Wade v Wade, 2021 ABQB 994

Court of Queen’s Bench of Alberta Citation: Wade v Wade, 2021 ABQB 994 Date: 20211214 Docket: 2103 10903 Registry: Edmonton Between: Rita Wade Plaintiff/Applicant - and - Darren Wade and Duane Wade Defendants/Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M.J. Lema _______________________________________________________ A. Introduction [ 1 ] Does the Defendants’ failure to repay all of certain monies ordered repaid in this estate litigation amount to contempt?

[ 2 ] The answer is yes. B. Background [ 3 ] On January 11, 2021, Arthur Wade (age 87 and in poor health) executed a new will and an enduring power of attorney, the latter in favour of his sons Darren and Duane Wade. [ 4 ] His previous will (made in February 2017) gave a life estate in certain residential property to Rita Wade, his spouse and the applicant here, with the residue going to Duane. The new will made no provision for Ms. Wade (“have provided adequately for [her] through means outside of this will”) and left his estate to Duane and Darren equally.

Sons withdraw monies [ 5 ] Between January 21 and February 1, 2021, and via the power of attorney, the sons withdrew the collective amount of $260,731.09 from three of Mr. Wade’s bank accounts, apparently emptying them. Death of Mr. Wade [ 6 ] Mr. Wade died on February 4, 2021. Ms. Wade learns of withdrawals and reacts [ 7 ] By February 9, 2021, Ms. Wade became aware of the various withdrawals. [ 8 ] By letter from her counsel dated February 7, 2021, to the lawyer who prepared the new will, Ms.

Wade outlined her position that certain of the withdrawn funds (approximately $17,000), pulled from a Rita-Arthur joint account, “were Rita’s property as well [i.e. as Mr. Wade’s], and should not have been withdrawn.

We will be seeking an accounting and the return of the withdrawn funds.” [ 9 ] By letter from her counsel dated February 12, 2021 to the sons, she referred to those withdrawn funds, plus a further approximately $255,000 understood to have been withdrawn by them from Arthur’s accounts, demanding a “financial accounting of any and all transactions incurred since the [POA] became operational”, the “return of the withdrawn funds to the respective accounts given that we will be proceeding with an Application pursuant to the Wills and Succession Act for Rita’s proper maintenance and support”, and the return of the joint-account withdrawals to the “proper joint accounts”, all by February 18, 2021.

Sons respond [ 10 ] On February 26, 2021, the sons’ lawyer replied to the February 7, 2021, letter, defending the joint-account withdrawals and advising that the maintenance and support claim was necessarily aimed at the net estate, which she advised stood at “approximately $350.” [ 11 ] Among other correspondence among the parties, on April 16, 2021 the estate’s lawyer provided various information including banking document reflecting the withdrawals from Mr. Wade’s accounts by the sons. Ms. Wade’s action [ 12 ] On July 27, 2021, Ms.

Wade filed a statement of claim (starting the within action) against the sons, seeking various relief including “the return of [$257,643.59, described as “misappropriated funds” from Mr. Wade’s accounts] to the estate of [Arthur Wade] or alternatively to pay them into trust.” [ 13 ] The statement of claim was served on Duane and Darren on July 28 and 29, 2021, respectively. [ 14 ] On August 17, 2021, they filed a statement of defence defending their withdrawals (among other aspects). Application for return of withdrawn monies [ 15 ] On August 25, 2021, Ms.

Wade filed an application (supported by her affidavit sworn August 24, 2021) for (among other relief) “an order directing the Defendants/attorneys to return funds in the amount of $266,645.76 to the estate of Arthur Wade or alternatively to pay them into trust.” The application was returnable September 10 th . [ 16 ] At the application, Mr. Ranieri advised that he represented the sons “as the personal representatives of Arthur Wade”, per the January 2021 will. He also advised that Ms.

Jones represented the sons “in their capacities as beneficiaries of the estate of Arthur Wade” and that she was unable to attend the application. [ 17 ] Mr. Potter’s submissions on behalf of Ms. Wade included that “we’re just looking for an interlocutory order here to ensure to – essentially we’re looking for a preservation order to make sure that the money is not dissipated before my client can [bring] her – maintenance and support application.” [ 18 ] During the application, after being advised by Mr. Ranieri that the sons had removed the funds in question from the accounts in question (“They did.

