2024 QCCS 438, 2024 QCCS 438

Droit de la famille — 24175 2024 QCCS 438 SUPERIOR COURT (Family Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MOntreal No.: 500-12-353852-225 DATE: February 5, 2024 _____________________________________________________________________ BY THE HONOURABLE ANDRES GARIN, J.S.C. _____________________________________________________________________ H. F. Plaintiff v. S. A.

Defendant _____________________________________________________________________ JUDGMENT _____________________________________________________________________ INTRODUCTION [ 1 ] The parties, who were married in Pakistan in 2010, are the parents of two girls aged 6 and 4.

They have been living separate and apart since early May 2022 and, on May 11, the Mother instituted divorce proceedings. [ 2 ] On June 6, 2022, the Honourable Guylaine Duplessis, J.S.C., issued a safeguard order requiring the Father to pay the Mother $1,101.10 per month as child support, to pay the mortgage registered on the family residence, and to pay 82.07% of the girls’ daycare fees (the Duplessis Order ). [1] [ 3 ] That Order was renewed on July 13, 2022, by the Honourable Jean-Sébastien Vaillancourt, J.S.C. (the Vaillancourt Order ). [2] On August 11, 2022, the Honourable Donald Bisson, J.S.C. (the Bisson Order ) dismissed the Father’s request to modify the financial terms of the Duplessis Order and renewed it until November 24, 2022. [3] [ 4 ] The Bisson Order was itself renewed on various occasions.

On March 22, 2023, it was renewed by the Honourable Alexander Pless, J.S.C., to be in force until November 3, 2023 (the Pless Order ) [4] . To simplify these reasons, the Duplessis Order as subsequently renewed by the Vaillancourt Order, the Bisson Order and the Pless Order shall be referred to herein collectively as the Court Order . [ 5 ] In parallel, on October 27, 2022, the Mother initiated contempt of court proceedings against the Father in respect of his failure to pay child support, his portion of the daycare fees and the mortgage on the family residence.

An order to appear was issued by the Honourable Christian J. Brossard J.S.C. and the matter went to trial before the Honourable Micheline Perrault, J.S.C., on June 7, 2023. [ 6 ] The Father did not participate in that trial. He was convicted on June 9, 2023, and was sentenced to pay a fine of $5,000 (the Perrault Judgment ). [ 7 ] On October 25, 2023, upon application by the Mother, the Honourable Marie-Hélène Dubé, J.S.C., issued a second order to appear on a charge of contempt of court (the Order to Appear ). The charges in the Order to Appear read as follows: 2.

The alleged violations are the following: Defendant is still in default by the present that to [sic]:

a) Pay the monthly child support in full since June 10, 2023;

b) Pay the mortgage of [sic] the family residence since June 10, 2023;

c) Pay his percentage (82.07%) of daycare fees for children [sic] in full since June 10, 2023. [ 8 ] At trial, the Father appeared and defended himself against this second charge of contempt of court. At issue is: (1) whether the Father has committed contempt of court for failing to comply with the Court Order as between June 10, 2023, and October 25, 2023; and

(2) if so, what punishment should be imposed on the Father for his contempt of court? ANALYSIS 1. Has the Father Committed contempt of Court? 1.1 Governing principles [ 9 ] Paragraph 1 of

article 58 of the Code of Civil Procedure ( CCP ) provides that disobedience of a court order constitutes contempt of court: 58 . A person who disobeys a court order or injunction or acts in such a way as to interfere with the orderly administration of justice or undermine the authority or dignity of the court is guilty of contempt of court. […] [ 10 ] As explained by Ruel J.A. in Lacroix v.

AMF , “contempt of court in civil matters is intended to punish and dissuade persons from breaching court orders, thereby fostering respect for the administration of justice”. [5] The power to punish for contempt of court thus grants the courts the ability to uphold their dignity and enforce their processes and judgments. [6] In this way, the contempt power is inherently related to the preservation of the rule of law. [7] [ 11 ] Civil contempt is quasi-criminal in nature.

