Brousseau v. Plouffe, 2014 NSSC 60

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Brousseau v. Plouffe, 2014 NSSC 60 Date: 20140219 Docket: 1217-000708 Registry: Port Hawkesbury Between: Sabine Kampa Brousseau Applicant v. Stephen Plouffe Respondent Editorial Notice Some information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Moira C. Legere Sers Heard: April 17, 2013; June 6, 2013; and September 12, 2013 in Port Hawkesbury, Nova Scotia Counsel: Sabine Kampa Brousseau, self represented James C.

MacIntosh, for the respondent By the Court: [ 1 ] This Motion for Contempt was brought by way of Notice of Motion filed August 23 rd , 2012 to be heard September 10 th , 2012. [ 2 ] Although initially represented by counsel, the applicant proceeded as a self represented party in the hearing of the Motion. [ 3 ] The respondent was represented throughout.

[ 4 ] There were numerous adjournments due to illness, witness availability, party availability, counsel availability and court scheduling.

Other Applications [ 5 ] There have been a number of applications subsequent to the final Divorce Orders and prior to the contempt hearing. [ 6 ] The Application for Contempt, an application for a Judgement Order and a Statement of Claim was filed on January 15 th , 2013 due to “ non compliance with the Corollary Relief Order of December 4 th , 2012".. [ 7 ] Attached to the application for a Contempt Order is the Interlocutory Notice (Ex-parte Application) dated April 2012 in which the applicant also seeks relief by way of a Judgement, contempt for failure to provide the applicant with her share of the equity inclusive of the tax liability and her personal possessions or to allow a walk through of the property. [ 8 ] To the extent possible, I will identify the applicant ’ s preoccupation with the unresolved issues between the parties and exclude those that were more properly the subject matter of an appeal or an Application to Vary from the Contempt Application. [ 9 ] The applicant ’ s documentation and allegations were part and parcel of the ongoing post divorce discord, all inextricably intertwined.

The conduct between the parties as described in the documentation common to each application was intermingled in each of the affidavits supporting the Motion for Contempt, an Ex-parte Application for immediate relief, an Application for Judgement and a Divorce Variation Application. [ 10 ] The cause of the discord as expressed in all supporting affidavits had common roots.

The parties have experienced chronic, ir- resolvable communication breakdown. [ 11 ] In June 2012 the applicant applied to vary seeking relief relating to custody, access, child support and spousal support. [ 12 ] There were residual disputes between the applicant and respondent relating to an Application to Vary the divorce and matrimonial property proceedings to effect a division of household and personal property that was more properly the subject matter of an appeal. [ 13 ] The Court Administration Office wrote to the applicant June 27 th , 2012 advising her that some of the issues raised were more properly the subject matter of an appeal. [ 14 ] The applicant was advised of the appeal period and given the contact number for the Court of Appeal.

She was advised to seek legal advice. [ 15 ] No action has proceeded on her Application to Vary. No appeal of the Matrimonial Property Act proceedings was perfected. [ 16 ] The Application to Vary was withdrawn by counsel for the applicant when the original Contempt Motion was filed in August 2012. [ 17 ] The applicant was reminded by the Court on April 15 th , 2013 and many times throughout the proceedings that evidence

concerning a division of household possessions was not the proper subject matter of this contempt proceeding. [ 18 ] The Ex-parte Motion for Judgment and Execution Order filed January 2013 evolved into an Inter-parties Motion and ultimately resulted in a Judgement for the money owed by the respondent to the applicant. [ 19 ] The Emergency Motion dated February 25 th , 2013 relates to a belief that the father was removing the children from the jurisdiction without the mother ’ s consent. [ 20 ] The mother learned of this trip through Facebook. [ 21 ] The matter resolved in a pre-hearing conference when the father acknowledged they were going to Alberta to have the children examined by medical experts for litigation purposes relating to a serious car accident in which the children were involved.

The father had not notified her of their intended absence. [ 22 ] A letter from the children ’ s solicitor, Mr. Gillespie, of Calgary, Alberta was provided to the Court verifying the trip to Calgary was being made for the purpose of furthering the children ’ s claim for compensation as a result of the accident.

The trip was necessary and the children went subject to the respondent ’ s consent to a condition that the children would be returned to the province and that the trip was not for the purpose of relocating. [ 23 ] Documentation submitted by the applicant has been lengthy, sometimes rambling and covered the spectrum of issues that have gravely concerned the applicant; most of which do not rightly belong in the domain of the Contempt Application. [ 24 ] It has not always been evident or clear where the boundaries lie between issues and applications. [ 25 ] In an e-mail dated February 4 th , 2013 the applicant advised counsel for the respondent of the respondent ’ s failure to provide her with her personal possessions and her share of the equity as ordered by the Corollary Relief Judgement. [ 26 ] She seeks immediate payment. [ 27 ] In that letter she advises of her many unsuccessful attempts to speak directly to the respondent to resolve this matter.

The Contempt Motion [ 28 ] The Contempt Application arises out of a Corollary Relief Judgement dated June 5 th , 2012, arising out of a written Decision dated March 22 nd , 2012 which was circulated to counsel. Corollary Relief Judgement [ 29 ] The CRJ states as follows: -Custody of the two children of the marriage rests jointly with the applicant and respondent; primary care with the respondent.

-The applicant has reasonable access to the children at reasonable times upon reasonable notice as arranged between the parties. [ 30 ] The clauses relevant to this Contempt Application are: Records relating to the Children : 4. The respondent is to provide forthwith to the petitioner copies of the following records and information: (

a) All medical records in relation to the car accident in which the children were involved in Alberta in August 2009, together with all medical records in relation to their recovery. (

b) Copies of all correspondence with legal counsel of the children and the respondent in relation to any insurance claim and civil action relating to the said car accident of the children. 5. The respondent shall provide to the petitioner the name and contact numbers for any lawyers currently representing the children with respect to their August 2009 car accident . The petitioner shall be entitled to receive information from these lawyers on an ongoing basis upon reasonable request. 6.

