Hobbs v. Hobbs,

• Jurisdiction: Ontario
• Judge: Cronk, Armstrong and LaForme, JJ.A.
• Neutral Citation: 2008 ONCA 598
• Citation: 2008 ONCA 598,(2008), 240 O.A.C. 202 (CA),54 RFL (6th) 1,[2008] CarswellOnt 5037,[2008] OJ No 3312 (QL),170 ACWS (3d) 511,240 OAC 202,79 WCB (2d) 31,[2008] O.J. No 3312 (QL),(2008), 240 OAC 202 (CA),240 O.A.C. 202
• Date: 23 April 2008
• Court: Court of Appeal (Ontario)

Hobbs v. Hobbs (2008), 240 O.A.C. 202 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. SE.001

Carol Rose Hobbs (applicant/respondent) v. Duncan Roger Hobbs (respondent/appellant)

(C48103; C48382; 2008 ONCA 598)

Indexed As: Hobbs v. Hobbs

Ontario Court of Appeal

Cronk, Armstrong and LaForme, JJ.A.

August 29, 2008.

Summary:

The disputed matters arose out of the parties' respective obligations to produce financial information in divorce proceedings, including information concerning the valuation of Mr. Hobbs' corporate interests. In September 2007, Ms. Hobbs brought a motion against Mr. Hobbs for contempt of two court orders, on the ground that he had failed to make full financial disclosure as required by those orders. The disclosure was completed prior to the contempt hearing. Mr. Hobbs deposed that the delay was unintentional and that he had to obtain the corporate documents from the accountants, corporate lawyers and staff; that his counsel had been ill; and that counsel's assistant had moved out of province. Mr. Hobbs brought a cross-motion for contempt against Ms. Hobbs

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. 84, dismissed the contempt motion against Ms. Hobbs. The court rejected Mr. Hobbs' explanation for the delay, found him in contempt and ordered him to pay the costs of the motion on a full indemnity scale in the total amount of $26,572.17. Mr. Hobbs appealed the contempt order and the costs order. He also appealed the dismissal of his cross-motion, and sought to file fresh affidavit evidence.

The Ontario Court of Appeal dismissed the appeals. The evidence before the motion judge satisfied the criteria for a finding of contempt of court against Mr. Hobbs. Though the court might have come to a different conclusion on the quantum of costs, there were no strong grounds upon which to conclude that the motion judge erred in exercising his discretion. The evidence on the appeal of the cross-motion did not meet the test for admissibility of fresh evidence. Even if it were admitted, it would not have affected the result.

Contempt - Topic 5115

Practice - Hearing - Costs - In a contempt proceeding, the motion judge found the husband in contempt of court and ordered him to pay his wife the costs of the motion on a full indemnity scale in the total amount of $26,572.17 - The husband appealed the contempt order and the costs order - The Ontario Court of Appeal dismissed the appeal of the contempt order, requiring the husband to obtain an order for leave to appeal the costs order, under s. 133(b) of the Ontario Courts of Justice Act - The husband accepted that his wife was entitled to costs on a full indemnity scale but claimed the quantum ordered by the motion judge was excessive - The court did not grant leave to appeal the costs award - In its analysis, the court stated that "[i]n order to succeed on an application for leave to appeal an award of costs, strong grounds must be shown", and noted the case law setting out the grounds on which an appellate court should set aside a costs order - While the court found that the quantum of the costs award was on the "high side", it could not find that there were strong grounds upon which to conclude the motion judge erred in exercising his discretion - The quantum was not so high that it constituted an error in principle or was plainly wrong - See paragraphs 29 to 35.

Contempt - Topic 6010

Appeals - General - Argument on appeal - [See Practice - Topic 9031].