This signifies that the standard of proof is the penal standard of proof beyond a reasonable doubt, as opposed to the ordinary civil standard of the balance of probabilities. [8] The quasi-criminal nature of contempt of court also signifies that the defendant is entitled to the presumption of innocence and has the right to remain silent. [9] [ 12 ] Proof beyond a reasonable doubt of three elements is required to establish civil contempt for breach of a court order: 1. the order must state clearly and unequivocally what should and should not be done; 2. the party alleged to have breached the order must have had actual knowledge of it; and 3. the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. [10] [ 13 ] Civil contempt of court has both

an act component ( actus reus ) and a mental element ( mens rea ).

With respect to the mental element, it is not necessary to prove a specific intent to bring the court into disrepute, to flout a court order or to interfere with the administration of justice. [11] [ 14 ] The mens rea for civil contempt will be satisfied by proof, beyond a reasonable doubt, of an intentional act or omission that is in fact in breach of a clear order. [12] In other words, the mental element will be established by proof on the penal standard that the defendant knowingly and willingly acted in a manner contrary to the court order. [13] [ 15 ] In view of the applicable standard of proof beyond a reasonable doubt, where the defendant testifies, as here, a court dealing with a charge of contempt is required to apply the approach set out by the Supreme Court of Canada in R. v.

W.(D.) : 1. If the defendant’s testimony is believed, an acquittal must be entered; 2. If the defendant’s testimony is not believed, but gives rise to a reasonable doubt, an acquittal must be entered; 3.

If the defendant’s evidence is not believed and does not give rise to a reasonable doubt, does the totality of accepted evidence establish the defendant’s guilt beyond a reasonable doubt? [14] [ 16 ] Finally, it must be noted that the power to punish for contempt is an exceptional one that ought to be used sparingly and as a last resort, particularly in the field of family law. [15] In other words, it is not a mere judgment enforcement mechanism. [16] 1.2 Application [ 17 ] The first two elements of the offence of contempt of court have been established beyond a reasonable doubt.

As found by the Perrault Judgment, [17] the Court Order states clearly and unequivocally what the Father is required to do. He did not argue otherwise at trial. [ 18 ] It is also evident that the Father had notice of the Pless Order, which was in force during the period covered by the charges in the Order to Appear. [ 19 ] The Father was not present when the Pless Order was issued.

Nonetheless, following the hearing, on March 30, 2023, Justice Pless wrote to the Father to advise him of the issuance of his Order. [18] With his letter, Justice Pless provided the Father with a copy of the minutes of the hearing of March 22, 2023, which contain the Pless Order. [19] [ 20 ] At the hearing, the Father candidly admitted that he had received both Justice Pless’ letter of March 30 and the attached minutes of the hearing.

Accordingly, the evidence establishes beyond a reasonable doubt that the Father had actual knowledge of the Pless Order. [ 21 ] The third element of the offence of contempt of court requires the plaintiff to demonstrate the act component and the mental

element of the offence.

Here the act component consists of non-compliance with the court-imposed obligations to pay child support, the mortgage on the family residence and the Father’s portion of the daycare fees. [ 22 ] The evidence shows that at the beginning of August 2023, the Father was essentially up to date with his child support. [20] Thereafter, however, Revenue Québec was no longer able to collect child support from the Father and by October 25, 2023—the date upon which the Order to Appear was issued—he had accumulated arrears of approximately $3,890. [21] [ 23 ] The evidence further shows that as between June 10, 2023, and October 25, 2023, the Father did not pay his court-ordered portion of the daycare fees for his daughters. [22] [ 24 ] Finally, the evidence shows that the Father did not make mortgage payments for June, July and August 2023. [23] [ 25 ] In his testimony, the Father did not assert that he made any of these payments as required by the Court Order.

Rather, he argued that he was without the financial means to do so. The evidence thus establishes beyond a reasonable doubt that the Father failed to comply with the Court Order. The act component of contempt of court is made out. [ 26 ] The final issue relates to the mental element of contempt of Court. Was the Father’s non-compliance with the Court Order intentional? [ 27 ] The evidence shows that as of February 2023, the Father made no payments with respect to the mortgage on the family residence and did not pay any portion of his share of the children’s daycare expenses.

