Saunders v Saunders, 2017 ABQB 163

Court of Queen’s Bench of Alberta Citation: Saunders v Saunders, 2017 ABQB 163 Date: 20170308 Docket: 4803 161194 Registry: Edmonton Between: Michael Edward Saunders Plaintiff - and - Toby-Lee Saunders Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ Introduction [ 1 ] On November 28, 2016, I granted Ms. Saunders leave to pursue relief in relation to various matters, as described in two different Family Law Applications she eventually filed on December 2, 2016. [ 2 ] Ms.

Saunders’ first Family Law Application asks the Court to hold Mr. Saunders in contempt for not complying with Justice Macklin’s costs awards made against Mr. Saunders on December 4, 2014 ($9,273.52), January 29, 2016 ($500) and June 30, 2016

($500), in the total sum of $10,273.52. Ms. Saunders asks the Court to order interest on this sum calculated at the rate of 18% and to direct various collection actions, such as collection against Mr. Saunders’ tax refunds for 2015 and 2016, and garnishee action against Mr. Saunders’ employment earnings in the sum of $250 per pay period. [ 3 ] Ms. Saunders’ second Family Law Application asks the Court to hold Mr.

Saunders in contempt and subject him to incarceration for failing to give effect to the parties’ December 2014 Consent Order for joint custody and for withholding the parties’ son from her contrary to its access terms. Ms. Saunders asks for a direction that Mr. Saunders facilitate and encourage Ms. Saunders’ relationship with their son. [ 4 ] Mr. Saunders also applied for relief from this Court. He filed his own Family Cross-Application on December 23, 2016. However, Mr. Saunders failed to obtain leave to proceed, as required by my Conditions and Guidelines for Case Management . Accordingly, Mr.

Saunders’ materials have only been considered in so far as they are relevant to his response to the applications brought by Ms. Saunders, that is as a shield, not a sword. Contempt of Court With Respect to Costs [ 5 ] Rule 10.52(3)(a)(

i) of the Alberta Rules of Court reads:

(3) A judge may declare a person to be in civil contempt of Court if (

a) the person, without reasonable excuse, (

i) does not comply with an order, other than an order to pay money , that has been served in accordance with the rules of service of commencement documents or of which the person has actual knowledge. (emphasis added) [ 6 ] Ms. Saunders’ applications to hold Mr. Saunders in contempt for failing to pay the costs assessed against him must fail. The Rules do not permit the Court to find contempt for the non-payment of a monetary award. However, Rule 10.20(1) does allow the Court to turn a decision of a review officer into a judgment or order capable of enforcement. Ms.

Saunders evidence shows the amount of $9,273.52 owing by Mr. Saunders follows from a taxed Bill of Costs in relation to Justice Macklin’s Order of December 4, 2014. Moreover, the costs owing pursuant to the other two orders of January 29, 2015 and June 30, 2016 have already been endorsed by the Court and require nothing further from me to “take effect”. [ 7 ] In Mr. Saunders’ evidence, he does not dispute the amounts owing nor does he allege making any payments in satisfaction of those amounts. I am satisfied Ms. Saunders has proven the total sum of $10,273.52 is still outstanding.

As indicated when the parties were before me on January 9, 2017, I grant Ms. Saunders an all-inclusive Judgment in that amount, with interest calculated at the rate of 5% simple interest per annum commencing January 1, 2017. [ 8 ] Enforcement of money judgments is not a matter for the Courts. However, it is open to Ms. Saunders to execute on her Judgment using the collection procedures available to her under the Civil Enforcement Act (Alberta).

Contempt of Court With Respect to Access [ 9 ] The Consent Order granted on December 4, 2014 by Justice Macklin directs joint custody and that the parties “share all decision making” in relation to their son. Mr. Saunders is to have primary care, but Ms. Saunders is entitled to parenting time according to a graduated

schedule starting with one three-hour visit each week for a period of two months, moving to one overnight visit each week for a period of two months, and culminating in a permanent

schedule of visits every second weekend from Friday to Sunday and one three- hour visit each week. The three-hour visits and overnights are to be arranged at “dates and times to be agreed upon between the parties”. Additional visits are available to Ms. Saunders “as agreed”. There is further provision for parenting time for Ms. Saunders during the summer and over the Christmas school holiday. [ 10 ] Rule 10.52(3)(a)(i), relating to contempt, does not exclude orders with respect to parenting.

If contempt is found, the penalties and sanctions found in Rule 10.53 are open to the Court, which include costs, fines, actions affecting that party’s ability to continue with his/her claim and imprisonment. [ 11 ] The Rules provide me with the discretion to decide whether Mr. Saunders’ behaviour, in not facilitating Ms. Saunders’ access,

amounts to contempt. My case of Point on the Bow Development Ltd. V William Kelly & Sons Plumbing Contractors Ltd. 2006 ABQB 775 provides context for the exercise of this discretion: To find civil contempt, the applicant must provide the following things beyond a reasonable doubt: (1) an existing requirement of the court; (2) notice of the requirement to the person alleged to be in contempt; and (3) an intentional act (or failure to act) that constitutes a breach of the requirement...“without adequate excuse”...

