COURT FILE NO.: FS3842-15 DATE: 2018/08/22 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
JUNE GIGUERE Joe Sinicrope, for the Applicant Applicant
- and -
BRUCE TAYLOR Bruce Taylor, Self-Represented Respondent
HEARD: August 3, 2018 ellies j.
REASONS FOR DECISION
OVERVIEW
[1] In the motion at tab 31 of the Continuing Record, the applicant seeks an order that the respondent is in contempt of the order of Karam J. dated June 23, 2017. On that date, Karam J. ordered the respondent to obtain a valuation of his pension, serve an up-to-date financial statement, and provide “documentation in support of the numbers shown in his financial statement in terms of his assets and debts”, all to be done within 30 days.
[2] The applicant submits that the respondent has failed or refused to do all three things. As a result, she seeks an order striking the respondent’s answer, requiring the respondent to pay a fine of $5,000, and requiring him to pay her full indemnity costs.
[3] For the following reasons, I find the respondent in contempt of the order that he produce an up-to-date financial statement. The other alleged breaches of the June 23 order have not been proven beyond a reasonable doubt.
FACTS
[4] This case began on June 3, 2015 when the applicant’s lawyer (not Mr. Sinicrope) issued what was incorrectly indicated on its face as being a joint application for divorce. The application was anything but a cooperative effort. In the application, the applicant alleged that the respondent sexually abused a child, was unfaithful to her, and was controlling and manipulative, among other things.
[5] In November 2015, the respondent filed an answer and a financial statement in Form 13.1 sworn on October 29, 2015 (tab 8). At the time, he was represented by counsel. The parties agreed to allow the divorce to proceed ahead of the other issues and the parties were divorced on December 15, 2016.
[6] Although the record is not clear on the issue, it appears that the respondent’s lawyer was removed as counsel on February 17, 2017. Thereafter, the respondent began acting on his own behalf, with one exception, to which I will refer below.
[7] On June 23, 2017 pursuant to a motion brought on behalf of the applicant, Karam J. ordered that:
(1) The respondent shall obtain a valuation of his pension from his employment and provide evidence from his employer that his pension is being valued within 30 days of the date of this order.
(2) The respondent shall serve and file an up-to-date financial statement within 30 days of the date of this order.
(3) The respondent shall provide to the Applicant’s solicitor all documentation in support of the numbers shown in his financial statement in terms of his assets and debts within 30 days of the date of this order.
[8] The applicant alleges that the respondent has failed to comply with all three of the aforementioned requirements.
ISSUE
[9] The sole issue in this motion is whether the applicant has proven that the respondent is in contempt of the June 23 order.
ANALYSIS
[10] The applicant’s contempt motion is brought under r. 31 of the Family Law Rules, O. Reg. 114/99. In order to obtain an order under that rule, the applicant must establish beyond a reasonable doubt that:
(1) the order breached states clearly and unequivocally what should be done;
(2) the respondent breached the order; and
(3) the respondent did so deliberately and willfully.
See Prescott-Russell Services for Children and Adults v. G. (N.), 82 O.R. (3d) 686 (Ont. C.A.).
[11] In my view, the applicant has failed to establish all three of these elements beyond a reasonable doubt with respect to the valuation of his pension and the supporting documentation referred to in the order of June 23. I will deal with each of the requirements of the order separately.
Failure to Obtain a Pension Valuation
[12] Following the issuance of the June 23 order, the respondent retained Ed Rae on a limited basis to assist him. According to an affidavit sworn on June 6, 2018 by the applicant (tab 30), Mr. Sinicrope received correspondence from Mr. Rae dated July 18, 2017 in which Mr. Rae advised Mr. Sinicrope that he was helping the respondent to complete the pension valuation forms. Thereafter, counsel exchanged correspondence, which included correspondence from Mr. Rae enclosing a copy of his letter to the pension valuators.
[13] Mr. Sinicrope received no further communication from Mr. Rae after October 13, 2017. He received a copy of the pension valuation from the pension valuator only very recently. Mr. Sinicrope submits that the only reason the pension valuation was eventually received is because he sent in the necessary forms himself after he received signed authorizations following a motion brought before Wilcox J. on June 8, 2018.