At [Arthur Wade’s] request.), Macklin J. asked: “ … where is the money now?” [ 19 ] Mr. Ranieri replied: “The money is – is with my clients in their personal bank accounts. … It’s my understanding.” [ 20 ] Macklin J. replied (in part):

All right. That’s not good enough. Some of that money has to go back into … some account where they don’t have access to it. … I’m a little bit concerned that in the event [Ms. Wade’s maintenance and support claim is] successful, that money is not going to be around.

And what I’m going to do is … direct that those funds be held in trust – and an application for the release of those funds can be made after the questioning if your view is that she doesn’t have a basis for the claim. … … there has to be some funds available to honour whatever claim – whatever success she may have. … … I’m going to direct that … those funds are going to be placed into a trust account … it’s going to be a lawyer’s trust account or the Clerk of the Court. Mr. Ranieri, … are you prepared to have those funds held in your trust account pending a further order of the court? [Mr.

Ranieri:] I have no objections with that, My Lord. … [back to Macklin J.] … The funds have been taken – all of the funds have been taken out of the account. … I want that money to be held in some fashion so that in the event that Ms. Wade is successful in her claim, she will have a way in which she can get those funds …. … all of the funds that have been removed from those accounts will be placed into your trust account no later than the … end of Monday [September 13, 2021].

Order for repayment of withdrawn monies [ 21 ] Here is the formal Order reflecting the outcome of the September 10 th application: UPON the application of the Plaintiff, Rita Wade; AND UPON hearing representations from Plaintiff’s counsel …; AND UPON hearing representations from the Defendants’ counsel …; AND UPON THE COURT BEING ADVISED that on January 11, 2021, the Defendants were named Arthur’s Wade’s Attorneys in an Enduring Power of Attorney; AND UPON THE COURT BEING ADVISED that the Defendants removed the following funds from Arthur Wade’s bank accounts: (

a) On January 21, 2021, the Defendants removed $241,570.16 from [his] TD Canada Trust bank accounts [five accounts described, with account numbers]; (

b) On January 28, 2021, the Defendants removed $13,157.50 from [his] CIBC bank account [account described]; (

c) On February 1, 2021, the Defendants removed $6,003.43 from [another CIBC] account [account described]. IT IS HEREBY ORDERED THAT : 1. The Defendants, Darren Wade and Duane Wade, shall transfer to the trust account of their lawyer … 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 no later than Monday, September 13, 2021. 3. This money shall remain in trust until further Order of this Court. Sons’ disclosure (“monies spent”) and request for rehearing [ 22 ] On September 15, Ms.

Jones (again, counsel for the sons in their beneficiary capacity) wrote Macklin J., stating in part: … You ordered that all funds removed from [Arthur Wade’s] accounts be held in Mr. Ranieri’s trust account. I have reviewed the transcript and it appears that two material facts were not before you. One, [Mr. Wade] made inter vivos gifts to his sons, as he was entitled to do. Two, the deceased’s sons (the defendants) have spent their gifts from their father as they were entitled to do. Further, I had requested an adjournment of the matter as I was unavailable and wished to question the applicant.

This request was not mentioned to the court by counsel for [Ms. Wade]. I am requesting that, based on the above, you rehear this matter when all counsel are available. [ 23 ] Later that day, Mr. Potter (for Ms. Wade) also wrote Macklin J. in response (in part): … My client feared the money would be dissipated. According to my friend, my client’s fears were well founded because she states in her letter to you that the Defendants have already spent all the money they took.

Order confirmed [ 24 ] On September 21, 2021, Macklin J. responded to the parties as follows: This matter was before me in morning chambers on September 10, 2021. On the basis of all the submissions made to me at that time, I made an order. The order sent to me by Mr. Potter has been signed [by me] (with one minor correction made in para 1) and may be entered. Parties can pursue whatever remedies they may feel appropriate. Request for compliance with order [ 25 ] On September 21, 2021, Mr. Potter emailed Ms. Jones and Mr.

Ranieri, saying (in part): … kindly note that we will be submitting the signed Order for filing today and will copy you on same. We look forward to confirmation of the deposit of all applicable funds into [the estate counsel’s] trust account. “Monies spent” response (again) [ 26 ] On September 22, 2021, Mr. Ranieri (copying Ms. Jones) advised Mr. Potter that “Further to [Ms. Jones’] letter to Justice Macklin dated September 15, the deceased’s sons have spent the inter vivos gifts they received from their late father.” Application for show-cause order [ 27 ] On October 4, 2021, Mr.

