Carter v. Carter, 2025 ONSC 2121
Court File No.: FC-04-18706-02
Ontario Superior Court of Justice
Between:
Marc James Carter, Applicant husband
– and –
Deborah Elizabeth Carter, Respondent wife
Applicant Counsel: Christopher Haber and Andrew Haber Jr.
Respondent Counsel: John Cox and Johnnie Cox
Heard: December 20, 2024, March 11, 2025 & March 25, 2025
Supplementary Judgment
Justice Alex Finlayson
Released: April 4, 2025
PART I: OVERVIEW
[1] The Court heard an uncontested trial in this matter over the course of four different days in May and June 2024. The Court also heard the wife’s request to find the husband in contempt. The Trial Judgment was released on October 1, 2024: see Carter v. Carter, 2024 ONSC 5414 (the “Trial Judgment”).
[2] The remaining issues to be addressed are as follows:
(a) the appropriate penalty for the husband’s contempt, namely his violation of the mareva injunction and preservation Order of Sutherland J. dated February 6, 2019;
(b) if a custodial sentence is deemed appropriate, whether to grant a stay of the sentence pending the husband bringing a further stay motion in the Ontario Court of Appeal;
(c) costs of the proceedings;
(d) whether there are any mathematical corrections respecting various monetary awards in the Trial Judgment; and
(e) further procedural and scheduling issues related to the contempt motion that the wife has brought against the husband’s former counsel, and related to the support enforcement proceeding.
[3] Regarding the sentencing, the wife asks the Court to sentence the husband to a period of incarceration for 180 days on various terms. She seeks further orders that if he does not purge his contempt or if he breaches any court order, he shall be brought back for a further contempt hearing. She specifically asks that I remain seized of future contempt hearings. She seeks a fine of $312,912.09 in addition. The wife also seeks various production orders from banks, and other terms in aid of execution.
[4] The husband’s written submissions for the sentencing propose a sentence of “community service” or “house arrest on weekends”, to permit him to remain employed. He argues that the Court should not impose a fine. In oral submissions, the husband’s counsel suggested that if there is to be a fine, it should be more modest (i.e. $10,000.00), and be made payable over time. The husband’s counsel also asked the Court to stay its sentence if it is to be a custodial one. The husband then intends to seek a stay in the Ontario Court of Appeal.
[5] Regarding costs, the wife seeks full recovery. She asks the Court to find that the husband behaved in bad faith. Her “Summary of Costs” sheet places those costs at $688,514.59 inclusive of HST and disbursements. These are her costs from the outset of this case until December 20, 2024, and include the costs charged by her former counsel Ms. Bracken, and then costs charged by current counsel. The wife has already deducted the prior costs ordered in this case of $134,210.00 from a higher amount of costs actually incurred, to arrive at this sum.
[6] The husband’s principal argument against costs is not that the quantum is inappropriate, but he cannot afford to pay it. During oral submissions, the husband’s counsel also suggested that costs should be referred to an assessment officer.
[7] This is my Supplementary Judgment regarding the husband’s sentencing, his request for a stay, costs and about the next steps to address the remaining outstanding matters before the Court.
[8] For the reasons that follow, I have decided to impose a 90-day custodial sentence. Although on March 11, 2025, I reserved Judgment but indicated that I would set a date to have the parties attend to deliver this Supplementary Judgment, I have decided instead to release it in writing. I do so given my decision to delay the commencement date of the custodial sentence for a few weeks.
[9] There is already a return date of May 15, 2025 set in this matter. The husband shall appear on that date and be committed to jail in accordance with the terms of this decision, unless he takes proper steps to purge and this Court varies its sentence, or unless he obtains a stay from the Ontario Court of Appeal.
[10] Regarding costs, I find that the husband engaged in bad faith behaviour throughout these proceedings. I find that he shall pay costs to the wife in the sum of $650,000.00.
[11] Neither side pursued any mathematical corrections to the Trial Judgment. The next steps respecting the support enforcement proceeding and the contempt motion that the wife has brought against the husband’s former counsel are set out below.
PART II: THE ONGOING LEGAL PROCEEDINGS SINCE THE TRIAL
[12] I will briefly explain what has happened since the trial, before turning to the analysis. I also provide some detail about what the record before the Court consisted of, for these post-trial matters.
[13] These outstanding matters first came back before the Court on December 20, 2024, but an adjournment was sought and granted for various reasons. The Court then heard submissions respecting most of the matters on March 11, 2025.
[14] The record before the Court from the wife on these remaining matters consists of the Trial Judgment, a draft order, a legal assistant’s affidavit sworn December 17, 2024, an affidavit sworn January 31, 2025, a factum, written costs submissions, a Bill of Costs and an Amended Bill of Costs, a one page sheet, entitled “Summary of Costs”, case law or case citations, her Notice of Contempt Motion and affidavit, both dated November 20, 2024 (against the husband’s former counsel), and a Confirmation Form.
[15] Although the husband had access to legal advice during the trial, he appeared at the trial proper, without counsel. After the release of the Trial Judgment, the husband retained counsel Mr. Haber to appeal it, as well as to appear on his behalf and address the remaining steps in the case. Through counsel, the husband sought an adjournment of the December return date, which was granted.