The petitioner is entitled to receive records, reports and information in general from the provider of any service to the children, directly from the schools, medical personnel and service providers of the children. The respondent shall give notice to the schools, medical personnel and service providers that all information relevant to the children is to be provided to the petitioner as well as to him. Relating to Property Division : 1. Property is divided under the Matrimonial Property Act as follows:

(1) The matrimonial home located at 230 Napean Street, Port Hawkesbury, Nova Scotia shall be listed for sale immediately. The parties are jointly responsible for the first mortgage as of December 31 st , 2009. The respondent is solely responsible for the second mortgage. The equity of the home (sale price less the total of the real estate commission, the legal fees (not to exceed $800) and the balance of the first mortgage (as at December 31, 2009) shall be divided as follows: (

a) first to pay the tax liability of the petitioner in the amount of $9,586.17; and (

b) the balance to be divided equally between the parties. Should the home not be sold by September 30 th , 2012 , then in exchange for a Quit Claim deed to the home to be signed by the petitioner in favour of the respondent, the respondent shall pay to the petitioner her share of the equity in the home. The equity of the home shall be deemed to be the difference in the appraised value of the property ($92,500) and the balance of the first mortgage as at December 31 st , 2009.

The petitioner’s tax liability of $9,586.17 shall be paid first from the equity and then the balance of the equity shall be divided between the parties equally. Any payment made pursuant to this clause is due to the petitioner on October 1, 2012.

(2) Stephen Plouffe is to return to Sabine Kampa Brousseau her personal possessions forthwith .

[ 31 ] An enforcement clause was included in the Order. [ 32 ] Mr.

Plouffe is accused of being in contempt of this Order. [ 33 ] The applicant alleges that: (1) the respondent did not provide to her in a timely fashion as directed by the order, the documentation set out in paragraphs 4, 5 and 6; (2) the respondent did not place the home for sale immediately; (3) the respondent did not pay her the share designated in paragraph 11 on or before October 1 st , 2012; and (4) the respondent did not provide her personal possessions forthwith . [ 34 ] The clearest evidence regarding these allegations can be found in the initial affidavit (prepared with the assistance of counsel) filed with this Motion. [ 35 ] Later, as a self represented party, the applicant filed further documentation, portions of which contained evidence pertaining to other issues and other applications. [ 36 ] Service of the documents including the allegations has been proven.

Evidence not Properly the Subject Matter of this Contempt Proceeding [ 37 ] Supplementary evidence provided by the applicant was not always relevant to the proceedings and at times confusing and difficult to follow. [ 38 ] The applicant is heartbroken at the losses she has suffered in her life, not all of which arise as a result of the marriage relationship. She was often tearful and sometimes disorganized and confused as she tried to wade through the multiple legal processes to find some relief. [ 39 ] The respondent enjoyed the benefit of counsel yet the animosity between he and the applicant was palpable.

He has both suffered the consequences of this marriage breakdown, divorce and post divorce conflict and participated in the discord. [ 40 ] The respondent has the children in his care and had most of the household possession under his roof. [ 41 ] The respondent was in possession of the knowledge the respondent lacked about the children ’ s activities. [ 42 ] The continuation of the conflict impacted his presentation and participation in timely, peaceful resolution of the conflict between the two.

Family Contempt Proceedings [ 43 ] These proceedings are not as clinically precise as the law demands. [ 44 ] No matter how appropriately fastidious and diligent the Court is in trying to observe the substantive law requirements in family law contempt proceedings, human nature and individual personalities dictate how these matters evolve. [ 45 ] To ensure access to justice, even in the most disagreeable of circumstances, the Court must accept and work with the individual and systemic frailties of each case even when it does not fit nicely or precisely into the framework of contempt. [ 46 ] This case is no exception.

Contempt [ 47 ] A Motion for Contempt invokes a quasi criminal proceeding. [ 48 ] Due to the nature and potential consequences of a contempt application, it is mandatory that I restrict this proceeding to the parameters permissible in a contempt application and separate out that information tendered that relates to other proceedings. [ 49 ] Despite many cautions that the evidence must relate to the contempt proceedings, affidavit and direct evidence was tendered and allegations made by both parties that were not the proper subject matter of this proceedings and were not considered in determining whether the respondent was in contempt of the court Order.

Failure To Disclose (paragraph 4, 5 and 6 - Corollary Relief Judgment) [ 50 ] After separation, the children of the marriage visited their paternal grandparents in Alberta. They were involved in a tragic car accident which took the lives of the paternal grandparents and two young relatives. The two children of this union survived but were seriously injured. [ 51 ] The provisions of the Judgement demanded the respondent disclose and make available to the applicant information listed in paragraph 4, 5 and 6.

Certain information was necessary to put the applicant in a position where she could exercise her right to contact the third party service providers directly as set out in paragraph 6. [ 52 ] As of the date of her affidavit, August 21 st , 2012 the respondent had not provided any information to the applicant about this litigation and the children ’ s medical reports (paragraph 6 and 13). This information was within his control. [ 53 ] The applicant was unaware of service providers and therefore unable to access this information directly in accordance with

section 6 of the Order. [ 54 ] At a September 10 th , 2012 pre-hearing conference to explain the respondent ’ s failure to provide information as required in paragraphs 4,5,6 and 11(2) of the Corollary Relief Judgement, the respondent ’ s counsel advised that the parties were unable to communicate about the release of information.

[ 55 ] Both counsel discussed an amendment to the Agreement to allow the mother to apply directly for information.

No amendment to the Corollary Relief Judgement was tendered for signature. [ 56 ] At the September 10 th , 2012 pre-hearing conference, the Court was advised by the applicant ’ s counsel that in the preceding weeks (September 3 rd to 14 th , 2012 ) they received the name of lawyers representing her children--months after the order directed. [ 57 ] Her then counsel advised the Court by letter dated October 11 th , 2012 that as a result of an appearance before the Court on September 10 th , 2012, the applicant received contact information for the service providers for the children and that the disclosure was no longer in issue. [ 58 ] This was retracted by the applicant by letter dated November 27 th , 2012 at a time when she was self represented. [ 59 ] The respondent acknowledged in his affidavit he did not give his permission to the lawyer in Calgary to obtain the information as he felt the applicant could get that information directly.