Potter filed an application for “an Order pursuant to rule 10.51 of the Alberta Rules of Court requiring the Defendants … to appear before [the] Court to show cause why they should not be held in civil contempt of Court.” [ 28 ] The stated grounds were that “the Defendants have not complied with the [Macklin J.] Order.” [ 29 ] That application was anchored on an affidavit sworn by Ms.

Wade on October 4, 2021, outlining much of the background outlined above. [ 30 ] The application came before me in Civil Chambers on October 19, 2021. [ 31 ] My decision (outlined in Wade v Wade , 2021 ABQB 865 ) confirmed the show-cause nature of the application and concluded as follows: Given a clear duty-imposing order and apparent or ostensible non-compliance, the [show-cause order] application, as framed, should be granted.

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. 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. 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. [ 32 ] The application was set for December 6, 2021.

Evidence at contempt application [ 33 ] For the contempt hearing, Ms. Wade’s counsel filed an affidavit sworn November 9, 2021, stating (in part): … I am aware that [Duane Wade] owns a home. Enclosed as Exhibit “A” is a copy of the land title for [his] home in Spruce Grove. [The exhibit shows a property purchased for $406,893 in January 2008 and bound by two mortgages (2008 and 2017) reflecting original advances of approximately $312,000 and $24,000, respectively, as well as three non-financial encumbrances]. For [Darren Wade], I am aware of three properties that he owns.

Enclosed as Exhibit “B” are copies of three land titles for [these properties]. None of the [copies of title] indicate that any of the properties has a mortgage.

The home in Edmonton shows a value of $532,000 as of one year ago. [The exhibit shows (for the Edmonton property) an unencumbered property purchased for that amount in November 2020 in the names of Darren Wade, Tammy Wade, and Renaye Wade, “all as joint tenants.” It also shows two Mundare properties, both acquired in 2005 (both with no purchase consideration indicated), both in joint tenancy (Darren Wade and Tammy Wade), and both unencumbered.] Combined, only with respect to homes that they own, the Defendants have the financial assets required to comply with the Justice Macklin Order.

The Defendants thus have the means to comply with the Order. [ 34 ] Darren Wade swore an affidavit on November 18, 2021, stating (in part) that: In total, $260,731.09 was liquidated from [Arthur Wade’s] assets.

Of that, $17,689.66 was paid for [his] funeral, … debts, and … estate’s legal fees. I received $121,520.71 as an inter vivos gift from my father. I deposited this money into my personal bank account …. I did not deposit my inter vivos gift into a separate bank account that solely held the inter vivos gift.

On January 22, 2021, I paid the following amounts. • Servus MasterCard $3,471.41 • Walmart MasterCard $2,500 • Brick VISA $600 • RBC VISA $600 TOTAL $7,171.41 On 19 February 2021, I paid the following amounts: • Jeep $62,920.34 • Property taxes $10,509.90 • Personal loan $12,534.37 • Servus MasterCard $1,593.75 • Walmart MasterCard $496.32 TOTAL $88,054.03 On 23 April 2021, I paid $2,627.48 in property taxes. Between 26 April 2021 and 9 July 2021, I paid $18,397.81 in home renovations including contractors and supplies.

In July 2021, I paid $12,515 in legal fees and retainer. [Total of all reporting spending is $128,765.73.] … I have spent all of my inter vivos gift. Therefore I have not placed any monies into Mr. Ranieri’s trust account. [ 35 ] In his November 18, 2021 affidavit, Duane Wade swore (in part) that: I received $121,520.71 as an inter vivos gift from my father. I deposited this money into my personal bank account. I did not deposit my inter vivos gift into a separate bank account that solely held the inter vivos gift.

I paid the following amounts with my inter vivos gift before July 27, 2021. • Mortgage $46,738 • Truck loan $26,162.33 • Legal fees $8,000 • Vehicle purchase $16,000 TOTAL $96,900.33 I have placed $24,620.38 in Mr. Ranieri’s trust account. [$96,900.33 + $24,620.38 = $121,531.71] C. Contempt rule and burden of proof [ 36 ] The parties agree on the applicable rule and the associated burden of proof, outlined in this excerpt from the sons’ brief: The relevant part of Rule 10.52(3) 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 for service of commencement documents or of which the person has actual knowledge …. There are four elements to a finding of contempt [ Law Society of Alberta v Beaver , 2020 ABQB 321 at paras 4 and 5 (contempt finding upheld 2021 ABCA 163 (paras 31-51 )]: (

