Court File and Parties

COURT FILE NO.: FS-17-88382 DATE: 2022-01-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Comfort Alabi v. John Alabi

BEFORE: Emery J.

PARTIES: Comfort Alabi – Applicant - Self Represented John Alabi – Respondent - Self Represented

HEARD: December 9, 2021

REASONS FOR DECISION ON SENTENCING

[1] This decision follows an invitation to the parties in my Reasons for Judgment after trial released at 2021 ONSC 6921 (the “Reasons”) for the parties to make further submissions to the Court in two respects. The first invitation was extended for either party to address any mathematical correction to the calculation of their respective net family property calculations and the resulting equalization payment. This invitation permitted the parties to file submissions in writing under paragraph 135 of the Reasons.

[2] The second invitation was for Ms. Alabi, now known as Comfort Addy, to request a date for a sentencing hearing with respect to the contempt finding made against the respondent, John Alabi, in the Reasons.

Submissions of Ms. Addy on the Judgment

[3] Ms. Addy filed submissions with respect to certain findings made in the Reasons for Judgment on which she requested clarification, as follows:

(1) To confirm that none of the properties were purchased solely by the respondent. These properties included the rental property or land in Nigeria, the two properties in Welland and the matrimonial home in Brampton. She states that the properties were purchased by both of them and the larger share of the funds to purchase them came out of her earnings; and

(2) The sale of the property at 587 King Street in Welland is not resolved, and she does not know what is going on with the property now. Justice LeMay’s Order dated April 25, 2019, was registered against title to this property.

[4] Mr. Alabi made no submissions in response to Ms. Addy’s request for clarification, or to suggest any corrections to the mathematics in the Reasons or to seek any clarification of his own.

[5] I do not propose to explain the Reasons as they are taken to speak for themselves. However, to assist the parties so that they may organize their financial affairs and move on with their lives, each party should understand that the findings regarding the ownership of property for the calculation of net family property means that the party found to own a property in the Reasons will continue to own that property now that the case is over.

[6] The equalization payment Mr. Alabi has been ordered to pay serves to compensate Ms. Alabi for all interests in a property held in his name going forward. This equalization payment was realized by calculating the respective amounts payable to each of the parties from the net proceeds of sale from the matrimonial home held in trust by solicitor, Jide Oladejo, in paragraph 134 of the Reasons. The balance of $13,162.94 was left for Mr. Oladejo to hold in trust pending sentencing for Mr. Alabi’s contempt. This balance was withheld from the share of the proceeds from the matrimonial home otherwise payable to Mr. Alabi after equalization.

[7] Therefore, in answer to Ms. Addy’s first inquiry, the property or accounts held by each of the parties in their own names is owned by them. This means that Ms. Addy has been paid out for any interest or claim she may have to the properties owned by Mr. Alabi in Welland, Ontario or Nigeria, or in joint bank accounts that Mr. Alabi has taken over for himself.

[8] Similarly, this also means that Ms. Addy’s pension with Air Canada has already been factored into the equalization process. As I heard no evidence at trial that it has been divided at source, the entire family law value as of the date of separation was included in Ms. Addy’s net family property. She is entitled to receive the benefit of that pension entirely, free from any further claim by Mr. Alabi.

[9] In answer to the second inquiry, it follows that the property at 587 King Street in Welland that remains in litigation between Mr. Alabi and a prospective purchaser is his to dispose of, if and when that litigation is resolved. The successive orders made by Shaw J. on July 17, 2017, and Ricchetti J. on February 28, 2019, were designed to “parcel out” proceeds from the sale of various properties such as 6 Premier Place and the two investment properties in Welland without having to wait for a trial to adjudicate the equalization claim. Now that a trial has taken place, the equalization process has overtaken those previous orders.

[10] Neither of Ms. Addy’s inquiries raised any issue with respect to the mathematical calculations made in the Reasons on the equalization issue. The invitation to suggest corrections was extended on the express condition that any submission would not seek to change any underlying finding of fact or the substance of the judgment. However, the answers to these questions are a good way of moving to that part of this decision in which I will deal with the sentencing of Mr. Alabi for breaching court orders.

Sentencing for Contempt

[11] Even though the equalization process and the Judgment no longer requires Mr. Alabi to pay Ms. Addy one half the net proceeds of either property in Welland, his disregard of the previous Orders of this court cannot be excused. Breach of those Orders requires the Court to therefore impose the appropriate penalty for his conduct.

