Court File and Parties

Court File No.: FC1787/13-1 Date: May 10, 2022 Superior Court of Justice – Ontario Family Court

Re: Adam Edward Campbell, Applicant And: Katie Campbell, Respondent

Before: Mitrow J.

Counsel: The parties, in person

Heard: written submissions filed

Costs Endorsement

[1] I have received both parties’ written costs submissions, as permitted by my order dated March 17, 2022 (“the compliance order”).

[2] The respondent had brought a motion to require the applicant to comply with an order for financial disclosure made on November 13, 2020.

[3] The respondent was successful. An order was made containing detailed provisions as to how, and by when, the applicant was to comply with the disclosure order, which included significant corporate financial disclosure.

[4] In his submissions, the applicant requests costs of $12,600. It is not clear whether this is in addition to, or includes, costs totalling $16,413.25 that include legal fees, fees for an income assessment, and other costs and disbursements as listed therein.

[5] The respondent submits that the applicant’s conduct is such that the court should award a fine or monetary penalty against the applicant for his failure to produce the financial disclosure. The respondent quantifies this amount at $500 per day. She adds up the number of days since the disclosure order was made until the date of the compliance order and submits that the applicant should pay $244,500.

[6] The first issue is whether it is appropriate to consider a fine or monetary penalty as requested by the respondent.

[7] The jurisprudence in Ontario is unsettled as to whether noncompliance with a court order can lead to a fine or monetary penalty, in the absence of a motion for contempt, and a finding of contempt, pursuant to r. 31 of the Family Law Rules, O. Reg. 114/99.

[8] The respondent relies on Granofsky v. Lambersky, 2019 ONSC 3251 (Ont. S.C.J.). That case dealt with a situation where the responding party had a chronic history of noncompliance with financial disclosure orders. The moving party’s motion included a request to impose a monetary penalty in such amount as the court considered just. Even though there was no motion for contempt, the court held that it had jurisdiction to award a monetary penalty. The court ordered disclosure compliance within a specified time, failing which a monetary penalty of $500 per day would be paid for each day of noncompliance.

[9] A key consideration in Granofsky, and other cases mentioned below, is the scope as to what a court may order under r. 1(8) where a party fails to obey an order. Rule 1(8) states:

(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,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(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;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

[10] Rule 31 deals with motions for contempt. If a finding of contempt is made, then the court may make an order as set out in r. 31(5):

(5) If the court finds a person in contempt of the court, it may order that the person,

(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.

[11] In contrast, in Shapiro v. Feintuch, 2018 ONSC 6746 (Ont. S.C.J.), the court, in considering r. 1(8), declined to order $2,500 as sought by one of the parties, as a payment over and above that party’s legal fees. The court held that such an order could be made on a finding of contempt, but was outside of the scope of r. 1(8): see paras. 38 and 39.

[12] It is noted that in Granofsky, Shapiro was discussed, although the court came to a different conclusion in Granofsky as to the scope of r. 1(8).

[13] In Mantella v. Mantella, 2009 ONCA 194 (Ont. C.A.), the motion judge ordered payment of a fine in the amount of $2,500 per day as a result of a failure to comply with a disclosure order. This finding of noncompliance was not made pursuant to a contempt motion. In dismissing the appeal on the procedural grounds that the appeal from the interlocutory order should have been brought in Divisional Court, the Court of Appeal for Ontario stated the following regarding the potential remedies for noncompliance with an order in the absence of a contempt ruling, at para. 23:

The central issue raised in this appeal is whether, absent a finding of contempt, a judge has the jurisdiction under the Family Law Rules to impose and order payment of a fine as part of the case management process. In other words, as submitted by the respondent, is the authority conferred by any of Rules 1(8), 14(23) or 19(10) broad enough to allow for the making of such orders? Whether a fine or penalty can be imposed absent a finding of contempt, and to whom the fine is payable, are novel issues and are important. The novelty and importance of the issues do not, however, make the order into a final one for purposes of appeal.