Contempt - Topic 6010

Appeals - General - Argument on appeal - The disputed matters arose out of the parties' respective obligations to produce financial information in divorce proceedings, including information concerning the valuation of Mr. Hobbs' corporate interests - Mr. Hobbs was ordered to make full financial disclosure as required by order dated February 13, 2007 - In April 2007, Mr. Hobbs' counsel requested a three-week extension to review the outstanding disclosure with her client - The motion judge refused the request and by order dated April 26, 2007, ordered production to proceed as specified in Rule 19(1)(b) (a 10-day time period) - In September 2007, Ms. Hobbs brought a motion against Mr. Hobbs for contempt of the court orders, on the ground that he had failed to make full financial disclosure as required - The disclosure was completed prior to the contempt hearing - The motion judge rejected Mr. Hobbs' explanation as not providing a reasonable excuse for the delay and found him in contempt - Mr. Hobbs appealed on the ground, inter alia, that there was no precise date for him to complete the court-ordered disclosure - The Ontario Court of Appeal rejected that argument - The motion judge intended Mr. Hobbs to comply with the April 26 order within 10 days - The order was not challenged by an application for leave to appeal or by appeal - The court dismissed the appeal of the contempt order - See paragraphs 19 to 20.

Contempt - Topic 6010

Appeals - General - Argument on appeal - The disputed matters arose out of the parties' respective obligations to produce financial information in divorce proceedings, including information concerning the valuation of Mr. Hobbs' corporate interests - Mr. Hobbs was ordered to make full financial disclosure as required by orders dated February 13, 2007 and April 26, 2007 - The April 26 order qualified the required disclosure "to the extent it is in Mr. Hobbs's power" - In September 2007, Ms. Hobbs brought a motion against Mr. Hobbs for contempt of the court orders, on the ground that he had failed to make full financial disclosure as required - The disclosure was completed prior to the contempt hearing - Mr. Hobbs deposed that the delay was unintentional and that he had to obtain the corporate documents from the accountants, corporate lawyers and staff - The motion judge rejected Mr. Hobbs' explanation as not providing a reasonable excuse for delay and found him in contempt - Mr. Hobbs appealed on the ground, inter alia, in respect of disclosure from third parties, that while the third parties were co-operative, they were slow in providing disclosure documentation - The Ontario Court of Appeal rejected that argument - Little effort was made to obtain relevant documents and information until on or about October 1, 2007, some five months after the order of April 26, 2007 - The documents were crucial to Ms. Hobbs obtaining full financial disclosure - The court dismissed the appeal of the contempt order - See paragraphs 19 and 21.

Contempt - Topic 6010

Appeals - General - Argument on appeal - The disputed matters arose out of the parties' respective obligations to produce financial information in divorce proceedings, including information concerning the valuation of Mr. Hobbs' corporate interests - Mr. Hobbs was ordered to make full financial disclosure as required by orders dated February 13, 2007 and April 26, 2007 - In September 2007, Ms. Hobbs brought a motion against Mr. Hobbs for contempt of the court orders, on the ground that he had failed to make full financial disclosure as required - The disclosure was completed prior to the contempt hearing - Mr. Hobbs deposed that the delay was unintentional; that his counsel had been ill, not returning to work full-time until August 1, 2007; and that counsel's assistant had moved out of province in June 2007 - The motion judge rejected Mr. Hobbs' explanation as not providing a reasonable excuse for the delay and found him in contempt - Mr. Hobbs appealed on the ground, inter alia, that the illness of his counsel and the loss of the assistant were not his fault - The Ontario Court of Appeal rejected that argument - Given Mr. Hobbs's failure to initiate the production of significant corporate information until the Fall of 2007, the court could find "no palpable or overriding error with the motion judge's apparent scepticism concerning his position" - The court dismissed the appeal of the contempt order - See paragraphs 19 and 22.

