Keinick v. Bruno, 2012 NSSC 140

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Keinick v. Bruno, 2012 NSSC 140 Date: 20120329 Docket: 1206-4799 Registry: Sydney Between: Paul Keinick Applicant v. Maureen Bruno Respondent LIBRARY HEADING Judge: The Honourable Justice Theresa Forgeron Heard: February 27, and 28, 2012, and March 29, 2012, in Sydney, Nova Scotia Oral Decision: March 29, 2012 Written Decision: April 16, 2012 Subject: Family Law Issues: Civil Contempt Result: Ms. Bruno was found guilty of civil contempt for failing to comply with the parenting provisions of the last court order.

The sentencing phase was adjourned until May 2012. Case authorities reviewed; contempt findings entered; and contextual circumstances outlined. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Bruno v. Keinick, 2012 NSSC 140 Date: 20120329 Docket: 1206-4799 Registry: Sydney Between: Paul Keinick Applicant v. Maureen Bruno Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: February 27 and 28, and March 29, 2012, in Sydney, Nova Scotia Oral Decision: March 29, 2012 Written Decision: April 16, 2012 Counsel: Paul Keinick, on his own behalf Shannon Mason, for Maureen Bruno By the Court: [ 1 ] Introduction

[ 2 ] Dakota is the nine year old daughter of Maureen Bruno and Paul Keinick. Dakota resides primarily with her mother in Sydney. Mr. Keinick lives in Waverley with his wife and two sons. [ 3 ] Mr. Keinick is seeking a contempt finding against Ms. Bruno so that she will comply with the parenting provisions of the last court order. Ms. Bruno contests the finding of contempt. [ 4 ] Issues [ 5 ] The following issues will be determined in this decision: a)What legal principles are applicable to a civil contempt proceeding? b)Has Mr. Keinick proved beyond a reasonable doubt that Ms.

Bruno is in contempt of the order? c)If contempt has been proven, what is the appropriate sanction? [ 6 ] Background [ 7 ] The parties were divorced in 2006. At that time, Dakota was placed in the joint custody of both parties pursuant to the parenting provisions of the Minutes of Settlement. These parenting provisions were later changed by virtue of an interim, consent variation order which issued on August 14, 2007. [ 8 ] The 2007 court order confirms a joint custody, parenting arrangement with Dakota attending school in Sydney, and residing primarily with Ms. Bruno. Mr.

Keinick ’ s parenting time was both general and detailed. In addition to being granted reasonable access, Mr. Keinick was scheduled to exercise parenting time with Dakota every second weekend from 4 p.m. on Friday until 5 p.m. on Sunday. In the event, the Monday following the access weekend, or the Friday preceding the access weekend, was a holiday or other in-service day, Mr. Keinick ’ s parenting time was extended to the nonschool day which would be from 4 p.m. Thursday, if Friday was a nonschool day, or until 5 p.m. Monday, if Monday was a nonschool day. Mr.

Keinick was also given additional parenting time during the summer of 2007, and for March break 2008. The order stipulated that the parties were to share in the transportation of Dakota for access purposes. Other provisions, relating to medical appointments and child support, were also outlined. [ 9 ] In 2007, Mr. Keinick married Georgina. Their two, special needs, twin boys, Nate and Gavin, were born in 2008. Dakota loves her brothers. [ 10 ] In September 2009, the parties agreed, in writing, to vary the access provisions of the court order until August 31, 2010.

This variation was made to accommodate Dakota ’ s Tae Kwon Do commitments. Access was agreed to be monthly, rather than biweekly, and extended access periods were granted during the holidays and summer months. This arrangement was extended, again in writing, to include the school year commencing September 2010 until June 2011. No further extensions were agreed upon. [ 11 ] As a joint custodial parent, Mr. Keinick enjoyed a loving relationship with Dakota. In his evidence, Mr. Keinick expressed longstanding concerns about Ms. Bruno ’ s failure to follow the parenting plan. He stated that Ms.

