Auciello v. Yao, 2023 ONSC 5188

Court File and Parties

COURT FILE NO.: FS-18- 3680 DATE: 20230914 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

VITO AUCIELLO Applicant – and – WEI YAO Respondent

Counsel: Self-represented (Applicant) Self-represented (Respondent)

HEARD: September 12, 2023

ORDER

S. SHORE J.

Endorsement

1This is a motion for an order finding the Respondent in contempt of the final order of Justice Steele, dated April 19, 2022 (the “Order”), which ordered the Respondent to provide the Applicant with vacant possession of the property known as 21 Yewfield Crescent, Toronto, Ontario (the “Property”).

2For the reasons set out below, I find beyond a reasonable doubt that the Respondent is in contempt of the Order under r. 31 of the Family Law Rules (the “FLRs”). If the Respondent’s contempt of the Order is not rectified by September 22, 2023, the Respondent shall attend before this court for sentencing. The penalties for being in contempt of a court order were set out in my last endorsement.

Finding of Contempt

3For a party to be found in contempt of a court order, three elements must be proven beyond a reasonable doubt:

1. the order alleged to have been breached must state clearly and unequivocally what should and should not be done;
2. the party alleged to have breached the order must have had actual knowledge of it; and
3. the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.

1. The Order was clear and unequivocal.

4The litigation between the parties has been long and protracted. There have been several court orders (and even one made on consent of the parties) requiring the sale of the Property and requiring the Respondent to give the Applicant exclusive possession of the Property in order to facilitate the sale.

5Ultimately, the parties participated in a ten-day trial in January 2022 before Justice Steele. Justice Steele released her decision on April 19, 2022, which ordered the sale of the Property. The Order was clear that the Respondent was to vacate the Property and give the Applicant exclusive possession within 30 days of the Order.

6The precise wording of the Order, at para. 82(a), is as follows:

Ms. Y. shall have 30 days from the date of this judgment to vacate the Yewfield Property.

7There is nothing unclear or ambiguous regarding the Order for the Respondent to vacate the Property.

2. The Respondent had knowledge of the Order.

8There is no dispute that the Respondent had knowledge of the Order.

3. The Respondent failed to vacate the Property.

9There is no dispute that the Respondent failed to vacate the Property within 30 days and had not vacated the Property as of the date of this motion.

10I find the three elements required to find the Respondent in contempt of the Order have been proven beyond a reasonable doubt.

Defence

11There are situations where the reasons for a breach provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order. Thus, there is both a subjective and objective component: Brown v. Walowski, 2013 ONCJ 473, at para. 41. For example, notwithstanding that a parent has a subjective belief that another parent’s access cannot take place, a denial of access may amount to contempt if the belief is not objectively legitimate: see R.(K.A.) v. S.(B.T.), 2005 ONCJ 44.

12The Respondent did not provide a legitimate excuse for her failure to comply with the Order. The Respondent filed 140 pages in support of her motion. I reviewed her material before the motion. Most of the material was not relevant to the issue before the court, but an attempt to relitigate the issues at trial.

13During the motion, the Respondent again tried to relitigate the issues at trial, and to reargue her unsuccessful motions to stay the Order pending the appeal. Several times, the court tried to redirect the Respondent to focus her submissions on the issues to be determined by the court.

14This was not the first court order requiring the Respondent to vacate the Property. The Respondent has had years to make arrangements to vacate the Property. She had 30 days to vacate the Property under the Order, and a further year and four months until this motion was heard today.

15I find that the Respondent did not provide a good reason to disobey the Order.

Exercise of Discretion

16Should the court exercise its discretion and find an alternate solution to obtain compliance with the Order?

17Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. Findings of contempt should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge should consider other alternatives to a finding of contempt, such as issuing a declaration that the party breached the order: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, 466 D.L.R. (4th) 666, at para. 41; Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19; Jackson v. Jackson, 2016 ONSC 3466; and McKinnon v. McKinnon, 2018 ONCA 596.