She had a court order availing her of that right. [ 60 ] He admits he does not know what information the applicant has about the medial situation relevant to the accident. [ 61 ] He testified he does not wish to have any relationship with the applicant. [ 62 ] The respondent advises he does have email information from the Calgary counsel but he cannot access that information now. [ 63 ] The respondent believed that he had no positive obligation and has done nothing to actively deny the applicant information. [ 64 ] His excuse for not conveying the information required by court Order was that when the applicant attended the former matrimonial home she was abusive and compulsive. [ 65 ] I am unclear as to whether this is a general statement or a statement relating to her appearance at the home on December 11 th , 2012 or other dates arranged to collect her personal belongings. [ 66 ] If intended to address the applicant ’ s demeanor when she attended the former matrimonial home as agreed upon by the parties for the purposes of effecting the return of her personal possessions; there is contrary and believable evidence as to the applicant ’ s comportment. [ 67 ] The applicant ’ s witnesses, Mr.

G. MacIssac and Cst. D. Prasad, gave evidence as to the applicant ’ s demeanor in December 2012 when Mr. MacIsaac accompanied her to the matrimonial home for the purpose of identifying her personal property. They described her as calm. [ 68 ] That is not to suggest the applicant has been calm throughout.

Indeed her frustration and anger at the failure of the respondent to comply with the order is evident in much of her documentation. [ 69 ] The respondent has clearly not followed the court Order as set out in paragraph 4 and 5 as written in clear, direct and plain language to provide the information contained in these paragraphs forthwith.

Evidence on Failure to Pay the Applicant her Share of Division of Assets and Debts (Paragraph 11 - Corollary Relief Judgment) [ 70 ] Despite numerous requests and communications between the applicant and the respondent, the home was not immediately placed on the market. [ 71 ] The respondent told the applicant he did not have to place it for sale until the end of the school year. The order contained no such condition. [ 72 ] At the April 25 th , 2012 pre-hearing conference, the Court was advised by the respondent ’ s counsel that the house was not on the market.

It was clear to the respondent that he had an obligation to list the property immediately. He could provide no reason for this. The respondent was encouraged by his lawyer to list the home. [ 73 ] The matrimonial home was not listed for sale until May 2 nd , 2012. [ 74 ] The judgement provided for a remedy should the house not be sold. The respondent was to pay the applicant her share of the equity on or before October 1 st , 2012. [ 75 ] At the December 4 th , 2012 pre-hearing conference, the Court was advised that except for a payment of $2,000 the applicant ’ s money had still not been paid.

Her possessions still not provided. [ 76 ] Both testified that she had received $2,000. Neither gave a date for the receipt of that money. [ 77 ] On July 3 rd 2013 the parties agreed on an order entering Judgement in the amount owing to the applicant (i.e:$9,530 plus $961.12) [ 78 ] On August 4 th , 2013 the respondent wrote to the applicant saying as follows: Sabina: remove the court order and you will receive your moneys August 24 or 25 th 2013. My understanding is monies coming from Calgary cannot be touch.

Because is from my Mom an Dad, I am willing to pay you out , the problem is you sent the Sheriff down to the bank, I don ’t feel I should pay . James I will call you on Tue 06 2013. To talk to you about the monies I hope to receive at the end of the month. Also Remor is call me to talk about there monies or start foreclosure I would like the court know what has happened since 07JULY2013 .

An there court order and what they have done to me and Jessica and Alexandra Kampa -Plouffe an also unable to get meds I need to keep my cancer count down. [ 79 ] He spoke to his parents estate counsel in August 2013 regarding an anticipated net payment for pain and suffering of $82,500. [ 80 ] He remained in the former matrimonial home until September 2013 when he moved with the children to Westville, N.S. without advising the applicant of his new address. [ 81 ] He received funds from the litigation arising out of his parents ’ estate accident claim. He mortgaged the home in September 2013.

He testified he had been previously unable to do so.

[ 82 ] He then left the former matrimonial home unattended and available to the applicant. The Court learned that he was in fact negotiating with the applicant to take over the home. [ 83 ] Between this date and September 12 th , 2013, when the contempt hearing resumed, counsel advised that the judgement ($10,940) has been satisfied and a Satisfaction Piece obtained. [ 84 ] The home was not put on the market forthwith. The payment of the equity was to take place by October 1 st , 2013. It did not. [ 85 ] The payment was finally made in September 2013.

Division of Matrimonial Possessions [ 86 ] The division of property is dealt with in paragraphs 108 to 113 in the March 22 nd Decision. [ 87 ] In the divorce proceedings, the petitioner presented a list of household possessions she valued at $304,788.19 with an additional list valued at $9,446.99. [ 88 ] This appeared to be the petitioners recollection of the original price. It appeared exaggerated and she offered no basis for credible valuation.

I rejected the valuation. [ 89 ] The respondent ’ s Statement of Property showed household contents of $9,000, which he presented in his Statement of Property as divided. [ 90 ] The evidence in the divorce proceedings did not support his contention that the property and personal possessions had, in fact, been divided. [ 91 ] In his Affidavit dated May 6 th , 2013 tendered in these contempt proceedings, the respondent admitted he had and continues to have items belonging to the applicant in his possession. [ 92 ] I concluded in the divorce and matrimonial proceedings that I had insufficient evidence from both parties to determine what was divided and what remained.

Thus, I could not rule on a division of personal possessions. [ 93 ] I simply ordered that any personal possessions of the applicant be returned to her forthwith . Lists [ 94 ] The submissions and evidence relating to the applicant ’ s pleas for a return of her personal possessions became mingled with her plea to revisit the issue of dividing the household possessions and to seek the return of her personal property, as well as her historical collectors items, mementos and possessions from a previous marriage.

[ 95 ] While this was certainly a compelling issue to the applicant other than as it relates to the return of her personal possessions, this evidence could not be considered in assessing whether or not the respondent was in contempt of the Corollary Relief Judgement. [ 96 ] The first list of personal possessions is contained in paragraph 18 in her August 21 st , 2012 Affidavit. [ 97 ] In this Affidavit, she identifies where these items could be found in the matrimonial home. [ 98 ] This list is as follows: [...] [ 99 ] The respondent advises he is unaware of the location of some of the applicant ’ s belongings including[...].

