COURT FILE NO.: FS-17-416033

DATE: 20180618

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOHN CHARLES MORLAND JONES, Applicant

AND:

PARIS MORLAND-JONES, Respondent

BEFORE: Madam Justice Kristjanson

COUNSEL: Rick Peticca and Laura Paris, for the Applicant

Vincenzo Ruso and David Anthony for the Respondent

HEARD: June 14, 2018

ENDORSEMENT

[1] There are three issues on this motion. First, should a contempt motion be brought as a first step, not a last resort, in seeking to enforce the return of personal possessions pursuant to a final Order issued almost a year ago? Second, in order to gather evidence for a return of possessions case, is it acceptable conduct for a former spouse to hire private investigators to infiltrate the former matrimonial home under false pretenses as potential home buyers, on two separate occasions, taking photographs and videos, and opening and touching items inside drawers? How does this conduct affect the exercise of discretion on a contempt motion? Third, what are the professionalism and civility obligations of counsel engaged in correspondence with the other party, in respect of notifying the party of a motion, canvassing dates, and responding to reasonable adjournment requests?

Factual Background

[2] The final Order of Justice Nicholson dated August 14, 2017 provided for a substantial equalization/support payment from Ms. Morland-Jones to Mr. Morland Jones and the transfer of the former matrimonial home to Ms. Morland-Jones. With respect to the return of possessions, Paragraph 9 provided that:

The Applicant has provided the Respondent with a list of items he wishes to pick up, and the Respondent acknowledge that the items belong to the Applicant subject to the Respondent being able to locate the items. Within 7 days the Respondent shall search the house for the listed items and provide the listed items she found to the Applicant. Except for the agreed upon list of items, there shall be no further or other content divisions….

[3] The list itself is not part of the Order.

[4] The parties were represented by counsel who exchanged a number of letters after the Consent Order, and at least some of the items were returned.

[5] In February, applicant’s counsel wrote stating that if all the items were not returned, he would schedule a motion. He requested dates in March. Respondent’s counsel wrote back, stating that the “list” kept evolving, and Ms. Morland-Jones had located a number of the items which could be viewed in counsel’s office. Mr. Morland Jones attended at the office of Ms. Morland-Jones’ counsel to view the items, but was not satisfied. On March 21, Mr. Morland Jones’ counsel wrote indicating that Ms. Morland-Jones had not fully complied, and that if Ms. Morland-Jones failed to comply, Mr. Morland Jones would bring a motion. There was no other attempt to canvas dates for a motion.

[6] It appears that Mr. Morland Jones, at about this time, retained Franco Investigation Services Ltd, although the report lists the law firm, Shulman Law Firm Professional Corporation, as the client. The March 28 Franco Investigation Report filed by Mr. Morland Jones states as follows:

(1) As the house was currently for sale, the investigators “have been requested to establish an opportunity to visit the house as prospective buyers and while there, make every effort to document the existence and location of the relevant items”;

(2) Since there had been two break-ins in December, they had been “requested to ensure that we maintain a maximum level of discretion in establishing a suitable cover for our visit to avoid attracting the listing agent’s suspicion”;

(3) The investigators through a “source” in the Toronto real estate community obtained a viewing with a sales agent, and “ensured a suitable investigator” was “prepared in the role of a prospective buyer, and that the investigator [was] accompanied by a female observer viewing the home as a suitably qualified married couple”;

(4) They “directed a second investigator to be on premises to assist as necessary in diverting the listing agent’s attention during the inspection” on March 7, 2018;

(5) They obtained some video footage on March 7, but due to time restrictions, arranged a second attendance on March 13;

(6) A second pair of investigators, “prepared in advance as a suitable couple qualified to purchase the home”, scheduled a showing accompanied by a “source from within the real estate industry” on March 18;

(7) On the second attendance, the investigators “inspected” the residence, and “obtained a series of discreet photographs and further video of the premises”;

(8) At least one photograph appears to record the investigator rooting through a drawer.

(9) The investigators took 126 still photographs and two video recordings contained on a USB, which were provided to the law firm.

[7] Despite the fact that Ms. Morland-Jones was represented by counsel, and the law firms had been in correspondence regarding a motion in March, Mr. Morland Jones’s law firm did not canvas dates with Ms. Morland-Jones’s counsel, or notify counsel that Mr. Morland Jones would be bringing a motion. Instead, Ms. Morland-Jones was personally served with the contempt motion materials on May 23, for a unilaterally selected date of June 14. Despite requests by Ms. Morland-Jones’ counsel for adjournments to accommodate their schedules, prepare motion materials and cross-examine the affiant, all requests for adjournment were denied.

