D.E. Applicant v. W.E., 2022 NBKB 243

2022 NBKB 243 COURT FILE: FDSJ 697-2015 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: D.E. Applicant and W.E. Respondent Before: The Honourable Mister Justice Danys R.X. Delaquis Date of hearing: November 14, 15, and 16, 2022 Date of Decision: December 16, 2022 Appearances: Applicant - Per Se Respondent - Per Se

Summary: Motion seeking various relief including change of venue, assessment of children, reinstatement of defamation action, and contempt DECISION DELAQUIS, J.:

OVERVIEW [ 1 ] On November 7, 2016, a Divorce Order attaching Minutes of Settlement was issued after the parties settled their dispute [the “Final Order”]. A Divorce Judgment was filed on December 15, 2015. [ 2 ] The parties are the parents of two children, M.E.E. [D.O.B….2010] and M.V.E. [D.O.B. … 2012]. At the time the Final Order was signed, the children were aged 6 and 4 respectively.

The relationship between the parties since the Final Order was issued has been imbued with high-level toxicity and perpetual conflict, in and out of the Courts. [ 3 ] The procedural history is, not surprisingly, long and complicated. The Applicant filed an Application on December 7, 2015. Approximately 17 Orders have been issued since the Final Order was issued. [ 4 ] However, after hearings that were held on July 26, August 29, October 15 and November 6, 2019, McLellan, J. issued the following Order dated November 7, 2019: 1.

The week on, week off joint and shared parenting arrangement shall continue, with the children continuing to have regular communication with their parents through texts and telephone calls. 2. If either party wishes to have a trial on any matter, they may file a motion to that effect. [ 5 ] An Appeal of Justice McLellan’s Order was launched by the Respondent. On February 10, 2021, the Registrar dismissed the appeal for delay. [ 6 ] The November 7, 2019, Order issued by Justice McLellan therefore remained in force and effect.

As a result, the Respondent filed two motions that were scheduled to be heard over three days. The first motion was filed on January 10, 2020, seeking a change of venue from Saint John to Fredericton. The second motion was filed on March 16, 2020, seeking 26 grounds of relief, including a change of venue. [ 7 ] The hearing of the Respondent’s motions was scheduled for January 26, 27 and 28, 2022. The Court ordered on January 4, 2022, that the parties file and serve upon each other any affidavits they intend to rely upon at the hearing on or before January 19, 2022.

However, that hearing was delayed due to a fresh Covid outbreak. [ 8 ] The Motions were then scheduled to be heard from July 13-15th, 2022, but were adjourned at the request of the Respondent. The Order granting the Respondent’s adjournment reads as follows: 1. This three-day hearing shall be adjourned to November 14th to 16th, 2022. 2. The parties are put on notice that the matter will proceed on November 14th to 16th, 2022 even if they do not have legal representation. 3. The Respondent shall provide Legal Aid and/or any solicitor he retains with a copy of this Order. 4.

The Respondent shall file an Affidavit of Service with the Court no later than July 29, 2022 confirming service of this Order by the Respondent upon Legal Aid. 5. The parties are prohibited from bringing further motion(

s) in the proceedings without leave pursuant to Rule 37.12 of the Rules of

Court, with the exception that the Applicant may bring a motion seeking an Order for vaccination of the children given the ongoing Covid-19 pandemic and that she raised this issue already in her Responding Affidavit. In the event the Applicant files such a Motion, it shall be heard as soon as possible. 7. The parties shall cooperate fully including, but not limited to, by completing all the necessary documentation in order to ensure that the child [M.E.E.] attends [B.] School in September 2022. 8. This Order shall take effect immediately. [ 9 ] The various grounds of relief sought by the Respondent are included in

Schedule “A” attached to his Affidavit, and read as follows: 1. I am requesting a trial date be set to deal with the Issues that were set down for trial by Judge Marie-Claude Blais. At least 5 days will be required. 2. I would ask that under

Section 7(

a) of the Family Services Act that the Minister be made Aware of the Custody Proceedings and Abuse that is happening and Intervene to protect the children. I have seen 3 Therapists that have confirmed Coercive, Abusive and Manipulative techniques. Pat McDonough, Tawnya Fanjoy and Patricia Donihee. 3. I would ask that Under

Section 8 of the Family Services Act that the Court Order a Psychological Evaluation of [M.E.E.] and [M.V.E.] in accordance with the ICD-10 (International Classification of Diseases — Edition 10), Diagnostic System, F24 Shared Psychotic Disorder. I would also like the DSM-V (Diagnostic and Statistical Manual of Mental Disorders — Volume 5), to test for Trauma Indicators that when all 3 Indicators are present will give a Clinical Diagnosis of V995.51 Child Psychological Abuse. 4. I would ask that under

Section 8.1 of the Family Services Act that the Court to have all expenses for the Psychological testing to be paid for by the Mother, [D.E.]. 5. I would ask that under

Section 9 of the Family Services Act that the evidence I provided to Pat McDonough, Tawnya Fanjoy and Patricia Donihee be entered into evidence. 6. I would ask the Court to find [D.E.] in Contempt of Court for Non-Compliance with Custody and Access Orders according to the Minutes of Settlement from the Divorce Agreement. 7.

I would ask the Court to find [D.E.] in Contempt of Court for not Fostering a relationship with their Paternal Grandparents in accordance with the terms of the Minutes of Settlement from the Divorce Agreement. [M.] and [M.] have been in the charge and care of [D.E.] since February 24 th 2020. [V.] and [E.] had birthday's on March 8th and 9 th of 2020 and did not receive any communications from their grandchildren on their birthdays. The grandparents will not have seen their grandchildren since February 24th 2020 until my custody and access of March 16th 2020. 8.

