Doctor's case an issue of contempt

Surgeon thumbing his nose at courts, judge says, but the doctor blames the system for his troubles Case raises question of whether people found in contempt deserve access to courts, writes Tracey Tyler

The Toronto Star ( Canada's largest daily newspaper ), by TRACEY TYLER,  LEGAL AFFAIRS REPORTER, January 18, 2006

A plastic surgeon from Sarnia is enjoying a "lavish" and "luxurious" lifestyle in the Bahamas while his ex-wife in Canada battles for support and his children struggle to fund their education, a judge says.

Dr. Kenneth Dickie, who earned between $656,000 and $915,000 annually in recent years, spent time in a Toronto jail last year for failing to fulfill his support obligations.

In 2001, a judge ordered him to pay $9,067.42 a month to his three children, ages 18 to 23, and $2,500 a month to his former wife, who supported him through his medical training. When he did not comply, another judge ordered him to provide a $150,000 letter of credit to secure his obligations and another $100,000 as security to cover his ex-wife's legal costs, which he did not do.

Reached by the Toronto Star on his cellphone in Freeport, Bahamas, on the weekend, Dickie, now remarried, said he doesn't have the money and plans to apply to vary the court orders.

"I really don't want to put my family or my children through this any longer," said Dickie, who blamed the court process for preventing him from acting sooner. "What I'm hoping to do is get this resolved."

But Justice John Laskin of the Ontario Court of Appeal said Dickie has been "thumbing his nose" at Ontario's justice system while driving a Porsche, living in a luxurious Caribbean house and ringing up resort and bar tabs on his credit card.

In a 2-1 decision released late Friday, the appeal court, with Laskin dissenting, set aside two Superior Court orders from last year, which found Dickie in contempt of court for failing to provide the letter of credit to secure his support payments and sentenced him to 45 days in jail.

A judge has no authority to hold a person in contempt for ignoring a court order for the "payment of money" and that's what the letter of credit was, the majority said. People are no longer thrown in jail for failure to pay a civil debt.

The case also raised the important question of whether people found in contempt like Dickie should continue to have access to the courts. A long-standing legal principle holds that such a person should not have their case heard until they have "purged" their contempt by complying with a court order, but there are exceptions.

In 1991, the court refused to hear Toronto furrier Paul Magder's appeal because he continued to open his store on Sundays and holidays, in defiance of court orders to comply with the Retail Business Holidays Act, which precluded shopping on those days.

In Dickie's case, the court was divided, on the one hand, between the need to ensure procedural fairness and that a person has their legal rights determined within a reasonable time and, on the other, the need to be flexible and tough with those who flout the court's authority.

`Dr. Dickie has shown an appalling disregard for orders of the court.' - Justice John Laskin, dissenting judge

Writing for the majority, Justice Russell Juriansz said that since Dickie was challenging the court's authority to find him in contempt in the first place, it only made sense that he be allowed to have his case heard. Justice Robert Sharpe agreed.

But in a forceful dissent, Laskin said Dickie shouldn't have been allowed his day in court to appeal the contempt finding until he produced the letter of credit.

"Since May 2001, Dr. Dickie has shown an appalling disregard for orders of the court, for his support obligations to his family, and for the welfare of his children," Laskin wrote.

Nearly a year after being ordered to pay support, Dickie's ex-wife, Leaka Dickie, who lives in Alberta, received an anonymous letter informing her that her former husband was "secretly preparing" to flee the country "to avoid all Canadian laws that are not to his liking."

Days later, she learned he moved to the Bahamas, in breach of a promise to tell her lawyers if he planned to move.

He also cashed in his RRSPs and has never disclosed what he did with the money, said Laskin. Meanwhile, Dickie's refusal to pay support has had "disastrous consequences" for his children and his former wife, he said.

His two eldest children have stopped their education because they can't afford it, Laskin said. Dickie's eldest son found studying and working full-time too much. His daughter and youngest son require tutors, which their mother can't afford.

Leaka Dickie has depleted her savings and is at risk of losing her home, Laskin said. In an interview with the Star, however, Dickie said he set up a $120,000 educational fund for his three children.

"Each of these children have access to that and they are drawing on this now," he said.

Laskin said the inference is "inescapable" that Dickie moved to the Bahamas to avoid his support obligations. A Canadian court order is not enforceable in that country.

But Dickie told the Star he was also considering moving to Phoenix, Ariz. He chose the Bahamas, he said, because his current wife's family has had a home there for 15 years. He needed to leave Sarnia because the medical insurance company for Canadian doctors was refusing to cover him for procedures performed on American patients, who accounted for 60 per cent of his practice, he said.

`Certainly I felt my rights were violated.' Dr. Kenneth Dickie, on contempt ruling, which was set aside by appeal court Friday

Dickie, the only plastic surgeon on Grand Bahama Island, now operates the Bahamas Institute of Plastic Surgery in Freeport. His website invites prospective patients seeking everything from breast implants to scar reduction to come for a week-long surgery "experience," which includes recovering at a nearby resort. He offers financing. No one has disputed his skill.

"Dr. Dickie does great work! I totally love the way my breasts look now," writes one happy client, identified as "DeAnna, from Grady, Ala."

Dickie received his medical training in Alberta and at the University of Western Ontario, worked at Sunnybrook and North York General Hospital in the 1980s and was chief of staff at Sarnia General Hospital. He and his first wife were married in 1979. Five years later, he established a plastic surgery practice in Sarnia. His wife worked there a few days a week.

When they separated in 1991, a separation agreement provided that Dickie would pay $1,750 per month per child, increased annually by 2 per cent.

It also required him to pay support to his former wife until May 2001. She received $4,750 a month.

The couple divorced in 1994. When the spousal support provisions lapsed, Leaka Dickie reapplied to the court. On July 5, 2001, he was ordered to pay support on an interim basis, in the amounts of $9,067.42 a month for the children and $2,500 a month to his former wife. The final amounts were to be determined at a trial, which hasn't taken place.

After moving to the Bahamas in July 2002, Dickie's second wife Shawnie wrote to his children.

"Though we will not continue to pay you the unbelievable amounts of money your mother has not so graciously received in the past we do expect to work hard in our new environment in the Bahamas," she said.

Dickie said he thinks it's unfair he was held in contempt when he can't afford to comply with the order. "Certainly I felt my rights were violated."

Harold Niman, Leaka Dickie's lawyer, says Dickie seems to have found money for a lawyer money that could have gone to his former wife and kids.

But Rochelle Cantor, Dickie's lawyer, said his father-in-law paid her retainer and his second wife's family has made some of his support payments.

He still appears to be more than $100,000 in arrears, Laskin said. But he's no longer driving the Porsche, said Cantor. In the summer of 2004, she said, he traded it in for a used Toyota.