Governing principles

[12] Rule 60.11 (5) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, deals with sentencing alternatives for contempt of court. It provides that:

(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

[13] In Paramount Fine Foods v. Johnston, 2021 ONSC 6558, Myers J. summarized the purpose and objectives of sentencing for contempt under the following authorities:

[52] In United Nurses of Alberta v. Alberta (Attorney General), Chief Justice McLachlin, discussed how the rule of law was central to a consideration of contempt of court:

Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the court to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

[53] In Estate of Paul Penna, 2010 ONSC 6993, at para. 34, Greer J. adopted the following factors for sentencing for contempt of court:

[34] Society expects its laws to be upheld, whether in the civil or criminal context of a breach. Egregious conduct in society cannot be overlooked and cannot be swept “under the carpet”, as if the conduct had not occurred. In determining the appropriate sanctions, the Court may consider the factors as noted in Law Society of British Columbia v. Hansen, 2004 BCSC 825 at para. 108, 132 A.C.W.S. (3d) 43:

(a) the gravity of the offence; (b) the need to deter the contemnor; (c) the past record and character of the respondents; in particular whether the alleged contemnor has committed previous contempts; (d) the protection of the public; (e) the successful party’s ability to realize on the judgment; and (f) the extent to which the breach was intended.

[54] Greer J. also relied on the following at para. 38 of her decision:

[38] The Court of Appeal in Chiang, 2009 ONCA 3, [2009] O.J. No. 41, 2009 ONCA3, 78 C.P.C. (6th) 110 (C.A.) said in para. 86 that Madam Justice Lax recognized that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. They also noted that adults who are found in contempt must bear full responsibility for what they have done.

[55] Greer J. also said the following that I adopt:

[42] In determining what sanction or sentence to impose in civil contempt cases, the Judge has a wide range of options when exercising his or her discretion. As was said by Mr. Justice Borins, as he then was, in 777829 Ontario Ltd. v. McNally, [1991] O.J. No. 3458, 9 C.P.C. (3d) 257, 31 A.C.W.S. (3d) 739 (O.C.J.(Gen. Div.)), para. 16, “It is my opinion that unless proper penalties are imposed where a court order is deliberately disobeyed the orders of the court will have no real meaning.”

[43] Proper penalties make the public sit up and take notice. The word goes out into the community that the Court will not tolerate disobedience of its Orders. In this case, the “community” is specific as well as general in nature. [Emphasis added]

[56] In the Penna Estate case, the court was concerned with estate trustees and others who hold money or property in trust for beneficiaries. In this case, the context is broadcasting defamatory hate speech over the internet.

[57] In a recent case, Duncan v. Buckles, 2021 ONSC 5567, Goldstein J. described the sentencing principles in a case of contempt of court as follows:

[44] The whole point of punishing a contemnor is to maintain the rule of law: United Nurses of Alberta v. Alberta, 1992 1 S.C.R. 901 at p. 931. As Justice Watt put it in College of Optometrists of Ontario v. SHS Optical, 2008 ONCA 685 at para. 106: “The underlying purpose of contempt orders is to compel obedience and punish disobedience.” In Astley v. Verdun, 2013 ONSC 6734 (affirmed 2014 ONCA 668) at para. 16 I attempted to summarize the principles of sentencing in contempt cases:

• A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1; Chiang, para. 86; Mercedes-Benz Financial v. Kovacevic, [2009] O.J. No. 888, 308 D.L.R. (4th) 562, 74 C.P.C. (6th) 326 (Ont. S.C.J.) at para. 12.

• A sentence should be increased or reduced to account for aggravating or mitigating factors surrounding the contempt or the contemnor: Criminal Code, s. 718.2 (a); Chiang, para. 24; Sussex Group Ltd. v. Fangeat, [2003] O.J. No. 3348, 42 C.P.C. (5th) 274 (Ont. S.C.J.) at para. 67.

• A sentence should be similar to sentences imposed on similar contemnors for similar contempts committed in similar circumstances: Criminal Code, s. 718.2(b); Chiang, para. 24.

• Sentences should denounce unlawful conduct, promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders: Criminal Code, s. 718; Sussex Group Ltd. at para. 67; Chiang at para. 24.

• The Court should consider sanctions other than jail: Criminal Code, s. 718(2) (d) and (e); Sussex Group Ltd. v. Sylvester, [2002] O.J. No. 4350, 62 O.R. (3d) 123 (Ont. S.C.J. [Commercial List]) at paras. 80-82.