I would ask the Court to find [D.E.] in Contempt of Court for not allowing Communication with the children as prescribed in the Minutes of Settlement from the Divorce Agreement. 9. I would ask the Court to find [D.E.] in Contempt of Court for not taking the children to their extracurricular activities in accordance with the Minutes of Settlement from the Divorce Agreement. 10. I would ask the Court to find [D.E.] in Contempt of Court for not sharing Medical and School related Information with me in accordance with the Minutes of Settlement from the Divorce Agreement.

11. I would ask the Court to find [D.E.] in Contempt of Court for not supplying me and the Court with current Financial Statements as Ordered by Master Chantal Daigle and Judge Blais to deal with the Motion for Child Support. 12. I would ask the Court to find [D.E.] in Contempt of Court for not paying her portion of extracurricular activities as prescribed in the Minutes of Settlement from the Divorce Agreement. 13.

I would ask the Court to find [D.E.] in Contempt of Court for not paying half of the Cell Phone bill that was provided to [M.E.] at the Request of [D.E.] and the Order of Judge McLellan and to be reimbursed for her portion of the cost that has not been paid. 14. I would ask the Court to find [D.E.] in Contempt of Court for not allowing [M.] to have Private Communications with the Device that was Ordered to be provided to her by Judge McLellan. I brought this issue up with [D.E.] and her response was that the device was only meant for her to have private communications with [M.E.]. 15.

I would ask the Court to find [B.C.] in Contempt of Court for not following the Orders of Judge McLellan and interfering with Custody and Access as well as his perjured statements to Judge Marie-Claude Belanger-Richard. 16. I would ask the Court to Reinstate my Civil Lawsuit against [B.C.] for Defamation that I withdrew under Duress as Judge McLellan was withholding his ruling for Custody and Access until I showed him a Gesture of Good Faith and withdraw the Civil Lawsuits in front of him in Family Court.

It was his belief that it was wrong for me to be filing a Civil Lawsuit against the mother of our children and whoever this other party was. I filed a Complaint with the Canadian Judicial Council about the conduct of Judge McLellan. 17. I would like the Court to provide me with the Access time I missed with my children in accordance with the Department of Justice of Canada guidelines for High Conflict Divorce Cases. 18.

I would ask the Court to Grant a Change of Venue to Fredericton in the interest of Justice as the Saint John Judicial District has shown a clear Bias and Discrimination towards me in all Court Sessions. I asked Judge McLellan to recuse himself on my first Application for a change of Venue as there was an active Investigation into the Conduct and Statements of Judge McLellan by the Canadian Judicial Council. Judge McLellan ignored the Conflict of Interest and denied my Motion for a change of Venue.

I am preparing in (sic) Affidavit noting all the discrimination and violations of the Rules of Court of the Province of New Brunswick like the decision of Judge Marie-Claude Belanger-Richard who ignored Rule 60 of the Rules of Court for the Province of New Brunswick. 19. I would ask the court to impose a penalty of a fine or Community Service for Contempt to Local Shelters such as Hestia House, Outflow, Romero House or some other Charitable Service in the Saint John Area. 20. I would ask the Court to provide a Guardian Ad Litem to represent the children and serve their Best Interests.

This situation has been going on for over 4 years and there has not been any trial to deal with the issues in this Case. The Department of Justice recognizes that High Conflict Cases need to be treated differently. This has not happened in this case and the Court has ignored the Evidence. You have a mother making Allegations of Abuse over a 4-year period that has been Investigated by the Saint John Police Force, the RCMP and The Department of Social Development, each multiple Investigations with no evidence to corroborate allegations made by [D.E.].

The only person that has corroborated any statements is [B.C.], [D.E.]'s boyfriend. I have evidence to show [B.C.] perjured himself. You have a Respondent that is alleging Abuse by the mother. Until the Court can determine which statements are false and which are true, the children will continue to suffer. The only thing that both parties seem to agree to is that the children are being subjected to abuse. Someone needs to represent their Best Interests and save them from the ongoing abuse.

21. I would ask the Court to grant me Primary Caregiver Status under S 129(3) of the Family Services Act pending completion of a Psychological Assessment to determine the best Custody and Access

Schedule for the children that is in the best interests of the children as defined in

Section 1 of the Family Services Act. I have been Investigated by the Department of Social Development 3 times and provided the Court with Copies of all the Investigation closures with No Areas of Concern. The Burden of proof does not fall on me to prove my Innocence, but I have done that repeatedly over the last 5 years. There is a clear pattern here which represents a Modus Operandi, a particular way or method of doing something. [D.E.] has repeatedly done the same routine to try to get Custody of our Children and erase me and their grandparents from the children's lives.

The Court ignored this pattern of behavior and rewarded [D.E.] with Primary Caregiver Status based on the lies she told to RCMP Constable Jean Luc K. and the Department of Social Development. Her first attempts at this pattern were to have me arrested for Criminal Harassment which again, there was no Evidence to corroborate her allegations, only the statements of [B.C.] in his Recorded Statement to the Saint John Police Department which conflicted with his sworn testimony on October 4th 2016. 22.

I would ask the Court to award me all costs associated with Legal Fees, missed time at work and Damages associated with allegations of Abuse and Neglect made by [D.E.] to the Department of Social Development and the RCMP from December 2017 to present. I was self-represented until Emergency Applications were made to the Court in December of 2017 and again in July of 2019 based on False Allegations made to the Department of Social Development by [D.E.]. 23. I would ask the Court to add an Enforcement Clause in accordance with the standards set in the Case of Patterson v. Powell, 2014 ONSC 1419 . 24.

I would ask the Court to add another 5 days to make it a 10 day trial if any of my requests need to be added to the Issues already listed for Trial. 25. I have made requests for Mediation as per the Minutes of Settlement of the Divorce Agreement but have had no success attempting that process. 26. During the 3 week period from February 24 th 2020 to March 16 th 2020, I received 1 phone call from my son [M.E.] on March 15th 2020 from his mother's cell phone.