a) the order clearly and unequivocally states what should or should not be done ; (

b) there is actual knowledge of the order; (

c) the breach is deliberate ; and (

d) there is no adequate excuse for the breach. There is a due diligence defence to a deliberate breach. As the Court of Appeal stated in Envacon Inc [ v 829693 Alberta Ltd , 2018 ABCA 313 ], at para 40: In our view, Carey [ v Laiken , 2015 SCC 17 ] is consistent with the possibility of a due diligence defence to a finding of contempt . On the facts of Carey a defence of due diligence was not possible. The order restraining Carey was prohibitory: it required him to refrain from “disposing of, or otherwise dealing with” funds belonging to his client.

Carey intentionally did the act - the transfer - that contravened the order. The actus reus was clear. He chose not to obey the order. This differs from the situation where an alleged contemnor fails to comply with an order despite taking every reasonable step to do so . In this situation, as Cromwell J acknowledged, acting in good faith in taking reasonable steps to comply may rightly avoid a finding of contempt where it would work an injustice in the circumstances of the case. The burden regarding the without reasonable excuse element lies with the party alleging contempt .

As the Court of Appeal stated in Envacon Inc . starting at paragraph 48: In our view, the addition of the word “without reasonable excuse” in rule 10.52(3)(a) [does] not change the burden on the party alleging contempt . But, although the alleged contemnor has no persuasive or evidentiary burden, nonetheless the court is entitled to presume that the alleged contemnor acted with knowledge of the facts, unless there is some evidence to the contrary from the alleged contemnor who alone can know on what belief he acted and on what ground the belief, if mistaken, was held....

Consequently, as a matter of tactics and prudence, in order to avoid a finding of contempt, the alleged contemnor may be compelled by the weight of adverse evidence establishing contempt, to put forward countervailing evidence either to provide a reasonable excuse or to prove that it did what was required of the order . However, this is not a “shifting of a burden” because the alleged contemnor is not obliged to do anything. “The decision of a party to go forward with evidence because the risk of an adverse verdict is too great is not a question of law but a matter of common sense.

Since the [alleged contemnor] is not required by law to do anything, this tactical decision to adduce evidence is not an evidential burden...and thus there is no shifting of the evidential burden.... In sum, the burden of proof both as to persuasion and the need for evidence is entirely on the party alleging contempt, and the standard is proof beyond a reasonable doubt. In the main, this is the approach advocated in Schittelm except for its suggestion that there is an evidential burden on the alleged contemnor.

There is no burden placed on the alleged contemnor at all. [paras 48-50] All four elements must be proved beyond a reasonable doubt . [emphasis added] D. Sons’ position [ 37 ] The sons argue (in part): The wording of Justice Macklin’s Order is very particular . Paragraph 1 of the Order reads: 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.

The Order is clear that the money to be placed into trust is the money they removed from Arthur Wade’s ... bank accounts . The Order references very specific money . It is not an Order for a general amount of money to be placed into trust. This point will be dealt with below. The respondents agree that the Order is clear. This element of a contempt finding is met. The respondents had actual knowledge of the Order. This element of a contempt finding is met. [ 38 ] They then submit: The Order requires that the money removed from Arthur Wade’s bank accounts be placed into trust.

Because the Order specifies the exact money that is at issue, one must be able to trace that money in order to place the money removed from the deceased’s bank accounts into trust. [ 39 ] They then outline the principles of tracing, followed by these submissions: The Macklin Order is clear that it only applies to the deceased’s money. It does not apply to money that Darren and Duane may have in their own right.

Rita’s affidavits of 12 October 2021 and 9 November 2021 reference Darren’s and Duane’s ability to come up with an amount of money equivalent to the amount of money they received from the deceased’s bank accounts. However, the Order does not require Darren and Duane to put money from their own pockets into Mr. Ranieri’s trust account, but rather to put the deceased’s money into Mr. Ranieri’s trust account .

Note: it is the position of Darren and Duane that the deceased’s inter vivos gifts to them were valid and that the deceased’s moneybecame Darren’s and Duane’s money in their own right upon receipt of the gifts. Darren and Duane have dissipated the money received from the deceased’s bank accounts to bona fide third parties who did nothave notice of the trust as no trust has been declared. Darren and Duane dissipated this money before any claim of Rita Wade’s was filed and served. There has yet to be a declaration of trust over the deceased’s money.