Bruno negatively interfered with his parenting time, and consistently involved Dakota in the arrangements. In addition, Mr. Keinick stated that Ms. Bruno eventually only allowed access to occur in Sydney, and then, for limited periods of time. Further, Mr. Keinick stated that Ms. Bruno refused to share in the transportation of Dakota for access.

[ 12 ] Ms. Bruno denied any negative involvement with the parenting plan. Ms. Bruno stated that she in not responsible for the lack of physical contact between Dakota and her father. Ms. Bruno stated that she always encouraged access. Ms. Bruno asserted that she has done nothing to interfere with the relationship between Mr. Keinick and Dakota. Finally, Ms. Bruno stated that she can ’ t share in access transportation because her car was written off, and she can ’ t afford to replace it.

Borrowing her parent ’ s car was not an option that was available to her. [ 13 ] A pre-trial conference was held on November 17, 2011. The court confirmed that the parties were to follow the court order. Mr. Keinick therefore contacted Ms. Bruno ’ s lawyer to

schedule visitation dates in conformity with the court order. Ms. Bruno disagreed. Only three access visits occurred after the pretrial conference of November 17. [ 14 ] Mr. Keinick filed the contempt application as a means to force Ms. Bruno to comply with the last court order. The contested application was heard on February 27 and 28, 2012. Both parties testified during the hearing, as did Georgina Keinick and Margaret Bruno, the maternal grandmother. Submissions were provided, and the matter adjourned.

The oral decision was rendered on March 29, 2012. [ 15 ] Analysis [ 16 ] What legal principles are applicable to a civil contempt proceeding? [ 17 ] In Soper v. Gaudet, 2011 NSCA 11 , Farrar, J.A. reviewed the law on contempt, including the decisions of Brown v. Bezanson , 2002 SKQB 148 , and TG Industries Ltd. v. Williams , 2001 NSCA 105 , a decision written by Cromwell, J.A., as he then was.

From these cases, I have applied the following principles to this contempt proceeding: a.A proceeding for civil contempt is available to redress a private wrong by forcing compliance with an order for the benefit of the party in whose favour the order was made. Sanctions for civil contempt are thus mainly coercive in nature. Their aim is to force compliance with the order, although, sanctions may also be punitive where the circumstances warrant. b.The burden of proof in contempt applications is beyond a reasonable doubt and rests with the party alleging the contempt. In this case, Mr.

Keinick must prove, beyond a reasonable doubt, that Ms. Bruno is in contempt of the court order. c.In order to succeed, Mr. Keinick must prove the following elements beyond a reasonable doubt: 1.The terms of the order must be clear and unambiguous. 2. Proper notice must have been given to the contemnor, Ms. Bruno, of the terms of the order. 3. Clear proof must exist that the terms of the order have been broken by Ms. Bruno, the contemnor. 4. The appropriate mens rea must be present. d.In respect of mens rea , the following three points are relevant: 1.

The intention to disobey a court order is not a necessary or essential element of civil contempt.

2. The core element of civil contempt is failure to obey a court order, of which the alleged contemnor was aware. 3. Knowledge of the order, and the intentional commission of

an act which is, in fact, prohibited by the order, must be proven. [18] In Soper v. Gaudet, supra, Farrar, J.A. set aside the finding of contempt because of the judge’s lack of compliance withprocedural safeguards, including informing the alleged contemnor of his/her right to cross examine, to make submissions, to berepresented by counsel, and to be afforded an opportunity to be heard. Such procedural safeguards are necessary in quasi criminalproceedings.

Further, the order was ambiguous, and the evidence was not supportive of the trial judge’s findings in light of the lack ofprocedural safeguards and evidence in the specific circumstances of the case. [19] In her submissions, Ms. Bruno relied upon the authorities which hold that courts must move cautiously towards a finding of contempt in family proceedings as noted in MacKenzie v. MacKenzie (1984) (NS CA), 65 NSR (2d) 52 (C.A.);White v. White (NS SC), 1999 NSJ No. 312 (S.C.); Frith v. Frith 2008 BCCA 2; and Brooks v.