The call lasted 4 minutes and 7 seconds. [M.] seemed distracted like someone else was speaking to him. [ 10 ] Grounds 1 and 24 relate to determining what trial issues remain after the hearing of this Motion and what the duration of the trial should be based on the remaining issues. [ 11 ] Ground 2 has been resolved. On June 28, 2022, the Minister of Social Development confirmed that she “does not wish to intervene or be called as a witness in the proceeding.” [ 12 ] The Respondent withdrew Grounds 20 and 21 at the hearing.

[ 13 ] The Respondent’s Motions were heard November 14-16, 2022. This decision pertains only to the Respondent’s two Motions. [ 14 ] Both parties have consulted counsel in the past. The Respondent indicated that he had retained/consulted approximately seven different lawyers.

The parties therefore appeared at the hearing of these Motions as self-represented litigants. [ 15 ] I provided the parties at the hearing copies of the Clerk’s emails dated June 27, 2022, and July 6, 2022 [Items marked #1 and #2 for identification] which set out the procedural history and explained to the parties what the issues would be at the hearing.

The July 6, 2022, email was sent at the request of the Respondent who sought clarification from the Clerk. [ 16 ] As noted above, the two Motions refer to the various sections of the Family Services Act (“ FSA ”) as the legislative basis for some of the relief sought. I advised the parties that the Minister of Social Development (the “Minister”) was given Notice of this hearing pursuant to s. 7 of the FSA and confirmed no one would attend on behalf of the Minister. The initial application was filed seeking relief under the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .) (the “ Divorce Act ”).

I therefore gave the parties a copy of the relevant parts of that legislation so they could refer to it, if necessary. ISSUES [ 17 ] The 26 grounds of relief sought in the second Motion contained some overlap. I have therefore grouped those together that I believe all relate to the same issue. The issues to be determined are as follows: 1. Should a change of venue from Saint John to Fredericton be ordered pursuant to Rule 45.02 of the Rules of Court ? 2. Should an Assessment, or Voice of the Child Report of the children be ordered? 3.

Is the Applicant in Contempt of Court pursuant to Rule 76 of the Rules of Court ? 4. Should the Respondent’s lawsuit for defamation be reinstated? 5. Is an Enforcement Clause warranted in this case? 6. Should costs be ordered on the Motion? 7. What are the issues that remain to be determined for the final hearing and what should the duration of the hearing be? LAW AND ANALYSIS Issue 1 – Change of Venue [ 18 ] The starting point on this issue is Rule 45.02 of the Rules of Court : 45.02 Change of Place of Trial

(1) Any party may apply to the court at any time to change the place of trial and shall show that (

a) it would be more convenient to have the action tried at the place proposed by him, or (

b) that, in the interest of justice, the action ought to be tried at that place.

(2) Where the court changes the place of trial

(

a) for all subsequent purposes the proceeding shall be deemed to have been commenced in the judicial district in which the trial is totake place, (

b) the clerk shall forward the original file to the clerk of the judicial district in which the trial is to take place, and (

c) the clerk of the judicial district in which the trial is to take place shall assign a new court file number and advise the parties of thenew court file number. [19] I provided to the parties copies of Rule 45 of the Rules of Court along with two cases which relate to the change of venueissue to assist the parties during their oral submissions. [20] The evidence for seeking a change of venue as stated by the Respondent is as follows: I am requesting a change of venue for my Family Court case due to the prejudice all Judges I have been before in the last 4 years have been biased in their orders and decisions.

This all began with Judge William McCarroll on October 4th, 2016. [21] I first refer to the comments of the Court of Appeal in Stelling v. Tantramar Planning District Commission (NB CA), which emphasize that the Plaintiff has a right to chose the judicial district in which to sue and also, that satisfactorygrounds must be established before a change of venue will be ordered: [4] That is not the case in New Brunswick where as a matter of practice, a plaintiff has the right to commence an action in any judicialdistrict of choice.

Unless otherwise decreed by statute or as a result of an application to a judge pursuant to rule 45.02, the trial must takeplace in the judicial district in which the proceeding is commenced. [5] Finally, the evidence was that the members of the Tantramar Planning District Commission were volunteers and that some may becalled as witnesses. Few steps have been taken in the proceedings so far. There has been no examination for discovery. The fact thatsome members are volunteers has little weight on the issue of venue. The evidence did not show that they would be called as witnessesonly that they may be called.

No satisfactory grounds have been shown to justify a change of venue under the rule. [22] In The Province of New Brunswick v. Grant Thornton LLP, et al, 2015 NBQB 95 Grant, J. summarizes thedominant themes running the case law on change of venue motions at paragraph 14: [14] The dominant themes that arise from these cases are that:

a) a change of venue must not be granted lightly;

b) each case must be determined on its own facts; and

c) in order to abrogate the plaintiff’s choice of venue there must be a considerable preponderance of convenience in support of themotion that is apparent from the record. [23] The Province of New Brunswick v. Grant Thornton LLP, et al, supra case was also referred to by Ferguson, J, inaddition to other cases, in H.D. v. A.R. 2015 NBQB 158 . Justice Ferguson denied the Respondent’s motion for a change ofvenue in a family law context and concluded at paragraph 44 that that the relevant principles of interests of justice and balance ofconvenience had not been met on a preponderance of the evidence.

[24] In this case, the Respondent has conceded that the balance of convenience part of the test is not met. For example, theparties reside in Saint John, as do the children, and almost all the witnesses. I agree that the Respondent has not met the balance ofconvenience part of the test. [25] The Respondent however focused intently on the interests of justice part of the test and argued strenuously that he cannotget a fair trial in Saint John. As he stated in his Affidavit, he believes that all the judges in the judicial District of Saint John are“prejudiced” and/or “biased”.