Point on the Bow goes on to state: “[w]hile the act (or failure to act) that constitutes contempt must be intentional, not accidental, neither a general intent to do the act forbidden (or failure to do the act required) nor a specific intent to disobey, is required”. [ 12 ] The parties do not raise issues in relation to the first two elements of the test. Both parties agree the terms of parenting, as directed in the Consent Order granted by Justice Macklin on December 4, 2014, have not been followed; Ms. Saunders never had any of the access provided for within the Consent Order.

However, they do not agree on why these terms have not been followed. [ 13 ] Ms. Saunders faults Mr. Saunders. She alleges he has not complied with the Order by refusing to assist with arranging access. She attaches several text messages sent to Mr. Saunders in early 2015 trying to establish times for access. Her attempts were met with a short response from Mr. Saunders indicating their son does not want to see her. Ms. Saunders further alleges Mr. Saunders has and continues to actively alienate her from their son. She further raises issues with Mr.

Saunders’ decision-making in relation to the child’s psychological health and education, alleging Mr. Saunders has failed to meet his needs in these areas by disregarding an earlier diagnosis of Asperger’s Syndrome. [ 14 ] Mr. Saunders faults Ms. Saunders. He alleges she did not make appropriate efforts to establish arrangements for access pursuant to the Order. She did not make any attempts to see their son during the first “tier” of graduated access from November 14, 2014 to January 14, 2015. His excuse for not facilitating access between Ms. Saunders and the child when she did reach-out to Mr.

Saunders in late January 2015 is Ms. Saunders had been “ignoring” their son for over a year and the child told Mr. Saunders “that he did not wish to visit with” her. [ 15 ] It is difficult to say, based on what has been presented to me, who is to blame for the failure to follow the terms of the Order. No explanation is given by Ms. Saunders for why she made no attempts to set-up dates for access until the end of January 2015, days into the second “step” of the graduated access regime.

Nor is there any evidence of continued attempts to arrange access after January 2015 or any explanation given for why it has taken Ms. Saunders nearly two years to take any action to remedy the situation, particularly in light of her threats of immediate action. [ 16 ] Mr. Saunders’ eventual response to Ms. Saunders’ inquiries that their son “does not want to visit with you” was neither helpful nor in keeping with the spirit of the agreement he made when consenting to the December 2015 Order.

Such a reply is not reflective of a parent who truly wants to cooperate in assisting to repair a fractured relationship between a child and the other parent or of a primary parent making his best efforts to discharge his obligation to give effect to the maximum contact principle found at

section 10 of the Divorce Act (Canada). [ 17 ] Information provided by Mr. Saunders of Ms. Saunders’ parenting pre-dating the December Consent Order does not assist the Court; the December 2014 Consent Order was entered despite these circumstances. Mr. Saunders’ reference to Ms. Saunders failing to follow-through with the earlier Practice Note 8 Parenting Time / Parenting Responsibilities Assessment Order of October 15, 2013 is similarly not helpful. Like the complaints about Ms. Saunders’ past parenting, the Assessment Order pre-dates the December Consent Order. Mr.

Saunders’ statements in his Affidavit about Ms. Saunders making “no attempts to provide funds to the Parenting Expert in order to proceed” are misleading, as the Order required Mr. Saunders to pay the up-front costs of the assessment. [ 18 ] Nor is the child expressing a contrary desire an excuse for not following an Order of this Court. He was 13 years old at the time, hardly an age at which to completely determine his own parenting schedule.

This is particularly so considering the evidence of his historical cognitive difficulties, which has not been countered with any updated, independent evidence of greater functioning. [ 19 ] Regardless, I cannot fairly find contempt in these circumstances. An order must be sufficiently clear, precise and unambiguous to ground a finding of contempt: Richter v Chemerinski 2014 ABQB 322 . The Consent Order was not specific as to which days and at what times Ms. Saunders was to have access. The Court cannot enforce an order for parties to agree. I cannot say, on the evidence presented, Mr.

Saunders was at fault for the parties failing to follow-through with the spirit of the December Consent Order, particularly in light of Ms. Saunders’ failure to initiate requests to establish access during the first period of graduated access. Furthermore, the remedies available to me upon a finding in contempt will do nothing to actually better the relationship between Ms. Saunders and the child.

[ 20 ] However, the absence of a contempt finding does not mean there will be no order addressing Mr. Saunders failure to be responsive in working with Ms. Saunders to facilitate access once she did start making requests to see their son. Mr. Saunders does not dispute he refused Ms. Saunders’ later attempts to start seeing the child, he only seeks to justify his actions. He cannot.