Vander Meulen(1999) (MB KB), 141 Man.R. (2d) 25 (Q.B.F.D.). [20] I recognize such cautionary principles given the quasi criminal nature of a contempt proceeding. Such cautionary principles,however, cannot be raised to the level of a legal presumption. Nor, can such cautionary principles be interpreted as preventing a courtfrom entering a contempt finding, when all elements have been proven beyond a reasonable doubt, just because the case involvesparenting issues.

Indeed, it can also be argued that in such circumstances, it is essential that the court act to enforce its orders, not only toensure administration of justice principles, but, also to ensure that the parent child relationship will be maintained, and not irreparablyharmed. [21] Has Mr. Keinick proved beyond a reasonable doubt that Ms. Bruno is in contempt of the order? [22] Position of the Parties [23] Mr. Keinick stated that he has proven, beyond a reasonable doubt, the four contempt elements. He noted that the terms of theorder were broken by Ms.

Bruno, and that she did so with knowledge of the order, and by failing to abide by the specific parentingprovisions of the court order. [24]Ms. Bruno admitted that Mr. Keinick had proved, beyond a reasonable doubt, the first two contempt elements. Ms. Bruno argued,however, that Mr. Keinick did not prove beyond a reasonable doubt that she broke the terms of the court order, nor that she had therequisite mens rea. In support of this position, Ms.

Bruno stated the following: a.The parental capacity assessment must be finalized to determine the reasons why Dakota does not want to have access outside theSydney area. b.She encouraged access, inclusive of telephone access, which in fact is taking place. c.After the December 2011 visit, Dakota was upset and no longer wanted to attend access in Waverley. d.Ms. Bruno was involved in a car accident in October 2011. Ms. Bruno is not able to share in access transportation because she has novehicle.

e.There is no evidence of wilful refusal, but rather, at best, the evidence shows that Dakota is refusing to attend access, for reasons unrelated to Ms. Bruno. f.Ms. Bruno always acted in Dakota ’ s best interests. She filed an application to vary as soon as she became aware of Dakota ’ s refusal and in Dakota ’ s best interests. Ms. Bruno has not acted for selfish reasons, or out of self-interest. g.The last scheduled access weekend was cancelled by Mr. Keinick, based upon his discussions with Dakota. h.Ms.

Bruno has done everything possible to ensure access happens and, alternatively, she has also made an application to vary access by establishing a change in circumstances. i.The parties previously altered access to once a month, for a period of two years, and thus the current order must not be enforced. j.There is a variation hearing scheduled for July. The parenting issues should not be addressed until that time so that the court will have all of the evidence. [ 25 ] Decision [ 26 ] In reaching my decision, I have reviewed Rule 89, the law, the submissions, and the evidence. I find that Mr.

Keinick has proven beyond a reasonable doubt contempt elements three and four. Contempt elements one and two have been admitted. [ 27 ] Rule 89 states that the court must record a finding of guilt on each allegation of contempt for which guilt is found. My findings are as follows: a.Ms. Bruno would not allow Mr. Keinick to exercise week end access in Waverley after November 2010 until after November 2011. Clause 4 of the court order clearly states that Mr. Keinick is to have week end access, within the stipulated time periods. Ms.

Bruno permitted telephone access, access in Sydney, and offered limited access in Halifax, while her father was in the hospital there. She would not agree, or permit, the week end access as stipulated in clause 4 of the court order. Ms. Bruno is in contempt of clause 4 of the court order. b.Ms. Bruno refused to share in access transportation. This fact was moot from November 2010 until November 2011 because Ms. Bruno refused to allow access outside of Sydney. After the pretrial conference on November 17, 2011, Ms.

Bruno agreed to some week end access, but refused to share in access transportation as stipulated in clause 6 of the court order. Although her car may have been written off, Ms. Bruno had other options available to her. She could have rented a car, or taken a bus in the event her parents or friends would not allow her to borrow a vehicle. Ms. Bruno is in contempt of clause 6 of the court order. c.After the pretrial on November 17, 2011, Mr. Keinick made it clear that he expected compliance with the parenting provisions of the court order, yet Ms. Bruno refused to do so. Through her counsel, Ms.