He even referred to his experience with certain Provincial Court Judges, at least one of which is nowretired. I reminded the Respondent that this matter would not be heard by a Provincial Court Judge. It doesn’t matter. The Respondenthas developed a strong perception regarding his inability to receive justice in Saint John. In fact, he advised the Court that he is afraid tocome to court.

However, he then admitted that he did obtain fair treatment during one of his hearings in Family Court with one of theJudges in Saint John. [26] Against the Respondent’s allegations of bias, I must weigh the Applicant’s right to have her application heard in the samejudicial district in which it was commenced, as referenced in the case law above. Such a change of venue must not be granted lightly. TheRespondent must establish, based on a preponderance of the evidence, that it is in the interests of justice to change the trial venue fromSaint John to Fredericton. [27] In R. v.

Teskey, 2007 SCC 25 , the Supreme Court of Canada described the presumption of integrity andimpartiality of Judges as follows: 28 Of utmost importance to the resolution of this appeal, in my view, is the existence of a presumption of integrity, rebuttable onlyby cogent evidence.

The high threshold for displacing the presumption that a judge is acting with integrity and in accordance with his orher oath of office, seeks to balance two significant public interests, both related to maintaining confidence in the administration ofjustice: the right of judges to be presumed to be acting with integrity and the right of litigants to challenge judges when their conductgives rise to a reasonable apprehension of impropriety. 29 The presumption of integrity acknowledges that judges are bound by their judicial oaths and will carry out the duties they havesworn to uphold.

This includes not only a presumption — and duty — of impartiality but also of legal knowledge. This aspect of thepresumption, namely, that judges are presumed to know and act in accordance with their legal responsibilities, is of particularsignificance in this appeal. 30 The foundation for the presumption was summarized in Robbie the Pict v.

Her Majesty’s Advocate, [2003] ScotHC 12, asfollows at para. 8: Every judge is bound, both by his judicial oath and by the ethical obligation incumbent on anyone who exercises a judicial function, tobehave honourably, sincerely and impartially towards litigants and those who represent them. These obligations are the cornerstones ofjudicial integrity. A litigant is entitled to expect integrity of the judge; but he in turn must give the judge his trust.

That is the only basison which litigation can be conducted in an atmosphere of confidence rather than suspicion. 31 The presumption has most frequently been discussed in the context of allegations of bias. In Wewaykum Indian Band v.Canada, 2003 SCC 45 , [2003] 2 S.C.R. 259, 2003 SCC 445, McLachlin C.J. stressed its significance in that context as follows: An allegation that a judgment may be tainted by bias or by a reasonable apprehension of bias is most serious.

That allegation calls intoquestion the impartiality of the Court and its members and raises doubt on the public’s perception of the Court’s ability to render justiceaccording to law. [para. 2] ... ... “(i)mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, EthicalPrinciples for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed.

As was noted by L’Heureux-Dubé J.and McLachlin J. (as she was then) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and thelaw should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. [Emphasis added;para. 59.]

(See also R. v. Elrick, [1983] O.J. No. 515 (H.C.); R. v. Smith & Whiteway Fisheries Ltd. (1994), 1994 NSCA 130 , 133 N.S.R.(2d) 50 (C.A.); R. v. Lin, [1995] B.C.J. No. 982 (S.C.); R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484, at para 117.) 32 In R.D.S., Cory J. also noted at para. 113 that the threshold for establishing a reasonable apprehension of bias is a high onebecause it calls into question not only the integrity of the presiding judge, but of the administration of justice itself.

In other words, asCory J. concluded at para. 112, “a real likelihood or probability of bias must be demonstrated ... mere suspicion is not enough”. 33 The test for displacing the presumption, therefore, requires that the apprehension of bias be reasonable in the eyes of someonewho is reasonably informed about all the relevant circumstances. Those circumstances include “the traditions of integrity ... and ... thefact that impartiality is one of the duties the judges swear to uphold”. As previously noted, the presumption that judges will carry outtheir sworn duties also includes a presumption of legal knowledge.

McLachlin J. confirmed in R. v. Burns, (SCC),[1994] 1 S.C.R. 656, at p. 664, that “Trial judges are presumed to know the law with which they work day in and day out”. [28] In R. v. S. (R.D.), (SCC), the Supreme Court of Canada reaffirmed the test for reasonable apprehension ofbias and stated at paragraphs 31 and 32 that: 31 The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. NationalEnergy Board, (SCC), [1978] 1 S.C.R. 369.

Though he wrote dissenting reasons, de Grandpré J.’s articulation of the testfor bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see,for example, Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673; R. v. Lippé, (SCC), [1991] 2 S.C.R.114; Ruffo v. Conseil de la magistrature, (SCC), [1995] 4 S.C.R. 267.

De Grandpré J. stated, at pp. 394-95: . . . the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the questionand obtaining thereon the required information.... [T]hat test is “what would an informed person, viewing the matter realistically andpractically -- and having thought the matter through -- conclude.

Would he think that it is more likely than not that [the decision-maker],whether consciously or unconsciously, would not decide fairly.” The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the“very sensitive or scrupulous conscience”. 32 As Cory J. notes at para. 92, the scope and stringency of the duty of fairness articulated by de Grandpré depends largely on therole and function of the tribunal in question.

Although judicial proceedings will generally be bound by the requirements of natural justiceto a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, havenonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges “areassumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its owncircumstances”: United States v. Morgan, 313 U.S. 409 (1941), at p. 421.

The presumption of impartiality carries considerable weight,for as Blackstone opined at p. 361 in Commentaries on the Laws of England, Book III, cited at footnote 49 in Richard F. Devlin, “WeCan’t Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S.” (1995), 18 Dalhousie L.J. 408,at p. 417, “the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, andwhose authority greatly depends upon that presumption and idea”.