[14] The applicable principles for the sentence on a finding of contempt at a sanction hearing were also set out by the Court of Appeal in Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574. At paragraph 90 in Boily, Justice Epstein sets out the following factors relevant to make a determination of the appropriate sentence:

[90] The following are the factors relevant to a determination of an appropriate sentence for civil contempt:

a) The proportionality of the sentence to the wrongdoing;

b) The presence of mitigating factors;

c) The presence of aggravating factors;

d) Deterrence and denunciation;

e) The similarity of sentences in like circumstances; and

f) The reasonableness of a fine or incarceration.

[15] As various of those authorities reviewed by Myers J. in the Paramount Fine Foods case stated, the courts will apply the principle of proportionality to ensure that the sentence fits the circumstances of the contempt. In this way, the sentence must “fit” the gravity of the wrongdoing to reflect the primary objectives of ensuring court orders are obeyed and maintaining the rule of law.

Position of the parties

[16] Ms. Addy made submissions that the sentence for Mr. Alabi’s contempt is up to me to ensure a just result is achieved. Her primary intention is to make Mr. Alabi comply with any outstanding court order. If that is not possible, she asks the Court to make an order that does not punish Mr. Alabi so much as to make him a better person.

[17] Mr. Alabi acknowledges that he did not comply with the Orders of either Shaw J. or Ricchetti J. He appreciates the seriousness of the breach. He has expressed remorse at being found in contempt and he makes no excuses for his behavior.

[18] Mr. Alabi has remarried and has started a new family. He and his wife now have two children. He therefore has four children, including George and Adreanna.

[19] Mr. Alabi told the court that he is currently employed at a company as an accountant. He is therefore employed in a position of trust.

[20] For her part, Ms. Addy does not ask the Court to impose a custodial sentence on Mr. Alabi for his contempt. She is content to leave the nature and extent of that sentence to the discretion of the Court.

Sentence

[21] According to sentencing principles in Boily and later cases, I must apply the principle of proportionality of the sentence to the wrongdoing. This would make the Judgment for equalization of the net family properties between the parties relevant to sentencing.

[22] A period of imprisonment would be devastating to Mr. Alabi’s employment, and by extension, to his family. Each of these facts and possible consequences are a mitigating factor on sentencing. Imprisonment for a short period, or an intermittent custodial sentence, would be the kind of sentence that would not be proportionate to the breach of an order that is now effectively satisfied by the equalization order.

[23] The parties do not disagree that a fine would be the appropriate kind of sentence to impose on Mr. Alabi for his contempt. The fine would be payable to the Provincial Treasurer (now, Minister of Finance): Susin v. Susin, 2014 ONCA 733.

[24] Any fine that a court imposes as a penalty for the contempt of a party should compel obedience with the court order that party has breached: College of Optometrists of Ontario v. SHS Optical Limited, 2008 ONCA 685, 93 OR 3d 139. As the Court of Appeal stated in that case, it is essential that any monetary penalty that the court imposes not be, or appear to be, a license fee for further disobedience.

[25] Applied to the current circumstances, the fine must be of a sufficient amount to sanction Mr. Alabi for deliberately breaching the original orders. It must also be of a sufficient amount that it is not seen as the cost of doing business, or something taken in stride.

[26] The amount of the fine should be sufficient to reflect the principles of deterrence and denunciation for Mr. Alabi’s willful disobedience and knowing disregard of the orders. I also acknowledge that the amount should be tempered to reflect reasonableness, and to show judicial restraint for a court order that has ultimately been implemented. I say this because the parties advise me that neither of them has appealed the Orders I made in the Reasons. Ms. Addy informed the Court at the sentencing hearing that she has already been paid her share of the funds from Mr. Oladejo’s trust account, which includes her equalization payment.

[27] Upon applying the Boily factors, I order that John Alabi pay a fine of $6,500. The amount of this fine is reasonable in all the circumstances as it is sufficient to serve as a deterrent to future disobedience and takes into account his mitigating factors.

[28] It is also proportionate as it is approximately 10% of one half of the proceeds for 657 King Street that Mr. Alabi did not pay to Ms. Addy or to the Accountant of the Superior Court as and when he was ordered by the Court.

[29] This fine shall be paid from the $13,162.94 currently held in trust by Mr. Oladejo to the Minister of Finance within 30 days. The remainder of $6,662.94 may be released to Mr. Alabi from trust.

[30] Upon making these payments, Mr. Oladejo shall provide a receipt from the Minister of Finance to each of the parties, along with a final trust ledger statement.

[31] As no costs were requested by Ms. Addy on this hearing, no costs are awarded.

DATE: January 10, 2022 Emery J.