At the time, the Father was employed full time as a software developer by [Company A] [24] . It seems evident that the Father’s failure to pay any amount on account of the mortgage or the children’s daycare expenses was a deliberate decision, and thus intentional. [ 28 ] That said, the issue before the Court is whether the Father’s deliberate non-compliance with his court-imposed obligations continued during the period covered by the contempt of court charge, to wit from June 10, 2023, to October 25, 2023. [ 29 ] As noted, the Father argues that he did not have the means to comply with his obligations.

He explains that, as of March 2023, he had relocated to Pakistan and was performing his work for [Company A] remotely. He adds that he was in Pakistan to attend to the sale of a house that the parties held in co-ownership. That house was sold in August 2023, and it would appear that the Mother’s portion of the proceeds of sale was remitted to her. [ 30 ] According to the Father, [Company A] required that he return to Canada on two days’ notice. He was unable to do so, and his employment was ended on June 29, 2023. The Father further argues that he is unwell, has high blood pressure and is unable to sleep.

He is followed by a physician in Pakistan and takes medication. He ascribes his poor health to the divorce proceedings and the burden of the financial obligations imposed upon him. [ 31 ] The Father’s evidence does not raise a reasonable doubt as to the intentional nature of his failure to comply with his court-imposed obligations. [ 32 ] To begin with, his loss of employment is the result of his decision to remain in Pakistan, rather than to report back to work in Canada. He effectively decided to prioritise the sale of the property in Pakistan over his continued employment with [Company A].

The resulting lack of revenues is the consequence of a deliberate choice and cannot justify non-compliance with a court order. [ 33 ] With respect to the Father’s state of health, he testified as to his symptoms and adduced some documentary evidence. However, no specific diagnosis was provided to the Court.

Moreover, he stated that he is no longer consulting a psychologist and that the medication prescribed by his Pakistani physician—who began following him when he was gainfully employed by [Company A]—is effective in addressing both his physical and mental ailments. [ 34 ] In the circumstances, the Father’s evidence does not raise a reasonable doubt as to whether his state of health during the period covered by the Order to Appear was such that he was unable to work and could not find alternate employment once he was let go by [Company A]. [ 35 ] Moreover, the totality of the evidence establishes, beyond a reasonable doubt, that the Father’s failure to comply with the Court Order during the relevant period was intentional. [ 36 ] Beginning with the mortgage payments, the Father had previously threatened to cease paying the mortgage and to move to Pakistan. [25] The evidence shows that he carried out this threat.

Moreover, although he was employed with [Company A] since January 2023, as of February of that year, he made no mortgage payments whatsoever. [26] This failure to pay the mortgage continued throughout the period covered by the Order to Appear. In short, it is obvious that the Father simply had no intention of paying the mortgage after February 2023.

The intentional nature of his failure to pay the mortgage has been proven beyond a reasonable doubt. [ 37 ] As for the Father’s portion of the children’s daycare expenses, the evidence shows that no payments were made in this regard since mid-February 2023. [27] As noted, at that time and until the end of June 2023, the Father was employed by [Company A] and earned sufficient revenues to pay his portion of the daycare fees. Here too, it is obvious that the Father simply had no intention of paying his portion of those fees after February 2023.

This situation continued into the period covered by the Order to Appear. The intentional nature of the Father’s failure to pay his portion of the daycare fees has also been proven beyond a reasonable doubt. [ 38 ] The situation is somewhat different in respect of the Father’s child support obligations. Revenue Québec was collecting child support directly from the Father and, in early August 2023, the Father was largely up to date in his child support obligations. [28] [ 39 ] As noted, however, the Father lost his employment at the end of June 2023.

As explained earlier, the evidence establishes, beyond a reasonable doubt, that this loss of employment and failure to obtain alternate employment was not involuntary and beyond the Father’s control. It follows that the evidence proves beyond a reasonable doubt that his failure to pay any child support as required by the

Court Order from August 2023 to October 25, 2023, was the result of deliberate decisions. [ 40 ] As a result, the evidence shows, beyond a reasonable doubt, that the Father’s failure to comply with his court-imposed obligations from June 10, 2023, to October 25, 2023, was intentional. The mens rea of the offence of contempt of court has thus been proven beyond a reasonable doubt, and a conviction on each count must be entered. 2. What Punishment should be imposed on the father for his contempt of Court? 2.1 Governing Principles [ 41 ] In Bellemare v.