He later delivered some of these items on April 20 th , 2013. [ 100 ] In a separate list she proposes that the market value of these possessions is $126,633.80. There is no foundation to this valuation. [ 101 ] The respondent admits that he has some of her boots and offers her to have, as she requests, the auto buffer, flag stop sign. [ 102 ] He denies having any photos of Gilles. [ 103 ] He believes the applicant has [...] [ 104 ] He advises [...] [ 105 ] He has not delivered the tools as he believes they are his.

He offered her any tool which is duplicated in his possession. [ 106 ] He claims the air hydraulic system. [ 107 ] He admits he threw out the chesterfield and other unnamed useless material.

He advises: “I have never thrown out any of the belongings of the applicant that appear to me to have any value. ” [ 108 ] Pictures of the dumpster outside the home was evidence of many items he discarded. [ 109 ] The tools, the hydraulic system and the furniture relate to the division of matrimonial property and are not properly part of the personal possessions referred to in the Decision. [ 110 ] The applicant acknowledges that she eventually received [...] [ 111 ] She also acknowledges receiving part of her personal documents and receipts in the second planned transfer during the court

proceedings on May 4 th , 2013. [ 112 ] This subsequent evidence concerning the delivery of some of these items can lead to only one conclusion; some of the personal possessions remained in the matrimonial home until April 2013 and under the control of the respondent. [ 113 ] In addition, his evidence confirms that some of her possessions were in the attic and he did not search for them or try to locate them for delivery until subsequent court intervention. [ 114 ] A second, 14 page list was tendered and marked Exhibit 3. [ 115 ] Many of the items listed are drawn from a list tendered at the matrimonial property hearing.

Many are clearly in the nature of matrimonial household possessions left in the home when the applicant left the home. The valuations total $182,768.08. The Decision speaks to the lack of foundation for the applicant ’ s valuation. [ 116 ] I make no finding in this proceeding regarding the division of these items or the credibility of this estimate. [ 117 ] This list does contain reference to[...] [ 118 ] The applicant submitted a 17 page document she called “ a list called Items received on 20 th April from Mr.

Stephen Plouffe ” what he believed were my items as follows ” - this included pages 13-17 which lists items she says are still missing. [ 119 ] This list also acknowledges receipt of [...] [ 120 ] These lists and the evidence do provide actual dates when some of her personal items were finally received. These dates are July 2011 and April 20 th of 2013 and May 4 th of 2013 . [ 121 ] Finally, there is in Exhibit 5 “ a list of irreversible personal items lost in Apple storage due to Mr.

Plouffe Action of no- payment . ” [ 122 ] This list refers to the items the applicant removed from the matrimonial home and placed in storage. [ 123 ] The applicant testified to her dire financial circumstances, brought about in part by the respondent ’ s failure to pay her in accordance with the Corollary Relief Judgement. [ 124 ] She was unable to pay the storage fees. As a result, her property was auctioned off. [ 125 ] Proof of the loss of her household mementos and possessions was provided and attached to Exhibit 5. [ 126 ] This list, however, contains none of the items classed as her personal possessions.

Rather, the list appears to reflect household possessions. [ 127 ] Notably it contains some of the items referred to in Exhibit 3 relating to household possessions in the possession of the respondent.

[ 128 ] I do not conclude the applicant is trying to mislead the Court with these lists. She has been out of the matrimonial home since separation in July 2009. The Applicant ’ s Witnesses [ 129 ] Three witnesses testified to the applicant ’ s efforts to obtain her personal possessions. [ 130 ] The police officer, Cst. D. Prasad, appeared as a result of a subpoena. [ 131 ] Mr. MacIssac and Ms.

Cavanaugh were friends who were present and verified the dates when some of the possessions were delivered. [ 132 ] In her Affidavit dated October 10 th , 2012 the applicant testified she made numerous attempts to collect without success, that which she was entitled to receive. [ 133 ] There is no dispute that as of the September 10 th , 2012 court appearance the applicants personal possessions had not been returned to her. [ 134 ] A plan of action to effect a return of the applicant ’ s personal possessions was agreed upon by the parties with the respondent ’ s counsel.

These efforts were made to attempt to give effect to the terms of the order. There were not intended to be nor did they vary the terms of the CRJ. [ 135 ] At the suggestion of respondent ’ s counsel, the parties agreed to a plan whereby a witness would attend with the applicant during which time a list of items could be prepared and the parties could deal with transfer. Mr.

Greg Mac Issac [ 136 ] This witness agreed to be present on December 11 th , 2013 for the walk though of the property at the request of the applicant. [ 137 ] He confirmed that when they attended the property at the scheduled time, the respondent was not there . [ 138 ] He confirmed the applicant received a call from the respondent changing the time to 4:00 p.m. the same afternoon at which time they were let inside the home by one of the children. [ 139 ] The witness described the messy state of the home. Items were scattered all over the area. The home was in a disorganized state.

Cupboard doors were torn off, drywall hanging out, possessions scattered in different places. He described the home as not very clean nor healthy. [ 140 ] Pictures provided by the applicant verify the home was in disarray and in a state of disrepair. [ 141 ] This witness observed a disagreement escalate between the applicant and the respondent about an item on the list.

[ 142 ] The respondent became very agitated and proceeded to impair any movement by the witness or the applicant in the home. He prohibited the walk through from proceeding. [ 143 ] The witness heard the respondent raise his voice and described his behaviour as acting in an abusive manner towards the witness and the applicant. He heard the respondent yelling at the applicant using profanities. [ 144 ] The witness also testified that the applicant remained calm . He heard her advise the respondent to contact his lawyer. He witnessed the respondent call his lawyer. [ 145 ] Mr.

MacIssac expressed fear of the respondent ’ s behaviour and demeanor. [ 146 ] He heard the respondent advise that some stuff was thrown out.