[14] In an affidavit sworn on July 24, 2018 the respondent deposes that he was not able to provide the pension valuation despite his best efforts. He says that, like the applicant, he only received the valuation recently and disputes the assertion that the pension valuation was only received because Mr. Sinicrope requested it.
[15] I accept the respondent’s submission.
[16] The pension valuation is attached as an exhibit to the respondent’s July 24 affidavit. The valuation is dated July 10, 2018. The Application for Family Law Value (FSCL Family Law Form 1) forms part of the valuation. Part H of that form shows that both the respondent and Mr. Rae signed the application form on July 18, 2017. So, too, does the attached “Joint Declaration of Spousal Relationship”.
[17] Thus, while there is no explanation for the length of time it took for the pension valuation to be produced, it appears that the respondent was waiting as long for it as was the applicant. As a result, I have more than a reasonable doubt that the respondent willfully breached this term of the June 23 order.
Failure to Produce an Up-to-date Financial Statement
[18] On May 25, 2018 the respondent filed a financial statement sworn on March 22, 2018.
[19] On behalf of the applicant, Mr. Sinicrope submits that the respondent failed to comply with the June 23 order notwithstanding the fact that the respondent filed the financial statement referred to above. As Mr. Sinicrope points out, the financial statement is in the wrong form. The financial statement is in Form 13, which pertains only to issues of support. The appropriate form was Form 13.1, which pertains to both support and property issues. As a result, the more recent financial statement contains no information about the value of the respondent’s assets as of the valuation date.
[20] I am satisfied beyond a reasonable doubt that the respondent has willfully breached the June 23 order in this regard.
[21] As I indicated, the respondent represents himself. Mr. Rae was retained only to assist him with respect to valuing his pension. The March 28, 2018 financial statement was filed by the respondent in connection with a motion he has outstanding in which he seeks to vary the temporary spousal support he was ordered to pay by Rivard J. on April 21, 2017. It would not be difficult to accept that the respondent filed the wrong financial statement as a result of the fact that it was filed in connection with a support claim only.
[22] However, this contempt motion was first addressed before Wilcox J. on June 8, 2018. At that time, the motion was adjourned to a case conference. It was subsequently adjourned to the date on which it was heard before me. At the time that the motion was adjourned by Wilcox J., he ordered specifically that the respondent file a financial statement in Form 13.1 because there are property issues outstanding. If the respondent did not know what form he was required to file before his appearance before Wilcox J., he could have had no doubt about it afterward.
[23] Notwithstanding that I considered the respondent’s unfiled affidavit of July 4, 2018 (filed as Exhibit #1 on the motion), together with his affidavit of July 24, 2018, no explanation has been offered by the respondent for his failure to comply with the requirement that he file a Form 13.1.
[24] As a result, I am satisfied beyond a reasonable doubt that the respondent has willfully and deliberately breached the order of June 23 with respect to this requirement.
Failure to Produce Supporting Documentation
[25] I reach a different conclusion with respect to this last requirement of the June 23 order.
[26] As I indicated above, in order to succeed in the contempt motion, the applicant must establish beyond a reasonable doubt that the order breached clearly and unequivocally states what should be done. I am not satisfied beyond a reasonable doubt of that element with respect to this particular requirement.
[27] The June 23 order refers only to “documentation in support of the numbers shown in (the respondent’s) financial statement in terms of his assets and debts”. In my view, this requirement is too vague to permit me to find beyond a reasonable doubt that it was willfully and deliberately breached by the respondent on the evidence I have before me.
[28] The respondent’s October 29, 2015 financial statement, which was filed by counsel as part of the respondent’s answer, lists a number of household items and vehicles as assets. I have no real idea what supporting documentation might exist with respect to the value of these value assets.
