Court File and Parties
COURT FILE NO.: 16-510 DATE: 20170612 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Marc J. Boudreault – and – Angela C. Boudreault
COUNSEL: Ronald McLelland, counsel for the Applicant Stephane Perreault, counsel for the Respondent
HEARD: June 9th, 2017
RULING ON MOTION FOR CONTEMPT
LALIBERTÉ, J.
[1] The applicant has brought a motion for contempt against the Respondent.
[2] The allegations are that she has breached the temporary orders of Justice Pelletier dated April 18, 2017 and the temporary order of Justice Swartz dated May 26, 2017.
[3] Specifically, it is said that she has failed to do the following:
- Provide her Notice of Assessment and Income Tax Returns for 2014 to 2016 by May 30, 2017 (April 18, 2017 order)
- She will be responsible for utilities and other costs for the home including but not limited to mortgage payments, insurance, etc… until June 1, 2017… The Respondent will provide documentary proof that the utilities and other costs are paid and up to date to the Applicant before June 1, 2017.
- Reinstate the insurance policy with Intact Insurance or another suitable insurer, forthwith for the real property at 1029 Meadow Lane Road, Cumberland (May 26, 2017 order).
[4] The contempt motion is brought by the Applicant in the context of proceedings started on December 22, 2016. His claims include spousal support and equalization of net family properties.
[5] The parties were married in June 1984 and separated on October 30, 2015. The Respondent remained in the home located at 1029 Meadow Lane Road in Cumberland.
[6] The Applicant’s position is that this is one of the rare cases where findings of contempt are warranted because:
- She has not provided the income tax documents by May 30, 2017
- She has made no effort to comply; nothing was done during the set time frame
- Her after-the-fact explanation found in her June 6, 2017 affidavit that she has sent her income tax returns to Revenue Canada for the last 4 years and anticipates receiving Notices of Assessment any time and forward same as soon as possible does not meet the clear terms of the order
- There is no evidence that she intends to abide by the order
- This information is significant by reason of the claim for spousal which cannot be quantified without this information
- She has failed to make mortgage payments the evidence of which is that the credit line has increased over time
- She has failed to pay the realty taxes which are now at $15,058.86
- The Caisse Populaire has confirmed that it will go to their collections department if the property taxes are not paid
[7] The Respondent’s position is that she has not wilfully breached the said orders. Her position is set out in her June 6, 2017 affidavit which the Court has reviewed. In essence, her response is that she has taken steps to abide by the orders.
[8] While she admits that the property taxes were not paid, she explains that it was not her intention and belief that those were included in Justice Pelletier’s order.
[9] In the end, she denies being in contempt and states that she has done everything in her power to rectify any issues or discrepancies.
[10] In deciding this matter, the Court will be guided by the following principles:
- The test for a finding of contempt is: i. the order that was breached must state clearly and unequivocally what should and should not be done ii. the party who disobeys the order must do so deliberately and wilfully iii. the evidence must show contempt beyond a reasonable doubt; any doubt must clearly be resolved in favour of the person alleged to have breached the order
- In Jackson v. Jackson 2016 ONSC 3466, [2016] O.J. no 2870, Justice Chappel provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:
- ultimately remains a matter for the Court’s discretion
- because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint
- it cannot be reduced merely to a mechanism for enforcing judgments
- it should be used sparingly and as a measure of last resort where there are no other adequate remedies available
- it is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted
- the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach
[11] Having considered the relevant principles and all of the circumstances in this matter, the Court finds that the Applicant has not established the elements of contempt beyond a reasonable doubt.
[12] Furthermore, the Court is of the view that this is not one of the rare cases where contempt is warranted on the basis of the Respondent’s conduct.
[13] The Court will address each of the alleged breaches separately.
Failure to provide Notices of Assessment and Income Tax returns for 2014 to 2016 by May 30, 2017
[14] There is no question that the evidence establishes that the Respondent did not provide the above noted income tax documents by May 30, 2017 as set out in Justice Pelletier’s order of April 18, 2017.
[15] This is raised by the Respondent as being a significant concern because of the inability to quantify his claim for support until provided with confirmation of the Applicant’s income.
[16] A review of the continuing record reveals that the Applicant has not, as of yet, filed the income and financial information required under Family Law Rule 13 (3.1). Both of his financial statement indicates that his gross income for last year is “to be determined”. The only proof of income are pay stubs from his employer.
[17] The Court notes that the Respondent attached her t4s for 2013, 2014 and 2015 to her financial statement together with detailed pay stubs from her employer.