Thus, reviewing courts have been hesitant to make a finding of bias orto perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect: R. v. Smith &Whiteway Fisheries Ltd. (1994), 1994 NSCA 130 , 133 N.S.R. (2d) 50 (C.A.), at pp. 60-61. [29] Jurisprudence from the Supreme Court of Canada confirms that the existence of a reasonable apprehension of bias dependsentirely on the facts, and that the threshold for such a finding is high. Also, the onus of demonstrating bias lies with the person who isalleging its existence: see also Bell Canada v.

Canadian Telephone Employees Association, 2003 SCC 36 . [30] As noted above, approximately 17 Orders have been issued since the Final Order was executed. The parties have been toCourt many, many times since November 7, 2016. The fact that a litigant may, or may not, have enjoyed as much success in Court as heor she hoped for, does not establish bias. As I pointed out to the Respondent during the hearing, I did grant his request to adjourn thehearing in July, 2022.

He nevertheless maintained that the numerous judgments in provincial Court and/or Court of King’s Bench thatwere rendered were “all proven to be false”. He recounted in detail allegations of ambush in Court as well as a violation of s. 127 of theCriminal Code. He has filed complaints against Judges. He argues that every time they have gone to Court, “her evidence is accepted”.He expanded his allegation of bias during his argument to include all Sheriffs and Court house staff. He feels like he is “abused” everytime he goes to Court.

Lastly, he alleges that Fredericton is the proper venue because he was able to enter the Justice Building to fileappeal papers without fear, medication or shaking. [31] The Applicant responds by arguing that these are all allegations without any evidence in support. She also says that the

Respondent’s “pattern” will return even if the venue is changed to Fredericton. [32] In this case, the Respondent is making a very broad allegation that all judges in Saint John are prejudiced and/or biased. Heis making a blanket statement that covers all judges in Saint John, but none anywhere else in the Province of New Brunswick, includingFredericton, where he wants his trial to take place. More than suspicion is required to satisfy the Respondent’s onus of proof. The Courtwould expect to receive very cogent evidence before entertaining such an allegation.

His sweeping allegation of prejudice and/or bias isnot reasonable, nor is it supported by any evidence. I find that a well-informed person, viewing the matter realistically and practically,would conclude that there is no reasonable apprehension of prejudice and/or bias with any Judge sitting in the judicial district of SaintJohn. [33] I am not satisfied that the interests of justice require that the trial be held in Fredericton. The Respondent’s Motion filed onJanuary 10, 2020 for a change of venue and Ground 18 of the Motion filed March 16, 2020, are therefore dismissed.

Issue 2 -Should an Assessment/Report of the Children be Ordered? [34] The parties in fact consented to this relief over the course of the three-day hearing. [35] For the benefit of the self-represented parties, I will refer to some case law that explains the purpose of assessments such asVoice of the Child Reports. Madam Justice Larlee stated in P.R.H. v. M.E.L., 2009 NBCA 18 as follows: There is no statutory authority under the Divorce Act to order an assessment by a child care professional who reports to the court and tocounsel.

If one is to be ordered, it would have to be done on one of the following possible bases: parens patriae jurisdiction of the trialjudge or the inherent power of the court to control its own process. In Ontario, it appears that assessment reports are often given lessweight in relocation matters than in other types of child-related cases; in fact they have more often than not been ignored.

Thejurisprudence stresses that an assessment is not necessary where there is no clinical issue requiring expert evidence raised on the factsand no real dispute between the parties with respect to how the children reacted to the family breakdown. A court should not order anassessment simply to obtain an apparently impartial third party's opinion on what is in a child's best interests: see Stefureak v. Chambers, (ON SC), [2004] O.J. No. 4253 (S.C.J.) (QL), where the court held that identifying the wishes of a seven year olddid not justify an assessment where there were no clinical issues.

A judge should only order an assessment, which involves expertopinion evidence, where there is some particular problem or issue that requires expert input (see Sheikh v. Sheikh, [2004] O.J. No. 4384(S.C.J.) (QL)). Furthermore a court should not delegate its duty to determine what parenting arrangement is in a child's best interests to an assessor:Johnson v. Cleroux (2002), (ON CA), 156 O.A.C. 197, [2002] O.J. No. 964 (QL); additional reasons at [2003] O.J.No. 981 (C.A.)(QL). See also Snoddon v. Snoddon, [2004] O.J. No. 1987 (QL), 2004 ONCJ 39 (C.J.).

However, courts typically willgive substantial weight to the recommendations of an assessor, but these must be only one factor to consider in the determination. Acourt may also choose to ignore the recommendations of an assessor, as in Steeves v. Robinson (2005), 278 N.B.R. (2d) 38, [2005] N.B.J.No. 52 (QL), 2005 NBQB 46. In the present case the lawyer for the appellant put it like this: "psychologists do not decide custodyissues, judges do".

I agree. [paras. 15-16] [36] In JJ v JM, 2014 NBQB 23 , the Court ordered that a Voice of Child Report be prepared for the following reasons: [33] I conclude and order that a “Voice of the Child” report be prepared. The children will be interviewed by a professional who isfamiliar with making such reports. The Report will be prepared and submitted to the parties and to the Court. Should the parties not beable to agree on such a person by February 14, 2014 then each party will submit two names of proposed professionals to this Clerk of theCourt by that time.

I will then make the selection failing agreement by the parties. [34] A “Voice of the Child” report prepared by a qualified professional should allow an impartial third party report to be brought beforethe Court for consideration and review. It should help to make a determination that is in the best interests of the children.

[37] In JH v NM, 2022 NBQB 136 at paragraph 150, the Court referred to the case of Jackson v Jackson, 2017 ONSC 1566 at para 127, as it explained the relevance of obtaining the preferences and wishes of a child or children in parenting cases: [127] The wishes of a child are relevant to the best interests analysis, particularly in cases involving older children. However, as theOntario Court of Appeal recently emphasized in L. (N.) v.

