Court File and Parties
Court File No.: FS-17-00021318-0000 Date: 2022-04-01 Superior Court of Justice - Ontario
Re: Jose Lopes And: Maria Lopes
Before: Justice J. Steele
Counsel: Carolina Paterson, for the Applicant Syed Kabir, for the Respondent
Heard: March 31, 2022
Endorsement
[1] This was a motion by the respondent, Maria Lopes, for a finding that the applicant, Jose Velosa Lopes, was in contempt in relation to the Order of Justice Horkins dated May 17, 2019. Mr. Lopes brings a motion for an order that the respondent’s contempt motion be dismissed.
[2] For the reasons set out below, the respondent’s contempt motion is dismissed.
[3] The consent Order of Justice Horkins, dated May 17, 2019, (the “Horkins Order”) provided:
The Applicant and Respondent agree that the litigation over property rights in Portugal shall continue in accordance with the law of Portugal, with the exception of the division of the joint account in Portugal from which the Applicant has received the sum of $234,000 CAN.
The Applicant shall sign any required documents to allow the rental of the real estate properties in Portugal pending the conclusion of that law suit. Any proceeds received from the rental of the properties will be applied to the payment of the expenses of all the properties since separation and any profit shall be paid to the Respondent’s Portuguese Lawyer, all subject to a proper accounting. The Applicant shall sign the documents necessary to transfer into an account on the Respondent’s name alone, subject to an accounting of rents and expenses in the Portuguese action. [emphasis added]
Forum Issue
[4] The applicant submits that the court does not have the jurisdiction to deal with disputes regarding property rights in Portugal by virtue of paragraph 5 of the Horkins Order. This paragraph confers jurisdiction on the Portugal courts to address litigation over property rights in Portugal.
[5] In my view, as the Horkins Order is an order of this court, the court has jurisdiction to hear a contempt motion regarding an alleged contempt of the Order.
[6] The applicant further submits that if the court determines it does have jurisdiction to deal with the matters set out in the respondent’s motion, the court should decline to do so in accordance with the principles of forum non-conveniens. This doctrine allows a court to exercise discretion to stay an action where there is a more convenient or appropriate forum elsewhere: McNichol Estate v. Woldnik, 2001 5679 (ONCA).
[7] The parties own 6 properties in Portugal. There is litigation ongoing in Portugal related to these properties, which is scheduled to conclude on April 28, 2022. The applicant argues that by bringing this motion in Ontario, the respondent is effectively “forum shopping”.
[8] I agree with the applicant’s submission that there is a real and substantial connection between the rights and obligations that flow from real property located in Portugal and the laws of Portugal. The respondent is asking that the Ontario court bestow rights upon her under a power of attorney about a month before the Portugal properties will be sold or distributed under Portuguese law. There is a genuine risk of a multiplicity of proceedings. Given the stage of the proceedings in Portugal, and the fact that the properties are all located in Portugal, in my view Portugal is the more convenient forum for these issues.
There are nuances of Portuguese law that may impact the analysis, such as the concept of the “Cabeça de Casal” (the “Head of the Household”).
Contempt Issue
[9] The respondent claims that the applicant has breached the Horkins Order by:
a. Failing to sign the required documents to allow rental of the properties in Portugal, pending conclusion of the law suit in Portugal;
b. Failing to allow proceeds from the rental of the properties in Portugal to be applied to the expenses of all the properties since the parties’ separation and also by failing to allow any profit to be paid to the respondent’s Portuguese lawyer, subject to a proper accounting; and
c. By failing to sign the documents necessary to transfer into an account in the respondent’s name alone the proceeds from the rental of the properties in Portugal, subject to an accounting of rents and expenses.
[10] The court’s jurisdiction to make a contempt order is found under Rule 31 of the Family Law Rules:
(1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.
[11] The onus of proving contempt lies upon the party making the allegation and the burden of proof is beyond a reasonable doubt: Mitchell v. Landriault, 2011 ONSC 4797.
[12] In Prescott-Russell Services for Children and Adults v. G.(N.) et al, 2006 81792 (ON CA), 2006 21037, [2006] O.J. No. 2488 (C.A.), the Court of Appeal set out the test to be satisfied in determining contempt, at para. 27:
The criteria applicable to a contempt of court conclusion are settled law. A three- pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
[13] Contempt of court is quasi-criminal in nature. There is a high burden of proof on the moving party, which has not been satisfied in this case. For there to be contempt, it must be established that the applicant deliberately or wilfully or knowingly did some act that was designed to result in the breach of a court order.
[14] The respondent argues that the applicant has prevented the Portugal properties from being rented. The evidence simply does not bear this out. In fact, there is evidence of one Portugal property being rented in 2019 following the Horkins Order. The respondent has not provided evidence of any rental agreements that the applicant has refused to sign, nor has she provided evidence of any rental opportunities that the applicant has refused to pursue.
[15] The Horkins Order states that the applicant will sign the required documents to allow the rental of the properties in Portugal. The respondent wants Mr. Lopes to sign a power of attorney to effectively remove him as the property administrator of their jointly held properties in Portugal, to be replaced with the respondent. The fact that the applicant would not sign a power of attorney in favour of the respondent is not a breach of the order. There is no evidence that the power of attorney document is what is required to allow for the rental of the properties in Portugal. Mr. Lopes’ evidence is that a power of attorney is not required in order for properties to be rented in Portugal. All that is required is a tenancy agreement and a tax number issued by Portugal’s tax authority.
[16] It is also clear that Mr. Lopes has taken care of settling the expenses related to the properties in Portugal, such as property tax bills.
[17] There is finger pointing by both parties in terms of what has gone on with the properties in Portugal. For example, Mr. Lopes states that Ms. Lopes surreptitiously and unilaterally signed leases for two of the properties. He states that the respondent failed to register these “illegal” rent agreements with the Portuguese tax authority. He alleges that Ms. Lopes has retained 100% of the rental income from these properties. Ms. Lopes says that the applicant has not properly deposited profits from the rental of other Portuguese properties to her Portuguese lawyer.
[18] The respondent has not satisfied me beyond a reasonable doubt that Mr. Lopes has wilfully or deliberately disobeyed the Horkins Order.
Disposition and Costs
[19] The respondent’s motion is dismissed. The applicant is entitled to costs. If the parties are unable to settle this issue by April 15, 2022, the applicant shall notify my judicial assistant, Polly Diamante. The applicant may make written submissions limited to 3 pages (plus bill of costs and any offers to settle) by April 29, 2022. The respondent may make responding written submissions limited to 3 pages by May 13, 2022.
Justice J. Steele
Date: April 1, 2022