COURT FILE NO.: FS-20-20940
DATE: 20230630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrew Michael Richard Prinesdomu
Applicant
– and –
Stephanie Lynn Prinesdomu
Respondent
Richard Gordner, Counsel for the Applicant
Stephanie Lynn Prinesdomu – Self-Represented
HEARD: Motion heard November 23, 2022
ENDORSEMENT ON MOTION
HEBNER J.
[1] On October 7, 2022, I found the respondent in contempt of court. On November 23, 2022, I gave the parties an opportunity to provide written submissions on the issue of disposition. This is my ruling on disposition.
Background
[2] The order of Carey J. dated February 5, 2021, included, at paragraph 7(a), the following:
7(a) Neither party shall remove any funds from any joint lines of credit without the express written consent of both parties or further court order.
[3] In defiance of that order, the respondent removed $186,552.35 from the joint RBC lines of credit.
[4] In my October 7, 2022 endorsement, I gave the respondent an opportunity to explain and partially purge her contempt as follows:
The respondent said that she had at least $120,000 left from the monies she took. I ordered that she return $120,000 to the line of credit account, with $100,000 to be returned on that day and $20,000 to be returned within seven days;
I ordered that the respondent provide an accounting for the balance of the monies to include: how it was spent (with receipts if available); and, if not spent, where the monies were kept (name of bank/bank account with copies of statement balances). The accounting was to cover the balance of the monies, namely $66,552.35 and was to be provided to counsel and filed with the court within seven days.
[5] I scheduled a disposition hearing for November 23, 2022.
[6] The respondent returned $125,000 to the line of credit, leaving $61,552.55 outstanding.
[7] As for the accounting, the respondent uploaded approximately 90 documents to the Caselines file including documents identified as receipts and bank statements. She also uploaded a document entitled “list of funds spent” which contains a list of expenses and what appears to be her explanation. There is no proper accounting, but it does appear as though an attempt was made.
[8] The parties’ jointly owned matrimonial home has been sold. On November 23, 2022, in addition to an order providing for written submissions on disposition, I ordered that the respondent pay the following from her share of the sale proceeds: repay the sum of $61,552.35 to the RBC lines of credit; all interest on the funds she removed from those lines of credit; and costs to the applicant fixed in the amount of $6,413.60.
[9] The issues in this case include decision making and parenting time for the parties’ two children, Mason and Maximus, aged 11 and 5, child support, spousal support and an equalization of the parties’ net family property.
[10] The applicant asserts that the respondent has a history of drug abuse and opines that the funds taken from the joint line of credit were used to purchase illicit drugs.
Position of the Applicant
[11] The applicant's position is summarized in paragraph 10 of his reply factum. He asserts that:
- the respondent has consented to an order for supervised parenting time and that order has been in place since February of 2021;
- the respondent has a long history of drug and alcohol abuse, and orders are in place to provide for ongoing drug testing;
- the respondent is unemployed and minimum wage will have to be imputed to her;
- the equalization payment will be determined based on the parties’ financial statements.
[12] The applicant asserts that the respondent has nothing to add to this matter and her pleadings should be struck, with the respondent entitled to cross-examine witnesses, provide an opening statement and closing argument if she wishes.
Legal Principles
[13] Rule 2 provides guidance as to how the Family Law Rules, O. Reg. 439//07 as a whole should be interpreted. It provides, in part:
2(2) The primary objective of these rules is to enable the court to deal with cases justly.
[14] Rule 1(8) provides options to a court in dealing with a person who fails to obey a court order:
- 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.
[15] Rule 31(5) sets out the powers a court may exercise when it finds a person in contempt, including imposing penalties, requiring compliance, or forbidding a continuation of the contempt:
31(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.
[16] In Chiaramonte v. Chiaramonte, 2013 ONCA 641, the husband was found to be in breach of three orders for disclosure. His pleading was struck. The husband’s appeal was allowed.
[17] At para. 31, Tulloch J. A., speaking for the appeal court wrote,
In family law matters pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice.