M. (R.R.), 2016 ONCA 915 (C.A.) at para. 36, “the wishes of the child andthe best interests of the child are not necessarily synonymous.” The weight that should be attached to a child’s expressed wishes willdepend on numerous factors, including the age, intelligence and maturity of the child, their overall developmental status and capacity toform and articulate preferences, how clear the child’s wishes are and the consistency of those wishes over time ….

In addition, indetermining the weight, if any, which should be accorded to the child’s expressed wishes, the court should consider those wishes in thecontext of all of the circumstances of the case and carefully assess if there are any concerns as to whether the expressed wishes are anaccurate reflection of the child’s true feelings.

The court should give little weight to a child’s expressed wishes if the evidence indicatesthat those wishes have been tainted by negative influence, inducements or alienation exerted by the other parent or any other individual…. [128] While the child’s best interests are not necessarily synonymous with the child’s wishes, the older the child, the more a parentingorder requires the cooperation of the child. This necessitates an understanding of the child’s views: …. [38] In essence, Voice of the Child reports may be ordered to obtain evidence of the views and preferences of the children.

Suchan assessment/report may assist the Court in certain circumstances, considering that the legislative factors for determining the bestinterests of the children includes the views and preferences of the child or children: see s. 16(3)(

e) of the Divorce Act. [39] The parties confirmed that the children have been impacted by this parental dispute. They have seen a decline in their mentalhealth and provided the Court with examples. When the Respondent was asked what he wants, his response was that he wants “thechildren to get help”.

The children will be attending counselling with the consent of both parties. [40] I agree with the parties that a Voice of the Child assessment/Report for the children is relevant and appropriate in this case,given the fact that the Applicant confirmed that she will be seeking a variation of the existing parenting order at trial, the history andnature of the relationship between the parties, the ages of the children (10 and 12) and the mental health concerns that the parentscurrently have with respect to the children. [41] I would direct that the parties obtain information that is readily available to the public at the Clerk’s Office in relation to theprocess to be followed to have a Voice of the Child Assessment/Report prepared including, but not limited to, who performs suchassessments, how long it takes and the precise cost.

Issue 3 - Contempt Allegations [42] The Respondent alleges in grounds 6 to 15, 19 and 26 of his Notice of Motion that the Applicant is in contempt of Court.The grounds raised by the Respondent are the following: 6. I would ask the Court to find [D.E.] in Contempt of Court for Non-Compliance with Custody and Access Orders according to theMinutes of Settlement from the Divorce Agreement. 7.

I would ask the Court to find [D.E.] in Contempt of Court for not Fostering a relationship with their Paternal Grandparents inaccordance with the terms of the Minutes of Settlement from the Divorce Agreement. [M.] and [M.] have been in the charge and care of[D.E.] since February 24th 2020. [V.] and [E.] had birthday's on March 8th and 9th of 2020 and did not receive any communications from

their grandchildren on their birthdays. The grandparents will not have seen their grandchildren since February 24th 2020 until my custody and access of March 16th 2020. 8. I would ask the Court to find [D.E.] in Contempt of Court for not allowing Communication with the children as prescribed in the Minutes of Settlement from the Divorce Agreement. 9. I would ask the Court to find [D.E.] in Contempt of Court for not taking the children to their extracurricular activities in accordance with the Minutes of Settlement from the Divorce Agreement. 10.

I would ask the Court to find [D.E.] in Contempt of Court for not sharing Medical and School related Information with me in accordance with the Minutes of Settlement from the Divorce Agreement. 11. I would ask the Court to find [D.E.] in Contempt of Court for not supplying me and the Court with current Financial Statements as Ordered by Master Chantal Daigle and Judge Blais to deal with the Motion for Child Support. 12. I would ask the Court to find [D.E.] in Contempt of Court for not paying her portion of extracurricular activities as prescribed in the Minutes of Settlement from the Divorce Agreement. 13.

I would ask the Court to find [D.E.] in Contempt of Court for not paying half of the Cell Phone bill that was provided to [M.E.] at the Request of [D.E.] and the Order of Judge McLellan and to be reimbursed for her portion of the cost that has not been paid. 14. I would ask the Court to find [D.E.] in Contempt of Court for not allowing [M.] to have Private Communications with the Device that was Ordered to be provided to her by Judge McLellan. I brought this issue up with [D.E.] and her response was that the device was only meant for her to have private communications with [M.E.]. 15.

I would ask the Court to find [B.C.] in Contempt of Court for not following the Orders of Judge McLellan and interfering with Custody and Access as well as his perjured statements to Judge Marie-Claude Belanger-Richard. (…) 19. I would ask the court to impose a penalty of a fine or Community Service for Contempt to Local Shelters such as Hestia House, Outflow, Romero House or some other Charitable Service in the Saint John Area. (…) 26. During the 3 week period from February 24th 2020 to March 16th 2020, I received 1 phone call from my son [M.E.] on March 15th 2020 from his mother's cell phone.

The call lasted 4 minutes and 7 seconds. [M.] seemed distracted like someone else was speaking to him. [ 43 ] The Respondent was provided with an opportunity to file further evidence to support his allegations in the Order dated January 4, 2022.

The Court provided the parties with a another opportunity to file evidence by directing that they file any further evidence they wished to rely upon before July 8, 2022. [Email from Clerk dated June 27, 2022, marked as item #1]. [ 44 ] Despite the broad allegations of contempt against the Applicant in his Notice of Motion filed on March 16, 2020, the Respondent never filed any additional affidavit evidence. The Court nonetheless allowed the Respondent to testify at the hearing on these allegations. I will summarize the most relevant parts of his evidence before turning to Rule 76 and the applicable law.

