COURT FILE NO.: D20365/06
DATE: 2019-08-15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Alexander Kates, Applicant
AND: Doris Kates, Respondent
BEFORE: The Honourable Justice N. Gregson
COUNSEL: Self-represented Applicant
Bruce Macdonald, for the Respondent
HEARD at Welland, Ontario August 12, 2019
The Honourable Justice N. Gregson
E N D O R S E M E N T O N C O N T E M P T M O T I O N
[1] The Respondent (moving party) Doris Kates brought a Notice of Contempt Motion against the Applicant (responding party) Alexander Kates.
[2] The Respondent seeks the following:
a.) To have a finding that the Applicant is in contempt of the final order of the Honourable Mr. Justice J.E. Sheppard made on May 2, 2008;
b.) An order directing the Applicant party to forthwith comply with paragraph six of the order by forthwith listing the property at 4556 Simcoe Street, Niagara Falls, Ontario for sale with a mutually agreeable real estate agent;
c.) In the alternative, in the event that the Applicant continues to fail to comply with the provisions of the order, that the Respondent have temporary possession of the property for the purposes of facilitating compliance with paragraph six of the order; and
d.) Costs of the motion on a full indemnity basis.
[3] The Applicant opposes the Notice of Contempt Motion.
[4] A viva voce hearing was heard in this matter on August 12, 2019.
SUMMARY OF THE EVIDENCE
[5] The parties were married on November 20, 1994 and separated on February 3, 2006. They have four children of the marriage, namely, Christian Alexander Kates, born April 18, 1995, Jordan Alexander Kates, born March 27, 1996, Charlotte Alexandria Kates, born June 12, 1997 and Brittany Alexandria Kates, born June 12, 1997.
[6] At the time of separation, the Respondent resided in the matrimonial home with all of the children. The Applicant was charged with domestic assault against the Respondent and was later found guilty. Both parents conceded the Respondent vacated the premises when she secured housing with Niagara Regional Housing. The Applicant took possession of the home after the Respondent vacated the home, about one year after their separation.
[7] The matrimonial home is in the sole name of the Applicant as was the outstanding mortgage at the time of separation.
[8] Both parenting and property issues were resolved by way of Minutes of Settlement which were incorporated into the final order of Justice J.E. Sheppard dated May 2, 2008. Both parties had legal counsel at the time.
[9] Pursuant to the final order, the parties were granted joint custody of their children. The primary residence of three of the children was with their mother while the primary residence of Christian was with his father. Access terms for the parents to the children who were not in their primary care were detailed in the order.
[10] Paragraph five of the order further specified the matrimonial home located at 4556 Simcoe Street, Niagara Falls, Ontario would be listed for sale upon the following terms:
a. The property be listed with Kosana Vuksan of Denny Goldfinch Real Estate at a price as recommended by Kosana Vuksan in association with both parties.
b. The property listing shall be for a period of three months and renewed thereafter, as agreed by the parties.
[11] Paragraph six of the final order states that upon the sale of the matrimonial home, the proceeds of sale, after payment of all encumbrances, other than encumbrances against one party only, and all expenses association with the sale of the property, shall be divided equally between the parties in full satisfaction of any claim of either party against the other for equalization of property. There shall be no further claim by either party for equalization of property subject to a request for return of some household contents.
[12] The final order is in good standing as it has never been appealed nor set aside.
[13] The parties divorce was effective as of February 12, 2009. Provisions regarding child support against the Applicant were included in the divorce judgment. There is no mention about the matrimonial home.
[14] On October 16, 2018 the mother’s counsel sent the Applicant a letter reminding him of the terms of sale as per the final order requiring him to comply with the order and to arrange for the sale of the property and the division of proceeds in accordance with Justice Sheppard’s order. In the event they did not hear from the Respondent or his lawyer, court proceedings would be initiated to enforce the order.
[15] The Respondent eventually brought the Notice of Contempt Motion and the Applicant responded to same by filing a sworn Affidavit dated May 14, 2019.
