Wade v Wade, 2021 ABQB 865

Court of Queen’s Bench of Alberta Citation: Wade v Wade, 2021 ABQB 865 Date: 20211101 Docket : 2103 10903 Registry: Edmonton Between: Rita Wade Plaintiff/Applicant - and - Darren Wade and Duane Wade Defendants/Respondents _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] What is the process for obtaining an order finding a party in civil contempt? [ 2 ] The applicant asserts that its application set the stage for a contempt finding.

The respondent says that, per the application, the relief sought was limited to a show-cause order, with a contempt finding (if any) necessarily downstream.

[ 3 ] I find that we are indeed at the show-cause stage. B. Background [ 4 ] A surviving spouse is seeking repayment to her deceased spouse's estate or other safe holding place of approximately $250,000 removed from his bank accounts by his two sons, via a freshly granted power of attorney, days before his death. [ 5 ] On September 10, 2021, Macklin J. ordered the repayment of the money: 1.

The Defendants, Darren Wade and Duane Wade, shall transfer to the trust account of their lawyer, David Ranieri, all the money they removed from Arthur Wade's TD Canada Trust and CIBC bank accounts, from the day the Power of Attorney was signed (January 11, 2021). 2. This shall be done by no later than Monday, September 13, 2021. 3.

This money shall remain in trust until further Order of this Court. [ 6 ] Following non-compliance with that order, the spouse filed an application, styled (in part) under "Form 27 [Rules 6.3 and 10.52(1)]" and returnable October 19, 2021, seeking (as "Remedy claimed or sought"): An Order pursuant to rule 10.51 of the Alberta Rules of Court requiring the Defendants, Duane Wade and Darren Wade, to appear before this Court to show cause why they should not be held in civil contempt of Court. [ 7 ] Under "Applicable rules", it stated "Rules 10.51 and 10.52 of the Alberta Rules of Court." [ 8 ] Both applicants were personally served with the application. [ 9 ] The application came before me in civil chambers on October 19, 2021.

Present (via Webex) were the spouse's counsel (Mr. Potter), Mr. Ranieri (now acting for the defendants only in their capacity as the estate's personal representatives), and counsel acting for the defendants in their personal capacities (Ms. Jones). (I do not recall if the defendants were observing via Webex. I do not recall either being present in the courtroom.) [ 10 ] At the application, Mr. Potter argued that the Macklin Order was clear, that is was common ground that no monies had been paid as directed or otherwise anted up and that, as a result, a contempt finding should be made. [ 11 ] Ms.

Jones stated that the defendants no longer have the monies and that, as a result, compliance with the order is and was not possible. However, on a threshold basis, she also argued that no contempt findings could be made, given the clear (show-cause) nature of the relief sought. [ 12 ] I reserved my decision to review the file materials. I also asked for follow-up submissions (via letter) from Mr. Potter and Ms. Jones on the nature of the application. [ 13 ] Mr. Potter's October 22, 2021 letter focused largely on the test for contempt and whether it was satisfied here.

On "process", he wrote: The Defendants received notice of the application for contempt . They were served personally on October 7th as was their lawyer on October 6 by a process server ... [emphasis added] [ 14 ] In her note dated October 20, 2021, Ms. Jones also focused largely on the test for contempt. She did observe that "[I had] reserved [my] judgment on whether the application before [me] was for an order for a contempt hearing or the contempt hearing itself.” [ 15 ] I turn to the applicable Rules. C.

Civil contempt rules [ 16 ] Here are Rules 10.51 ("Order to appear") and 10.52 ("Declaration of civil contempt"): 10.51 The Court may grant an order in Form 47 that requires a person to appear before it , or may order a peace officer to take a person into custody and to bring the person before the Court, to show cause why that person should not be declared to be in civil contempt of Court. 10.52(1) Except when a person is before the Court as described in subrule (3)(a)(ii) or (v), before an order declaring a person in civil contempt of Court is made, notice of the application in Form 27 for a declaration of civil contempt must be served on the person in the same manner as a commencement document.

(2) If a lawyer accepts service of a notice of an application seeking an order declaring the lawyer’s client to be in civil contempt of Court, the lawyer must notify the client of the notice as soon as practicable after being served.