[18] Continuing at para. 32, Tulloch J.A. said:
Striking a party's pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5) (b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way. (now Rule 1(8.4))
[19] In Purcaru v. Purcaru, 2010 ONCA 92 (Ont. C.A.), the husband had violated non-depletion and restraining orders. The trial judge struck the husband’s pleading. In doing so, the trial judge took into account the husband’s failure to remedy his breaches, the husband’s attempts to conceal his breaches until the eve of trial, the dim prospect of future disclosure and the impact of the husband’s continuing non-disclosure. The appeal was dismissed. At paras. 47-49, Lang J.A., speaking for the court, said:
I wholly accept Mr. Purcaru's argument that pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice.
This is particularly so in a family law case where the resulting judgment may provide for continuing obligations that can only be varied on proof of a change in circumstances. A change in circumstances may be difficult to establish if the initial judgment is based on incorrect assumptions, thus perpetuating injustice . . .
The adversarial system, through cross-examination and argument, functions to safeguard against injustice. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. As this court said at p. 23 of Marcoccia v. Marcoccia (2008) 2008 ONCA 866, 60 R. F. L. (6th) 1 (Ont. C.A.) the remedy of striking pleadings is a "serious one and should only be used in unusual cases". The court also explained at p. 4 that the remedy imposed should not go "beyond that which is necessary to express the court's disapproval of the conduct in issue." This is because denying a party the right to participate at trial may lead to factual errors giving rise to an injustice, which will erode confidence in the justice system.
[20] I take from these decisions, that the remedy of striking a party’s pleadings is to be used only where there is no other appropriate remedy that would hopefully persuade a party to comply with orders.
[21] The sanction for contempt must be proportionate to the nature of the contempt and the mitigating and aggravating circumstances (Peers v. Poupore, 2012 ONCJ 606, 2012 CarswellOnt 6289). Sentencing for contempt should be restorative to the victim and punitive to the contemnor (Weber v. Merritt, 2018 ONSC 7590).
[22] In Boucher v. Kennedy, [1998] O.J. No. 1612 (C.J.), the following factors were considered when determining the appropriate sanctions:
(a) whether the contemnor had admitted the breach;
(b) whether the contemnor has demonstrated a full acceptance of the paramountcy of the rule of law, by tendering a formal apology to the Court;
(c) whether the breach was a single act or part of an ongoing pattern of conduct in which there were repeated breaches;
(d) whether the breach occurred with the full knowledge and understanding of the contemnor that it was a breach rather than as a result of mistake or misunderstanding;
(e) the extent to which the conduct of the contemnor displayed defiance;
(f) whether the Order was a private one, affecting only the parties to the suit or whether some public benefit lay at the root of the Order;
(g) the need for specific and general deterrence; and the ability of the contemnor to pay.
[23] In Crawford v. Crawford, 2016 ONSC 2144, the husband failed to comply with an order that he advise his wife's lawyer of the sale of his two properties if and when they sold. The husband was found in contempt and was ordered to pay a penalty of $2,500 to the wife.
[24] In Dumont v. Lucescu, 2016 ONSC 1042, the husband was found in contempt of various court orders for disclosure. He was given 45 days to purge his contempt and provided most of the disclosure that had been ordered. The penalty ordered for contempt was a penalty of $5,000 and a fine of $10,000 for the stress, anxiety and trouble that the contempt had caused to the wife. While he had significantly complied with the orders for disclosure, he did not repay the money he knew he should not have withdrawn. He had many chances to comply, which he ignored. Once the husband paid the penalty, outstanding costs awards and support arrears, he was at liberty to book a case conference.
[25] In Brar v. Dhinsa, 2008 CarswellOnt 1874 (Ont. S.C.J.), the husband sought an order that the wife was in contempt for failing to comply with a consent order. The consent order, made at a case conference, provided that the parties would exchange updated financial statements, with supporting documents, by a specified date. The husband complied with the order and the wife did not. Lemon J. stated that neither the wife nor her counsel had taken the production order seriously. The wife had been given ample opportunity to respond to the motion or to purge the contempt. The court found that the wife's actions were not simply inadvertence or inadequate disclosure that often occurred in family law matters. The conduct of the wife was deliberate and egregious and amounted to contempt of a court order. The wife was ordered to pay $5,000 to the husband forthwith. She was further ordered to pay $1,000 to the husband per month for every month that she failed to comply with the order.
