Superior Court of Justice - Ontario

CITATION: Myers v. Heath, 2016 ONSC 984

COURT FILE NO.: 6270-15

DATE: 2016-02-08

RE: Angela Myers, Applicant (Appellant)

AND:

Lawrence A. Heath, Respondent (Respondent)

BEFORE: Heeney R.S.J.

COUNSEL: J. Sinopoli, for the Appellant

J. Oxley, for the Respondent

HEARD: February 8, 2016 at Chatham

ENDORSEMENT

[1] This is an appeal of the decision of G. Wong J. of the Ontario Court of Justice dated July 8, 2015, which dismissed a motion brought by the Appellant which sought to have the Respondent found to be in contempt of court.

[2] The facts are simple, and the motion judge’s findings of fact have not been challenged by either party on this appeal. An order was made by S. Bondy J. dated July 31, 2008, pursuant to Minutes of Settlement. The order replaced the child support provisions of an earlier order and ordered the Respondent to pay ongoing child support of $322 per month to the Appellant. Arrears of child support were fixed at $14,600, and the Respondent was ordered to pay $60 per month toward those arrears.

[3] The key provision of that order for present purposes is para. 5, which provided as follows:

5. The Respondent shall forthwith direct the payment of his pension through Thyssen Krup Fabco to the Family Responsibility Office for the benefit of the Applicant, and the pension shall be applied towards support arrears.

[4] After the order was made, the Respondent obtained papers from his employer, signed them, and sent them to the Applicant. He testified that he believed these were the papers that were needed to comply with para. 5 of the order.

[5] Those papers were forwarded on to FRO by the Applicant. However, nothing happened. FRO did not act on the paperwork sent to them. The Appellant took no action to compel FRO to do so.

[6] About four years later, in or about 2012, the Respondent found himself unemployed and in financial difficulties. He was surprised to learn that his pension was still in existence. He decided, on his own, that since his children were over 18 years of age, he was no longer required to pay child support. He took steps to collapse the pension and received $11,058.75 net of income tax.

[7] The Appellant brought contempt proceedings against the Respondent, alleging that he wilfully failed or refused to comply with para. 5 of the order.

[8] The evidentiary record before the motion judge was poor. Neither party had kept a copy of the paperwork signed by the Respondent and forwarded to FRO by the Appellant. There was no evidence from FRO confirming what they had received and what issue they had with that documentation.

[9] The motion judge found that it was clear that the Appellant did not receive any of the pension money toward the arrears that were owing to her. However, she made the following finding, at para. 17 of her reasons:

It is impossible for this court to determine what the paperwork was or whether Mr. Heath had “directed the payment of his pension” to FRO.

[10] The motion judge then conducted an analysis to determine whether para. 5 constituted a “payment order”, within the meaning of Rule 31(1) of the Family Law Rules. Breach of a payment order is not enforceable by contempt. Relying upon Coletta v. Coletta, 2003 CarswellOnt 55 (S.C.J.) and Dickie v. Dickie, 2007 SCC 8, she concluded that the order required a payment from the Respondent to the Appellant, and therefore fell within the definition of the term “payment order” in Rule 2(1). The order was not, therefore, enforceable by way of contempt.

[11] In view of her decision on the law, the motion judge found that she did not need to decide whether it had been proven beyond a reasonable doubt that the Respondent had wilfully breached the order.

[12] This appeal may be disposed of in a similar manner to the approach taken by the motion judge, but in reverse. It is not necessary to determine the legal issue as to whether the order constituted a payment order because, given the motion judge’s findings of fact, it could not be proven that the Respondent wilfully breached para. 5 of the order. Accordingly, even if the order was enforceable by way of contempt, the motion had to fail.

[13] Contempt proceedings are quasi-criminal in nature, and a wilful breach of a clear and unequivocal court order must be proven beyond a reasonable doubt. In order to determine whether a breach has occurred, the first step is to determine what it is the order required the Respondent to do.

[14] The order required the Respondent to “forthwith direct the payment of his pension” to FRO. It is acknowledged that he obtained papers from his employer, signed them and gave them to the Appellant, and she forwarded them to FRO. The motion judge found that it was impossible to determine whether this paperwork directed the pension-holder to forward payment to FRO. This means that the Respondent may well have done so through the paperwork he completed. The onus of proof is on the Appellant to prove beyond a reasonable doubt that the Respondent did not provide the necessary direction. The Respondent has no burden of proving that he did so. From the motion judge’s findings, the inescapable conclusion is that it has not been proven beyond a reasonable doubt that the Respondent did not direct the payment of his pension to FRO as required by para. 5.

[15] It is true that, four years later, the Respondent took steps to cash out the pension, thereby making it impossible to thereafter apply the pension monies to the arrears of child support. The motion judge rightly described this conduct as “reprehensible”. However, such conduct is not a breach of any clear and unequivocal term of the order.

[16] The closest that one comes is the second part of the order, which states that “the pension shall be applied towards support arrears”. Counsel for the Appellant argued that by cashing in the pension, the Respondent was breaching his obligation to apply the pension toward the arrears. However, on a plain reading of the order it is clear that this is a direction to FRO, not to the Respondent. When FRO receives the money, they could apply it toward the ongoing support order, or toward arrears, or to some combination thereof. This part of the order directed FRO that the pension money was to go toward arrears only.

[17] While I sympathize with the Appellant’s position, the appeal must be dismissed.

[18] Costs of the appeal are not being sought by the Respondent, and would not have been ordered in any event. There will be no costs of the appeal.

“T. A. Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Date: February 8, 2016