That is the subject of Rita’s civil claim that has not been testednor decided. The deceased’s money that has been dissipated to bona fide third parties cannot be traced and therefore cannot be recovered. The balance of $24,620.38 that Duane has placed into trust with Mr. Ranieri accords with the lowest intermediate balance rule. The$24,620.38 is the lowest intermediate balance that can be traced through Duane to the deceased’s money and is subject to the MacklinOrder. Darren does not have any further money from the deceased’s estate.

The lowest intermediate balance rule that can be traced throughDarren to the deceased’s money is $0. Darren does not hold any money that is subject to the Macklin Order and therefore cannot be in contempt of it. Duane has placed the lowest intermediate remaining balance that he held into Mr. Ranieri’s trust account and has complied with theMacklin Order. [40] Next, the sons argue that Ms. Wade had no standing to seek the return-moneys Order (paras 45-57 of their brief). [41] They close their argument with submissions attempting to distinguish a case cited by Ms.

Wade (Todosichuk v Daviduk, 2006MBQB 6). [42] During oral argument of the contempt application on December 6th, the sons’ counsel also argued that, because the MacklinOrder is an “order to pay money”, and given the express non-availability of contempt in relation to such orders (per R. 10.52(3)), nocontempt finding can be made here. E.

Analysis “Order to pay money” [43] I start with the last argument first. [44] I do not accept the sons’ characterization of the Macklin Order i.e. that it is an “order to pay money” within the meaning of R.10.52(3). [45] As Schutz JA explained in Mella v 336239 Alberta Ltd (Dave’s Diesel Repair), 2016 ABCA 226: Two types of judgments or orders direct a person to pay money: those which direct a person to pay money to another person andthose which direct a person to pay money into court. Rule 10.52(3)(a)(

i) refers only to the payment of money. But, the rule does not exclude the use of the contempt power to punish Mellafor defiance of, and to coerce his compliance with, a mandatory injunction explicitly limiting his household expenditures and requiring aproper accounting, nor does it preclude disgorgement as sanction.

It is not determinative that the First Contempt Order requiresthat money or money’s worth be paid because a court order that punishes and coerces is not the functional equivalent ofpayment by Mella to Dave’s Diesel for ordinary debts – a critical distinction: Dickie v Dickie (2006), (ON CA), 78OR (3d) 1 at para 103, 262 DLR (4th) 622 at paras 105-116 (Laskin JA), affd 2007 SCC 8, [2007] 1 SCR 346. Moreover, the FirstContempt Order subsists unencumbered by appeal or variation. [paras 23 and 25] [emphasis added] [46] As Laskin JA held in Dickie v Dickie (i.e. in the judgment approved by the SCC):

Greer J. ordered that Dr. Dickie give Mrs. Dickie an irrevocable letter of credit to secure his support obligations under the order ofKiteley J., and that he post security for costs of $100,000. Stewart J. found him in contempt of these two orders. Rule 60.11(1)precludes the use of the contempt power to enforce an order for the payment of money: 60.11(1) A contempt order to enforce an order requiring a person to do

an act, other than the payment of money, or to abstain fromdoing

an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made. The support order of Kiteley J. is obviously an order for the payment of money. Dr. Dickie could not have been found in contemptfor breach of that order. He contends that the two orders for security made by Greer J. are also orders for the payment of moneyunder rule 60.11(1), and that, therefore, Stewart J.'s finding of contempt must be set aside. Juriansz J.A. agrees with this contention. Itake a different view.

My colleague argues that rule 60.11(1) should be interpreted in the light of its object or purpose. I agree. The purpose of the exceptionin rule 60.11(1) is to exclude the use of the contempt power -- which carries with it the possibility of imprisonment -- for fixedmonetary obligations, that is, debts, between a debtor and a creditor. We no longer imprison people for their failure to pay a civildebt. See R. v. Wu, 2003 SCC 73 , [2003] 3 S.C.R. 530, [2003] S.C.J. No. 78, at para. 2.

I accept that an irrevocable letter of credit is "money or money's worth", and that an order to post security for costs ordinarily is satisfiedby the payment of money. However, to determine whether an order is an order for the payment of money under rule 60.11(1), onemust consider to whom the money is being paid and the effect of the order for payment.