[ 45 ] The Respondent’s evidence can only be characterized as meandering and unfocused for the most part with respect to the allegations of contempt. I have taken into account the Respondent’s mental health issues, as he described them on the Record, while weighing the evidence.

His evidence became more focused when, with the assistance of the Court, he referred to specific sections of the Minutes of Settlement signed by the parties on November 2, 2016, (attached to the Divorce Judgment) as well as certain previous Orders. [ 46 ] In essence his allegations of contempt are that the Applicant did not adhere to the Minutes of Settlement and, more specifically, s. 5(c), 5(e)(i), 5(e)(iv), 5(e)(vi), 5(e)(vii) and 6(b). The relevant sections of the Minutes of Settlement read as follows: 5(

c) The parties shall each facilitate telephone contact with the other parent at any time a child so seeks to have telephone contact with the other parent and in any event at least twice during the rotation when it becomes weekly. 5(

e) The parties agree that as an extension and not as a limitation of the foregoing they shall in the best interest of the children born of the marriage: (

i) confirm to exchange information and jointly determine the minor children's well-being, education, moral-ethical-religious training, standards of conduct, supervision, travel, and non-emergency health care.

Both parents recognize the importance of consistency in completing homework and when administering discipline in each household. (iv) to ensure that the children attend their regularly scheduled activities as set up by the parents. (vi) be entitled to participate with and attend special activities in which the children may become engaged, such as religious activities, school programs, sports events, and other extracurricular activities and programs and important social events in which the children are in or in which they may be engaged or involved. (vi) be entitled to authorize emergency medical treatment for the child and immediately notify the other. (vii) generally, to attempt to work together to avoid any dispute with respect to their efforts to cooperatively parent the child.

Should any dispute arise which they cannot resolve, both parties wish to avoid the expense and acrimony of formal court proceedings. Therefore, any controversy arising out of, or relating to, this

section or breach of this

section of the contract shall first be submitted to the process of mediation through the services of a mediator upon whom they mutually agree. Both parents agree to follow the process of mediation to its conclusion prior to either party seeking further relief or modification from a court. 6(b) [W.] and [D.] shall contribute to special expenses equally.

Section 7 expenses currently include childcare and each of the parties shall be responsible for 50% of the annual childcare requirements for the children. Each of the parties shall be entitled to claim such child care, as paid on their respective income tax returns. Child care required outside of either of the parents working hours shall be borne by the party who incurs the additional child care. [ 47 ] The Respondent explained that one child was involved in skating lessons prior to the Divorce and that he signed up their other child as well, after separation.

He alleges that the Applicant stopped taking them if his parents were there and that she did the same for swimming lessons. As a result, he bought a 1-year membership for them at the YMCA on December 12, 2017. [ 48 ] The above sections of the Minutes of Settlement pertain, at least in part, to the parents taking the children to extra-curricular activities which in this case, the Respondent says, included swimming and ju-jitsu. He says the Applicant never took them to ju-jitsu, that she stopped taking their oldest child to swimming and stopped or refused to take either child to skating.

He was not sure if the issue with the children’s attendance at activities arose before or after March 2020 (the date he filed his Motion). [ 49 ] In cross-examination, the Respondent admitted to not having any specific dates as to when the Applicant allegedly did not bring the children to activities. He was asked about the police being called for some of the skating lessons and whether arrangements

were made for the children to be with the Applicant before the lessons. [ 50 ] It was suggested to the Respondent on cross-examination that the text messages from the Applicant on these points are not attached to his Affidavit. The Respondent then admitted that the Applicant did in fact take their child swimming because of arrangements made to accommodate her schedule. He further agreed that he was not sure if there was an agreement on buying the membership at the YMCA. He claims that he provided the Applicant with the registration package and that he has “evidence from others” on this point.

He further admitted that there was an inconsistent pattern with the children’s ju-jitsu attendance. [ 51 ] The Applicant suggested to the Respondent that she communicated with him about registration for basketball, paid for it and informed him about games and practices. [ 52 ] The Applicant also reminded the Respondent that the Quebec trip he referred to happened in August 2019, when she had primary care of the children.

The Respondent alleges that the Applicant put their oldest child up to lying to him about it and that he has evidence of phone records that he could easily obtain to prove it. [ 53 ] The Respondent denied that any records existed of threatening texts or of an Emergency Intervention Order (EIO) ever being issued. [ 54 ] He admitted that there was no evidence of her informing the school to not communicate with him or of any interference from her with respect to communication with the school.

The Applicant reminded the Respondent that when their oldest child broke an arm, she did try to call him and he never answered. When he called her back, she informed him that their child had been taken to the Hospital. The Respondent then said he was not suggesting that anything should have been done differently. Finally, he admitted that he would have taken their oldest child to the Hospital as well in the circumstances. [ 55 ] The Respondent insisted that he can prove anything that happens at his residence because he has interior and exterior surveillance cameras set up and working.

He also pulled out two phones and laid them on the witness box to make the point that he has 4 years of recorded data on two different phones. [ 56 ] The Respondent admitted that so-called meetings did not occur between the parties in accordance with the Minutes of Settlement. [ 57 ] The Respondent maintains that the Applicant is in contempt of

section 5(e)(vii) of the Minutes of Settlement despite approximately 17 Orders being issued since they were executed. [ 58 ] The Respondent says that when the Applicant took the children to Montreal without his consent, she violated the Minutes of Settlement. When asked if that was before March 2020, (i.e., before his motion was filed), he testified that he was not sure. He says it is when solicitor Brian Murphy, K.C., was his legal counsel. [ 59 ] He further alleges that the Applicant didn’t pay half of the cost of YMCA memberships as a

section 7 expense in violation of

section 6(

b) of the Minutes of settlement. [ 60 ] The Respondent also references, with the assistance of the Court, s. 2 of the Order of Justice McLellan, dated February 8, 2018, which states that: 2. Both parties shall ensure the child Morgan has access to an electronic device while in the care of the respondent to contact the applicant either through text messages or by calling directly. The party shall share equally the cost of same. Such device should be an iPad, iPod, iPhone or similar Android device that is easy for her to use at any time. [ 61 ] The Respondent claims that he paid all the phone bills himself in the amount of $40 per month commencing in 2019 up to