Bruno offered the week end of December 9, 2011. She also offered the week end of January 20, 2012. She eventually agreed to access on December 27-29, 2011. Ms. Bruno made such offers conditional upon Mr. Keinick being solely responsible for transportation. She refused to meet in Heatherton, the half-way point, as per the past practice of the parties. Ms. Bruno is in contempt of clauses 4 and 6 of the court order. d.The offer to allow access in Sydney, is not an answer to the contempt application. The court order does not place restrictions on places of visits, nor does it empower Ms.

Bruno with the authority to dictate such restrictions.

[28]The relevant contextual findings associated with my ruling are set out as follows: a.Proof, beyond a reasonable doubt, was supplied that Ms. Bruno broke the terms of the court order as stated in the preceding paragraph. b.Proof, beyond a reasonable doubt, was supplied that Ms. Bruno was aware of the terms of the court order at the time she failed tofollow the order. c.Proof, beyond a reasonable doubt, was supplied that Ms. Bruno, with knowledge of the order, intentionally engaged in acts which werecontrary to those stated in the court order. d.Mr.

Keinick attempted to enforce his parenting time with Dakota through negotiations. He did not leap to file a contempt applicationafter the first infraction. The contempt application was only made when Mr. Keinick had exhausted all other available avenues toenforce compliance. e.Mr. Keinick is not an access parent. He is a joint custodial parent. Through this custodial designation, Mr. Keinick is vested withdecision making responsibility for Dakota. Neither party has been allocated with a final decision making role. f.Mr. Keinick is a loving, kind, and nurturing father. Ms. Bruno admitted that Mr.

Keinick is a good father. g.There are issues between Ms. Bruno and Mrs. Georgina Keinick. h.Ms. Bruno stated that Dakota gets upset and refuses to attend access in Waverley. Mrs. Margaret Bruno stated that Dakota was upsetbefore the January visit. She stated that although Dakota was not crying, she could tell that Dakota’s eyes were filling up with tears. Yet, when Dakota is with her father, and in Waverley, she is not upset. She does not experience any negative, emotional issues becauseof the visits. To the contrary, she is happy and engaging.

She enjoys her four year old brothers, and even formed a relationship with thetwin who tends to have difficulty opening up to others. i.There was no request for a parental capacity assessment until the November 2011 pretrial. As a result, the February trial dates had tobe adjourned because the assessment would not be completed in time for the trial. The trial was postponed to July 2012. j.It is not in Dakota’s best interests to have limited and restrictive parenting time with her father according to terms dictated by Ms.Bruno. In Young v. Young, (SCC), [1993] S.C.J.

No. 112, the Supreme Court of Canada clarified that a custodialparent could not place restrictions on access. Ms. Bruno is attempting to do so, and Mr. Keinick is not even an access parent, he is acustodial parent. k.Mr. Keinick, as a joint custodial parent, and as a loving father, has the ability and skill to deal with any parenting issues which mayarise if Dakota experiences emotional distress during the time she spends with him. Ms. Bruno’s intervention is not necessary, nor issuch intervention in Dakota’s best interests. l.The failure to follow the court order is not in Dakota’s best interests.

Dakota’s relationship with her father is being adversely affectedbecause the parenting provisions are not being followed. Further, because she is caught in a loyalty conflict, it is not in Dakota’s bestinterests to be placed in a position of power where she dictates access terms. m.It is not in Dakota’s best interests to be placed in the middle of this parenting dispute. This must stop.

m.It is not in Dakota ’ s best interests to be placed in the middle of this parenting dispute. This must stop. [ 29 ] If contempt has been proven, what is the appropriate sanction? [ 30 ] Rule 89 states that the court may impose a number of sanctions after a contempt finding. These may include a conditional or absolute discharge, or any other lawful penalty, such as a specified penal term, a suspended penalty, a fine payable, sequestration of some or all of the contemnor ’ s assets, or imprisonment for less than five years. [ 31 ] I note in his submissions, Mr. Keinick sought to have Ms.