Where money is ordered to be paid notto the creditor but into court -- or its functional equivalent, to a solicitor to be held in trust -- and where the effect of the order isnot to create a fixed debt obligation but to secure a debt obligation, then the order is not an order for the payment of moneyunder rule 60.11(1). … As my colleague points out in his reasons, the object of rule 60.11(1) is to ensure that people are not imprisoned because theyhave not satisfied their monetary obligations. This objective can be traced back to the English case of Bates v.

Bates (1888), 14 P.D.17, 58 L.J.P. 85 (C.A.), where the court commented (at p. 19 P.D.) on the purpose of the Debtors Act: "The object of the Act was toprevent the imprisonment of persons for nonpayment of ordinary debts." The orders of Greer J. do not create "ordinary debts". [page25] … an order that security be paid to a solicitor to be held in trust is the functional equivalent of an order that the security be paidinto court. In both cases, what is ordered is security, not a payment from a debtor to a creditor. My colleague argues that my conclusion would "render nugatory" the exception in rule 60.11(1).

In his view, a successful litigant wouldsimply have to persuade the court to order an unsuccessful litigant to give irrevocable security for a monetary order. Respectfully, I find this argument unpersuasive. It fails to take into account that the court retains discretion whether to order security,and whether to use the contempt power to enforce the failure to provide it. As with any judicial discretion, this discretion must beexercised in accordance with established principles.

Orders for security of the kind made by Greer J. will, as a matter of principle, be warranted only where there is a real risk of non-payment. Dr. Dickie's obvious intent to disregard his support obligations made it reasonable to order security in this case. Just becausethese orders were made in this case does not mean that they will be made in all cases. [paras 101-104, 107, and 112-115] [emphasisadded] [47] See also Imperial Finishing Ltd v Modern Homes Inc, 2019 ABQB 64 (Labrenz J.): The order of Dilts J., of August 14, 2018 holding Moderno, Mr. Palmer, and Ms.

Carlson in contempt signifies to me that this Court haspreviously concluded beyond a reasonable doubt that each of these three parties was aware of the clear and unequivocal June 27, 2018order of Master Hanebury requiring the funds to be paid into court; that the failure to pay the funds into court was intentional; and,that the failure to make payment was not reasonably excused: Koch v Koch, 2017 ABCA 310. As the plaintiffs argue, and I accept, anorder to pay security into court or into trust is not an “order to pay money” under Rule 10.52(3)(a)(

i) of the Alberta Rules ofCourt, and is therefore capable of being the subject of a contempt order. [para 39] [emphasis added] [48] Macklin J.’s Order directed payment of the removed-from-accounts monies into trust, pending a determination of entitlementas between Ms. Wade, on the one hand, and the sons, on the other. It was not a final judgment obliging the sons to pay monies to Ms.Wade. [49] Applying the distinction confirmed in the above cases, the Macklin Order was not an “order to pay money” within themeaning of R. 10.52(3). [50] Accordingly, that carve-out from the contempt rule does not apply here.

Interpreting the Macklin Order [51] The sons’ core argument is that the Macklin Order obliged them to repay the removed-from-accounts monies if they still hadthem or if they could be traced. [52] I do not accept that argument: • the Order is unambiguous in requiring the payment into trust of “all the money [the sons] removed from Arthur Wade’s [bankaccounts] …”;

• those monies are explicitly described in the Order’s

preamble: “… the [sons] removed the following funds from Arthur Wade’s bank accounts ”: $241,570.16 removed from certain TD Canada Trust accounts, $13,157.50 removed from a certain CIBC account, and $6,003.43 from another CIBC account (total $260,731.09); • the O rder’s specificity was past-focused , aimed at identifying the “removed monies” i.e. where they came from (i.e. the accounts in question) and the amounts removed. It accomplished that objective, identifying the funds removed from Mr. Wade’s various accounts.

And the sons do not assert any ambiguity on that aspect; • with that identification accomplished, the Order’s command was simple: repay those monies . It did not circumscribe or limit that command e.g. by adding: o “… if you still hold them”; o “… if you have not spent them”; o “… if the monies can be traced”; or o otherwise making the repayment obligation conditional; • the sons’ suggested

interpretation – that the Macklin Order “only applies to [Mr. Wade’s] money … not to money that [the sons] may have in their own right” i.e. that the Order only obliges them to pay “[Mr. Wade’s] money” into trust, all anchored on their position that “[Mr. Wade’s] inter vivos gifts [of the monies] were valid and that [Mr. Wade’s] money became [their] money in their own right upon receipt of the gifts – misses the mark. Macklin J. was not deciding or even asked to decide entitlement as between Ms. Wade and the sons.