If he was of the opinion he was unable to follow the Order he had agreed to only a month earlier, the appropriate course would have been to bring an application to vary the existing order on the basis of a material and unforeseen change in circumstances. That did not happen. [ 21 ] Had positive steps been taken at that time to start the healing between the child and his mother, the parties may have found themselves in a very different place at this point. As I have said, I am not granting Ms. Saunders’ application to hold Mr.

Saunders in contempt, but I am going to grant an Order that aims to get at the heart of Ms. Saunders’ request to have the Court direct Mr. Saunders to facilitate and encourage her relationship with their son. [ 22 ] I am not so concerned now with the question of “has the Order been followed”, as it is clear it has not, but “why has the Order not been followed”, with the best interests of the child paramount in any consideration of the answer.

In my view, the most appropriate course going forward would be an order aiming to discover the underlying reasons why the child is refusing, if he is indeed refusing, to go to see Ms. Saunders and to establish a means to ameliorate the cleft in parental affections. [ 23 ] Accordingly, I direct a Family Law Practice Note 7 Intervention take place. The purpose of this Intervention will be remedial facilitated access / parent-child reunification. The parties will, within 30 days or a date or dates set by her, meet with Case Management Counsel, Ms. Michelle L.

Pidhirney, to identify a Parenting Expert and prepare a fulsome form of Intervention Order for my consideration, all within 45 days, failing which I shall direct same unilaterally. Mr. Saunders shall pay for the up-front costs of the Intervention, immediately on my Order, because, in my view, it was his responsibility to be more active in providing meaningful opportunities for access between Ms. Saunders and their son, rather than “slamming” the door shut without discussion.

Final cost determination shall await the Practice Note 7 Report. [ 24 ] I am aware, according to paragraph 26 of Family Law Practice Note 7, I cannot make an order for an Intervention to proceed, if the parties cannot pay. Mr. Saunders complains in his Affidavit that he cannot afford to contribute. I find this assertion unfounded. Firstly, he makes this statement in reference to an Assessment. An Intervention will be less costly than a full bilateral custody Assessment. Secondly, he points to Ms. Saunders’ failure to pay child support and his obligation to pay spousal support.

This can certainly be addressed, and I will deal with the way in which Mr. Saunders may do this later in my Reasons. Thirdly, Mr. Saunders’ evidence shows he made $115,691 in 2015. I conclude he is able to afford the cost of this Intervention. [ 25 ] Any failure of Mr. Saunders to co-operate with Ms. Pidhirney or follow-through with the terms and conditions of the eventual Intervention Order could certainly result in a future contempt finding. Ongoing Child Support [ 26 ] Despite the fact that I am not hearing any of the applications brought forward without leave by Mr. Saunders, Ms.

Saunders has said she does not object to paying ongoing child support on her current income. At the hearing, I directed Ms. Saunders to provide her 2015 tax return within 10 days and her 2016 tax return as soon as she has it completed. She has complied with the first part of this direction. [ 27 ] Ms. Saunders’ 2015 Assessment discloses she made $40,022 in employment income, $11,115 from other pensions or superannuation, $716 in taxable dividends, $683 from interest and other investment income and her RRSP income was $5.

She also received $19,800 in spousal support payments for a total income (line 150) of $72,341 in 2015, although spousal support does not figure into calculating guideline income for basic child support payments. When the parties were before me, Ms. Saunders claimed her income for 2015 was artificially high, because she took funds out of her RRSP. However, her Assessment shows only $5 of RRSP income; a de minimis sum. [ 28 ] In our discussions in Court, Ms. Saunders claimed she made less in 2016, because she was on leave from her work with WestJet and receiving disability benefits.

I have no evidence whatsoever to show what she was earned in 2016 or what she might be expected to earn in 2017. Therefore, while I had hoped to be able to deal with the issue of ongoing child support in a

summary fashion in these Reasons, based on Ms. Saunders’ income information for 2015, this is not going to be possible. [ 29 ] If Mr. Saunders wants this issue adjudicated, which I trust he does, I am prepared to grant leave, if he applies to me for such, on

the issue of Ms. Saunders’ ongoing

section 3 child support payments. Ms. Saunders will then have an opportunity to provide all of her evidence relevant to determining her income. It will be at her own peril should she choose not to be forthcoming with documentation to substantiate her claims her income has diminished. If Mr.

Saunders wishes to pursue any of the multitude of other matters included in his December 23, 2016 Family Cross-Application, he will need to request leave by following the procedure established in my Conditions and Guidelines for Case Management , and I will further consider whether he will permitted to proceed on any of those items. Heard on the 9 th day of January 2017. Dated at the City of Edmonton, Alberta this 8 th day of March 2017. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Michael Edward Saunders for the Self-Represented Litigant Toby-Lee Saunders for the Self-Represented Litigant