REGARDING ORDERS REQUIRING PAYMENTS OF MONEY - THAT IS THE QUESTION - PART III OF III

Posted on August 3, 2007 by Hull & Hull LLP

Today’s blog is the third in a three part series dealing with the availability of Rule 60.11 contempt orders to enforce the payment of money and more specifically, the case of Dickie v. Dickie, in which the Ontario Court of Appeal (C.A.) and Supreme Court of Canada (“S.C.C.”) considered this issue.

Part I (July 31, 2007) noted several C.A. cases on the issue and provided background to the Dickie case. Yesterday’s blog dealt with the C.A.’s decision in Dickie. As promised, today’s blog deals with the S.C.C.’s disposition of the case.

As noted yesterday, the C.A., by majority decision, dismissed the appeal in Dickie, finding that the appellant ought not to have been found in contempt by the motion Judge for failing to comply with orders that required him to provide a $150,000 irrevocable letter of credit to secure his child and spousal support obligations and to provide security for costs in the amount of $100,000 as each order was an order for payment of money. Laskin J.A. dissented.

The S.C.C., however, was in substantial agreement with the reasons of Laskin J.A. The S.C.C. therefore allowed the appeal and set aside the order of the C.A. The motion Judge’s order was reinstated.

Laskin J.A. had 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. was also of the view that the C.A. had the authority to refuse to entertain the appeal for the reasons provided by Laskin J.A. (based on the record showing continuing disobedience with Court orders) until the appellant before the C.A. had taken steps to comply with the Court orders below.

While the decision in Dickie does not change the law that Rule 60.11 contempt orders cannot be used to enforce the payment of money, the decision may well effect, among other things, the nature of the relief sought in support claims brought under the Succession Law Reform Act where there is a potential risk of non-payment of support obligations.

Thanks for reading. Craig

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TO BE IN CONTEMPT OR NOT TO BE IN CONTEMPT REGARDING ORDERS REQUIRING PAYMENTS OF MONEY - THAT IS THE QUESTION PART I OF II

Posted on August 1, 2007 by Hull & Hull LLP

In Forest v. Lacroix Estate (2000), 187 D.L.R. (4th) 280, the Ontario Court of Appeal (“C.A.”) affirmed that Rule 60.11 contempt orders cannot be used to enforce orders for payment of money. 

In Forest, a testator had named his son trustee and sole beneficiary of his estate having no provisions for his common-law wife of 19 years. Despite there being an order specifically prohibiting the dissipation of the estate, the son dissipated a significant amount of the estate assets. The Trial Judge having made a finding of contempt, ordered the son committed to jail for 9 months unless he purged contempt within 28 days by paying the common-law wife. The Court of Appeal noted, following a review of the law, that there are other means by which support orders can be enforced.    

In 2002, the C.A. in Murano v. Murano, [2002] O.J. No. 3632 relied on the reasoning in Forest and held that there was no exception for family law matters. 

In today’s and tomorrow’s blog I will touch upon the case of Dickie v. Dickie, [2007] S.C.J. No. 8, [2006] 78 O.R. (3d)1 (Ont. C.A.), in which the C.A. and Supreme Court of Canada (“S.C.C”) deal with the availability of a contempt motion in respect of the failure of a party to comply with alleged orders requiring the payment of money.

Today’s blog will set out the background to Dickie; tomorrow’s blog will deal with the decisions of the C.A. and the S.C.C.

The case involves a dispute between husband and wife. Before the C.A. was the appeal by the husband from an order finding him in contempt of Court for failing to comply with orders requiring him to secure support obligations by providing an irrevocable letter of credit and to post security for costs. The motion Judge imposed a sentence of 45 days in jail for that contempt, which the husband served immediately. The husband pursued his appeal arguing that the motion’s Judge had no jurisdiction under Rule 60.11 of the Rules of Civil Procedure to make a contempt order because the underlying orders were orders requiring him to make a payment of money.  The wife brought a preliminary motion before the C.A. submitting that the Court should refuse to entertain the appeal because of the husband’s wilful disregard for orders of the Court.

Thanks for reading. Part II tomorrow.

Craig

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Contempt Motions and Estate Litigation - Part III

Posted on November 1, 2006 by Hull & Hull LLP

Part V of the Succession Law Reform Act (“SLRA”) provides the legislative framework for claims by a dependent of an estate. It sets out:

(i) who is a dependent;
(ii) what rights a dependant has in relation to the estate;
(iii) the circumstances the court should consider in determining the amount of support that should be awarded; and
(iv) the kinds of orders the court can make for the satisfaction of a dependent support claim.

Rule 60.11 of the Rules of Civil Procedure explicitly states that a party may pursue a contempt motion in order to pursue those who violate court orders other than for the payment of money.

Some have argued that, even in the face of the language of Rule 60.11, support orders involving the payment of money should be enforceable through a contempt proceeding.

In 2000, in its decision of Forrest v. Lacroix Estate (2000) 187 D.L.R. (4th) 280, (Ont. C.A.) the Court of Appeal set aside a contempt order made as a result of a failure to pay a SLRA dependent support award, affirming that Rule 60.11 does not permit contempt orders for the payment of money.

At the contempt proceeding in the Forrest case, the Judge attempted to reason around the language of Rule 60.11 regarding the payment of money in considering the contempt. The testator had named his son trustee and sole beneficiary of his estate, valued at $900,000. The testator died without making provisions for his common law wife of 19 years. The son dissipated the estate assets in the face of a specific order prohibiting dissipation, such that the value of the estate was reduced to $48,000 at trial. The son was ordered to pay the common law wife $300,000 under the SLRA. The wife moved for an order holding the son in contempt of court for failing to pay. The son was ordered committed to jail for nine months unless he purged contempt within 28 days by paying the common law wife. The contempt order was made as the Judge held that such an order was akin to orders enforcing family law support payments, and as it is in the public interest that those who choose to ignore court orders should be punished.

The Court of Appeal, however, after an extensive canvassing of the law, was unequivocal in finding that Rule 60.11 contempt orders cannot be used to enforce orders for payments of money, including the payment of SLRA dependant support awards or for payments under the Family Law Act.

The Court of Appeal’s decision in Forrest was followed by the Ontario Court of Appeal in its decision in Murano in 2002. In discussing the requirements for contempt motions under the Family Law Rules, the Court of Appeal adopted the decision in Forrest, writing:

“…the effect of rules 60.05 and 60.11(1)…is to remove the court’s inherent jurisdiction to use the contempt power to enforce an order for the payment of money in cases governed by the Rules…It was taken as a given that the plain language of 60.05 and 60.11(1) do not permit contempt proceedings under those rules to enforce orders for the payment of money…I find that the reasoning in Forrest v. Lacroix, is equally applicable to the Family Law Rules.”

While contempt motions may not be used to enforce the payment of SLRA dependent support awards, they may still be appropriate to address the failure of a party to transfer assets (other than the payment of money) as required or the failure to act pursuant to an Order in respect of assets (and/or liabilities) in proceedings involving the SLRA.

Have a great day, Craig.

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