He saw a dumpster outside the home. [ 147 ] He observed the applicant speak to the respondent ’ s lawyer by phone. [ 148 ] This witness heard the applicant request the lawyer to speak with his client to instruct him to cooperate with the agreed upon walk though. [ 149 ] He then saw the applicant pass the phone to the respondent and he observed the applicant call the police for assistance. [ 150 ] He advised the police arrived and asked he and the applicant to step outside the home. [ 151 ] Cst. Prasad advised the parties to leave and consult counsel. [ 152 ] Mr.

MacIsaac also advised that he was present when some of the applicants belongings were finally delivered or given over on April 4 th , 2013 . [ 153 ] Mr. Mac Isaac ’ s evidence was clear and direct. He spoke truthfully as to the course of events. Even though a friend of the applicant, he was a believable witness who spoke fairly. [ 154 ] Except for his opinion evidence contained in paragraph 27, I accept his testimony regarding the events of the walk through. The Testimony of Cst. D. Prasad [ 155 ] On December 11 th , 2012 at 3:48 pm, Cst.

Prasad received a call from dispatch requesting assistance at the identified home at 230 Napean Street. [ 156 ] He was familiar with the parties as he had been called to this residence previously. Based on his experience with this family, he categorized this as of medium risk and proceeded to the home. [ 157 ] He determined the situation was confusing. He did not have a court order identifying the rights and responsibilities of each

party. None of the parties could provide an order. [ 158 ] He entered the residence observing the respondent and their daughter and another child present. [ 159 ] He observed the conflict. [ 160 ] Cst. Prasad said that the applicant appeared calm. [ 161 ] In this instance, where the testimony of the applicant and her witness as well as the police differ from the respondent ’ s evidence as to the applicant ’ s demeanor, I accept and believe the most reliable testimony as to her demeanor was that of the witnesses. [ 162 ] Cst. Prasad remained on the scene until a taxi arrived to take the applicant and Mr.

Mac Isaac away. [ 163 ] On April 15 th , 2013 the Court was advised that the walk though, as agreed by the parties and directed by the Court, did not proceed. [ 164 ] The Court gave directions again on specifics of delivery of the applicant ’ s possessions, items were to be delivered Saturday April 20 th , 2012 to the applicant ’ s address. [ 165 ] On April 20 th , 2013 after the court appearance, the respondent testified he called the applicant at 10:00 a.m. again and left a message. [ 166 ] He called her again and left a message at 12:10 p.m. or 1:10 p.m.

He received a call from her, she came to his house and picked up a load of boxed items. [ 167 ] He also delivered a car load of boxed items. [ 168 ] While he advised there were more items of hers at his home, the applicant was unable to make a second trip to the former matrimonial home due to an appointment. [ 169 ] At about 3:00 p.m. that day, the applicant called the respondent for more items. An argument ensued and they did not speak subsequent to that date. [ 170 ] The delivery of the possessions was to take place forthwith.

Given the Decision date and the ultimate delivery of some of the items it could not be considered forthwith. The Respondent ’ s Testimony [ 171 ] Mr. Plouffe provided two affidavits (September 5 th , 2012 and May 6 th , 2013) and gave oral testimony.

[ 172 ] There are admissions in the respondent ’ s testimony that support, in part, some of the applicant ’ s allegations. [ 173 ] He admits that he had some of her personal, as well as her household possessions, in his home well into 2013. [ 174 ] He refers to some of the household possessions being taken sometime in 2011. There is no detail on when, how or where. [ 175 ] Possessions delivered in 2011, before the divorce and matrimonial property proceedings, would not be the subject matter of personal possessions referred to in the March 2012 Decision.

The delivery of possessions in 2011 would not be an answer to the allegation of contempt. [ 176 ] The respondent advised he did make efforts in October 2012, through his lawyer, to arrange a meeting to review the possessions in the home. [ 177 ] His proposal was sent to the applicant by letter dated October 10 th , 2012. [ 178 ] During the December 4 th , 2012 court appearance, the parties and counsel were still unsuccessfully negotiating a suitable date for the applicant to attend the home to effect the Order. [ 179 ] During the December 4 th , 2012 court appearance, the respondent acknowledged the Court gave direction that the applicant and her nominee could attend at the home for the purpose of conducting an inventory of what property she thought was hers. [ 180 ] The parties agreed that this walk through should take place on December 11 th , 2012 at 11:30 a.m. [ 181 ] The applicant and her nominee first attended at the agreed upon time 11:30 a.m.

The respondent was not there. The respondent contacted the applicant and rescheduled for 4:00 p.m [ 182 ] Her nominee, Mr. MacIssac, and the applicant then came back at or before 4:00 p.m. and entered the home with the daughter ’ s permission. The respondent became agitated and angry. [ 183 ] An argument ensued. [ 184 ] The applicant ’ s witness described the respondent ’ s behaviour as abusive. He testified that the respondent yelled profanities at the applicant. [ 185 ] The respondent terminated the walk through meant to assist in the enforcement of the order.

The applicant called the police. [ 186 ] The respondent testified that the applicant was threatening. Mr. MacIssac ’ s testimony is to the contrary and is more believable . [ 187 ] On the face of the record and in light of the respondent ’ s admission, he did not abide by the court Order. Conclusion

[ 188 ] The evidence of the witnesses, including the respondent, establishes that the respondent did not abide by the Court directions. [ 189 ] The written Decision had been sent to his counsel on March 22 nd , 2012.

This is the same counsel that appeared with him through these proceedings. [ 190 ] On all counts strictly reviewing the Order and the chronology, the respondent failed to provide the information required in paragraphs 4, 5 and 6 of the CRJ forthwith or even in a timely fashion. [ 191 ] He also admits to retaining many of her personal possessions and not providing them to her until April and July 2013. [ 192 ] He advised that after he moved out of the home in September 2013 she would be entitled to enter the home.

He was in the process of negotiating with her to take over the home. [ 193 ] He advised there were possessions of hers still in the home.

She would be entitled to list them, speak to him and if he agreed, take them. [ 194 ] There is an admission that the home was not immediately put on the market which leads to a requirement for a payment of her equity in the division of assets and debts as of October 1 st , 2012. [ 195 ] Except for a $2,000 payment, the money payable to the applicant by October 1 st , 2012 was not paid. [ 196 ] With respect to this aspect (payment of money) there was not specific reference in the Corollary Relief Judgement for the remedy of contempt in the event of non payment.

