TO BE IN CONTEMPT OR NOT TO BE IN CONTEMPT REGARDING ORDERS REQUIRING PAYMENTS OF MONEY - THAT IS THE QUESTION - PART II OF III
While I had initially thought this was a two blog series, it has become three blogs. In yesterday’s blog I noted the Ontario Court of Appeal’s (“C.A.”) decisions of Forest v. Lacroix Estate and Murano v. Murano (which affirmed that Rule 60.11 contempt orders cannot be used to enforce orders for payment of money) and I provided the background to the recent case of Dickie v. Dickie, [2007] S.C.J. No. 8, [2006] 78 O.R. (3d)1 (Ont. C.A.). Today’s blog will focus on the C.A.’s decision in Dickie while tomorrow’s blog (Part III) will address the S.C.C’s decision.
Again, the Dickie case involves a dispute between a husband and wife that separated. The husband had been found in contempt for failing to comply with orders to provide a $150,000 irrevocable letter of credit to secure his child and spousal support obligations and to provide security of costs in the amount of $100,000.
As a preliminary matter, the wife submitted to the C.A. that it ought to decline to hear the appeal on the basis that the husband had continued to flaunt not only the orders for security which were the subject matter of the contempt motion, but also the underlying support orders. The C.A., by majority decision, allowed the appeal to proceed. The C.A., again by majority decision, allowed the husband’s appeal and set aside the finding of contempt on the basis that Rule 60.11 cannot be used to enforce either security order because each was an order for payment of money.
The dissent of the C.A. (Laskin J.A.) is particularly interesting, however.
Laskin J.A. was of the view that the C.A. had a discretion to refuse to entertain the husband’s appeal and that based on the record showing continuing disobedience with Court orders, it should have exercised that discretion. He would have adjourned the husband’s appeal until the husband had taken steps to comply with the Court orders below. However, assuming the Court was correct in entertaining the appeal, Laskin J.A. would have dismissed the appeal finding that neither order for security amounts to an order for payment of money within the meaning of Rule 60.11 and the husband had been afforded procedural fairness.
Laskin J.A. found that where money is ordered to be paid not to the creditor but into Court, or to its functional equivalent (solicitor to be held in trust), and where the effect of the order is not to create a fixed debt obligation but to secure a debt obligation, then the order is not an order for the payment of money under Rule 60.11.
The S.C.C.’s decision tomorrow. Thanks for reading.
Craig