[29] The October 29 financial statement also lists some bank accounts and a pension as assets. I have already dealt with the issue of the pension. With respect to the accounts, the June 23 order does not make it clear that the respondent was to obtain bank statements. The same is true with respect to the debts and other liabilities listed in the financial statement, which consist of a car loan, lawyer’s fees, an overdraft on a joint account with the applicant, and a loan taken out to obtain a laptop.
[30] While I agree that a lawyer acting on behalf of the respondent might know what supporting documentation could exist or how to obtain it, I am not satisfied beyond a reasonable doubt that the respondent did. The order of Wilcox J. of June 8, 2018 does not serve to clarify this aspect of the June 23 order. Nor is there any evidence that it was made clear to the respondent by anyone else, in the way, for example, that Mr. Sinicrope made it clear to the respondent in his correspondence exactly what he required when it came to the pension valuation.
CONCLUSION
[31] The motion is granted with respect to the requirement contained in the June 23 order that the respondent file an up-to-date financial statement. It is dismissed with respect to the other allegedly willful breaches of the June 23 order.
ORDER
[32] As I indicated at the outset of these reasons, counsel for the applicant seeks an order striking the respondent’s answer, imposing a fine on the respondent in the amount of $5,000, and requiring the respondent to pay the applicant her full indemnity costs of the motion.
[33] I do not believe that an order striking the respondent’s answer would be a proportionate response to his failure to provide a financial statement in the proper form.
[34] The request for a fine in the amount of $5,000 is also excessive. The respondent has a motion outstanding to vary the amount of temporary spousal support that he has been required to pay, which is based in part on the fact that he lost his job in June of 2017. The applicant has indicated in one of her affidavits that she is aware that the respondent has lost his driver’s licence and had his passport suspended as a result of his nonpayment of support. The respondent confirms this. In these circumstances, without making a finding as to whether the respondent is unable to continue paying temporary spousal support, a fine in the amount of $5,000 would also be a disproportionate response to what has occurred. Moreover, in my view, the respondent should be given an opportunity to purge his contempt before a fine is imposed.
[35] With respect, I also find the amount sought for costs to be excessive. The Bill of Costs indicates that, as between Mr. Sinicrope and his clerk, nearly 24 hours were spent in connection with the contempt motion. The motion materials do not bear out such extensive preparation and I have no dockets in support of the amount of time spent.
[36] In any event, in light of the limited success on the motion, I would reduce the amount of costs to be paid to the sum of $2,500, all-inclusive.
[37] For these reasons, an order shall issue as follows:
(1) Within 14 days of the receipt of these reasons, the respondent shall:
(a) File a financial statement in Form 13.1. The financial statement should show the respondent’s assets and liabilities as of the date of marriage and the valuation date, regardless of whether the respondent still possesses the assets or bears the liabilities.
(b) Provide copies of all existing documents relating to the purchase, sale, ownership or indebtedness with respect to any item of real or personal property listed in the financial statement, including cars, bank accounts or computers.
(c) Provide copies of any existing documentation from his former employer relating to the termination of his employment in June 2017, including any information as to the form or value of any severance pay he received.
(d) Provide copies of any existing documentation with respect to his application for and receipt of employment insurance benefits.
(2) If requested, the respondent shall provide signed authorizations directed to any bank, creditor, debtor or other individual or entity allowing the applicant to obtain information concerning the value of the respondent’s assets and liabilities on the date of marriage and the valuation date and the present value of any such assets that he continues to possess.
(3) In the event that the respondent fails or refuses to comply with the paragraphs set out above, he shall pay a fine in the amount of $1,000 within 30 days, failing which he shall be imprisoned for a period of seven days upon a finding being made in accordance with r. 31(9) of the Family Law Rules.
(4) The respondent shall pay the costs of the applicant with respect to the contempt motion, fixed in the amount of $2,500.
(5) The respondent shall forthwith ensure that his affidavit of July 4, 2018 is properly served and filed in the continuing record.
(6) This matter shall be returned before me in the motions court on August 31, 2018 or at such other time as the parties may agree upon. The respondent’s motion to vary at tab 26 shall not proceed until he has complied with paragraphs (1) and (2) of this order.