Bruno comply with the parenting provisions of the court order. He did not seek incarceration or a fine if there was compliance. The court has the ability to suspend sentence if Ms. Bruno purges herself of the contempt by complying with the court order. She will have the opportunity to do so. The sentencing phase of the contempt hearing is adjourned until May. This adjournment will also afford the parties with the opportunity to prepare their evidence and submissions on sentencing. You may wish to reference the following cases in your submissions, in addition to any other case law, you may feel is appropriate: a.

J.A.M. v. D.T.J.H. 2005 NSSF 14 as per Legere-Sers, J. b. Rogers v. Rogers 2008 MBQB 131 , as per Little J.; c. MacNaughton v. MacNaughton 2005 MBQB 216 , as per Menzie, S.J., and d. Mason v. Lavers 2011 NSSC 97 , as per Duncan J. [ 32 ] The current order sets out the detailed parenting schedule. This

schedule will be followed. After providing the oral decision, the parties were able to reach agreement on the access dates to ensure that Mr. Keinick will exercise parenting time in conforming with the court order and as follows: a)Access will begin on Saturday, April 7, 2012. Ms. Bruno will transport Dakota to Mr. Keinick ’ s home in Waverley and will deliver her there at 9:00 a.m. on April 7, 2012. Mr. Keinick will have Dakota in his care until Monday, April 9, 2012 when he will transport her to Ms. Bruno ’ s home in Sydney by 3:30 p.m. b)Access will take place from April 20, 2012 to April 22, 2012. Mr.

Keinick will pick Dakota up in Sydney on Friday, April 20, 2012 at 3:00 p.m. at Ms. Bruno ’ s residence. Mr. Keinick will have Dakota in his care until Sunday, April 22, 2012 at 2:00 p.m. when Ms. Bruno will retrieve Dakota at Mr. Keinick ’ s home in Waverley. c)Access will take place from May 4, 2012 to May 6, 2012. Mr. Keinick will pick Dakota up in Sydney on Friday, May 4, 2012 at 3:00 p.m. at Ms. Bruno ’ s residence. Mr. Keinick will have Dakota in his care until Sunday, May 6, 2012 at 2:00 p.m. when Ms. Bruno will retrieve Dakota at Mr.

Keinick ’ s home in Waverley. d)Access will take place from May 18, 2012 to May 21, 2012. Mr. Keinick will pick Dakota up in Sydney on Friday, May 18, 2012 at 3:00 p.m. at Ms. Bruno ’ s residence. Mr. Keinick will have Dakota in his care until Monday, May 21, 2012 at 2:00 p.m. when Ms. Bruno will retrieve Dakota at Mr. Keinick ’ s home in Waverley. e)Access will take place from June 1, 2012 to June 3, 2012. Mr. Keinick will pick Dakota up in Sydney on Friday, June 1, 2012 at 3:00 p.m. at Ms. Bruno ’ s residence. Mr. Keinick will have Dakota in his care until Sunday, June 3, 2012 at 2:00 p.m. when Ms.

Bruno will retrieve Dakota at Mr. Keinick ’ s home in Waverley.

f)Access will take place from June 15, 2012 to June 17, 2012. Mr. Keinick will pick Dakota up in Sydney on Friday, June 15, 2012 at 3:00 p.m. at Ms. Bruno ’ s residence. Mr. Keinick will have Dakota in his care until Sunday, June 17, 2012 at 2:00 p.m. when Ms. Bruno will retrieve Dakota at Mr. Keinick ’ s home in Waverley. g)Access will take place from June 29, 2012 to July 2, 2012. Mr. Keinick will pick Dakota up in Sydney on Friday, June 29, 2012 at 3:00 p.m. at Ms. Bruno ’ s residence. Mr. Keinick will have Dakota in his care until Monday, July 2, 2012 at 2:00 p.m. when Ms. Bruno will retrieve Dakota at Mr.

Keinick ’ s home in Waverley. [ 33 ] The matter will return for sentencing in May. Submissions are due one week before the hearing. Ms. Mason will draft the order. Forgeron J.