The Law [ 197 ] Rule 89.02 provides as follows: Contempt and order for payment of money 89.02 A contempt order may not be granted to punish a failure to pay money, unless the failure is in violation of either of the following kinds of orders: (

a) an order for family maintenance or support; (

b) an order for recovery of money that expressly provides that a failure to turn over, or pay, funds may be punished as contempt. [ 198 ] Justice MacDonald in MacLellan v. Giovanetti, 2012 NSSC 212 referred to the changes in the Civil Procedure Rules subsequent to TG Industries Ltd. V Clarke Inc. 2001 NSCA 105 and the effect of these changes on contempt as a remedy to punish a failure to pay money. [ 199 ] Before the Civil Procedure Rule changes in Nova Scotia at paragraph 41 in TG v. Clarke, Cromwell raises the issue of whether contempt is available for payment of money:

41...The first is that the Civil Procedure Rules in this province specifically provide for the enforcement of orders to pay money and topay money into court by way of a contempt order: see Rule 52.01(1)© and 52.01(2)(b). I note this because the practice in some otherjurisdictions does not permit this method of enforcement. I would emphasize, however, that inability to pay, absent fault giving rise tothat inability, does not constitute civil contempt.”( emphasis mine) Justice MacDonald notes as follows in MacLellan v.

Giovanetti: 5....In fact former Civil Procedure Rule 52 did indicate an order for the payment of money was enforceable in a proceeding for contempt.However, in MacNeil v. MacNeil (1975), (NS CA), 14 N.S.R. (2d) 398 (N.S.C.A.), the Court of Appeal notedthat the Collection Act, R.S.N.S. 1967,c. 39 s. 3 provided: Subject to this Act, no person shall be arrested or imprisoned for default in payment of any judgment ordering or adjudicating thepayment of money. "Judgment" included payments for maintenance or support. This wording still appears in the Collection Act R.S. 1989, c. 76, s. 4.

It mustbe noted that the Collection Act did not prevent a contempt order because of a failure to pay money but only the imposition ofimprisonment as a penalty. Civil Procedure Rule 89.02 removes the remedy of contempt for any failure to pay money except when thatfailure relates to the provision of maintenance and support or the order permits a contempt application. In this case because the CorollaryRelief Order is filed with the Director of Maintenance Enforcement, this court cannot make a contempt finding nor order a penalty inrespect to any failure to pay child support.

The enforcement of those provisions of the Order is to be determined by the Director.[Maintenance Enforcement Act, S.N.S. 1994-95, c. 6 s. 7] 6 In Dickie v. Dickie 2007 SCC 8 , [2007] 1 S.C.R. 346 the Supreme Court of Canada considered a provision in the OntarioRules of Civil Procedure somewhat similar to our Rule 89.02. This particular case required a decision about whether a provision in anorder required "the payment of money". If it did the action for contempt could not proceed. Justice Robichaud in Lahanky v.

Lahanky2012 NBQB 30, while reviewing the impact of the New Brunswick Rules of Court in respect to contempt proceedings, quoted Dickie,supra as the leading authority regarding the unavailability of contempt as an enforcement procedure for non-payment of a moneyjudgment.

Justice Robichaud decided: 14 ... as such, they are orders for the "payment of money" as contemplated by Rule 61.03(1) of the Rules of Court and are enforceablethrough the issuance of an Order for Seizure and Sale and not through the Court's power to make findings of contempt. 7 Civil Procedure Rule 79 permits the collection of a debt by way of an execution order and Rule 80 provides for other enforcementorders including "seizure and protection of property", putting a party in"possession of property", authorizing a person "to do an actrequired to be done by a party under the order ...", granting a "receivership order" and so on.

These provisions provide the remedy fornon-payment of a debt in Nova Scotia. [200] In Brown v. Bezanson, 2002 SKQB 148, Justice Ryan-Froslie stated the fundamentals of a contempt proceeding at paragraph12-14: 12 A proceeding for civil contempt is available to redress a private wrong by forcing compliance with an order for the benefit of theparty in whose favour the order was made. Sanctions for civil contempt are thus mainly coercive in nature. Their aim is to forcecompliance with the order.

They may also be punitive where the circumstances warrant it. 13 The burden of proof in contempt applications is beyond a reasonable doubt and rests with the party alleging the contempt. 14 In a civil contempt proceeding the following elements must be proven beyond a reasonable doubt:

1. The terms of the order must be clear and unambiguous; 2. Proper notice must be given to the contemnor of the terms of the order; 3. Clear proof must exist that the terms of the order have been broken by the contemnor; 4. The appropriate mens rea must be present. [201] Perhaps the most helpful discussion of the intent required in civil contempt can be found in TG Industries Ltd.

V Clarke Inc.2001 NSCA 105. [202] Justice Cromwell reviewed the history of contempt proceedings, the meaning of intent as well as the consideration of duediligence: 13. ...The core element of civil contempt is failure to obey a court order of which the alleged contemnor is aware. In Poje v.British Columbia (Attorney General), (SCC), [1953] 1 S.C.R. 516 at 522,Kellock, J. approved a definition of civilcontempt as "...disregarding orders or judgments of a Civil Court, or in not doing something ordered to be done in a cause ...". Tosimilar effect, McLachlin, J. (as she then was)in United Nurses of Alberta v.

Alberta (Attorney General), (SCC), [1992]1 S.C.R. 901 at 931 stated that "[a] person who simply breaches a court order ... is viewed as having committed civil contempt."See also BaxterTravenol Laboratories v. Cutter (Canada) Ltd., (SCC), [1983] 2 S.C.R. 388 at 396 - 397 and Bhatnagerv.

Canada(Minister of Employment and Immigration), (SCC), [1990] 2 S.C.R. 217 at 224 - 227.... [203] Particularly relevant to this case before me he wrote: ...The primary objective of exercising the civil contempt power is to secure compliance with the order.(my emphasis) As Kellock,J. said in Poje at 517,in the case of civil contempt, "... the requirements of the situation from the standpoint of enforcement of the rightsof the opposite party constitute the criterion upon which the court acts." (See also Sunnyside Shopping Plaza v.

