Dickie v. Dickie

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Laskin, Sharpe and Juriansz, JJ.A.
• Citation: (2006), 206 O.A.C. 257 (CA)
• Date: 01 September 2005

Dickie v. Dickie (2006), 206 O.A.C. 257 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. JA.058

Leaka Helena Delia Dickie (applicant/respondent on appeal) v. Kenneth Earle Dickie (respondent/appellant on appeal)

(C41501; C41563)

Indexed As: Dickie v. Dickie

Ontario Court of Appeal

Laskin, Sharpe and Juriansz, JJ.A.

January 13, 2006.

Summary:

The parties divorced in 1994. A separation agreement provided for payment of child and spousal support. By interim judgment in 2001, Kiteley, J., increased child support and ordered further spousal support. In 2002, the husband moved to the Bahamas and did not comply with Kiteley, J.'s order. Greer, J., ordered that the husband, within 14 days of the date of the order, provide an irrevocable letter of credit in favour of the wife in the amount of $150,000 to secure his child and spousal support obligations pursuant to Kiteley, J.'s order. Greer, J., also ordered that the husband provide the wife with security for costs by paying the sum of $100,000 within 14 days of the date of the order, which sum was to be held in an interest-bearing account by the wife's solicitors pending further order. Greer, J., further ordered the husband to comply with Kiteley, J.'s order. Costs were awarded against the husband in the amount of $1000. The husband did not comply with Greer, J.'s order. The wife moved to have the husband found in contempt.

The Ontario Superior Court allowed the motion, held the husband in contempt and sentenced him to 45 days in prison. The husband appealed. The wife brought a preliminary motion, arguing that the court should not hear the husband's appeal because of his wilful disregard for orders of the court.

The Ontario Court of Appeal, Laskin, J.A., dissenting, dismissed the motion. The court allowed the appeal and set aside the orders finding the husband in contempt and imposing a penalty for contempt.

Banks and Banking - Topic 4504

Letters of credit - General - Letter of credit defined - [See first Contempt - Topic 6 ].

Contempt - Topic 6

General - Power of courts - The parties divorced in 1994 - By interim judgment in 2001, Kiteley, J., varied child and spousal support - In 2002, the husband moved to the Bahamas and did not comply with Kiteley, J.'s order - Greer, J., ordered, inter alia, that the husband provide a letter of credit in favour of the wife to secure his child and spousal support obligations - The husband did not comply - The wife moved to have the husband found in contempt - The motions judge allowed the motion, held the husband in contempt and sentenced him to 45 days in prison - The Ontario Court of Appeal allowed the husband's appeal - Pursuant to Civil Procedure Rule 60.11(1), a court was precluded from making a contempt order to enforce an order requiring a person to make a "payment of money" - The court affirmed that a "letter of credit" was "identical to cash to its full face value at the moment that it is given" - Accordingly, a letter of credit constituted an order for the "payment of money" within the meaning of rule 60.11(1) - See paragraphs 44 to 58.

Contempt - Topic 6

General - Power of courts - The parties divorced in 1994 - By interim judgment in 2001, Kiteley, J., varied child and spousal support - In 2002, the husband moved to the Bahamas and did not comply with Kiteley, J.'s order - Greer, J., ordered, inter alia, that the husband provide a letter of credit in favour of the wife to secure his child and spousal support obligations - The husband did not comply - The wife moved to have the husband found in contempt - The motions judge allowed the motion, held the husband in contempt and sentenced him to 45 days in prison - The Ontario Court of Appeal allowed the husband's appeal - Pursuant to Civil Procedure Rule 60.11(1), a court was precluded from making a contempt order to enforce an order requiring a person to make a "payment of money" - Under the Family Law Rules, an order requiring that security be provided for a court ordered payment was a "payment order", and could not be enforced by contempt - Consistent with the requirement for harmonious interpretation, rule 60.11(1) had to be interpreted in a similar fashion - See paragraphs 55 to 57.

Contempt - Topic 6

General - Power of courts - The parties divorced in 1994 - By interim judgment in 2001, Kiteley, J., varied child and spousal support - In 2002, the husband moved to the Bahamas and did not comply with Kiteley, J.'s order - Greer, J., ordered, inter alia, that the husband provide the wife with security for costs to be held in an interest-bearing account by the wife's solicitors - The husband did not comply - The wife moved to have the husband found in contempt - The motions judge allowed the motion, held the husband in contempt and sentenced him to 45 days in prison - The Ontario Court of Appeal allowed the husband's appeal - Pursuant to Civil Procedure Rule 60.11(1), a court was precluded from making a contempt order to enforce an order requiring a person to make a "payment of money"- The husband was ordered to pay the security for costs not into court but to the wife's solicitors - The purpose of the order (to provide security for costs) and the fact that the money was to be held in an interest-bearing account did not change the fact that it was an order that the husband pay a sum of money to another person - See paragraphs 59 to 62.