[18] The Applicant’s failure to file the required financial material does not relieve the Respondent from Justice Pelletier’s order. However it is such that the Court is of the view that contempt is not a fair, reasonable and proportional response based on the following considerations:
- The Applicant’s claim for spousal support cannot be quantified because he has not provided confirmation of his own income
- He is in breach of the Family Law Rules; in fact, the Application should not have been issued by the Court without leave
- She has disclosed her income for 2013, 2014 and 2015 through t4s issued by her employer; she confirms that these reflect her income
- She has taken steps to obtain Notices of Assessment for 2013, 2014 and 2015; her evidence is that those will be available soon and will be disclosed
[19] Therefore, the Court does not find the Respondent guilty of contempt on the basis of her failure to provide financial information.
Failure to pay and provide documentary proof that utilities and other costs are paid and up to date before June 1, 2017
[20] The evidence shows that the outstanding property taxes are $15,190.85. Furthermore, Francois Ouellet from the Caisse Populaire has indicated that it will proceed to collection if arrangements are not in place by June 15, 2017.
[21] As already noted, the Respondent’s position is that her belief was that these taxes were not intended to be included in Justice Pelletier’s said order.
[22] The issue becomes whether the order “states clearly and unequivocally” that the Respondent was to pay the outstanding property taxes.
[23] The significant amount of taxes owed as of April 18, 2017, would support the Respondent’s position that it is not reasonable to have expected her to pay such an amount before June 1, 2017.
[24] If the intent was for her to pay over $15,000 in property taxes, this should have been clearly set out in the order.
[25] A fair and reasonable interpretation of the April 18, 2017 order would suggest that the intent was for her to be liable for property taxes from April 18, 2017 to June 1, 2017.
[26] Furthermore, the Court finds that if in fact the Respondent is liable for all of the outstanding property taxes, there is an adequate remedy other than contempt which is available as redress for the Applicant namely, this amount will be reflected in the accounting once the home is sold or in the equalization calculation.
[27] As further relief, the Respondent is ordered to communicate with Francois Ouellet on or before June 15, 2017 with a view of attempting to make an arrangement for the unpaid taxes pending the sale of the home. The Respondent shall provide the Applicant with proof that she has taken these steps. This is to be provided on or before June 15, 2017.
Failure to reinstate insurance coverage for the matrimonial home
[28] The Court is left with a reasonable doubt on the issue of the reinstatement of the insurance on the home. In fact, the evidence would suggest that she had, prior to the May 26, 2017 motion before Justice Swartz taken steps to reinstate coverage.
[29] This is shown through email exchanges between the Applicant and the insurance broker Brandon Sears. The Court notes the following:
- On May 24, 2017, the broker advised the Applicant of the following: “I’ve been working with Angela this morning to set up insurance… “In order to finalize the policy, I need your signature on the attached documentation as the policy needs to go in both names where the property is jointly owned…”
- The applicant responded on the same date and raises concerns with the proposal; the broker responds and provides an explanation; followed by a response by the Applicant
- On May 25, 2017, broker addresses the concerns raised by the Applicant and indicates “… I have attached the amended documents as requested… I have spoken with Angie this morning…”
[30] The Court was provided with the following email message sent by broker Brandon Sears to the Respondent, on June 9, 2017. The message is as follows:
“Hi Angie,
As of today’s date, June 9, 2017, I have yet to receive a signed home insurance application back from M. Boudreault for 1029 Meadow Lane Road. The last correspondence I had with M. Boudreault was providing him with an application via email for signature on May 25th, 2017. To date I have not heard back from him.
To date, I have provided both Angie and Marc with a quote that Angie has accepted and provided me with a credit card for the down payment. However, I cannot proceed without both signatures.”
[31] The Applicant testified during the hearing of the Motion and denied having received the Application. The Court notes that the email messages of May 24th and 25th attached to Chelsey Cook’s affidavit of June 2, 2017 would suggest otherwise. Brandon Sears states in both that the documents are attached to the emails. If they were not, the reasonable expectation is that the Applicant would have contacted the broker and advise him that said documents were not attached.
[32] Be that as it may, in the end, the evidence does not support the Applicant’s allegation that the Respondent did nothing to reinstate insurance coverage for the home.
Conclusion
[33] Therefore, the Court dismisses the Applicant’s motion for contempt.
[34] The Respondent is ordered to do the following on or before June 15, 2017:
- Communicate with Francois Ouellet from the Caisse Populaire
- attempt to make an arrangement with the Caisse Populaire in relation to the outstanding property taxes pending the sale of the home.
- provide the Applicant with proof that she has complied with this order
[35] The parties are asked to discuss and resolve the issue of costs for this motion. If unable to agree, brief written submissions (3 pages maximum) to be filed with the Court on or before June 30, 2017.
Justice Ronald M. Laliberté Jr.