Court File and Parties
COURT FILE NO.: FS189/17 DATE: January 14, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Susan Barry, applicant AND: Marc Andrew Barry and James Michael Barry, respondents
BEFORE: TOBIN J.
COUNSEL: Michael H. Murray for the applicant Marc Andrew Barry in person James Michael Barry not appearing
HEARD: December 13, 2019
Endorsement
[1] On September 11, 2019, Price J. granted an order that provided, in part, that:
(a) the respondent, Marc Andrew Barry (hereinafter “the respondent”), pay to the applicant an equalization payment of $226,670.96 (para. 1);
(b) the parties were to value their matrimonial home (para. 2); and
(c) the respondent had the “right to conclude a purchase of the matrimonial home … within 30 days of the date of the release of these reasons, at the fair market value … and to obtain the release of [the applicant] from her obligations under the existing first mortgage registered against the matrimonial home” (para. 3).
[2] The respondent wanted to purchase the matrimonial home and retained counsel to represent him for this purpose.
[3] The respondent paid off the mortgage registered on title to the matrimonial home on October 4, 2019.
[4] The applicant was willing to complete the transaction before the appeal period expired but only if the respondent agreed not to appeal. Her reasons for taking this position were to avoid:
(a) closing the sale of the matrimonial home and thereby being left without a home for herself;
(b) having little or no resources to purchase a new home; and
(c) having to expend more resources to enforce the other terms of Price J.’s order. She would remain in financial difficulty until the equalization payment of $226,670.96 and costs were paid.
[5] The applicant’s position with respect to the sale of the matrimonial home was made in the context of acrimonious family law litigation in which the respondent’s actions frustrated the process and increased costs.
[6] In Price J.’s costs decision, he found that some of the respondent’s actions constituted unreasonable behaviour. The respondent failed to cooperate with the scheduling of questioning, resulting in multiple orders on that issue. He walked out of oral questioning before it was completed. He failed to comply with an order made by Heeney J. addressing household contents. The respondent did not file his income tax returns within the statutorily-required filing period. He only did so after the trial started. Justice Price also found that the respondent left matters alive “as legal issues to be pursued at trial, some of which he ultimately withdrew at the beginning of trial, others of which he withdrew at the end of the trial.” [1]
[7] The respondent did not deliver a waiver of appeal as requested by the applicant.
[8] The transfer of the matrimonial home to the respondent did not take place within the time provided for in Price J.’s order.
[9] On October 11, 2019, the applicant filed an appeal from those terms in Price J.’s order that granted the respondent the right to purchase the matrimonial home from her.
[10] The respondent started a Small Claims Court case naming the applicant and her counsel as defendants. This Small Claims Court case deals with the payment he made to retire the mortgage.
[11] On October 25, 2019, Price J. made a further order dealing with the contents of the matrimonial home. The order required the parties to exchange a list of household contents they required by 4:30 p.m. on November 22, 2019. Counsel for the applicant provided her list to the respondent on November 21, 2019. On November 22, 2019, the respondent sent an email to applicant’s counsel via “Gmail confidential mode.” This email could not be printed, nor could it be forwarded to the applicant for her review.
[12] The following motions are now before the court:
(a) the respondent asks the court to find that the applicant is in contempt because she failed to allow him to purchase her interest in the matrimonial home;
(b) the applicant asks for an order:
(i) that para. 3 of Price J.’s order, which provides for the respondent’s purchase of the matrimonial home, be stayed pending appeal;
(ii) that the provisions of Price J.’s order, at paras. 6 and 7 thereof, pertaining to the payment of the equalization payment, be lifted;
(iii) that an order be granted dismissing or postponing the respondent’s claim to household contents;
(iv) that the Small Claims Court action be dismissed;
(v) directing the respondent to communicate with the applicant and counsel by regular letter, facsimile, or unencrypted email that can be printed and forwarded;
(vi) allowing the respondent to be served by email; and
(vii) that the respondent not be allowed to take any further legal proceedings without leave of the court.
Contempt
[13] The respondent argues that the applicant is in contempt because of her refusal to sell him her interest in their matrimonial home, as provided for in para. 3 of Price J.’s order (the sale provision).
[14] The primary object of a contempt order is not to punish a party in general terms; rather, it is to compel respect for court orders and to preserve the integrity of the legal system.
[15] Before a finding of contempt can be made, the moving party must prove three elements beyond a reasonable doubt:
(1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done;
(2) the party alleged to have breached the order must have actual knowledge of it; and
(3) 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: Chong v. Donnelly, 2019 ONCA 799, at para. 5.