[14] Bouchard v. Sgovio, 2021 ONCA 709 (Ont. C.A.) considered the scope of r. 1(8), but in the context of non-compliance with a parenting order. The motion judge, as a remedy for the father’s noncompliance with a final parenting order, made an interim order restraining the father from having any contact with the children for at least 90 days, together with a temporary parenting order in favour of the mother, and allowing the children to be enrolled in a program to deal with the effects of the father’s conduct.

[15] The majority of the Court of Appeal for Ontario found that r. 1(8) has not been interpreted as being confined to purely procedural matters, and, in dismissing the appeal, held that broad and purposeful applications of r. 1(8) are sensible: paras. 50 and 51.

[16] In commenting as to any potential limits on the scope of r. 1(8), including the imposition of fines, the following was stated in Bouchard, at para. 52:

I use the term prima facie authorized because I do not mean to suggest that there are no limits to the kinds of enforcement orders that can be made under r. 1(8). For example, it may well be that the remedies that are provided for in r. 31(5), which is reproduced below, cannot be imposed pursuant to r. 1(8), absent a successful contempt motion as contemplated by r. 1(8)(g): see Mantella v. Mantella, 2009 ONCA 194. This proposition seems sensible since contempt orders require proof beyond a reasonable doubt, and although they are remedial in purpose, they are punitive in nature, and are therefore to be used as a last resort: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3; Prescott-Russell Services for Children and Adults v. G. (N.), [2006] 82 O.R. (3d) 686 (Ont. C.A.), at para. 26. I need not resolve this specific question since the ground of appeal before us concerns only the temporary parenting order and the Building Bridges order, neither of which are remedies contemplated by r. 31(5); the father did not appeal the Hughes Order where the motion judge did impose punitive fines without making a finding of contempt against the father, nor did he raise any objections in this appeal to the motion judge’s order that those fines would “remain in full force and effect”. Nevertheless, this illustration demonstrates that there may be other legal limits on the kinds of orders that courts may impose under r. 1(8). [Emphasis added.]

[17] In the present case, the respondent made no claim in her motion for a fine or monetary payment. This is different than Granofsky, relied on by the respondent, where that relief was specifically requested.

[18] Although the respondent claimed costs in her motion, I do not view costs as including a fine or monetary penalty.

[19] I consider that there was some delay in hearing the respondent’s motion because the applicant sought leave to appeal to Divisional Court (which was denied), the respondent’s initial motion for compliance was dismissed on a procedural basis and the motion was adjourned on consent to allow a further settlement conference to proceed first on the substantive issues in this case.

[20] Considering the foregoing, including the lack of notice, and having regard to the conflicting jurisprudence, I decline, on the facts, to make an order for a fine or monetary penalty. Further, the history and extent of the nondisclosure in Granofsky was extreme and ongoing, with numerous orders being made and ignored, and is distinguishable from the present case.

[21] As the respondent was successful, she is presumptively entitled to costs.

[22] The respondent can be awarded costs even though she is self-represented. Although self-represented litigants are not entitled to costs on the same basis as litigants represented by counsel, they can recover costs where they devote time and effort to do work ordinarily done by a lawyer: see Fong v. Chan, [1999] O.J. No. 4600 (Ont. C.A.); and Jordan v. Stewart, 2013 ONSC 5037 (Ont. S.C.J.).

[23] I consider the factors in r. 24(12) in the context of reasonableness and proportionality. The issues on the motion were important. The respondent prepared her own material, although I take into account that some of the material was excessive and irrelevant. Both parties made offers, but none of the offers engage the costs consequences of r. 18(14).

[24] I consider also that the applicant’s behaviour in failing to comply with the disclosure order was unreasonable.

[25] I find that $2,500 is appropriate. No disbursements were claimed. I do not consider HST as the respondent is self-represented. The motion for financial disclosure was related to child support, and the costs order will be enforceable by the Director.

Order

[26] I order as follows:

1. The applicant shall pay to the respondent her costs of the motion fixed in the amount of $2,500 within 30 days.
2. The full amount of the costs in paragraph one of this order shall constitute a support order within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, and shall be enforceable by the Director.

“Justice Victor Mitrow” Justice Victor Mitrow Date: May 10, 2022