[26] In Roby v. Roby, 2003 CarswellOnt 4581 (Ont. S.C.J.), the wife sought an order finding the husband in contempt for failing to obey two orders, one prohibiting the dissipation of assets and one requiring disclosure of particulars of a lump sum payment received by the husband. The husband conceded that he was in contempt of the two orders. The court was left to determine the appropriate penalty. Campbell J. stated that the penalty for contempt is not intended to compensate a wronged party but is intended to be a form of punishment for the contemnor and found that the appropriate penalty was a payment of $5,500 to the wife for the first contempt and a payment of $7,500 to the wife for the second contempt. The penalties were payable forthwith.
Application of the Legal Principles to This Case
[27] I start by noting that, if the respondent’s pleading is struck, then her claims for spousal support and an equalization payment are gone. There would be no determination on these issues, unless the applicant chose to pursue an equalization payment.
[28] The question then becomes, should the respondent be entitled to participate in this proceeding and proceed with her financial and parenting claims?
[29] The respondent, in her written submissions, said that she called RBC customer service to determine whether the court order was still in effect prior to withdrawal of the funds. She asserts that had RBC advised her that the court order was still in effect, she would not have taken the monies. She states that an executive of RBC later contacted her by telephone and admitted a mistake had been made.
[30] The respondent explained in her submissions that she withdrew the monies to pay for daycare, mortgages, credit lines, motor vehicle insurance and utilities, among other expenses. While that may be the case, the fact remains that a clear term in a court order was breached. If the respondent wished to access the lines of credit, then she ought to have returned the matter to court to request an amendment to the order that was in place. There must be some consequences to the respondent for such a flagrant breach of a court order.
[31] In determining the appropriate penalty, I take into account the fact that this was a one-time event rather than a continuing course of conduct on the part of the respondent. I take into account the respondent’s attempts to repay the monies she took and the fact that she deposited the total sum of $125,000 against the line of credit. Although a proper accounting was never completed, I take into account the fact that the respondent is self represented and clearly has challenges organizing her materials. She did provide a significant number of receipts and bank statements in her attempt to account for the funds.
[32] Mr. Gordner fairly conceded that there will be sufficient funds from the respondent’s share of the proceeds of sale of the matrimonial home to repay the money she took and to put the parties back on the same footing as they would have been had there been no withdrawal of the funds in the first place.
[33] Taking all of these circumstances into account, I am not prepared to strike the respondent’s pleading. In my view, particularly where there are children involved, the respondent must be given the opportunity to participate in the action. Moreover, the loss of the right to pursue her spousal support and equalization claims would be a disproportionate penalty to the one-time breach of a court order, particularly where the applicant’s position has been restored.
[34] In many of the cases summarized above, the court made use of its ability to impose a financial penalty on the breaching party. I intend to do the same thing here. In my view, a financial penalty of $10,000 to be paid to the applicant is an appropriate and proportionate penalty. Such a fine is a significant consequence to the respondent for her contempt of the court order and sends a message to the parties, and the public at large, that contempt of court orders cannot and will not be tolerated.
Disposition
[35] For these reasons, I order that the respondent pay to the applicant the sum of $10,000 as a penalty for her breach of the order of Carey J. dated February 5, 2021. The penalty shall be paid from the respondent’s share of the proceeds of sale of the matrimonial home. If there are insufficient proceeds for the payment of the penalty, then the penalty shall be paid by the respondent to the applicant after a final judgment has been rendered in this matter such that, if there are any monies owing to the respondent, the penalty shall be credited against those monies in favor of the applicant.
Original Signed by “Justice P.L. Hebner”
Pamela L. Hebner
Justice
Released: June 30, 2023
COURT FILE NO.: FS-20-20940
ONTARIO
SUPERIOR COURT OF JUSTICE
Andrew Michael Richard Prinesdomu
– and –
Stephanie Lynn Prinesdomu
ENDORSEMENT ON MOTION
Hebner J.
Released: June 30, 2023