(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 for service of commencement documents or of which the person has actual knowledge, (ii) is before the Court and engages in conduct that warrants a declaration of civil contempt of Court, (iii) does not comply with an order served on the person, or an order of which the person has actual knowledge, to appear before the Court to show cause why the person should not be declared to be in civil contempt of Court, (iv) does not comply with an order served on the person, or an order of which the person has actual knowledge, to attend for questioning under these rules or to answer questions the person is ordered by the Court to answer, (

v) is a witness in an application or at trial and refuses to be sworn or refuses to answer proper questions, or (vi) does not perform or observe the terms of an undertaking given to the Court, or (

b) an enactment so provides. [Rule 10.53 addresses punishment for civil contempt.] [emphasis added] [ 17 ] Rule 6.3 (referenced in the title to the application) and Form 27 (referenced in the application title and in R. 10.52(1)) respectively outline the core requirements, and show the template form, for applications generally. [ 18 ] Form 47 (also referenced in the application title, as well as in Rule 10.51) is as follows: Form 47 [Rule 10.51] Clerk’s stamp: COURT FILE NUMBER COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE PLAINTIFF(

S) DEFENDANT(

S) DOCUMENT ORDER TO APPEAR ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT DATE ON WHICH ORDER WAS PRONOUNCED: LOCATION OF HEARING OR TRIAL: NAME OF MASTER/JUDGE WHO MADE THIS ORDER: □ [Name] is ordered to appear before this Court at _____________ on _________________. OR □ A warrant shall issue in the form attached as

Schedule “A” and a Peace Officer shall take into custody [name] and bring that person before the Court to show why that person should not be declared to be in civil contempt of Court. _________________________________________

Justice of the Court of Queen’s Bench of Alberta

SCHEDULE “A” ACTION NO.______________________ IN THE COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE OF ____________________ WARRANT FOR ARREST TO THE PEACE OFFICERS IN ALBERTA: This warrant is issued for the arrest of (Name of person to be arrested) of (Address) (Postal Code) Date of Birth: (yyyy/mm/dd) (Occupation) WHEREAS there are reasonable and probable grounds to believe that (name of person to be arrested) should be brought before this Court to show cause why that person should not be declared to be in civil contempt of Court.

This therefore is to command you, in Her Majesty’s name, forthwith to arrest and detain (name of person to be arrested) and to bring that person before a Justice of the Court of Queen’s Bench of Alberta to be dealt with according to law. This warrant is sufficient authority for the keeper of a correctional institution to receive and detain (name of person to be arrested) into custody and to safely keep that person pending appearance before a Justice of the Court of Queen’s Bench of Alberta.

DATED _____________, 20______, at _______________, Alberta. _____________________________ Justice, Master or Clerk of the Court of Queen’s Bench of Alberta AR 124/2010 Form 47;143/2011 D.

Application of those rules here [ 19 ] A interested person perceiving that another or others are in civil contempt faces a two-stage process: (1) an initial application (per R. 10.51) where allegations of contempt are raised and, if apparent or ostensible contempt is shown, a "show cause" order can be issued; and (2) the "show cause" hearing itself, conducted per R. 10.52 [ 20 ] In this case, per the express wording of the application (describing the "Remedy" as a R. 10.51 "show cause" order i.e. not a contempt finding) and in any case necessarily (per the two-step process prescribed by Rules 10.51 and 10.52), we are at the upstream stage of determining whether a show-cause order should be issued. [ 21 ] This two-stage process was recognized and applied by Read J. in Bilhete v Wong , 2013 ABQB 514 (para 10 ) and 2014 ABQB 142 (paras 4-19 ).

See also Recycling Worx Solutions Inc v Hunter , 2018 ABQB 395 (Eamon J.) at paras 181-183 and 185 . [ 22 ] Turning to whether a "show cause" order should be issued, Macklin J.'s order clearly outlined what was required of the defendants. [ 23 ] As noted, it is common ground that no monies were repaid as required (or at all) or otherwise put into safekeeping. [ 24 ] At this stage, it is premature to explore the defendant's "compliance not possible" position. E. Conclusion [ 25 ] Given a clear duty-imposing order and apparent or ostensible non-compliance, the application, as framed, should be granted.

[ 26 ] I hereby grant an order (to be prepared in line with Form 47) directing Darren Wade and Duane Wade to appear before me to show cause why they should not be declared to be in civil contempt of Court. [ 27 ] I would ask Mr. Potter and Ms. Jones to contact my assistant (Stacy Adams) to arrange a workable date for the show-cause hearing during the weeks of November 15-19 or November 29-December 3. [ 28 ] Once the date and time are set, if the parties require directions on any lead-up steps to the hearing they can contact me via Ms. Adams. Heard on the 19 th day of October, 2021 in Civil Chambers.

Follow-up submissions received on October 20 th and October 22 nd , 2021. Dated at Edmonton, Alberta this 1 st day of November, 2021. Justice M. J. Lema J.C.Q.B.A. Appearances: Tor Potter Kiriak Law Office for the Plaintiff/Applicant Victoria A. Jones de Villars Jones Barristers & Solicitors for the Defendants/Respondents in their personal capacities David Ranieri Barr LLP for the Defendants/Respondents in their capacities as personal representatives of the Estate