Issue #1: Contempt

[8] Mr. Morland Jones brought this motion for contempt to enforce paragraph 9 of the Order of Justice Nicholson, to return a list of household contents. This should not have been brought as a contempt motion. As the Court of Appeal held in Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.) at para. 3:

…The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed…

[9] The limited circumstances in which a contempt motion in a family court proceeding may be appropriate were summarized by Justice Chappell in Jackson v. Jackson, 2016 ONSC 3466 (SCJ) as follows in para. 56:

(a) contempt is discretionary,

(b) because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint,

(c) it cannot be reduced merely to a mechanism for enforcing judgments,

(d) it should be used sparingly and as a measure of last resort where there are no other adequate remedies available,

(e) 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, and

(f) 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 to the use of contempt as an enforcement tool in family proceedings.

[10] In Jackson v. Jackson, Justice Chappel set out a variety of remedies short of contempt which are available in family court, holding as follows at para. 57:

Remedies that should be considered before bringing a contempt motion in family law litigation include requesting a case conference or settlement conference, bringing a motion for enforcement of the order and costs, bringing a motion for directions or to change or clarify the terms of the order, bringing a motion for make-up access in a case involving breach of an access order, attempting to mediate, and conducting meetings between counsel and the parties …The party alleging contempt should also consider the remedies outlined in Rule 1(8), which sets out the types of relief that a court may grant if a person fails to obey an order in the case or a related case.

[11] There has never been a four-way settlement meeting or mediation. If those failed, an appropriate first step would have been a motion to enforce a final order pursuant to Rule 1(8) of the Family Law Rules (see Mackenzie v. Mackenzie, 2018 ONSC 3090 at para. 26). Contempt is never a first resort, and should not be “reduced to a measure for enforcing judgments.” On this basis alone, I dismiss the contempt motion, with costs.

Issue #2: Conduct of Applicant and Discretion Regarding Contempt

[12] Contempt is a discretionary remedy. The conduct of the applicant, not just the alleged contemnor, must also be considered. I would have declined to exercise my discretion to grant the motion in any event, based on the conduct of Mr. Morland Jones. In this family proceeding regarding a dispute over the return of household possessions, he engaged third parties to surreptitiously enter Ms. Morland-Jones’ home under false pretenses, taking 126 photographs and two videos, and opening and touching items inside drawers. The investigators were directed to maintain a maximum level of discretion to avoid attracting the listing agent’s suspicion. On two separate occasions, two different sets of investigators posed as qualified prospective buyers, and attended with real estate agents for showings. On the first occasion, a second investigator was on the premises to “divert the listing agent’s attention” while they took video footage. There are 126 photographs, when allegedly fewer than 30 items are on the list.

[13] The respondent raises the invasion of privacy, which may constitute the tort of intrusion on seclusion as described by Armstrong J.A. in Jones v. Tsige, 2012 ONCA 32, 2012 CarswellOnt 274, [2012] O.J. No. 148, 108 O.R. (3d) 241, as follows, at para. 70:

71 The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

[14] The respondent also raises a concern that the actions of the private investigators arguably constitute the tort of trespass to land, which generally requires entry upon land in the possession of the plaintiff without lawful justification.

[15] The issue in this case whether or not the possessions listed in August, 2017 and which remained in the former matrimonial home were returned. Family law is difficult enough; it should not involve commissioning third parties to surreptitiously enter into a former matrimonial home under false pretenses to take pictures and root around in drawers, take 126 photographs and videos, and provide those to a law firm for use in a motion. A line must be drawn. This type of conduct is not to be condoned. For those reasons, I would have exercised my discretion to refuse to provide relief to Mr. Morland Jones on the grounds that his conduct was unacceptable and shocking to the conscience.

Issue #3: Professionalism and Civility

[16] As noted above, Mr. Morland Jones’s law firm, although in correspondence for months about the alleged failure of the respondent to return the listed items: (a) failed to canvas dates for the contempt motion and unilaterally set a long motion date; (b) did not advise Ms. Morland-Jones’ counsel about the motion, and instead personally served Ms. Morland-Jones at her residence; and (c) when requested, failed to grant a reasonable adjournment. This raises very significant concerns about civility. In family law, civility and professionalism contribute to the primary objective of the Family Law Rules, which is to ensure that every case is dealt with justly, including in a manner that is procedurally fair, saves time and expense, and ensures the appropriate allocation of the court’s resources. In family law, lawyers are required by Rule 2(4) to help the court promote the primary objective.

[17] This case is a good illustration of what happens when lawyers fail to comply with the principles of civility and professionalism. Because of its seriousness, a contempt proceeding cannot take place on such short notice, without canvassing dates and availability of counsel, when the responding parties request the right to cross-examine and time to prepare responding materials. An adjournment is almost inevitable in circumstances like these, and viva voce evidence is generally required. However, the court’s time for a long motion was allocated to this motion. That means another client was denied the opportunity to appear today, resulting in a diversion of the court’s resources, and increasing time and expense for these parties. This does not promote the primary objective of the Family Law Rules.

