her case in Belleville in the Civil Division, while Mr. Dabor started his application in Cobourg in the Family Division. These cases are in two different courts.
[38] The Court notes that the parties are the same in each matter, however, a review of the Belleville Application shows that the issues in the civil action deal specifically with partition of the property that is owned jointly by the parties and with the division of the net proceeds.
[39] A review of the Cobourg Application by Mr. Dabor reveals that the relief requested does not deal with the house. Those pleadings deal with other unrelated issues.
[40] Further, the issue brought up by Mr. Dabor is there was only a 15 minute drive to the Cobourg Courthouse and approximately a 40 minute drive to the Belleville Courthouse. This is not a compelling factor in this case to determine whether the two matters should be consolidated.
[41] As stated previously, the two matters deal with different and distinct issues. There is no reason for the Belleville action to be consolidated with the Cobourg action on this basis alone. Furthermore, consolidating the civil action with the family action in Cobourg will ensure that the proceeding is not fair to Ms. Allan and will definitely not save time and expense as relates to the sale of this property.
[42] The equity in this property is minimal, since there is a line of credit of approximately $164,000 which is almost completely drawn down. The evidence is that the house is worth approximately $165,000, notwithstanding that it has recently been listed for $189,900. Mr. Dabor is living in the house. He is not working and does not appear to have any source of income.
[43] After paying the line of credit, together with any expenses from the sale of the property including real estate commission as well as adjustments for realty taxes and legal fees, there appears to be little or no equity in the property. Both parties are on title and therefore both parties are liable on the line of credit. There may well be a deficit.
[44] The evidence is that Mr. Dabor was unable to refinance the property and remove Ms. Allan from the line of credit.
[45] In the Court’s view, it is important that the property be sold sooner than later.
[46] The Court notes that Mr. Dabor sent correspondence dated September 12, 2015 to Remax Lakeshore Realty Inc. to the attention of Kathleen Hunter. The letter reads in part “Brooke asked other agents to list that house. They declined. If you want to avoid a potential buyer, Remax and yourself in the middle of the lawsuit I would pass”. The Court finds that this is a threat by Mr. Dabor to Remax and Ms. Hunter, attempting to put them in the middle of a lawsuit involving the parties if Ms. Hunter continued to list the property. The Court understands why Ms. Hunter declined to list the property.
[47] Ms. Allan commenced an application to the Partition Act, R.S.O. 1990, c. P.4 in the Ontario Superior Court of Justice Civil Division in April, 2005 and obtained the Belch Order on June 2, 2015.
[48] Mr. Dabor brought the Cobourg Application in Family Court to deal with the matrimonial issues on August 31, 2015, approximately two and a half months later.
[49] This Court finds that while he brought the matrimonial action, the relief claimed in his action has no direct bearing on the sale of the property in question.
[50] Furthermore, the equity in the property is little to nil, taking into account the outstanding line of credit of $164,000, the real estate commission, legal fees and HST, together with any other normal adjustments for realty taxes, hydro etc.
[51] In the Malkov case, the husband claimed to be the sole legal owner of the property while in this case, both parties own the property. In this case, the parties are not married to each other while in the Malkov case they were.
[52] Notwithstanding the decision in the Malkov case to consolidate the actions, the Court does not find that based on the facts of this particular case, it is in the interests of justice to combine the two cases.
[53] For these reasons, the Court does not find that it is appropriate to consolidate the two actions.
[54] Therefore, the motion to consolidate the two actions is dismissed.
[55] Mr. Dabor sought an order that the party follow the Family Law Rules in relation to the Partition Application. The Court finds that there is no reason to do so, since the relief for consolidation has failed.
[56] Mr. Dabor sought an order that the property be listed for sale 30 days after the parties enter into a separation agreement or attend a case conference in Cobourg. The Court declines to do so, as there is no reason to do so. The property has already been listed for sale.
[57] Lastly, Mr. Dabor requested the Court make an order that the property is subject to a constructive or resulting trust in his favour from August 31, 2015. The Court finds that there are no grounds for such an order and accordingly, the Court refuses to make such an order.
[58] Based on the aforesaid, the cross-motion is dismissed in its entirety.
Costs
[59] The parties will obtain a date from the trial co-ordinator in Belleville to argue the issue of costs. Each party will provide a costs outline at the hearing and each party will be allowed 10 minutes to argue the issue of costs.
[60] Order accordingly.
Mr. Justice Stanley Kershman
Released: December 17, 2015
CITATION: Allan v. Dabor, 2015 ONSC 7949
COURT FILE NO.: CV-15-0090-02
DATE: 2015/12/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brooklyn Sarah Allan
Applicant
– and –
Gregory Michael Dabor
Respondent
REASONS FOR DECISION
KERSHMAN J.
Released: December 17, 2015