[16] In addition to considering the three elements, when determining whether to make a contempt order the court must take into account that it is an enforcement power of last resort rather than first resort. A finding of contempt should not be made if it would work an injustice in the circumstances of the case: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 36-37 and Chong, at para. 9.
[17] In this case, the applicant appealed the sale provision contained in Price J.’s order. She is entitled to bring this appeal. The applicant also moved for an order staying the sale provision. For reasons set out below, the stay is granted.
[18] In the circumstances of this case, where the order that gives rise to the request for a contempt order is stayed while it is under appeal, this court will not make a finding of contempt. Whether the applicant is required to comply with the sale provision will be determined on appeal. If the sale provision is set aside, the applicant was never required to comply with it. Until such time as it is determined whether the sale provision is upheld and enforceable, the making of a contempt finding is premature.
[19] Accordingly, the respondent’s request for a contempt order in respect of the sale provision is dismissed.
Stay of the Sale Provision
[20] The applicant asks for an order staying the sale provision of Price J.’s order pursuant to r. 38(35) of the Family Law Rules, O. Reg. 114/99.
[21] Rule 38(1) of the Family Law Rules provides that, if an appeal lies to the Court of Appeal, rr. 61, 62, and 63 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, apply.
[22] As the appeal from Price J.’s order is to the Court of Appeal, the Applicant’s request for a stay will be considered under r. 38(1) of the Family Law Rules and r. 63.02(1) of the Rules of Civil Procedure.
[23] The test for a stay is a three-stage test:
(1) firstly, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;
(2) secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused; and
(3) thirdly, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Jurewicz v. Jurewicz, 2015 ONSC 7563, at para. 33.
[24] The threshold to determine whether there is a serious question to be tried is a low one. All that must be established is that the appeal is not vexatious or frivolous: Jurewicz, at para. 34.
Serious Issue
[25] There is caselaw which provides that, in most situations where property is jointly held, the court should order that it be listed for sale. The rationale for this is that a joint tenant is entitled to the highest price for their interest, which may be more than the appraised value of the property: see Jantzen v. Jantzen, 2019 ONSC 3532, at paras. 37-38.
[26] I find that there is a serious question to be determined.
Irreparable Harm
[27] Justice Price’s order provides at para. 9 that, pending the sale, the applicant has exclusive possession of the matrimonial home. If the stay is not granted and the sale is concluded, the applicant will lose her right to exclusive possession. It is not clear on the evidence that she would be able to obtain other suitable accommodations. Her counsel argues that the respondent has not yet paid all of the equalization payment, without which the applicant will not have sufficient funds to obtain another property.
[28] The consequences of a sale before the determination of the outstanding legal issue on the merits constitutes, in this case, irreparable harm to the applicant should the stay not be granted. She will lose the right of exclusive possession and the possibility of realizing the highest price for her interest in the matrimonial home.
Greater Harm
[29] The harm to the applicant has been set out above. The respondent has not provided evidence of the harm that he would suffer should the stay be granted pending a decision on the merits.
[30] The applicant would suffer greater harm if the stay is not granted pending a determination on the merits.
Conclusion
[31] For these reasons, I find that the applicant has met the three-part test for the granting of a stay of the sale provision of Price J.’s order pending appeal.
Payment of the Equalization Payment and Costs: Lifting of the Stay
[32] The respondent now owes the applicant $186,670.96 on account of the equalization payment and costs of $40,000.
[33] The funds or sources that are to be used to pay the equalization payment are set out at paras. 6 and 7 of Price J.’s order.
[34] The applicant wants to enforce the payment of the equalization payment out of the funds or sources identified in the order. However, on delivery of the notice of appeal, the payment order is stayed: Rules of Civil Procedure, r. 63.01(1).
[35] The applicant seeks an order lifting the stay with respect to the payment of the equalization payment out of the identified funds or sources.
[36] Rule 63.01(5) of the Rules of Civil Procedure provides that a judge of the court to which the appeal is taken may order, on such terms as are just, that the stay does not apply.
[37] The court to which the appeal was taken by the applicant is the Court of Appeal.
[38] The effect of r. 63.01(5) is that, in this case, it is a judge of the Court of Appeal who has jurisdiction to lift the stay. A judge of the Superior Court has no jurisdiction to do so.
[39] The applicant’s request that this court lift the stay must be dismissed for lack of jurisdiction.
