Court File and Parties

COURT FILE NO.: FC-18-1678 DATE: 20190408

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ma. M Applicant – and – A.W.M. Respondent

Counsel: Edith Holly, for the Applicant Erin Lepine, Ira Marcovitch for the Respondent

HEARD: April 2, 2019

Reasons for Decision

Audet J.

[1] On April 5, 2019, I released my decision on parenting issues in the context of this motion (2019 ONSC 2128) and deferred my decision on the other issues raised. These are my Reasons for Decision on the issues of child support, spousal support and contempt.

[2] The context within which these issues arose is set out in detail in my previous decision on parenting and will not be repeated here.

Contempt Motion

[3] Pursuant to the order of Justice Doyle made on December 6, 2018, the applicant mother was required to deliver B.A.M.’s (the child) birth certificate to the clerk of the Superior Court of Justice by December 11, 2018. B.A.M. was born in Russia, and as a result, his birth certificate was issued by the Russian authorities. It is not disputed that the mother did not deposit the birth certificate in court.

[4] Rule 31(1) of the Family Law Rules, O. Reg. 114/99 states that an order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.

[5] To determine whether a party is in contempt, the court must apply a three-part test: (i) the order that was breached must clearly and unequivocally state what should and should not be done; (ii) the party’s disobedience of the order must be deliberate and wilful; and (iii) the evidence must show contempt beyond a reasonable doubt. Any doubt must be resolved in favour of the alleged contemnor: Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 668 (C.A.).

[6] For contempt to be a possible remedy, the alleged breach must relate to a live or operative order. Contempt is not available if the breach relates to an interim order that has been superseded by a final settlement or order: Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5.

[7] It is not inevitable that an affirmative answer to each branch of the three-part test will result in a finding of contempt. A judge on a contempt motion generally retains some discretion to decline to make such a finding: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79. Contempt is a remedy of last resort that is to be used with great restraint. Its use as a method of enforcing compliance with orders has been consistently discouraged: Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65. This is especially so in family law proceedings where contempt motions should be cautiously considered and granted only where other available enforcement options have failed: see Hefkey.

[8] As stated, it is undisputed that the mother has not deposited B.A.M.’s birth certificate with the court. The order was clear and unequivocal as to what should be done. Justice Doyle’s order continues to be live and operational; it has not been changed or terminated. The live issue here is whether the mother’s breach of the order was deliberate and wilful.

[9] The evidence before me shows that counsel for the father asked counsel for the mother on a number of occasions to confirm that B.A.M.’s birth certificate had been deposited into court. On all those occasions, and even when faced with emails from the Superior Court confirming that it had not, the mother’s counsel continued to confirm and respond that it had. In her affidavit sworn on March 11, 2019, the mother states that she attaches as exhibit “A” B.A.M.’s birth “identification” and passport documentation, which she says have been deposited into court as required by Justice Doyle, and as evidenced by the stamp of the Superior Court of Justice apposed on the documents (verifying their deposit).

[10] In arguments during the motion, it became clear that the document deposited by the mother was the child’s Canadian resident card, as opposed to his birth certificate. This is made evident by the fact that the document is written in English, not in Russian, and includes a picture of B.A.M. as a toddler, which would not have been found on his birth certificate issued shortly after his birth.

[11] Also during oral arguments, and although none of this information can be found in the mother’s affidavit evidence, the mother’s counsel explained that the mother did not have a copy of the child’s Russian birth certificate in her possession and that she had made various inquiries to the Russian Embassy and the Canadian immigration services in an attempt to locate B.A.M.’s birth certificate, without success. She confirms that the mother, whose first language is Russian, did not understand the difference in the words (birth certificate vs. birth identification) and believed to have deposited all the documents in her possession that she was required to deposit.

[12] I find it very regrettable that, in light of the father’s counsel’s numerous and ongoing requests for confirmation, the mother’s counsel appears to have taken no positive steps to ensure that the mother understood what was required of her, and that she complied with her obligations. Even more regrettable is the fact that no proper evidence was put forward on behalf of the mother to explain the efforts she allegedly made to obtain B.A.M.’s birth certificate. This is deplorable because I am asked to conclude that the mother did not deliberately disobey an order based on oral submissions by the mother’s counsel which are not grounded in the evidence.

[13] I can only find the mother in contempt of Justice Doyle’s order if I am convinced beyond a reasonable doubt that she willfully and deliberately breached that order. I find that in the present circumstances, I cannot. The reason why Justice Doyle made the order that she did was to ensure that the mother would not remove B.A.M. from this jurisdiction without the court’s approval or the father’s consent. I find it concerning that, while the mother did deposit B.A.M.’s Canadian passport with the court, she claimed to have lost his Russian passport (which was not deposited with the court) and she now claims to not have a copy of his Russian passport.

[14] In light of the order I have made today, which transfers sole custody and primary residence of B.A.M. to his father without access to his mother until further order the court, the risks associated with the mother’s potential removal of this child from Canada are significantly diminished. Nonetheless, there continues to be a risk given my clear findings with regards to the mother’s alienating behaviour.

[15] As a result, this contempt motion is adjourned to allow the mother to provide the father, and file with the court, a sworn affidavit containing the following information, on or before April 19, 2019 at 5 p.m.:

• The details of all efforts she has made to this date to locate B.A.M.’s Russian certificate;
• Confirmation that she does not have B.A.M.’s Russian certificate (or a copy thereof) in her possession;
• Confirmation from the Russian Embassy in Canada that they have been provided by the mother an irrevocable direction not to issue or provide the mother with a Russian birth certificate or a new passport for B.A.M., without a court order authorizing her (or the parties jointly) to do so.