[16] The Applicant’s legal counsel, Mr. Covello was removed from the record on July 25, 2019. As such, the oral contempt hearing proceeded, and the Applicant was self-represented.
[17] The Respondent alleges she has been a victim of domestic abuse throughout the parties’ relationship. The Applicant denies the allegations of abuse however he confirmed he was convicted of domestic abuse on two occasions against the Respondent the last of which was at the time of their separation.
[18] The Respondent indicated that as a result of the abusive relationship, she removed herself from the property and from any contact with the Applicant. She also testified she had obtained a Restraining Order against the Applicant to prevent him from attending at her home. No court document to this effect was tendered as evidence and it remains unclear when this might have been in effect.
[19] The Respondent indicated that notwithstanding their separation and the probation order she continued to be fearful of the Applicant and strove to minimize the conflict between them.
[20] The evidence suggested the parties did have some communication and contact with one another in the early years as a result of access with the children, discussions regarding payments of extra-curricular activities and the Applicant making repairs to the Respondent’s vehicle (as the Applicant is a mechanic).
[21] According to the Applicant’s evidence, he engaged the service of Kosana Vuksan as per the order to list the matrimonial home. It was agreed the home would initially be listed for the sum of $164,900.00.
[22] The Applicant testified the home was in disrepair as there was serious water damage in the home which affected the flooring, heating and pipes. The home also required a new roof and had asbestos siding. As such, the home was not in good condition and required extensive renovations.
[23] During her evidence, the mother felt the home was in good condition at the time of the sale.
[24] The Applicant testified there was a second listing with a reduced price of about $121,000.00 however there were again no offers to purchase. The Applicant believed the home was listed for sale for about 120 days in total.
[25] According to the Applicant, the mortgage at the time of the sale of the home was approximately $121,000.00.
[26] The Applicant stated he declared bankruptcy. He was permitted to continue residing in the home and paid the outstanding mortgage payments. He suggested this also prevented power of sale proceedings although no evidence was tendered in this regard.
[27] The Applicant believed he and the Respondent had a verbal agreement that he would simply retain ownership of the home and pay the outstanding mortgage otherwise if the home sold, they would incur a deficit and both he and the Respondent would owe money.
[28] The Respondent has also declared personal bankruptcy. No time frame was provided, and it is unknown whether the Trustee in Bankruptcy was aware of her interest in the matrimonial home.
[29] Over the last 11 years, the Applicant has renovated the entire home at his own cost and labour and built an addition to the home. The Respondent testified she was aware the Applicant had been renovating the home and she conceded being inside the home about five years prior, perhaps earlier. The parties also on occasion exchanged access of the children at the home.
[30] The Applicant testified he learned about three years ago the Respondent had filed a lien against the home. He stated he asked the Respondent to remove the lien and she refused. He stated he could not legally pursue this issue as he was dealing with custody proceedings of his now seven-year-old son, Keenan Kates.
[31] The Applicant feels the Respondent is not entitled to share in the proceeds of sale considering he has increased the home’s value over the last 11 years and as such does not agree the home should be sold. He argued he had no malicious intent. When he was asked why he did not bring a court application to set aside the terms of the final order, he responded he had retained Mr. Covello and had left it to him to deal with the legalities and the contempt motion.
[32] The Respondent argued the Applicant was aware three years ago the final order was registered against the property and took no steps to comply with the terms of the order. Similarly, when a letter was sent to him in October 2018 the Applicant should have immediately listed the home for sale. As such, the Applicant is in willful non-compliance of the terms of the order.
LAW AND ANALYSIS
[33] As was noted in the Ontario Court of Appeal decision of Vigneault v. Massey, [2014] O.J. No. 1535 at paragraph 11:
Civil contempt of court is a quasi-criminal proceeding.
The following elements must be proven beyond a reasonable doubt [before a person can be found in contempt of court, including in family law proceedings, which are as follows]:
1)The order that was breached must state clearly and unequivocally what should and should not be done.
