“Notwithstanding the appellant’s claim that, on the basis of the proceedings and material before her, Van Melle J. could not and in fact did not make a finding of contempt, his position that the order under appeal is a final order rests on the assumption that it is, in substance if not in form, a contempt order. He argues that Rule 31, which allows the court to impose a finding of contempt against a party in breach of an order, is the only provision of the Family Law Rules that allows for the imposition of a fine or monetary penalty. Because a fine was imposed by Van Melle J., the order must therefore be a contempt order.
A finding that a party is in contempt of court “is a serious matter that is quasi-criminal in nature”: Bell Express Vu Limited Partnership v. Corkery, 2009 ONCA 85 (CanLII), at para. 20. The significance of this is such that a contempt order is considered to be a final order, an appeal from which lies directly to this court: Bush v. Mereshensky (2007), 2007 ONCA 679 (CanLII), 43 R.F.L. (6th) 267 (Ont. C.A.), at para. 10.
However, the respondent argues that Van Melle J.’s order cannot be considered a contempt order. A finding of contempt was not sought in any of the motions before Van Melle J. or Corbett J. In any event, neither Van Melle J. nor Corbett J. addressed the issue of contempt or made findings in that regard.
The respondent submits that the authority for imposing a fine exists quite apart from the contempt provisions of the Family Law Rules. Specifically, she refers to three provisions of the Family Law Rules which she claims support her position that the court was entitled to make any order it considered appropriate in view of the appellant’s failure to obey Corbett J.’s disclosure order:
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- Rule 1(8) provides that the court may, where an order has not been complied with, make “any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including …”
- Rule 14(23) provides that on a motion for failure to obey an order that was made on motion, the court may “in addition to any other remedy allowed under these rules,
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(c) make any other order that is appropriate, including an order for costs.”
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- Rule 19(10) provides that the court may, on motion, make various orders where a party has failed to comply with an order to disclose documents. Such orders include a contempt order, but also include “any other order that is appropriate.”
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The respondent argues that any of these rules gave Corbett J. the necessary authority to order the appellant to pay a fine in the event that he failed to comply with the disclosure order and produce the required documents. Van Melle J.’s order for payment of the fine did no more than apply the terms of Corbett J.’s order. The respondent submits that no finding of contempt was sought or made and the order for the payment of the fine did not finally dispose of any issue in the proceedings. I agree.”