2014 NBCA 19, 2014 NBCA 19

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK ROSELINE ROY APPELLANT 130-13-CA ROSELINE ROY APPELANTE - and - - et - PIERRE DION RESPONDENT PIERRE DION INTIMÉ Roy v. Dion., 2014 NBCA 19 Roy c.

Dion, 2014 NBCA 19 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Quigg CORAM : l’honorable juge Deschênes l’honorable juge Richard l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: December 2, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 2 décembre 2013 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: [2013] N.B.J. No. 405 Historique de la cause : Décision frappée d’appel : inédite Procédures préliminaires ou accessoires : [2013] A.N.-B. n o 405

Appeal heard and judgment rendered: March 26, 2014 Reasons delivered: May 15, 2014 Appel entendu et jugement rendu : le 26 mars 2014 Motifs déposés : le 15 mai 2014 Counsel at hearing: For the appellant: G. Robert Basque, Q.C. For the respondent: Renée Line Blanchard Avocats à l’audience : Pour l’appelante : G. Robert Basque, c. r. Pour l’intimé : Renée Line Blanchard THE COURT The appeal is allowed with costs of $2,500. The following is the judgment delivered by THE COURT [ 1 ] In 2008, Roseline Roy and Pierre Dion separated from a common law relationship.

Since then, they have been litigating the distribution of certain assets, including their family home. They have been before the courts of this Province several times. One of these appearances led to a decision by a judge of the Court of Queen’s Bench, issued on May 27, 2013. In that decision, the judge ordered that, within 30 days, Mr. Dion provide certain financial information to Ms. Roy, following which Ms. Roy would have 30 days to decide whether to purchase Mr. Dion’s share of the family home. The order stipulated that if Ms. Roy did not opt to purchase Mr.

Dion’s share of the family home, it would then be listed for sale. The order also stated that, notwithstanding everything else, the house would have to be listed by August 8, 2013, at the latest. [ 2 ] Mr. Dion did not comply with the judge’s order. He did not provide the financial information to Ms. Roy within the contemplated 30 days. In fact, he only provided the information on August 7, 2013. In the interim, on August 1, 2013, Ms. Roy filed a motion in the Court of Queen’s Bench seeking compliance with the May 27 order. In her Notice of Motion, Ms.

Roy asked for an abridgement of time and specifically asked for an amendment of the date by which the house was ordered to be listed for sale. Surprisingly, Ms. Roy was advised her motion would only be heard on April 30, 2014. [ 3 ] Ms. Roy did not list the property for sale on August 8, 2013, as it was her understanding she would have 30

days following the receipt of the financial information to decide whether she would purchase Mr. Dion’s share of the home. Mr. Dion’ssolicitor advised her counterpart that if the property was not listed by that date, a motion would be filed to have Ms. Roy held incontempt of court. Mr. Dion followed through on that threat. On August 16, he filed a motion seeking to have Ms. Roy held in contemptfor not having listed the property by August 8. [4] Mr. Dion’s motion was heard on September 5, 2013, at which time the judge learned Ms. Roy had herselffiled a motion that was scheduled to be heard on April 30, 2014.

Although the judge heard arguments in September, the matter wasadjourned to December 2, 2013, when the Court would also hear Ms. Roy’s motion. [5] On December 2, 2013, the judge considered both motions. The Notices of Motion sought relief, other thanthose set out above, which are not necessary to list for the purposes of this decision. In the end, the judge rendered decisions from theBench. She granted some of the relief Ms. Roy was seeking in her Notice of Motion and awarded her costs of $500. As for Mr. Dion’smotion seeking to have Ms.

Roy held in contempt of court, the judge directed that the house be listed for sale, but varied her May 27order to give Ms. Roy a right of first refusal. The judge found Ms. Roy in contempt of court for not having listed the property by August8. The judge opted not to sanction Ms. Roy, but awarded Mr. Dion costs of $1,000. [6] Ms. Roy appeals the judge’s finding of contempt. At the close of the hearing, the appeal was allowed fromthe bench. At the time, we indicated that reasons for our decision would follow.

