Court File and Parties
COURT FILE NO.: FC-15-2429 DATE: 2021/02/18 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sophie Latreille, Applicant, Self-Represented -and- Alain Bard, Respondent, Represented by Pamela Barron
BEFORE: Justice P. MacEachern
HEARD: Motion heard February 18, 2021, by videoconference
Endorsement
[1] The Applicant, Ms. Latreille, brings a motion seeking a finding that the Respondent, Mr. Bard, is in contempt of several terms of Justice Doyle's Final Order dated July 26, 2017 (“the Final Order”).
[2] The Applicant brought this contempt motion within the previous proceedings, which is allowed for contempt motions under the Family Law Rules. There has not been a case conference.
[3] In effect, Ms. Latreille's motion is her attempt to enforce the terms of the July 26, 2017 Final Order that provide for the parties to exchange income information, update child support, and share s. 7 expenses.
[4] The July 26, 2017 Final Order, which was made on consent and incorporated the terms of the parties' Minutes of Settlement, requires that the parties attend mediation. They have not attended mediation.
[5] A mediation term in an order is not a basis to avoid a contempt motion if there is contempt. Simply put, a party is not insulated from being in contempt of their obligations under one term of an Order, because of a requirement, under another term of the Order, that they mediate disputes.
[6] At the same time, the test to establish contempt is a high one. The object of a contempt proceeding is remedial, not punitive. The goal is to ensure compliance with court-ordered obligations. To establish contempt, the Order must be clear and unequivocal. The contemnor must have breached the Order deliberately and wilfully. The standard of proof is beyond a reasonable doubt.
[7] Motions for contempt should only be brought as a step of last resort. It is not a step that should be taken as a first resort.
[8] The Ontario Court of Appeal set out the following principles in Hefkey v. Hefkey, 2013 ONCA 44:
a. The civil contempt remedy is one of last resort;
b. A contempt order should not be granted where other adequate remedies are available to the aggrieved party, i.e. in relation to an alleged access denial, a variation or enforcement of the access order;
c. Great caution should be exercised when considering contempt motions in family law cases;
d. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.
[9] In Jackson v. Jackson, 2016 ONSC 3466, [2016] O.J. No. 2870 (SCJ, Justice Chappel provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:
a. It ultimately remains a matter for the Court's discretion;
b. because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;
c. it cannot be reduced merely to a mechanism for enforcing judgments;
d. it should be used sparingly and as a measure of last resort where there are no other adequate remedies available;
e. it is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted;
f. the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.
[10] This morning, before the motion was heard, the parties had an opportunity to resolve matters outside of the Court. The parties did not agree to settle the motion. Still, at the outset of the motion, the Applicant advised that she was agreeable to attending mediation to address the review and adjustments to child support and the amounts owed for s. 7 expenses. The Respondent also agrees to do so, and I have made the Order below given this agreement and the requirement to mediate that is included in the Final Order.
[11] The Applicant's only requests then, at the motion, were for further income information from the Respondent and that he comply with his obligation to direct his insurer to send reimbursements to her directly. The Respondent, for his part, sought costs.
[12] I would not have found the Respondent in contempt related to the s. 7 expenses issue. The Order is not clear and unequivocal that the Respondent is required to pay the Applicant's amounts claimed. Instead, the Order provides that the parties share s. 7 expenses mutually agreed upon in advance in writing, such consent not to be unreasonably withheld. There are issues with the Applicant's expenses, as well as reconciliations with expenses incurred by the Respondent – these are not contempt issues.
[13] I would also not have found the Respondent in contempt on the review and adjustment of child support. The Order provides that if the parties do not agree on child support adjustments, the dispute resolution provisions apply, which requires mediation. Both parties have agreed to mediation. There may be issues with what has taken place in the past, but again, civil contempt powers are remedial such that the focus is on the parties' conduct, now, to comply with the Order.
[14] The Final Order requires that, if there is a request to review child support, the parties exchange information within thirty (30) days of the request for a review, including documents required under the Guidelines, current details on section seven expenses, current information about a claim for undue hardship, if either party makes such a claim, and any other information required to review child support.