18As set out in my previous endorsement, the Respondent breached the Order and failed to vacate the Property, frustrating the sale of same. The Respondent appealed the Order and brought a motion to stay the Order pending hearing of the appeal. Her motion was dismissed by a single judge of the Court of Appeal. The Respondent appealed that order, and the appeal was dismissed by a panel of three judges. Taking into consideration all of the prior orders requiring the Respondent to vacate the Property, I find that, short of ordering the police to physically remove the Respondent from the Property or charge her with an offence under ss. 24(5) and (6) of the Family Law Act, R.S.O. 1990, c. F.3, which would all be very traumatic for the child, the court has been left with little recourse other than the remedies provided for under r. 31 of the FLRs.

19I find, beyond a reasonable doubt, that the Respondent is in contempt of the Order, and specifically the order that she vacate the Property within 30 days.

20The Respondent will have a final opportunity to rectify her contempt and avoid sentencing.

The Order

21The Respondent did advise the court that she has possession of her new condominium at 20 Inn On The Park Drive, Toronto, Ontario, and that a lot of her possessions have already been moved into the condo. However, she remains living at the Yewfield Property.

22While I have found that the Respondent is in contempt of the Order, and specifically the order that she vacate the Property, I am prepared to delay the sentencing to give the Respondent one final opportunity to rectify her contempt.

23The Applicant asked for a copy of the keys. The Respondent advised that her keys were in her car and not with her in the courtroom. The Respondent was asked to retrieve the keys, but she refused. I then requested police to accompany the Respondent to her car to retrieve the keys, at which time she agreed to retrieve the keys. The keys were provided to the Applicant. The Applicant shall make a copy of the keys today and return the original set to the Respondent at the house at 4 p.m.

Costs

24The Applicant was successful on his motion and is entitled to costs as the successful party: r. 24(1) of the FLRs. The Applicant represented himself at court. At the last attendance, I made an order that the Respondent pay costs of $500 to the Applicant. I find that those reasons continue to apply today:

Although the applicant is self-represented, he has spent considerable time and money preparing and attending at this motion. He is self-employed as a real estate agent. I have considered the respondent’s argument that she cannot afford to pay costs. I have taken this into consideration when making the order. Finally, in considering the quantum of costs, I have considered the factors set out in r. 24(12), including the reasonableness and proportionality of the factors enumerated in the subrules as they relate to the importance and complexity of the issues, and the four fundamental purposes of modern-day cost rules: see Mattina v. Mattina, 2018 ONCA 867, at para. 10. Finally, I find the respondent’s behaviour to be unreasonable in these circumstances, especially given the number of court orders she has ignored.

25I am ordering costs of today in the sum of $1,000. The increase is a result of the length of the materials filed (140 pages) and the time wasted while waiting 50 minutes for the Respondent to arrive at the courthouse: r. 24(7) of the FLRs.

26Order to go as follows:

1. The Respondent is in contempt of the Order of Justice Steele, dated April 19, 2022, that she vacate the Property located at 21 Yewfield Crescent, Toronto, Ontario, within 30 days.
2. The Respondent’s sentencing is adjourned to September 22, 2023. If the Respondent has rectified her contempt, the Applicant need only file a confirmation form, advising the court that the date is vacated. If the Respondent has not rectified her contempt, then the Applicant need only file a confirmation form and the Respondent shall attend in person for sentencing.
3. The Applicant shall make a copy of the keys for 21 Yewfield Crescent, Toronto, Ontario. The keys were provided to him in court today. He shall return the original keys to the Respondent at 21 Yewfield Crescent, Toronto, Ontario, at 4 p.m. today.
4. The Respondent shall pay costs to the Applicant in the sum of $1,000. If not paid, these costs, as well as the costs of $500 payable under my order of August 1, 2023, shall be paid from the Respondent’s share of the net proceeds of sale of 21 Yewfield Crescent, Toronto, Ontario. A copy of this order shall be provided to the real estate lawyer acting on the closing of sale of the Property.

Shore, J.