2)The party who disobeys the order must do so deliberately and wilfully.
3)[The evidence must show contempt beyond a reasonable doubt.]
[34] See Prescott-Russell Services for Children and Adults v. G.(N.) 2006; 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at paras. 26-27.
[35] Once a court order has been made by the court, it is expected that parties will abide by the order of the court, until such time as the order has been terminated or varied by a further order of the court. Otherwise, it would undermine the administration of justice.
[36] In family law proceedings, Rule 26 of the Family Law Rules O. Reg. 114/99 set out where and how to enforce an order. Pursuant to Rule 26(4):
[37] Rule 31(1) of the Family Law Rules states that: “An order, other than a payment order, may be enforced by a contempt motion made in the case in which the other was made, even if another penalty is available.”
[38] In the event the court finds that a party is in contempt, Rule 31(5) of the Family Law Rules states the court may order that person to:
a) be imprisoned for any period and on any conditions that are just;
b) pay a fine in any amount that is appropriate;
c) pay an amount to a party as a penalty;
d) do anything else that the court decides is appropriate;
e) not do what the court forbids;
f) pay costs in an amount decided by the court; and
g) obey any other order.
[39] It should be noted the contempt power is to be used with restraint and in exceptional circumstances only. Essentially, to respond to circumstances where it appears to be the only reasonable means to send a message to the litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules to enable a court to deal with a case justly, with particular attention to subrule 2(3) and 2(4) of the Rules. See Ricafort 2006 ONCJ 520, 2006 O.J. No. 5332 (OCJ).
[40] Although the Applicant did not continue to list the matrimonial home for sale as per the terms of the final order, I have determined he had a legitimate excuse for not doing so and did all that he could reasonably do.
[41] The Applicant did initially list the property for sale with Kosana Vuksan as ordered by the court for a period of three months.
[42] According to the final order, the listing agreement should have been renewed thereafter as agreed by the parties. However, both parties, failed to mutually relist the property for sale. In fact, it was the Applicant’s reasonable belief the Respondent was no longer interested in the property due to the lack of equity at the time of the sale. The Respondent took no steps to seek to have the home listed for sale. As a result, the Applicant continued to reside in the home, made improvements to the property and paid all expenses associated with same. The Respondent was aware of the improvements to the property over the years as the parties exchanged access of the children at this residence and the Applicant had also entered the home.
[43] There was no evidence the Respondent requested the home be placed for sale for several years. The Applicant did learn about three years ago the Respondent had secured a lien on the property presumably to preserve her interest. A letter by legal counsel was finally forwarded to the Applicant on October 16, 2018 seeking to enforce the terms of the 2008 final order and when the Applicant refused to do so, the Notice of Contempt Motion was brought against him. Thereafter, the Applicant sought legal advice and responded to the motion.
[44] The final order in my view did not contemplate the current circumstances that have occurred over the last 11 years. Considering the change in circumstances, I cannot reach the conclusion the Applicant has breached the terms of this order in a deliberate and wilful manner, beyond a reasonable doubt, by not listing the property for sale.
ORDER
The Respondent’s contempt motion against the Applicant is hereby dismissed.
In the event either party seeks costs against the other, they shall serve and file their written submissions within seven days of today’s date. Thereafter, the other party shall have the opportunity to respond within seven days after being served. The submissions are to be no longer than five pages in length. Otherwise, there shall be no costs payable by either party.
N. Gregson, J.
DATE: 2019-05-15
COURT FILE NO.: D20365/06
DATE: 2019-08-15
O N T A R I O
SUPERIOR COURT OF JUSTICE
RE: Alexander Kates, Applicant
AND: Doris Kates, Respondent
COUNSEL: Self-represented Applicant
Bruce MacDonald, for the Respondent
ENDORSEMENT ON CONTEMPT MOTION
N. Gregson J.
DATE: August 15, 2019