[15] The Applicant complains that the Respondent repeatedly refused to provide his income information, necessitating this motion. But the Respondent has now, as of December 8, 2020, delivered his income information. There are issues about why this information was not provided earlier. The Respondent has also asked for the Applicant's income information, which she still has not delivered.
[16] The Final Order’s obligation to provide income information is clear and unequivocal. The wording does not state the information only has to be provided once the other side has provided their information. It is hopefully apparent to the parties how circular and unhelpful this strategy is in resolving disputes. This position is also completely devoid of merit and does not serve either party's interests in advancing their position before the Court.
[17] But again, given that contempt proceedings should only be used as a last resort, and the objective is compliance, I would not make a finding of contempt on this issue either. To the extent that the Respondent was non-compliant with his obligation to provide income information, he has provided his income tax returns and notices of assessment on December 8, 2020. Even if he was in contempt before that date, he is not in contempt now.
[18] It is also more appropriate and more constructive to instead clarify what disclosure remains outstanding that is required to review child support, and therefore required to be provided under the Final Order. Further information is needed from both parties, and I have therefore made the orders below.
[19] The Applicant has not provided her income information. She argues that her income information is not required to review child support because the child is in her primary care and the Final Order provides for the parties to share s. 7 expenses equally. I disagree. The review provisions specifically contemplate that the parties may review the sharing of s. 7 expenses. Paragraph 2.11, under the review process, provides for the parties to share information about s. 7 expenses. Paragraph 2.12 specifically directs that pending any adjustment to child support, the parties shall continue to pay the child support and the contribution to s. 7 expenses as provided in the most recent agreement or court order. Given this, I find that the equal sharing of s. 7 expenses is part of the review process, which means that the Applicant is required to disclose her information as required under s.21 of the Child Support Guidelines (CSG’s). This involves expanded disclosure, given she operates through a corporation.
[20] The issue of whether any adjustment to the equal sharing of s. 7 expenses in the Final Order requires a material change in circumstances (referenced in paragraph 3.13 of the Final Order), or merely a change in circumstances (the test under the CSG’s) will need to be determined at a later date if the parties are not able to resolve matters in mediation.
[21] The disclosure orders below relate to the income of the parties since July 1, 2017. The Final Order provides for child support commencing July 1, 2017, of $874.14 per month based on the Respondent's income of $99,261. As I indicated at the hearing of this motion, absent circumstances that justify setting aside terms of the Final Order, a court adjudicating this matter would not go behind the terms of the Final Order. This means that the starting point is to review monthly child support payments only after July 1, 2017, subject to any arguments about when a request was made to review the support after that date.
[22] There are some amounts claimed for s. 7 expenses incurred after the Minutes were signed but before the Final Order was issued. The Final Order does not stipulate a start date for the sharing of s. 7 expenses. Given this, the disclosure should be exchanged related to any s. 7 expenses for which either party claims contribution for the period after the Minutes were signed.
[23] I have included 2016 income information in the disclosure below. I have done so because the Final Order required the parties to exchange income tax returns and notices of assessment for 2016 within 15 days of the Final Order being granted. Notably, both parties are required to disclose their 2016 income information. 2016 income information is also relevant to determining what child support is payable after July 1, 2017, given the parties' practice to base child support on the previous years' income.
[24] The Final Order requires, at paragraph 5.3, that the Respondent request and authorize his insurance company to make reimbursements payable to the Applicant directly. The Respondent has two insurance plans – medical and dental. He has not authorized reimbursement directly to the Applicant on one of these plans and states that he did so to benefit the Applicant, for further reasons that I will not specify here. I viewed this explanation with suspicion, given the Applicant has been reasonably clear that she wants the reimbursement to be sent to her directly. At the motion, the Respondent's position is that he is prepared to submit this authorization immediately and no later than 30 days from today.
[25] Adjustments to child support and determining what is owing on s. 7 expenses will need to be determined under a new proceedings (motion to change), if the parties do not resolve these issues in mediation (or agree to arbitration).
