Mueller v. Mueller, 2011 ONCJ 160

Windsor Registry No. 529/06 DATE: 2011·III·22 CITATION: Mueller v. Mueller, 2011 ONCJ 160 ONTARIO COURT OF JUSTICE BETWEEN: STEPHANIE LYNN MUELLER, Applicant, — AND — LANCE MUELLER, Respondent. Before Justice Barry M. Tobin Heard on 17 March 2011 Endorsement inscribed on 22 March 2011 CONTEMPT OF COURT — Jurisdiction — Form of order enforceable by contempt upon breach — Payment order — Court orderrequiring parent to contribute designated share towards child’s special or extraordinary expenses under

section 7 of Child SupportGuidelines is species of “payment order” for purposes of subrule 2(1) of Family Law Rules — Accordingly, breach of such order cannotbe enforced via motion for contempt under rule 31. STATUTES AND REGULATIONS CITED Family Law Act, R.S.O. 1990, c. F-3 [as amended], subsection 34(1). Family Law Rules, O. Reg. 114/99 [as amended], subrule 2(1), clause 26(4)(b), rule 31, subrule 31(1) and Form 10A. Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 [as amended],

section 1. Recommended Standard Terms for Support Orders, O. Reg. 454/07 [as amended], subsection 2(5). CASES CITED Coletta v. Coletta, , 34 R.F.L. (5th) 9, [2003] O.J. No. 81, 2003 Cars​well​Ont 55 (Ont. Fam. Ct.). Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, 357 N.R. 196, 221 O.A.C. 394, 279 D.L.R. (4th) 625, 39 R.F.L. (6th) 30, [2007]S.C.J. No. 8, 2007 Cars​well​Ont 606. J.J.

Avery ..................................................................................................... agent for the applicant Lance Mueller ...................................................................................................... on his own behalf JUSTICE B.M. TOBIN (endorsement):— 1: INTRODUCTION [1] The applicant brought this motion for contempt against the respondent.

[ 2 ] The notice of motion sets forth the following as a basis for the request for the finding of contempt: Failed to follow the terms of the order of Justice Justin [ sic ] B.

Tobin, dated April 8, 2010, namely by not adhering to the provisions of paragraph 13 and the definition of special or extraordinary expenses under s. 7.(1) and s. 7(1.1)( b )(iii) and (iv), even when given prior notice of changes to same as per paragraph 13 of the Order. [ 3 ] Paragraph 13 of the order provides as follows: The parties shall equally contribute to the children’s special and extraordinary expenses, which shall be agreed upon by the parties prior to enrolment or undertaking, before any obligation to contribute by the non-consenting party arises. This consent shall not be unreasonably withheld.

Receipts shall be provided for the expenses for each activity. [ 4 ] The evidence on the motion was comprised of the affidavit of the applicant sworn on 2 January 2011, the affidavit of the respondent sworn on 25 January 2011 and a “Form 10A: Reply by applicant”, as prescribed by the Family Law Rules , O. Reg. 114/99, as amended. The applicant was not represented by counsel when the reply was filed.

I will treat the “Form 10A Reply by applicant” as a reply to the respondent’s affidavit. 2: FACTS [ 5 ] The parties are the parents of the two children, Kaytlynn Alexandra Mueller (born on 24 November 1995) and Conrad James Mueller (born on 2 May 1999). Under my order of 8 April 2010, the applicant was granted custody of the children. The order also provided that the applicant is to notify the respondent about all important decisions regarding the children’s welfare in advance of such decisions being made.

The respondent was granted a generous and liberal access to the children. [ 6 ] The respondent was required to pay child support on a prospective basis, repay child support arrears that had accumulated by way of monthly payments and contribute toward special and extraordinary expenses as noted above in paragraph 3. [ 7 ] The applicant’s affidavit disclosed that she sought from the respondent a contribution toward expenses including: (

a) eyeglasses for Conrad; (

b) reimbursement for dance costumes needed by Conrad and Kaytlynn; and (

c) expenses associated with Conrad’s election to attend the Canadian championships and dance world cup championship in Vancouver, British Columbia. [ 8 ] The applicant deposed that she sent receipts for the Vancouver trip and other expenses but the respondent did not pay. [ 9 ] The respondent’s evidence was that some of the expenses claimed were not in fact incurred by the applicant.