[16] This contempt motion may be brought back before me in two months, at the same time as the motion to review the parenting arrangements with regards to B.A.M., as directed in my earlier Decision.

Child and Spousal Support

[17] The father is a principal of D&A McLeod, Trustees in Bankruptcy. His line 150 income in 2017 was $273,041. The mother has a diploma in Office Administration from Willis College and a diploma in fashion design studies from the Richard Robinson Fashion Design Academy, both of which she acquired after she immigrated to Canada and during her marriage to the father. While in Russia, the mother worked as a travel agent. She also previously operated McLeod Fashion, a boutique fashion business, as well as being a distributor for Roden and Fields. At this time, the mother’s sworn financial statement indicates that she earns employment income of $24,000 per year.

[18] For the purpose of this temporary motion, the father accepts that this is her income. The mother disputes the father’s income, alleging that it is much higher than represented on his income tax return, but for the purpose of this motion, she agrees that the income as set out in the father’s 2017 income tax return may be used.

[19] Prior to the parties’ marriage, and while the mother was still residing in Russia, the parties executed a marriage contract that addressed the issue of spousal support in the event of a separation. The existence of this marriage contract is not disputed by the parties. However, in her application, the mother seeks to set it aside on the basis that she did not understand it and that she did not obtain independent legal advice prior to signing it.

[20] Pursuant to paragraph 6.3 of the parties’ marriage contract, the father is to provide a lump sum payment of $150,000 to the mother and provide her with monthly support sufficient to top up her income to $36,000 per year for a period of seven years. In her sworn affidavit filed for the purpose of the December 6, 2018 motion, the mother states the following:

The prenuptial agreement […] was signed to permit the marriage but I did not have counsel or translation and I never received a copy of the signed document.

[21] Included in the father’s evidence in reply was a signature page of the contract signed by the mother and an email she sent at the time the contract was signed that read:

Hello my dear A.W.M., I’ve just finished to read our marriage contract in Russian. Now I understand very clearly all clauses of this document […] I’d like to tell you I agree with this document and acknowledge that the terms of this contract are fair and reasonable. I wish to sign it voluntarily.

[22] The issue of the validity of the marriage contract is not before me in the context of this motion. However, it is relevant to the determination of what the father’s temporary spousal support obligations should be pending trial.

[23] In Balsmeier v. Balsmeier, 2014 ONSC 5305, 50 R.F.L. (7th) 390 at para. 35, the court stated that until it is set aside, there is a presumption that the parties’ executed marriage contract is valid. Where one party seeks to set aside a domestic contract and seeks interim support, support should be ordered in accordance with the marriage contract. Courts should exercise great caution in granting interim relief that contradicts the terms of a contract signed by the parties.

[24] If I were to presume, on a temporary basis, that the marriage contract is valid, and limit the mother’s spousal support entitlement to what the contract provides (an amount sufficient to top up the mother’s income to $36,000 per year), then it seems to me that I should also order the father to immediately pay the $150,000 lump sum as well. The father objects to paying this lump sum on a temporary basis for two main reasons. First, he takes the position that the mother is a significant flight risk, and receiving this important payment will only increase her ability to remove the child from Canada. In addition, he states that if the marriage contract is ultimately declared invalid, he will have paid to the mother a significant advance towards future spousal support which he may never be able to recover down the road.

[25] I find the father’s arguments compelling. However, based on the parties’ current incomes, and in light of my order granting the father sole custody of B.A.M., the ranges of spousal support suggested by the Spousal Support Advisory Guidelines would be $2,590 (low), $3,021 (mid) and $3,453 (high). The mother, on the other hand, would be required to pay child support in the amount of $192 per month.

[26] At the interim stage, the primary goal on interim spousal support is to provide financial assistance to the dependent spouse until the trial. It is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial: See Fyfe v. Jouppien, 2011 ONSC 5462, 10 R.F.L. (7th) 336. As stated in the Fyfe case, the court is not required to carry out a complete and detailed inquiry into all aspects and details of the case. A deep and thorough analysis of all the factors and inquiry into the factors is not necessary to be made in detail at an interim stage.

[27] In light of all the circumstances, I am of the view that the appropriate amount of spousal support that should be paid by the father to the mother on a temporary and without prejudice basis is $3,192 and I so order, beginning on April 1, 2019 and every month thereafter until further varied by the court. Also beginning on April 1, 2019, and every month thereafter until further varied by the court, the mother shall pay to the father child support in the amount of $192 per month for B.A.M. When the mother’s child support amount is set-off against the father’s spousal support amount, the end result is that the father will be paying net (after deduction of child support) spousal support in the amount of $3,000 per month, which in my view meets the objectives of the Divorce Act, 1985, c. 3 (2nd Supp) and the directions of the court in Fyfe, above, on a temporary basis.

[28] If the parties’ marriage contract is set aside at trial, the father’s spousal support obligations can be adjusted by the trial judge retroactively. If the parties’ marriage contract is upheld at trial, any overpayment made by the father since this order can be set-off from the $150,000 lump sum owing by him to the mother as per the terms of the contract.

Costs

[29] If the parties are unable to agree on costs, I will accept brief written submissions from the parties not exceeding five pages (exclusive of Bills of Costs and Offers to Settle). The father will have 20 days from the date of this Decision to provide his submissions and the mother will have 20 days thereafter to do the same. The father will be allowed a brief reply, if necessary, not exceeding one page, which shall be provided within 7 days from receipt of the mother’s submissions.

Madam Justice Julie Audet Released: April 8, 2019