It may turn out that the sons are vindicated about the validity of the power of attorney and the withdrawals facilitated by it. But Macklin J.’s Order obliged repayment for now i.e. for the time being, to ensure the funds would be available for distribution once entitlement was determined . The sons’

interpretation puts the cart before the horse. Their argument here (“monies already ours”) ignores the Order’s clear preservation-of-rights focus ; • Mr. Ranieri advised that, to his understanding, the removed monies were still held by the sons. That was largely off-target, with the vast majority of the monies spent by September 10, 2021. But that makes no difference here . As discussed above, the Order was unconditional: repay the removed monies, spent or not, traceable or not. In any case, Ms.

Jones advised Macklin J., by her post- application note, that “the [sons] have spent their gifts from their father as they were entitled to do” and requested a re-hearing. Macklin J. declined to direct a re-hearing and said (effectively): “the Order stands ”; and • as a result, the sons’ tracing-related arguments also miss the mark. The Order’s unconditional command closes the door to “repayment conditional on tracing” arguments. [ 53 ] The sons knew precisely which monies had to be repaid.

The Order obliged them to repay them regardless of how the monies had or may have been used. [ 54 ] I turn next to the “deliberate breach” and “no adequate excuse” elements. Deliberate breach [ 55 ] The sons’ argument here was effectively that, having understood the Order as “repay the monies if you still have them”, and (by their reckoning) having paid the still-available monies into trust (or at least Duane having done so), they did not deliberately breach the Order. [ 56 ] I disagree.

The sons cannot rely on their misinterpretation of this clear order on this element. [ 57 ] Here I adopt and apply the Supreme Court of Canada’s analysis in Carey v Laikin (cited above): It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice : Prescott-Russell , at para. 27; College of Optometrists , at para. 71; Sheppard , at p. 8; TG Industries , at paras. 17 and 32; Bhatnager , at pp. 224-25; Sharpe, at ¶ 6.190.

The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” (para. 59). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard ; and Sharpe, at ¶ 6.200. … As I have already discussed, requiring contumacious intent would open the door to mistakes of law providing a defence to an allegation of civil contempt.

It could also permit an alleged contemnor to rely on a misinterpretation of a clear order to avoid a contempt finding, which would significantly undermine the authority of court orders. [paras 38 and 42] [emphasis added] [ 58 ] Here we have a clear order – “repay the monies” and an “intentional act or omission … in breach of [such an] order” i.e. the failure to repay them. [ 59 ] The focus then shifts to “no adequate excuse.” No adequate excuse [ 60 ] The sons’ direct evidence here was very limited: Darren does not have any further money from [Mr.

Wade’s] estate. [He] does not hold any money that is subject to the Macklin Order and therefore cannot be in contempt of it.

Darren has placed the [traceable amount] into [trust] and has complied with the Macklin Order. [ 61 ] That is, they limited their direct evidence on this aspect to (what they see as) the traceable residue of the withdrawn monies. [ 62 ] Effectively they argue: “with us having largely spent the monies, we cannot repay them i.e. we cannot repay monies we no longer (largely) have.” [ 63 ] That stance is a spillover of their misinterpretation of the Order, as already discussed, with its (unduly narrow) focus on the monies in original or traceable form. [ 64 ] The Order was to repay the monies, whatever happened to them. [ 65 ] On the “adequate excuse” front, this obviously called, at least practically, for evidence of the sons’ overall financial picture. [ 66 ] I recognize that, even on this (“no adequate excuse”) element, the onus rests on Ms.

Wade i.e. to prove no such excuse beyond a reasonable doubt. [ 67 ] But as the Alberta Court of Appeal noted in Envacon (para 48, reproduced above), a tactical or common-sense obligation to produce evidence may arise in some circumstances, as here. [ 68 ] As noted, Ms.