Sunnyside Transmission(1981), (NS SC), 46 N.S.R. (2d) 156 (S.C.T.D.) at para. 16 and Leger v. Dunbar Estate, [1983] N.S.J. No. 209(S.C.T.D.) at para. 31). 15 The intention to depreciate the court's authority is thus an element of criminal but not of civil contempt.... 16 The second difficulty in the authorities arises from the use of terms such as "intent" and "intentional" indifferent senses. In somecases, it is clear that the intention required for civil contempt is the intention to commit

an act which is, in fact, prohibited (see, forexample, Re Sheppard v. Sheppard (1975), (ON SC), 62 D.L.R. (3d) 35 (Ont. C.A.) at 595. In other cases, the languageappears to suggest that the required intention is that the alleged contemnor meant to disobey it in the sense that he or she knew the actwas prohibited and deliberately chose to do it anyway: see, for example, Morrow, Power v. Newfoundland Telephone Co. et al.(1994), (NL CA), 121 Nfld. & P.E.I.R. 334 (Nfld. S.C.A.D.) at para. 19.

In my view, civil contempt requires intention inthe former but not the latter sense of the word. 17....Similarly, in civil contempt, it is important to distinguish between an intentional act and knowledge that the act is prohibited. Thecore elements of civil contempt are knowledge of the order and the intentional commission of

an act which is in fact prohibited by it. Therequired intention relates to the act itself, not to the disobedience; in other words, the intention to disobey, in the sense of desiring orknowingly choosing to disobey the order, is not an essential element of civil contempt. [204] Justice Cromwell reviewed the four leading cases and noted the following:

There is a long line of authority for the view that intention to disobey is not an element of civil contempt. In Stancomb v.

Trowbridge Urban District Council, [1910] 2 Ch. 190: Warrington, J. said at 194: ...if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of theinjunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was notcontumacious in the sense that, in doing it, there was no direct intention to disobey the order. (emphasis added) [205] Cromwell J. continues to quote Warrington, J. : 21...an act is not wilful if it is "casual or accidental and unintentional".

It is clear from the context, however, that in describing the act as"accidental and unintentional", the lack of intention refers to the commission of the act, not to the absence of intention of disobey theorder. This is particularly clear from his reference to Attorney-General v. Walthamstow Urban Council (1895), 11 Times L.R. 533 inwhich Chitty, J. noted that intention to disobey is not an essential element of civil contempt. .... 23 The House of Lords again approved Warrington, J.'s view in Stancomb in Director General of Fair Trading v. Pioneer Concrete(U.K.) Ltd., [1995] 1 A.C. 456 (H.L.) at 477 - 480.

Lord Nolan concluded his speech by stating that " ... liability for contempt does notrequire any direct intention on the part of the employer to disobey the order ... "(at 481). [206] Justice Cromwell concludes: 25 Pioneer Concrete, Heatons and Stancomb, provide highly persuasive authority for the view that intention to disobey the court'sorder is not a necessary element of civil contempt. [207] The Court of Appeal in Sheppard v. Sheppard (1975), (ON SC), 62 D.L.R. (3d) 35 (Ont.

C.A.) at 595 statedat 595-6: ... in order to constitute a contempt it is not necessary to prove that the defendant intended to disobey or flout the order of the Court. Theoffence consists of the intentional doing of

an act which is in fact prohibited by the order. The absence of contumacious intent is amitigating but not an exculpatory circumstance." (emphasis added) and as to misinterpretations of an order: ... the appellant's misinterpretation of the order cannot afford an excuse for its breach" and cited a passage from Re Witten, an Infant(1887), 4 T.L.R. 36 at 37 to the effect that carelessness in failing to know the terms of the order was not an excuse for breaching it. :at 596. Both Heatons and Stancomb were cited with approval.

The appeal was dismissed. [208] Justice Cromwell adopted the following passage from Robert J. Sharpe, Injunctions and Specific Performance, supra atparagraph 6.190 as a correct statement of the relevant law: To constitute contempt, the act or omission which contravenes the injunction must have been intentional but not necessarily deliberately

To constitute contempt, the act or omission which contravenes the injunction must have been intentional but not necessarily deliberatelycontumacious. It is well established that "it is no answer to say that the act was not contumacious in the sense that, in doing it, there wasnot direct intention to disobey the order". The requirement of intention excludes only "casual or accidental" acts. In other words, the partyseeking a finding of contempt must prove no more than that the defendant intentionally did the forbidden act or consciously omitted todo what was required.

This reasoning has been employed especially in cases where the defence asserts that intention to contravene theorder has not been proved beyond a reasonable doubt. In a leading Ontario case (Sheppard v. Sheppard (1975), (ONSC), 62 D.L.R. (3d) 35), counsel for the defendant in a matrimonial proceeding argued that the order was truncated and ambiguous andthat there was doubt as to whether the breach had been deliberate.

The Court of Appeal answered that it was enough to prove the doing ofthe act and upheld the contempt conviction although it agreed that a deliberate intention to disobey the order had not been established.Thus, the defendant's own carelessness in failing to acquire information as to the precise requirements of the order provides noexcuse.

It is necessary, however, to prove personal service or actual personal knowledge of the court's order. ... (emphasis added) Due Diligence [209] Justice Cromwell acknowledged that: ...there was some authority for the view that contempt should not be found where the defendant exercised due diligence and doneeverything possible to comply with the terms of the order”(paragraph 31). Also see (Morrow, Power v.

Newfoundland Telephone Co.Et al. , (1994), 12 Nfld.& P.E.I.R. 334 (Nfld S.C.A.D.) At para 20). [210] Justice Cromwell acknowledged that there was some merit to this view but he specifically left it open for fuller consideration ina case which raised the issue of due diligence concretely.

He concluded that the diligence of the alleged contemnor's attempts to complyis relevant to the discretion of the Court in making an order after a finding of contempt. [211] In the case at hand, the respondent advises in his second Affidavit that he made subsequent attempts (well past want one couldconsider forthwith), to give certain property to the applicant.