Disposition
[26] For the above reasons, I make the following orders:
a. The Respondent shall immediately comply with his obligation under paragraph 5.3 of the Final Order by requesting and authorizing his insurance company to make reimbursement payable to the Applicant directly on both his medical and dental plans. The Respondent shall provide the Applicant with a copy of his request and authorization to directly reimburse the Applicant no later than 30 days from today's date. The Respondent shall provide a copy of any response to this request from his insurer, to the Applicant, within 14 days of receipt.
b. The Respondent shall provide the following disclosure related to his income to the Applicant within 30 days:
i. The Respondent's position on what his income is for child support purposes for 2016, 2017, 2018, and 2019 and how he calculates this. This includes an explanation of the carrying charges that appear on the Respondent's tax return (if these are deducted from his income for child support purposes and, if so, his position on why this is appropriate), with supporting documents (which may be already be included as part of his tax return filings);
ii. A copy of every personal income tax returns filed by the Respondent, including all schedules and attachments, for each of the years 2016, 2017, 2018 and 2019, if not previously provided;
iii. A copy of every notice of assessment and reassessment issued to the Respondent for the years 2016, 2017, 2018 and 2019, if not previously provided;
iv. For his business,
The financial statements for his business for the years 2016, 2017, 2018 and 2019, if not previously provided or otherwise included as a schedule to his income tax returns;
A statement showing a breakdown of all salaries, wages, management fees or other payments or benefits deducted as expenses by his business paid to, or on behalf of, persons or corporations with whom the Respondent does not deal at arm's length (including the Respondent). This shall include a statement of any personal benefits that the Respondent receives from expenses paid through his business.
v. Supporting documentation to confirm if the Respondent's income in 2016, 2017, 2018, 2019 or 2020 was reduced because he was on leave from employment without pay for any period. The Respondent believes this will be confirmed by producing confirmation of his full-time salary for the years in issue and comparing these to his income tax information. However, he also agrees to request, on an immediate basis, a letter from his employer confirming any periods he was on leave without pay from 2016 to present, and to provide a copy of this request, and any response, to the Applicant.
vi. The Respondent advises that there are some issues with his income information due to the Phoenix pay problems. If the Respondent takes the position that his income tax information is not accurate because of Phoenix pay issues, he shall provide supporting documents from his employer on the status of these issues;
c. The Applicant shall provide the following disclosure related to her income to the Applicant within 30 days:
i. The Applicant's position on what her income is for child support purposes for the years 2016, 2017, 2018, and 2019 and how this is calculated;
ii. A copy of every personal income tax returns filed by the Applicant, including all schedules and attachments, for each of the years 2016, 2017, 2018 and 2019, if not previously provided;
iii. A copy of every notice of assessment and reassessment issued to the Applicant for the years 2016, 2017, 2018 and 2019, if not previously provided;
iv. For her corporation,
The financial statements for her corporation for the years 2016, 2017, 2018 and 2019, if not previously provided;
A statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation does not deal at arm's length (including the Applicant). This shall include a statement of any personal benefits that the Applicant receives from expenses paid through her corporation.
d. If not previously provided, each party shall provide the other with a list of any s. 7 expenses for which they seek contribution from the other, along with all supporting documentation showing the amount of the expenses, that there was mutual agreement to incur the expense if applicable, that consent was unreasonably withheld if applicable, and that the expenses are a proper expense under s. 7 of the CSG’s;
e. If there is an issue where one party believes they have previously provided the document, but the other party advises that they do not have a record of the document, the document shall be provided again. I encourage the parties to use a document sharing platform such as Dropbox, OneDrive or Google Drive to facilitate sharing documents and tracking what documents have been exchanged.
f. Until the parties have resolved their current dispute on adjustments to child support and s. 7 expenses, by agreement or court order, they shall each file their income tax returns promptly and provide ongoing timely disclosure of their income information in the same manner for previous years as set out above, on an ongoing basis;
g. On consent, the parties shall comply with the requirement to mediate set out in paragraph 3.2 of Final Order by attending mediation with Ms. Guindon at the earliest opportunity, taking into account the timelines for the above disclosure Ms. Guindon's availability. If Ms. Guindon is unavailable or unwilling to act, the terms of paragraph 3.2 of the Final Order continue to apply.
Costs
[27] For reasons given orally, the Applicant shall pay the Respondent cost of this motion fixed at $750, payable immediately.
Dated: February 18, 2021
Justice P. MacEachern