Abaziou , the Court of Appeal explained that the objectives pursued when imposing a sentence for civil contempt include denunciation of the offender’s unlawful conduct, deterrence, repairing the harm caused to victims and society and inculcating offenders with a sense of responsibility for their wrongdoing. [29] The punishment so imposed must be proportionate to the gravity of the offence and the offender’s responsibility. [30] In this regard, both aggravating and mitigating factors must be considered. [31] [ 42 ] The available sanctions for contempt of court are set out in

article 62 of the Code of Civil Procedure : 62. The only sanctions that may be imposed for contempt of court are (1) payment of a punitive amount not exceeding $10,000 for contempt committed by a natural person, or $100,000 for contempt committed by a legal person, a partnership or an association or another group not endowed with juridical personality, in which case the judgment is executed in accordance with

Chapter XIII of the Code of Penal Procedure (chapter C-25.1 ); and (2) performance, by the person or the person’s officers, of compensatory community work the nature, terms and duration of which are determined by the court. If the person refuses to comply with the court order or injunction, in addition to the sanction imposed, the court may order imprisonment for the term it specifies. The person so imprisoned must be summoned before the court periodically to explain themselves, and imprisonment may be ordered again until the person complies.

Imprisonment can in no case exceed one year. [ 43 ] As explained by Ruel J.A. in Lacroix , only two sanctions may be imposed for civil contempt or court: the payment of a fine and the performance of community work. [32] Imprisonment is no longer available as a punitive sanction for civil contempt. [33] [ 44 ] However, in the event of a refusal to comply with an injunction or a court order, the Court may, in addition to a punitive sanction, impose imprisonment for up to one year [34] . This signifies that imprisonment is no longer a sanction for civil contempt of court.

It “is now a civil measure for the enforcement of orders and injunctions” [35] . [ 45 ] In other words, imprisonment in matters of civil contempt consists only of a coercive measure , the fundamental purpose of which is to bring the contemnor to comply with the court order or injunction. [36] Moreover, imprisonment for civil contempt is an exceptional measure that should be used as a last resort. [37] Two main criteria govern the issuance of a coercive order of imprisonment —necessity and proportionality. [38] [ 46 ] It is important to keep in mind that the power to punish for contempt of court serves to uphold the authority of the courts and to preserve the rule of law.

As noted, it is not an ordinary judgment enforcement mechanism. Litigants who bring a contempt application in the hope of executing a judgment may be disappointed with the outcome given the limited sanctions available as punishment for civil contempt. [ 47 ] The present case may well illustrate this reality. 2.2 Application [ 48 ] The Perrault Judgment condemned the Father to pay a $5,000 fine.

The Mother argues that this sanction did not bring the Father to comply with the orders issued against him and contends that imprisonment has become necessary. [ 49 ] Respectfully, the Mother’s argument does not properly recognize that imprisonment is not a sanction, but merely a coercive measure aimed at obtaining compliance with the court order. In the present case, for a number of reasons, it is unlikely that imprisonment will achieve this result. [ 50 ] There are two ways in which the Father could comply with his court-imposed financial obligations.

In the event that he has sufficient assets available to him, he may use these to pay support and his portion of the daycare expenses. Alternatively, he can work and earn employment revenues and use such revenues to comply with the Court Order. [ 51 ] Presently, the Father is unemployed. It is beyond evident that imprisonment will not assist him in gaining employment and earning revenues which could be used to meet his court-imposed obligations.

On the contrary, imprisonment will make employment more challenging for the Father. [ 52 ] On the other hand, to the extent that the Father has assets available to him, imprisonment might impress upon him the need to use such assets to comply with the Court Order. [ 53 ] In this respect, the Father claims to have no assets whatsoever. He recently returned to Quebec from Pakistan and testifies that he borrowed from a friend to purchase a one-way plane ticket and to rent temporary accommodation.

[ 54 ] The Mother believes that the Father’s family is holding assets for him in Pakistan—particularly his share of the sale of the house they owned together in that country. According to the Father, that house was originally co-owned with his brother. The Mother’s portion of the house was gifted to her. After the parties’ separation, his brother insisted on recovering the gift. [ 55 ] The Father’s story is somewhat convoluted.