He submitted that, by reason of his bankruptcy and amount of his current income, he is unable to afford to pay the amount of money requested by the applicant as special expenses. 3: LAW [ 10 ] Rule 31 of the Family Law Rules prescribes the manner in which a contempt motion is to be brought as well as the innovative ways of enforcing compliance with court orders.

The object of contempt, primarily, is not to punish in general terms but to compel respect for substantive and procedural orders once made. [ 11 ] The following provisions were considered in the determination of the applicant’s motion for a contempt order. [ 12 ] Clause 26(4) (

b) of the Family Law Rules provides (emphasis added):

(4) Other orders.— An order other than a payment order may be enforced by, . . . (

b) a contempt order (rule 31); and . . . [ 13 ] Subrule 31(1) provides when a contempt motion is available. It provides as follows (emphasis added): 31. When contempt motion available.—

(1) An order, other than a payment order , may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available. [ 14 ] The term “payment order” is defined at subrule 2(1) as follows: “payment order” means a temporary or final order, but not a provisional order, requiring a person to pay money to another person, including, . . . (

b) a support order, . . . [ 15 ] The term “support order” is defined at subrule 2(1) as meaning:

“support order” means an order described in subsection 34(1) of the Family Law Act . . . [16] Subsection 34(1) of the Family Law Act, R.S.O. 1990, c. F-3, as amended, provides as follows: 34. Powers of court.—

(1) In an application under

section 33, the court may make an interim or finalorder, (

a) requiring that an amount be paid periodically, whether annually or otherwise and whether for anindefinite or limited period, or until the happening of a specified event; (

b) requiring that a lump sum be paid or held in trust; . . . [17] Under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, as amended, a “supportorder” is defined at

section 1 to mean: “support order” means a provision in an order made in . . . Ontario and enforceable in Ontariofor the payment of money as support . . ., and includes a provision for, (

a) the payment of an amount periodically, whether annually or otherwise and whetherfor an indefinite or limited period, or until the happening of a specified event, (

b) a lump sum to be paid or held in trust, . . . Subsection 2(5) of the Recommended Standard Terms for Support Orders, O. Reg. 454/07 [as amended], made under the FamilyResponsibility and Support Arrears Enforcement Act, 1996, recommends standard terms where child support includes an amount forspecial or extraordinary expenses. 4: DISCUSSION [18] The issue on this motion as framed by the applicant was whether the obligation sought to be enforced under paragraph 13of the order was a “payment order.” [19] Ms.

Avery, who appeared as agent on behalf of the applicant to argue the motion, submitted that the relief sought was notfor payment of money. Rather, she argued, the basis of the request that the respondent be found in contempt was his failure to honourthe court order to contribute toward the children’s special expenses. [20] I am unable to agree with Ms. Avery’s submission. The dispute between the parties centres on the applicant’s entitlementto receive a contribution from the respondent toward special and extraordinary expenses and the amount, if any, that should be paid.

Theevidence discloses that the parties have engaged in communication about entitlement but no agreement has been reached. The evidencebefore me is clear; this motion is about the payment of money. [21] The payment required under paragraph 13 is from the respondent to the applicant. This is an essential element of apayment order that is not enforceable by a contempt order: see Coletta v. Coletta, , 34 R.F.L. (5th) 9, [2003] O.J. No.81, 2003 Cars​well​Ont 55 (Ont. Fam. Ct.); and Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, 357 N.R. 196, 221 O.A.C. 394, 279D.L.R. (4th) 625, 39 R.F.L. (6th) 30, [2007] S.C.J.

No. 8, 2007 Cars​well​Ont 606. [22] Paragraph 13 of my order of 8 April 2010 requires the respondent to pay money to the applicant for special andextraordinary expenses. I find that paragraph 13 is a payment order within the meaning of rule 2 of the Family Law Rules. This beingthe case, I find the enforcement of the payment portion of paragraph 13 of the order may not be by way of contempt. [23] This is not to suggest that the applicant is without remedy.

It remains open for her to demonstrate to a court that theexpenses for which she seeks reimbursement are in fact special or extraordinary expenses, which were agreed upon by the party prior toenrolment or undertaking or that the applicant’s consent is being unreasonably withheld. The sum of money once fixed can then beenforced through the Family Responsibility Office. [24] The respondent asked for costs.

I informed the parties that I was not prepared to make a cost order having regard to theirrespective financial circumstances. [25] Accordingly, an order shall go dismissing the applicant’s motion for contempt and there shall be no order for costs.