Contempt - Topic 6010

Appeals - General - Argument on appeal - The disputed matters arose out of the parties' respective obligations to produce financial information in divorce proceedings, including information concerning the valuation of Mr. Hobbs' corporate interests - Mr. Hobbs was ordered to make full financial disclosure as required by orders dated February 13, 2007 and April 26, 2007 - In September 2007, Ms. Hobbs brought a motion against Mr. Hobbs for contempt of the court orders, on the ground that he had failed to make full financial disclosure as required - The disclosure was completed prior to the contempt hearing - Mr. Hobbs deposed that the delay was unintentional - The motion judge rejected Mr. Hobbs' explanation as not providing a reasonable excuse for the delay and found him in contempt - Mr. Hobbs appealed on the ground, inter alia, that the motion judge misapprehended the evidence of disclosure in September and October 2007; that the majority of the disclosure provided in that time included voluntary disclosure that was not ordered by the court; and that the voluntary disclosure exceeded the court-ordered disclosure to such an extent that it caused a serious misapprehension of the evidence - The Ontario Court of Appeal rejected that ground - Mr. Hobbs provided no details in support of his argument - Also, the court wondered why there was a "burst of production activity" following the bringing of the contempt motion if it did not relate to the alleged deficiencies - In any event, the motion judge emphasized that the contempt finding was based upon the court ordered disclosure - The court dismissed the appeal of the contempt order - See paragraphs 19 and 23.

Contempt - Topic 6010

Appeals - General - Argument on appeal - The disputed matters arose out of the parties' respective obligations to produce financial information in divorce proceedings, including information concerning the valuation of Mr. Hobbs' corporate interests - Mr. Hobbs was ordered to make full financial disclosure as required by orders dated February 13, 2007 and April 26, 2007 - In September 2007, Ms. Hobbs brought a motion against Mr. Hobbs for contempt of the court orders, on the ground that he had failed to make full financial disclosure as required - Ms. Hobbs relied on a letter of August 13, 2007, from her retained business valuator, detailing the alleged deficiencies in Mr. Hobbs' disclosure - The disclosure was completed prior to the contempt hearing - Mr. Hobbs deposed that the delay was unintentional - The motion judge rejected Mr. Hobbs' explanation as not providing a reasonable excuse for the delay and found him in contempt - Mr. Hobbs appealed on the ground, inter alia, that the motion judge relied on the deficiencies set out in the August 13 letter; that 11 of the 16 deficiencies referred to in the letter were incorrect; and that the deficiencies had been answered prior to August 2007 - The Ontario Court of Appeal rejected that argument - The lion's share of the production requests were contained in two items of the August 13 letter that were still outstanding as of October 1, 2007 - The court dismissed the appeal of the contempt order - See paragraphs 19 and 24.

Contempt - Topic 6010

Appeals - General - Argument on appeal - The disputed matters arose out of the parties' respective obligations to produce financial information in divorce proceedings, including information concerning the valuation of Mr. Hobbs' corporate interests - Mr. Hobbs was ordered to make full financial disclosure as required by orders dated February 13, 2007 and April 26, 2007 - In September 2007, Ms. Hobbs brought a motion against Mr. Hobbs for contempt of the court orders, on the ground that he had failed to make full financial disclosure as required - The disclosure was completed prior to the contempt hearing - At the outset of the hearing, on the motion judge's enquiry, Mr. Hobbs advised that he wished to proceed on the basis of the affidavit evidence - Mr. Hobbs deposed that the delay was unintentional; that his counsel had been ill, not returning to work full-time until August 1, 2007; and that counsel's assistant had moved out of province in June 2007 - The motion judge rejected Mr. Hobbs' explanation as not providing a reasonable excuse for the delay and found him in contempt - Mr. Hobbs appealed on the ground, inter alia, that the motion judge erred in making a finding of contempt on the basis of conflicting affidavit evidence - The Ontario Court of Appeal rejected that argument - The court agreed with the motion judge's analysis of the evidence before him - The evidence satisfied the criteria for a finding of contempt of court as summarized by the court in Prescott-Russell Services (2007) - The court dismissed the appeal of the contempt order - See paragraphs 19 and 25.