[16] The husband then filed written submissions on sentencing and costs only, attached to which was an earlier affidavit of his sworn April 26, 2024 containing medical letters and related documents. He filed a list of cases, and references to rule 24, 30 and 31 of the Family Law Rules, O. Reg. 99/114. He also filed a Default Dispute and a Form 4 Financial Statement (the kind used in support enforcement proceedings), both sworn February 24, 2025, for the support enforcement matter.
[17] In addition to seeking an adjournment of the December appearance, the husband’s counsel advised the Court that the husband intended to ask the Court to stay its sentence, if it would be custodial, to enable him to bring another stay motion in the Ontario Court of Appeal. Upon being so made aware, this Court directed that it would require submissions on point. During the submissions about the stay on March 11, 2025, the Court asked a series of questions about the status of the appeal, including about whether the trial transcripts had been ordered. Not all of the Court’s queries and concerns were addressed fully in submissions.
[18] After reserving its ruling at the conclusion of submissions on March 11, 2025, the Court became concerned that it had been given inaccurate information about the transcripts. There was also confusion about the husband’s apology, said in his written submissions to have been given. On March 20, 2025, I released an Endorsement directing the husband and wife, and their counsel, to re-attend to address the Court’s concerns. That further attendance proceeded on March 25, 2025. Further details about what transpired on March 25, 2025, are set out later in these reasons.
[19] Regarding the support enforcement matter, for the initial December date, the Director, Family Responsibility Office (the “FRO”) filed a brief of the prior support enforcement Endorsements or Orders as the Court had asked it to do in the Trial Judgment, and the affidavit of Jeff Galloway, sworn December 13, 2024. This material explained the status of the support enforcement proceeding, as did counsel Ms. Champsi orally. For the next return date in March, the FRO filed written submissions respecting how the Default Proceeding should proceed, along with an updated Statement of Arrears sworn February 25, 2025.
[20] The husband’s former lawyers, who are now represented by Raymond Goddard, filed a Confirmation Form respecting the contempt proceedings against them. [1] Procedural next steps respecting that contempt motion will be dealt with on the next return of this matter in May.
PART III: ISSUES AND ANALYSIS RESPECTING THE HUSBAND’S SENTENCING
A. The Applicable Rule
[21] Rule 31(5) of the Family Law Rules contains a list of seven available sanctions for contempt. The rule reads:
31(5) – Contempt Orders – 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.
[22] The list of sentences are not mutually exclusive, in that different sentencing options may be combined to craft a sentence that is just and appropriate: see Peers v. Poupore, 2012 ONCJ 306, para 55. The Court has jurisdiction to make orders for conditional imprisonment or fines, to suspend such sentences on appropriate conditions: see Rule 31(8). If a fine is ordered, it shall be paid in a single payment, immediately or before a date that the court chooses, or in instalments, over a period of time that the court considers appropriate: see rule 31(10).
B. Legal Principles Respecting the Husband’s Sentencing
[23] A number of legal principles apply when sentencing for a contempt.
[24] Contempt of court “rest[s] on the power of the court to uphold its dignity and process”: see para 30 of Carey v. Laiken, 2015 SCC 17.
[25] There are two broad purposes when sentencing for contempt. The primary one is to compel compliance; a secondary one is punishment. As Feldman J.A. wrote at paras 88-89 of Castillo v. Xela Enterprises Ltd., 2024 ONCA 141:
…historically the primary purpose of sentencing for civil contempt was viewed as compelling compliance in order to protect and enforce the rights of the party who obtained the order… However in recent years, our courts have focused on the fact that ensuring compliance with court orders also engages important public law issues, including respect for the authority and dignity of the courts and for the rule of law… As a result, punishment has been added as a secondary purpose of sentencing for civil contempt for breach of a court order.
See also para 79 of Boily v. Carleton Condominium Corporation 145; paras 78-79 of Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663; and para 31 of Carey v. Laiken.
[26] The often cited factors, relevant to the determination of an appropriate sentence for civil contempt, are set out at para 90 of Boily v. Carleton Condominium Corporation 145, 2017 ONCA 663 (and in other decisions too). They are:
(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.
See also Business Development Bank of Canada v. Cavalon Inc., para 90 for example, where these factors are also stated.
Footnotes
[1] The wife’s Confirmation Form referred to earlier also addresses this separate contempt proceeding. Both the wife and the husband’s former counsel had filed Confirmation Forms in December too, although in the case of former counsel, the December Confirmation Form was to seek an adjournment, also.
[2] Incidentally, it was during the questioning that the husband admitted some of the facts that grounded the contempt motion. So too did the productions that the wife obtained ground the contempt motion. I return to this later, when addressing the husband’s request for a stay of his sentence.
[3] More specifically, I have calculated the amount of $348,546.82, as follows: $750,546.82 - $182,000.00 (i.e. living allowance of $3,500 per month x 52 months from July of 2019 to October of 2023) - $220,000.00 (i.e. legal fees of $55,000.00 per year x 4 years (between 2019 and 2023)).
[4] Submissions would be required about this.
[5] It is not clear to me that the husband’s counsel’s articulation of the test is all that different from the RJR MacDonald test.
[6] Calculations had not been supplied to the Court at the uncontested trial, either: see para 422 of the Trial Judgment.
[7] The wife did ask for an order that the FRO provide her with copies of the material filed, which was not opposed and which was granted on March 11, 2025.
Justice Alex Finlayson
Released: April 4, 2025