He admits he still has items in his possession that are hers. [212] I am satisfied that at least up to the date of the Motion for Contempt and for a considerable time thereafter until the actualexchange, the respondent failed to exercise due diligence to comply with the terms of the order. [213] The impairment he alleges existed (i.e. the conduct of the applicant) could not be said to be an obstacle to him fulfilling his dutyto collect and obtain the information to which he had access and to provide to the applicant her personal possessions in his possessionand deliver them to the applicant in a time consistent with the terms of the order. [214] This positive act on his part did not require he engage in any communication except to gather the information from third partiesand to gather the personal possessions from inside the home and deliver them or have them delivered without any need of conversation atall except through his lawyer who was readily available to him.

Forthwith [215] Although it is not defined in the Decision, the plain meaning of forthwith as found in various dictionaries is: 1. Immediately; without delay 2. directly; promptly within a reasonable time under the circumstances (pg.725 Blacks Law DictionaryNinth edition Bryan A. Garner Editor in Chief) It is defined as:

immediately; at once; without delay; in the Random House Dictionary (@Random House Inc.2013 and similarly in the Collins English Dictionary (Complete and unabridged 10 th Ed. 2009) Conclusion [ 216 ] I am satisfied that the provisions of paragraph 4 , 5 and 6 were clear and unambiguous. [ 217 ] I am satisfied that while personal possessions were not defined, the respondent had no difficulty identifying what was his and what possessions were rightfully hers. [ 218 ] I am satisfied that his counsel was sent the Decision and he received notice of the alleged breaches in a timely fashion such that he was able to retain and instruct counsel. [ 219 ] I am satisfied that the applicant, the Court and his own counsel brought the terms of the order to his attention, if not at the date of the Decision, certainly subsequently and throughout the many appearances before the Court. [ 220 ] I am satisfied beyond reasonable doubt that the respondent failed to fulfill his positive duty “ forthwith ” as set out in paragraph 4 and 5 making observation of paragraph 6 impossible. [ 221 ] I am satisfied beyond reasonable doubt that he failed to pay the applicant by October 1 st , 2012 the monies he owed her. [ 222 ] I am also satisfied that he failed to deliver her personal possessions according to the terms of the decision. [ 223 ] The evidence he tendered to explain his default did not excuse his failure.

I am satisfied the respondent did not exercise due diligence in abiding by the specific terms of the order other than well after the process had begun (i.e. in April 2013). [ 224 ] The animosity between them did not provide an obstacle to the respondent to the delivery of the applicant ’ s personal possessions nor did it impede his ability simply to provide the information and documentation set out in paragraph 4 and 5. [ 225 ] He has no explanation that would mitigate the failure. [ 226 ] I am satisfied that in accordance with the law as stated above he had the requisite intent to constitute contempt as it relates to the failure to provide the information set out in paragraph 4 and 5 of the Decision and the return of the possessions. [ 227 ] I am satisfied he did not intend to comply with the Order to Disclose and did not feel under any obligation to meet the time lines set out in the delivery of the possessions. [ 228 ] It was only with the constant persuasion of his counsel and the Court that he in fact eventually complied minimally with the disclosure requirements allowing the applicant to direct her enquiries appropriately to enforce her rights pursuant to paragraph 6 and obtain the information herself. [ 229 ] I am satisfied that he understood his obligations.

He did not look for the possessions and did not allow her to look for them until much later in the proceedings.

[ 230 ] Regarding the payment of money, I note there was no specific referral in the Decision to contempt as a remedy for non payment. Given the authorities, contempt would not be an available remedy. [ 231 ] On June 20 th , 2013 the parties agreed on the draft Judgement Order as indicated in the running file.

Ms Kampa Brousseau agreed with the calculations and committed to sign the order. [ 232 ] The Judgement date July 3 rd , 2013 was consented to by both parties and states as follows: That the equity in the home shall be deemed to be $5,922.25 after deducting the first mortgage, the income tax debt, realtor fees and HST. That the petitioner was entitled to $2,961.12. That the respondent pay to the petitioner $961 having already paid $2,000. That the respondent pay to the petitioner $9,530 to satisfy the income tax debt.

That a walk through was ordered on December 4 th , 2012 to take place on the December 11 th , 2012 and the respondent was ordered to return to the petitioner all of her personal possessions forthwith. [ 233 ] The remedy in this circumstance, a Judgement, was satisfied before the conclusion of the proceedings. This effectively renders this aspect of her allegations moot. Penalty [ 234 ] There is no excuse for the respondent ’ s behaviour.

It was intentional and obstructive. [ 235 ] Sadly, he advised he suffers from cancer which has spread throughout his body. [ 236 ] In September 2013, he left his employment of the previous two years to deal with his illness. [ 237 ] The applicant tendered a request for compensation for consultation with third parties and a request for damages for lost storage items. [ 238 ] These requests for damages far exceed the value of the items. Indeed, there is no foundation for her valuations. [ 239 ] There was certainly suffering incurred resulting in a misuse of court time for his failure to disclosure.

The applicant, however, did not efficiently use the court time and argued many issues not properly before the Court on the Motion of Contempt. [ 240 ] If one positive note can be said about the length of this process as it relates to the allegations of contempt it is that compliance with the substantive provisions of the Corollary Relief Judgement occurred.

[ 241 ] While the respondent has not provided all documentation, he has given the applicant enough information to obtain the disclosure directly. [ 242 ] The respondent is the sole provider for the children.

Except for any insurance they received as a result of the accident litigation, he is the only financial provider for the children. [ 243 ] I know enough about the respondent ’ s financial circumstances to conclude that a damage or costs award would impair his ability to support the children and take away from their livelihood. [ 244 ] The applicant does not provide child support for the children [ 245 ] Both parties participated in the high conflict between them and are responsible for their own conduct making respectful and fruitful communication impossible. [ 246 ] Here I redirect myself to the purpose of the contempt proceeding and restate the conclusion of Justice Cromwell in TG Industries Ltd.

V Clarke Inc. 2001 NSCA 105 . He said: ...The primary objective of exercising the civil contempt power is to secure compliance with the order. [ 247 ] In this case all alleged breaches have now been purged. [ 248 ] I decline to order damages or costs. Moira C. Legere Sers, J. .