Family Law - Topic 4188

Divorce - Practice - Costs - Appeals from costs order - [See Contempt - Topic 5115].

Practice - Topic 7464

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - In contempt proceedings - [See Contempt - Topic 5115].

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - [See Contempt - Topic 5115].

Practice - Topic 8327.6

Costs - Appeals - Costs of appeal - Party and party or partial indemnity basis - The disputed matters arose out of the parties' respective obligations to produce financial information in divorce proceedings, including information concerning the valuation of the husband's corporate interests - The motion judge found the husband in contempt of two court orders to make full financial disclosure as required, and ordered him to pay his wife the costs of the contempt motion on a full indemnity scale in the total amount of $26,572.17 - The husband appealed the contempt order, on six grounds - He also appealed the costs order - The Ontario Court of Appeal dismissed the appeals - Counsel for the wife sought costs of the two appeals on a substantial indemnity scale in the total amount of $19,047.52 - The court awarded costs on a partial indemnity scale in the amount of $12,500, including disbursements and GST - While the motion judge awarded costs of the contempt motion on a full indemnity scale, the court was not persuaded that the costs of the appeals should be granted on either that or a substantial indemnity basis - See paragraph 45.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - The disputed matters arose out of the parties' respective obligations to produce financial information in divorce proceedings - The wife filed an affidavit of documents that referred to RBC bank account number 5125232 - Some documents related to the account were produced - When asked about the account, the wife advised that she knew nothing about it - The RBC bank account was ordered to be produced by the motion judge on April 26, 2007 - By letter dated June 7, 2007, the wife's counsel provided a written direction to the RBC bank to permit the husband to obtain relevant documents directly from it - After the wife brought contempt proceedings against her husband, he brought a cross-motion for contempt against her - The husband took the position that his wife was intentionally refusing to comply with the April 26 order of the court - The wife's position was that she initially listed what she understood to be various family accounts, but in fact had no documentation on the RBC bank account - The motion judge dismissed the contempt motion against the wife - The husband appealed - He sought to file fresh affidavit evidence in which his counsel's assistant deposed that counsel's office wrote three times to the RBC bank, followed by the receipt of documentation related to the RBC bank account in question on February 4, 2008 - The Ontario Court of Appeal dismissed the husband's appeal - The evidence did not meet the test for admissibility of fresh evidence - The information existed at the time the motion for contempt was heard - If due diligence had been exercised, it could have been obtained in time for the hearing of the contempt motion - Even if the evidence were admitted, it would not have affected the result - There was no intentional conduct on the wife's part to breach the court order - See paragraphs 36 to 44.

Cases Noticed:

Prescott-Russell Services for Children and Adults v. G. (N.) et al. - see Services aux enfants et adultes de Prescott-Russell v. N.G. et al.

Services aux enfants et adultes de Prescott-Russell v. N.G. et al. (2006), 214 O.A.C. 146; 82 O.R.(3d) 686 (C.A.), appld. [para. 26].

Brad-Jay Investments Ltd. v. Szijjarto - see Brad-Jay Investments Ltd. v. Village Developments Ltd. et al.

Brad-Jay Investments Ltd. v. Village Developments Ltd. et al. (2006), 218 O.A.C. 315 (C.A.), leave to appeal refused (2007), 374 N.R. 390 (S.C.C.), refd to. [para. 32].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209, refd to. [para. 33].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 106 D.L.R.(3d) 212, refd to. [para. 42].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 133(b) [para. 30].

Courts of Justice Act Regulations (Ont.), Family Law Rules, rule 19(1) [para. 7].

Family Law Rules - see Courts of Justice Act Regulations (Ont.).

Counsel:

Constance M. Brown, Q.C., for the appellant;

Aaron Crangle, for the respondent.

These appeals were heard on April 23, 2008, by Cronk, Armstrong and LaForme, JJ.A., of the Ontario Court of Appeal. Armstrong, J.A., delivered the following decision for the court on August 29, 2008.