Transfer of Household Contents
[40] Justice Price’s orders dated September 11, 2019 and October 25, 2019 address the division and possession of items located in the matrimonial home.
[41] Justice Price’s order of September 11, 2019 provided that he remained seized in the event that the parties could not agree on the specifics of how they would create lists of items both wanted to retain.
[42] The order of October 25, 2019 provided that, if the parties were unable to agree on the division of any items, they were to schedule a further appearance before Price J.
[43] There remains a dispute about the division of the items in the matrimonial home. This dispute arises because the applicant’s lawyer could not forward to the applicant or print the list sent by the respondent of household contents he sought. The email the respondent sent to the applicant’s lawyer was sent via “Gmail confidential mode.”
[44] The respondent did not send a list by regular mail, unencrypted email, or fax to the applicant’s lawyer, despite a request that he do so.
[45] The applicant now asks that the respondent’s claim for items from the matrimonial home be dismissed or that he be required to produce a list that can be shared with her.
[46] Justice Price has reserved to himself the issue of the division of items in the matrimonial home. The applicant’s request for relief with regard to this issue is to be scheduled before Price J. as arranged by the trial coordinator.
Small Claims Court Case
[47] The respondent started an action in the Small Claims Court in which he named the applicant and her lawyer as defendants. The case concerns the payment made by the respondent toward the mortgage that was secured against the matrimonial home and for which the applicant was to be released as a condition of his purchasing her interest in it.
[48] The applicant seeks an order dismissing the Small Claims Court case as against her and her lawyer.
[49] The applicant argues that the Small Claims Court case is an abuse of process. This argument is based on the proposition that the respondent should address all property issues – including the mortgage – within the family law proceedings and not in a civil action based on a mortgage.
[50] There may be merit in that argument, however, the issue of the jurisdiction of this court to grant the relief requested must be considered.
[51] The applicant argues that the Superior Court of Justice, Family Court and I, as a judge of this court, have the jurisdiction to grant the relief requested. She relies on:
(1) Rules of the Small Claims Court, O. Reg. 258/98, r. 12.02(3), which allows a court to dismiss a claim on motion; and
(2) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 22(1), which states that the Small Claims Court is a branch of the Superior Court of Justice, and s. 22(3), which provides that every judge of the Superior Court of Justice is also a judge of the Small Claims Court.
[52] For the reasons that follow, I find that I do not have the jurisdiction to grant the relief sought.
Not Designated a Small Claims Court Judge
[53] In Petrella v. Westwood Chev Olds (1993) Ltd., Durno R.S.J. held, at para. 20:
For a Superior Court judge to preside in Small Claims Court, the Chief Justice or the Regional Senior Judge must designate the judge to preside in that branch of the Superior Court of Justice, s. 22(2) of the Court of Justice Act. Once that designation is made, the judge exercises his or her jurisdiction as a judge of the Small Claims Court, s. 24 (3) of the Courts of Justice Act.
[54] I am not aware that I have been designated to preside in the Small Claims Court branch.
Procedure to Transfer Cases not Undertaken
[55] The Family Court and the Small Claims Court are different branches of the Superior Court of Justice. The procedure to transfer a Small Claims Court proceeding to the Superior Court of Justice is found in s. 107 of the Courts of Justice Act. This procedure requires the consent of the plaintiff in the Small Claims Court proceeding: s. 107(2). The plaintiff has not consented to such a transfer. The steps needed to transfer the case to the Superior Court of Justice have not been taken.
Possible Combining of Cases
[56] Though s. 107 does not mention the transfer of a Small Claims Court case to the Family Court, there is authority to do so: Aguila v. Steingart, 2010 CarswellOnt 928 (Div. Ct.).
[57] It may be possible to combine the Small Claims Court case with the family law case to the extent that it is still outstanding with a related matter that is within the judge’s jurisdiction, but only with leave of the court. This request has not been made.
[58] Even if I were to consider the applicant’s motion as a request to combine the cases, the record is not sufficient for me to do so.
[59] From the evidence on this motion, the only outstanding matters in the family case are (not including enforcement):
(a) the appeal of the sale provisions at para. 3; and
(b) the division of household items at paras. 6 and 7 of Price J.’s order of September 11, 2019.
[60] Justice Price is seized with the household contents issue. The sale provisions are under appeal to the Court of Appeal.
[61] I accept that the Small Claims Court case is related to the sale of the matrimonial home. However, the evidence does not disclose exactly what relief is sought in the Small Claims Court case. As well, the record does not set out what relief is sought as against the applicant’s lawyer and the basis for such relief.