That said, the evidence does not establish on the standard of proof beyond a reasonable doubt that the Father disposes of assets in Pakistan or elsewhere that he could use to meet his obligations under the Court Order.

In the absence of such assets, imprisonment can serve no useful purpose whatsoever. [ 56 ] In short, despite the fact that this is the Father’s second conviction for contempt, the evidence does not show that imprisonment of the Father could usefully constitute a coercive measure that might result in compliance with the Court Order. [ 57 ] Accordingly, imprisonment will not be ordered in addition to the sanction that ought to be opposed. In that regard, as noted, only two sanctions are available—a fine of up to $10,000 and community work. [ 58 ] The Perrault Judgment imposed a $5,000 fine.

This did not result in compliance by the Father with his court-imposed obligations. Nevertheless, a further, more significant fine would not be an appropriate sanction in the present case. [ 59 ] To the extent that the Father has no assets, as he claims, a fine serves no obvious purpose.

On the other hand, to the extent that the Father has assets that may be used to satisfy a fine—which, as noted, is not obvious—a fine will only result in diverting such assets away from his children who are the intended beneficiaries of his court-imposed obligations. [ 60 ] Similarly, to the extent that the Father becomes employed, payment of the fine from his employment revenues will divert revenues that should be used to meet his court-imposed obligations away from the children and towards the consolidated revenue fund. [ 61 ] In the circumstances, the objectives that underpin the imposition of sanctions for contempt of court are far better served by community service.

A term of community service will express the Court’s and society’s denunciation for the Father’s unlawful conduct consisting of his intentional failure to comply with the Court Order and will advance general and specific deterrence. [ 62 ] Community service by the Father—particularly if it is performed with an organization devoted to the alleviation of poverty, such as a food bank—will assist the Father in taking conscience of his financial responsibilities towards his children.

Unpaid community service should thus impress upon the Father the importance of complying with court orders and give him an incentive to find remunerated employment in order that he might to so. [ 63 ] Finally, having the Father contribute to the wellbeing of others through community service will assist in repairing the harm caused to society by his failure to comply with his court-imposed financial obligations to his family. [ 64 ] The Court of Appeal has indicated that community service sentences for a first offence of contempt of court in family matters should generally fall within a range of 50 to 75 hours. [39] The fact that this is the Father’s second guilty verdict for contempt of court is an aggravating factor. [ 65 ] In the circumstances, it is appropriate to impose a sentence of community service that is slightly above the range of a first offence.

The Father will thus be sentenced to perform a total of 90 hours of community service as follows: • 30 hours on count 2 a); • 30 hours on count 2 b); and • 30 hours on count 2 c). [ 66 ] A nine-month delay will be given to the Father in order that he might perform such service on weekends or evenings. As such, the obligation to perform community service should not interfere with the Father’s ability to find and retain remunerated employment. [ 67 ] The Court recommends that the Father’s community service be performed with an organization devoted to the alleviation of poverty—such as a food bank.

The conclusions of this judgment contain instructions on what the Father must do in order to perform his sentence of community service. * * * * DISPOSITION [ 68 ] FINDS the Defendant guilty of contempt of court; [ 69 ] ORDERS the Defendant to perform 90 hours of compensatory community work within nine (9) months of the date of the present judgment, under the supervision of the District Probation Officer of the judicial district of Montréal or such other person designated by the District Probation Officer; [ 70 ] ORDERS the Defendant to report, within 30 days of the date of the present judgment, to the Office of the Probation Service of the judicial district of Montréal located at Palais de justice de Montréal, 1 rue Notre-Dame Est, Suite 11.09, Montréal (Québec), to receive the appropriate instructions and directions with respect to the community work to be performed; [ 71 ] ASKS the civil court office (greffe civil) to forward the present judgment to the Office of the Probation Service of the judicial district of Montréal located at Palais de justice de Montréal, 1 rue Notre-Dame Est, Suite 11.09, Montréal (Québec), for the purposes of its execution;

[ 72 ] THE WHOLE , with legal costs in favour of the Plaintiff. __________________________________ ANDRES GARIN, j.S.C. Maître Niousha Riahi Counsel for the Plaintiff Mr. S. A. Not Represented Hearing date: January 22, 2024