Wade put forward evidence that Duane owns a house, bought in 2008 for roughly $407,000, with two registered mortgages (roughly $312,000 in 2008 and $24,000 in 2017) and that Darren has a joint tenancy (one of two owners) interest in two Mundare properties (no initial consideration shown on title) and a joint tenancy (one of three owners) interest in an Edmonton property acquired for $532,000 in 2020. [ 69 ] Neither Duane nor Darren provided any evidence bearing on the current market value of their interests in these properties. (The sons’ counsel submitted in her brief that Darren and his spouse hold the Edmonton property in trust for the third owner.) [ 70 ] Neither did they provide any kind of personal balance sheet or statement of net worth. [ 71 ] Indirectly, from their “spent monies” evidence, I can infer that Darren owns (or owned) a Jeep worth roughly $63,000 (or in which he has equity to that extent) and indeed owns or owned some real property (per property tax and renovation expenses) and that Duane indeed owns or owned real property (per a mortgage pay-down) and two vehicles (per truck-loan pay-down and “vehicle purchase”). [ 72 ] In these circumstances, with Ms.

Wade having pointed to or the evidence otherwise reflecting the apparent existence of real and personal property assets or interests in assets for both sons, which could presumably be sold or charged to raise monies, and with the sons having failed to provide both overall financial disclosure and the details of their ownership interests (e.g. valuation) in the identified assets, I find that the sons have failed to discharge their even-tactical-only burden to show no adequate excuse for failing to repay the monies in question. Standing argument [ 73 ] The sons also argue that Ms.

Wade had no standing to seek any relief in respect of the removed monies, not being a beneficiary under the January 2021 will, not having applied for family maintenance and support (Part 5 of the Wills and Succession Act ) by September 10, 2021, and having only recently filed such an application (out of time, as they see it).

As they put it: “Due to [these factors], Rita Wade does not currently have standing to seek any moneys of [Arthur Wade] [or how they should] be dealt with.” [ 74 ] This argument comes too late and amounts to a collateral attack on the Macklin Order. [ 75 ] Any such arguments could and should have been made to Macklin J., for whatever difference they might have made. [ 76 ] The sons did not appeal the Macklin Order or seek to have it varied or set aside. [ 77 ] They asked for a re-hearing, which Macklin J. declined to direct. [ 78 ] They did not appeal that decision either. F.

Conclusion on contempt [ 79 ] I find that Ms. Wade has proved beyond a reasonable doubt that: • the Macklin Order clearly and unequivocally states what had to be done i.e. repay the monies; • the sons had actual knowledge of the Order; • their breach (failing to repay all of the monies, instead only about 10 per cent) was deliberate; and • they have no adequate excuse for that breach. G. Remedy

[ 80 ] Ms. Wade requested a new three-month repayment period (with a “show cause why no imprisonment” hearing on any failure to repay the monies in full by that point), as well as solicitor-and-client costs of the contempt proceedings. [ 81 ] The sons point to Law Society of Alberta v Beaver (cited above) (“the penalty for contempt cannot be determined until liability has been found”). Per their brief: “Accordingly, Darren and Duane do not make submissions on penalty and reserve the right to do so should they be found liable for contempt.” [ 82 ] While the sons were aware of Ms.

Wade’s remedy submission and could have addressed remedy contingently, I will allow them until close of business on December 17 to make further submissions on remedy (via letter, maximum two pages). H. Closing note [ 83 ] The sons emphasized that they had spent the monies (or the vast majority of them) before Ms.

Wade filed her Statement of Claim (in July 2021) and well before she filed a (late-in-their-view) application for maintenance and support (in November 2021) and that no monies were spent after the Statement of Claim was filed. [ 84 ] Their apparent point was that it was unfair to require them to repay the monies in these circumstances. [ 85 ] I have already explained the unconditional nature of the Macklin Order. [ 86 ] I simply note here (as outlined above) that the mother’s (previous) counsel, by letters sent in February 2021 (apparently before most of the monies were spent), notified the sons that Ms.

Wade had discovered the withdrawals in question, challenged the propriety of the withdrawals, and asked that the monies be repaid (presumably pending an eventual application and determination of entitlement). [ 87 ] All to say: the sons spent the monies (or apparently most of them) knowing that a challenge may be forthcoming and that they might be called to account for the monies (even if only on a preserve-rights basis), which has now happened. [ 88 ] I thank both counsel for their helpful submissions. Heard on the 6 th day of December, 2021. Dated at Edmonton, Alberta this 14 th day of December, 2021. M. J.

Lema J.C.Q.B.A. Appearances: Tor Potter, Kiriak Law Office for the Applicant, Rita Wade Victoria A. Jones, de Villars Jones for the Respondents, Darren and Duane Wade