These are those reasons. [7] The principles that convinced us to allow this appeal are those set out by Drapeau J.A. (as he then was) inNew Brunswick (Minister of Health and Community Services) v. S.L. (1998), (NB CA), 200 N.B.R. (2d) 127, [1998]N.B.J. No. 230 (C.A.) (QL): In my view, the following statement by Monnin C.J.M., in Chicago Blower Co. v. 141209 Canada Ltd. and Transregent Holdings Ltd. etal. (1987), (MB CA), 44 Man.

R. (2d) 241 (C.A.) at p. 243, encapsulates the principles which apply to all Courtorders: An injunction must be implicitly obeyed and every diligence made to obey it to the letter; those who do not obey it are guilty ofcontempt. It is a punitive jurisdiction of the court based on centuries of experience and founded on the sound principle that it is not forthe good of the plaintiff or a party to the action but it is for the good of the public that orders of the court should not be disregarded.People should not place themselves in the position of assisting in breaches of valid court orders. ...

Nevertheless, it is settled law that before a valid finding of contempt could be made for failure to comply with an Order of the Court, theOrder must be free of ambiguity. Thus, any doubt as to the effect of the Supervisory Order enures to the benefit of Mr. Mirthes. (SeeVidéotron Ltée v. Industries Microlec Produits Électroniques Inc., (SCC), [1992] 2 S.C.R. 1065 at 1077, and CanadianUnion of Public Employees, Local 301 v. Montreal (City), (SCC), [1997] 1 S.C.R. 793 at 835). In Skybound Dev. Ltd.v.

Hughes Properties Ltd. (1988), (BC CA), 24 B.C.L.R. (2d) 1, the British Columbia Court of Appeal overturned afinding of contempt on the ground that an Order for payment of disputed funds into a trust account did not specify a time for compliance.In the instant case, the Supervisory Order is ambiguous with respect to the date by which the psychological assessment had to have beenarranged by Mr. Mirthes. [paras. 12-13] [Emphasis added] [8] Ms. Roy argues that the order issued on May 27, 2013, was not devoid of ambiguity.

The order led her to believe shewould have 30 days following the receipt of the financial information to assess her financial situation and determine whether or not shewould buy out Mr. Dion’s share of the family home. Since the information was not delivered within 30 days as ordered, she wasproactive and sought clarification of the court order by filing a motion in the Court of Queen’s Bench. When the financial informationwas delivered to her on August 7, she believed she had 30 days from then to assess her financial situation and determine if she could payout Mr. Dion’s share.

Thus, she argues, the fact the house was not listed by August 8 is Mr. Dion’s fault for not providing the financialinformation as ordered, not hers. [9] We agree with Ms. Roy. The order issued on May 27, 2013, was ambiguous. There is no doubt the judge intended togive Ms. Roy 30 days to assess her financial situation once she received the financial information from Mr. Dion. In our view, thereference to August 8 can reasonably be interpreted as the date upon which Ms. Roy would have had to close the transaction if she hadreceived the information from Mr.

Dion as ordered and, after assessing her financial situation, had opted to buy out his share of theproperty. In that event, Mr. Dion would not be expected to wait forever for her to close the transaction. Ms. Roy would have been forced

to close the transaction by August 8 or else list the property for sale. [ 10 ] Since we conclude the order was ambiguous, it follows Ms. Roy could not have been in contempt of it. Her proactive motion to have the matter clarified, and the deadline extended, when she did not receive the financial information, is evidence of her

interpretation that she would have 30 days following the receipt of the information to determine whether to buy out Mr. Dion’s share. Such an

interpretation of the order was reasonable in the circumstances. [ 11 ] It is for these reasons we allowed the appeal, set aside the judge’s contempt finding and the resulting order and ordered Mr. Dion to pay Ms. Roy costs in the amount of $2,500. ____________________________________ ALEXANDRE DESCHÊNES, j.c.a. ___________________________________ J. C. MARC RICHARD, j.c.a. ___________________________________ KATHLEEN A. QUIGG, j.c.a.