[18] As a result of my concerns with the lack of civility of Mr. Morland Jones’s counsel, I provided him with a copy of the Advocates’ Society Principles of Professionalism and Civility.

[19] I draw counsel’s attention to the following principles of civility:

Cooperating with Opposing Counsel

5. Advocates should avoid unnecessary motion practice or other judicial intervention by negotiating and agreeing with opposing counsel whenever practicable.

6. When advocates are about to send written or electronic communication, or take a fresh step in a proceeding which may reasonably be unexpected, they should provide opposing counsel with some advance notice where to do so does not compromise a client's interests.

Cooperating with Opposing Counsel on Scheduling Matters

11. Advocates should consult opposing counsel regarding scheduling matters in a genuine effort to avoid conflicts.

12. In doing so, advocates should attempt to accommodate the calendar conflicts of opposing counsel previously scheduled in good faith for hearings, examinations, meetings, conferences, vacations, seminars or other functions.

13. Advocates should agree to reasonable requests for scheduling changes, such as extensions of time, provided the client's legitimate interests will not be materially and adversely affected.

Accommodating Requests from Opposing Counsel

30. Advocates, and not the client, have the sole discretion to determine the accommodations to be granted to opposing counsel in all matters not directly affecting the merits of the cause or prejudicing the client's rights. This includes, but is not limited to, reasonable requests for extensions of time, adjournments, scheduling of events, and admissions of facts. Advocates should not accede to the client's demands that they act in a discourteous or uncooperative manner toward opposing counsel.

[20] All counsel practicing family law should be aware of the Advocates’ Society Principles of Professionalism and Civility, and should strive to implement them in the conduct of their files. This will help counsel comply with their duty to support the primary objective.

Setting A Schedule

[21] I grant leave and set a schedule for 3 motions:

(a) The respondent’s motion for security for costs, since Mr. Morland Jones is apparently residing in France.

(b) The respondent may commence a proceeding or a motion seeking relief for the tort of intrusion on seclusion, the tort of trespass, or some other relief relating to the attendance of the private investigator’s at the former matrimonial home and the subsequent use of the materials on the contempt motion.

(c) The applicant’s motion to enforce the final order.

[22] I set the following schedule:

Security for Costs

June 28 – Respondent’s Motion Materials

July 20 – Applicant’s Motion Materials

July 27 – Reply Materials, if any

August 9 – Security for Costs Motion Date

Motion to Enforce Order and Motion re Trespass, etc.

August 9 – Motion materials of moving party (applicant on motion to enforce order, respondent on motion re trespass/intrusion on seclusion)

September 7 – Responding materials

September 17 – Reply, if any

Questioning/Cross-Examination of Affiants – Completed by October 18

Long Motion – December 11

[23] I direct both parties to exchange draft Notices of Motion on the motion to enforce the order and the motion re trespass/intrusion on seclusion, so they each understand what the other party is seeking. Mr. Morland Jones is to provide a draft Notice of Motion to Ms. Morland-Jones July 6, listing with specificity exactly what household possessions he seeks pursuant to the Order. Ms. Morland-Jones is to provide a draft Notice of Motion by July 13. If Ms. Morland-Jones chooses to commence a civil claim rather than continuing in family court, then she is to advise by July 13 that she will not pursue this matter in the family proceeding but will be pursuing it in civil litigation.

Urge to Resolve Outside Litigation Process

[24] It is unclear to me which household possessions were referred to in the Order. However, I encourage Ms. Morland-Jones to return the items she believes are encompassed in the Order if she has not done so already. That would eliminate the need for two of the three motions, would save the parties time and expense, and would allow for the Court’s resources to be deployed properly. Counsel are reminded of their obligation to support the primary objective: this includes attempting to settle the return of possessions issue without resort to expensive and needless litigation.

Orders

[25] Mr. Morland Jones, on consent, is ordered to provide Ms. Morland-Jones with all 126 photographs and the two videos prepared by Franco Investigation Services Ltd. by June 22. In oral argument, applicant’s counsel indicated there was no video. However, since the Franco Investigation Services Report refers to providing the law firm in March with a USB stick containing two videos, I am assuming the videos are in the possession of the law firm and direct that the videos be provided to Ms. Morland-Jones’ counsel.

[26] The respondent has leave to bring a motion to compel the production of the Franco Investigation Services file.

[27] The contempt motion is dismissed with costs.

[28] Ms. Morland-Jones is to provide a bill of costs and costs submissions by June 21. Mr. Morland Jones is to provide responding costs submissions by June 28. If Mr. Morland Jones takes issue with the quantum of costs sought, Mr. Morland Jones must also provide a bill of costs.

Justice Kristjanson

Date: June 18, 2018