Contempt - Topic 10

General - Scope of contempt power - [See all Contempt - Topic 6 ].

Contempt - Topic 2806

Bars - Enforcement of payment of money - [See all Contempt - Topic 6 ].

Contempt - Topic 6021

Appeals - Right of appeal - General - The parties divorced in 1994 - By interim judgment in 2001, Kiteley, J., varied child and spousal support - In 2002, the husband moved to the Bahamas and did not comply with Kiteley, J.'s order - Greer, J., ordered that the husband provide a letter of credit in favour of the wife to secure his child and spousal support obligations and provide the wife with security for costs to be held in an interest-bearing account by the wife's solicitors - Greer J. further ordered the husband to comply with the order of Kiteley J. - The husband did not comply - The wife moved to have the husband found in contempt - The motions judge allowed the motion, held the husband in contempt and sentenced him to 45 days in prison - The husband appealed - The wife brought a preliminary motion, arguing that the court should not hear the husband's appeal because of his wilful disregard for orders of the court - The Ontario Court of Appeal dismissed the motion - The court should entertain the appeal where the husband challenged the jurisdiction of the court to find him in contempt pursuant to Civil Procedure Rule 60.11(1) - See paragraphs 25 to 39.

Practice - Topic 8101

Costs - Security for costs - General principles - [See third Contempt - Topic 6 ].

Practice - Topic 8852

Appeals - Bar or loss of right of appeal - Contempt of court - [See Contempt - Topic 6021 ].

Cases Noticed:

Brophy v. Brophy (2004), 180 O.A.C. 389; 45 R.F.L.(5th) 56 (C.A.), refd to. [para. 16].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General) (No. 2) (1992), 57 O.A.C. 145; 10 O.R.(3d) 46 (C.A.), refd to. [para. 23].

Pyke v. National Westminster Bank Ltd., The Times, December 9, 1977, refd to. [para. 25].

Hadkinson v. Hadkinson, [1952] 2 All E.R. 567 (C.A.), refd to. [paras. 26, 88].

Swaptronics Ltd., Re, [1998] T.L.R. 508 (Ch. D.), refd to. [para. 31].

Apple Computer Inc. et al. v. Mackintosh Computers Ltd. et al., [1988] 1 F.C. 191; 78 N.R. 161 (F.C.A.), refd to. [paras. 34, 88].

Magder (Paul) Furs Ltd. et al. v. Canada (Attorney General) (1991), 52 O.A.C. 151; 6 O.R.(3d) 188 (C.A.), dist. [paras. 36, 93].

Forrest v. Lacroix Estate (2000), 133 O.A.C. 25; 48 O.R.(3d) 619 (C.A.), refd to. [paras. 41, 108].

Manis v. Manis (2001), 149 O.A.C. 384; 55 O.R.(3d) 758 (C.A.), refd to. [para. 45].

Berry v. Donavan (1893), 21 O.A.R. 14 (C.A.), refd to. [para. 46].

Kingsway Electric Co. v. 330604 Ontario Ltd. et al. (1979), 27 O.R.(2d) 541 (S.C.), refd to. [para. 49].

Coletta v. Coletta, [2003] O.T.C. 15; 34 R.F.L.(5th) 9 (Sup. Ct.), dist. [paras. 60, 111].

Innovation and Development Partners/IDP Inc. v. Canada (1994), 166 N.R. 293; 114 D.L.R.(4th) 326 (F.C.A.), refd to. [para. 87].

"X" Ltd. v. Morgan-Grampian (Publishers) Ltd. et al., [1991] 1 A.C. 1; 110 N.R. 367 (H.L.), refd to. [para. 90, footnote 1].

R. v. Wu (Y.), [2003] 3 S.C.R. 530; 313 N.R. 201; 182 O.A.C. 6, refd to. [para. 103].

Bates v. Bates (1888), 14 P.D. 17 (C.A.), refd to. [para. 107].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 60.11(1) [para. 40].

Authors and Works Noticed:

Arlidge, Anthony, Eady, David and Smith, A.T.H., Contempt (2nd Ed. 1999), para. 12-61 [para. 29].

Halsbury's Laws of England (1998) (4th Ed. - Reissue), vol. 9(1), para. 511 [para. 30].

Lowe, Nigel, and Suffrin, Brenda, The Law of Contempt (3rd Ed. 1996), pp. 582 [para. 105]; 583 [para. 106]; 653 [paras. 27, 90]; 654 [paras. 27, 28, 98].

Counsel:

Rochelle F. Cantor, for the appellant;

Harold Niman, for the respondent.

This appeal was heard on September 1, 2005, by Laskin, Sharpe and Juriansz, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was delivered on January 13, 2006, and included the following opinions:

Juriansz, J.A. (Sharpe, J.A., concurring) - see paragraphs 1 to 64;

Laskin, J.A, dissenting - see paragraphs 65 to 125.