Court File and Parties
Court File No.: D15121/16 Date: 2018 October 17 Superior Court of Justice - Ontario
Re: Michelle Lee Quattrociocchi, Applicant And: Guilo Mike Quattrociocchi, Respondent
Before: The Honourable R. J. Harper
Counsel: Lisa DeLong, Counsel, for the Applicant Gerry Smits, Counsel, for the Respondent
Heard: October 12, 2018
Endorsement
Issues
[1] The Respondent, Guilo Mike Quattrociocchi (Guilo) brought three motions. His motions relating to a request to order the Applicant, Michelle Lee Quattrociocchi (Michelle) to transfer her interest in the property know municipally as 32 Dunsdon Street, Brantford to him forthwith. His second motion is for child support. His third motion that was brought separately is for a finding that Michelle is in contempt of my Order dated June 20, 2018.
[2] Guilo’s counsel sought to proceed only with the third motion for contempt. He is withdrawing his first two motions.
[3] Michelle seeks an order of costs thrown away for the motions Guilo seeks to withdraw.
[4] Guilo seeks costs if the court finds Michelle in contempt.
The Order of June 20, 2018
[5] The Order of June 20, 2018 was made pursuant to Minutes of Settlement that was entered into by the parties.
[6] Among other things the Order provided:
- The Respondent, Guilo Mike Quattrociocchi will pay to the Applicant, Michelle Lee Quattrociocchi the sum of $65,000.00.
- In consideration of payment of the sum of $65,000.00 by the Respondent, Guilo Mike Quattrociocchi, the Applicant, Michelle Lee Quattrociocchi, will transfer her interest in the parties’ matrimonial home, located at 32, Dunsdon Street, Brantford, Ontario to the Respondent, Guilo Mike Quattrociocchi.
- Following payment of the sum of $65,000.00 by the Respondent, Guilo Mike Quattrociocchi, the parties’ net family property shall be equalized.
- The $65,000.00 is to be divided into five equal payments of $13,000.00 each. The first installments are to commence at the end of June 2018 and are to be completed by the end of September, 2018.
- The Respondent, Guilo Mike Quattrociocchi, will pay all debt relating to the parties’ outstanding Toronto Dominion credit card.
- The parties will each pay one-half the balance outstanding in respect of the Applicant, Michelle Lee Quattrociocchi’s Canadian Tire card, as it existed at the date of separation.
- The respondent, Guilo Mike Quattrociocchi, shall accept sole responsibility for all debts associated with the parties’ former matrimonial home, located at 32 Dunsdon Street, Brantford, an including: (a) the mortgage to Home Trust; (b) the mortgage to Ken Kitchen; (c) loan from Respondent’s mother; (d) loan from Respondent’s sister and two brothers; (e) loan from Applicant’s father; and all other loans and debts in the Respondent’s name.
[7] Guilo paid the $65,000.00. However, Michelle has continued to refuse to transfer her interest in the property as she is required to do pursuant to the Order. Counsel for Guilo sent a letter to Ms. DeLong requesting that her client complete the transfer of the property in accordance with the Order.
Position of Michelle
[8] Michelle’s counsel submitted that her client does not have to transfer her interest in this property despite the payment being made. She replied to Mr. Smits in a letter dated September 4, 2018 as follows:
Ms. DeFelice will not be providing the signed full and final release or completing the transfer until she has proof that the TD credit card is paid in full, half the Canadian Tire bill is paid and that all liens on home are paid out, including debts to Mr. Quattrociocchi’s family members.
The Law and Analysis
[9] For there to be a finding of contempt, the Order must be a valid and existing Order and must be clear and unequivocal and the alleged contemnor must have willfully disregarded the Order.
[10] The Supreme Court in Carey v. Laiken 2015 SCC 17, [2015] 2 S.C.R. 79 set out the three requirements for civil contempt to be established:
32 Civil contempt has three elements which must be established beyond a reasonable doubt: Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists, at para. 71; Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217, at pp. 224-25; Jackson v. Honey, 2009 BCCA 112, 267 B.C.A.C. 210, at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105, 196 N.S.R. (2d) 35, at paras. 17 and 32; Godin v. Godin, 2012 NSCA 54, 317 N.S.R. (2d) 204, at para. 47; Soper v. Gaudet, 2011 NSCA 11, 298 N.S.R. (2d) 303, at para. 23. These three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11.
33 The first element is that the order alleged to have been breached "must state clearly and unequivocally what should and should not be done": Prescott-Russell, at para. 27; Bell ExpressVu, at para. 28, citing with approval Jaskhs Enterprises Inc. v. Indus Corp., at para. 40. This requirement of clarity ensures that a party will not be found in contempt where an order is unclear: Pro Swing, at para. 24; Bell ExpressVu, at para. 22. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning: Culligan Canada Ltd. v. Fettes, 2010 SKCA 151, 326 D.L.R. (4th) 463, at para. 21.
34 The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager, at p. 226; College of Optometrists, at para. 71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine (ibid.).
35 Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Sheppard v. Sheppard (1976), 12 O.R. (2d) 4 (C.A.), at p. 8. The meaning of this element is one of the main points in contention on appeal and I will turn to consider it in more detail momentarily.
[11] In this case, it is clear that the Order in question was in the possession of the Applicant, Michelle. In my view the Order was clear and unambiguous:
[12] The Respondent had to pay $65,000.00 to the Applicant and upon that payment the Applicant had to transfer the title to the subject property.
[13] No other clause sets out any other prerequisite before the transfer was to take place.
[14] All other clauses of the Order make the Respondent responsible for certain debts. However, the Order does not require any of those debts to be paid prior to the transfer nor does it require a discharge of any mortgage. If the Respondent does not comply with the terms that require him to be responsible for certain debts, the Applicant has other remedies.
[15] I find that the Applicant willfully disobeyed the Order by refusing to transfer title to the property in accordance with the Order of June 20, 2018 and insisting on other terms that were not required by the terms of the order prior to her completing a transfer.
[16] I find the Applicant in contempt of the Order dated June 20, 2018. It is ordered that sentencing be adjourned to a date to be fixed by the trial coordinator. The Applicant may purge her contempt by signing the necessary documents to effect the transfer of the subject property no later than October 29, 2018.
Costs
[17] The Respondent was successful and is presumptively entitled to costs. I have found the Applicant in contempt. This motion was a step that did not have to take place.
[18] Both counsel submitted outline of costs. The outline for both is within the same range. Ms. DeLong sought a total of $3,514.30. Mr. Smits sought a total of $3,000.70.
[19] I do not feel that the issues were complex although the importance to the parties is clear. The Respondent wanted compliance with the Court Order and the Applicant now is in contempt of the Court Order.
[20] The Applicant shall pay the costs of the contempt motion in the total amount of $2,000.00.
[21] The Respondent shall pay costs thrown away to the Applicant in the amount of $1,000.00 as a result of the Respondent withdrawing his two motions on the return date of those motions.
[22] The result is that the Applicant shall pay costs to the Respondent in the amount of $1,000.00 payable within 15 days.
The Honourable R. J. Harper