[62] The applicant’s request to dismiss the Small Claims Court case is dismissed without prejudice to the applicant initiating such other proceeding or process as may be proper, including addressing the matter at first instance in the Small Claims Court.
Restraining Order
[63] The applicant asks for an order pursuant to s. 46 of the Family Law Act, R.S.O. 1990, c. F.3, restricting the respondent’s communication with the applicant and her counsel to regular letter correspondence, facsimile, or unencrypted email that can be printed and forwarded.
[64] Relief under s. 46 requires evidence of the applicant having reasonable grounds to fear for her safety. The evidence needed to make this order has not been provided.
[65] Justice Price did not make a restraining order in his order of September 11, 2019. There is no evidence that, subsequent to that order being made, the respondent engaged in behaviour that would give rise to an order under s. 46.
[66] However, I will grant the relief requested under rr. 2(2) and 2(3)(b) of the Family Law Rules. The respondent should communicate with the applicant and her counsel in a manner that saves time and expense. Sending encrypted emails in the circumstances of this case only serves to unnecessarily complicate the applicant’s ability to instruct her lawyer or the court’s ability to review this communication.
[67] An order will go pursuant to rr. 2(2) and 2(3)(b) of the Family Law Rules that, pending further order of the court, the respondent shall communicate with the applicant’s counsel and the applicant by way of regular letter correspondence, facsimile, or unencrypted email that can be printed and forwarded.
Service by Email
[68] The applicant asks that the respondent be served via email at his email address weneedmorenoise@gmail.com.
[69] Under r. 2(1) of the Family Law Rules, “address” includes a person’s email address.
[70] In his notice of motion for contempt, the respondent includes his email address weneedmorenoise@gmail.com in his address. It would save time and expense to allow service on the respondent in relation to matters pertaining to the trial, as opposed to the appeal, by email at his email address.
[71] For these reasons, an order will go pursuant to r. 6(2)(e) of the Family Law Rules allowing the applicant to serve the respondent with documents by email at his email address weneedmorenoise@gmail.com.
No Further Proceedings without Court Order
[72] The last request made by the applicant is that the respondent “be restricted from proceeding with any further court proceedings without leave of the court.” She relies on r. 1(8)(e) of the Family Law Rules, which provides:
FAILURE TO OBEY ORDER
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; …
[73] The basis of this request is found at para. 37 of the respondent’s affidavit sworn December 5, 2019, which states:
That given the respondent’s history of abuse, unreasonable behaviour during the proceeding, failure to comply with court orders, and ongoing extensive litigation, I am asking the court to restrict the respondent, Marc Barry from proceeding with any further court proceedings without leave of the court until the equalization payment and costs awards have been satisfied.
[74] I find that the order requested by the applicant is neither necessary nor called for in the circumstances described in the evidence. The trial has been held and an order granted. The only outstanding issue in the trial has to do with household contents, which will be before Price J. If enforcement proceedings are taken, the court should be able to deal with them on the merits without the need for leave to proceed being required. I am not satisfied on the record that the request made by the applicant is necessary to deal justly with the outstanding issues in this matter.
Order
[75] An order shall issue as follows:
(1) The respondent’s request for a contempt order in respect of the sale provision is dismissed.
(2) The sale provision in para. 3 of Price J.’s order dated September 11, 2019 is stayed pending appeal.
(3) The applicant’s request to lift the stay with respect to the payment of the equalization payment out of the identified funds or sources is dismissed for lack of jurisdiction.
(4) The applicant’s request for relief on the division of items in the matrimonial home is to be scheduled before Price J. as arranged by the trial coordinator.
(5) The applicant’s request to dismiss the Small Claims Court case is dismissed without prejudice to the applicant initiating such other proceeding or process as may be proper, including addressing the matter at first instance in the Small Claims Court.
(6) Pursuant to rr. 2(2) and 2(3)(b) of the Family Law Rules, pending further order of the court, the respondent shall communicate with the applicant’s counsel and the applicant by way of regular letter correspondence, facsimile, or unencrypted email that can be printed and forwarded.
(7) Pursuant to r. 6(2)(e) of the Family Law Rules, the applicant shall be allowed to serve the respondent with documents, in matters pertaining to the trial, by email at his email address weneedmorenoise@gmail.com.
(8) The applicant’s request that the respondent be restricted from proceeding with any further court proceedings without leave of the court is dismissed.
“Justice B. Tobin” Tobin J. Date: January 14, 2020