June 2022. The Applicant reminded the Respondent that she incurred the cost of both iPad for the children alone, and that she currently pays for their phones. He agreed [ 62 ] During cross-examination pertaining to Justice McLellan’s Order, the Respondent explained that pursuant to Rule 60 of the Rules of Court , it did not take effect until 45 days later. [ 63 ] The Respondent reported all incidents of alleged violations of the Minutes of Settlement to the RCMP. The Applicant also reminded the Respondent that she would email him to say that she asked the children to call him after he threatened to call the RCMP.

He indicated that he has all the call logs, but agreed that he has not produced them as evidence on the Motion. [ 64 ] The Respondent was questioned on Ground #14 of his contempt allegations as well. His evidence is that the communications with his oldest child were not private because the Applicant “was in the background”. The Applicant reminded him that the mere fact that she is around does not prevent their oldest child from going to a more private space if he/she wanted to.

He was also reminded by the Applicant that all calls between her and the children in his living room are monitored by virtue of his interior surveillance system, to which he replied that the files are deleted after 30 days and that he only downloads “relevant information if necessary”. The Respondent did acknowledge that the Applicant does encourage the children to call him. He eventually agreed that the children do make calls to him. [ 65 ] Ground 15 in the Motion refers to an allegation that

section 4 of Justice McLellan’s Order dated October 21, 2019, was not followed. That

section reads as follows: 4. The parties, including [S.M.] and [B.C.], are to arrange a couple of short visits with the children and the Respondent as well as the paternal grandparents during the period of time before August 6 2019 to break the ice so-to- speak. [ 66 ] The Respondent says that the “couple of short visits” referred to in

section 4 of the above Order did not take place; the Applicant disagrees. In any event, the parties referred to in paragraph 4 of the above order were not served with the Motion filed on March 16, 2020 and seeking an Order of Contempt against one of the parties referred to in the Order. [See Ground 15 of Motion]. [ 67 ] The Respondent is further alleging that the Applicant refuses to foster the relationship between the children and their paternal grandparents. The Applicant did advise him to not communicate with her family. She reminded him that the children did call his parents when they were in Florida.

His response was that he was not aware of the call. The allegation of contempt at ground 26 pertains to the time the Applicant was in Florida with the children on vacation. [ 68 ] In his re-direct, the Respondent testified that this was the most abuse he has ever suffered in his life and “no one does anything about it”. He said he wants to be in his children’s lives and wants them to grow up and make decisions on their own. [ 69 ] The Applicant did file a Responding Affidavit, wherein she refers to the specific allegations of contempt, to which I will now refer: 6.

Disagree- I have complied with the Custody and Access Orders 7. Disagree-· have made-attempts to foster the relationship with Mr. and Mrs. [E.] and they have been given an invite to come and see the children at any time or to reach out. In the summer of 2019, Mr. [E.] made a couple of visits to my home to see the children and then took the children to their camper. The current custody and access

schedule is one week with me and one week with Mr. [E.]. The children have equal time with both families. Mr. [E.]'s complaint about February 24th, 2020-March 16th, 2020 refers to my scheduled time and vacation with the children. The children did call their grandparents from Florida to speak with them. Calls on birthdays are not a part of the Minutes of Settlement; however, the children are free to do so. My family has no contact with the children when it is not my access time and this includes their sister, grandmothers, aunts, uncles and cousins.

Mr. [E.] has not attempted to foster these relationships, and has refused to allow the children to attend family events. 8. Disagree- The children communicate with Mr. [E.] during their time in my care and have no limits on how much they can call.

9. Disagree-The children attend their extracurricular activities whenever possible, with the exception of illness, and on one occasion, [M.] did not attend a basketball practice so that she could attend her sister's birthday dinner. Mr. [E.] has not always taken the children regularly to their extra-curricular activities. 10. Disagree-Medical and School Related information is always shared with Mr. [E.]. Report cards are provided. There are no barriers to Mr. [E.] receiving any information about the children's education or medical information. 11.

Disagree-This information was provided to the courts through my attorney. Out of good faith I have attached my notice of assessments as Exhibit A. 12. Disagree-I have receipt showing that I have paid all of the expenses related to extracurricular activities, as well as child care expenses (Exhibit B). 13. Disagree- The children have devices in my home and I pay the bill for those devices, each one has a phone number attached. 14. Disagree-[M.] has several devices that she is able to communicate with privately whenever she wants. 15.

Disagree- There is no relevance to Mr. [C.] being found in contempt, as he is not a party in these matters. Furthermore, Mr. [C.] has never interfered with Custody and Access of the children, nor perjured statements. (…) 19. To be decided by the courts. (…) 27. The children call Mr. [E.] as per the Minutes of Settlement. [Mo.] is often the one who talks and [Ma.] is frequently in the background but refuses to talk on the phone.

Over the last 4 years, 95% of the calls I receive when the children are in the care of Mr. [E.] are from [Mo.] and [Ma.] does not speak as he does not like talking on the phone. [ 70 ] Rule 76 of the Rules of Court reads as follows: 76.06 Contempt Order

(1) If the court finds a person guilty of contempt, it may make any order it considers necessary, including an order that (

a) he be imprisoned upon such terms as may be just, (

b) he be imprisoned if he fails to comply with a term or condition of the order,

(

c) he pay a fine, (…) (

e) he do or refrain from doing any act, (

f) he pay costs and expenses as may be just, (

g) he comply with any other order which the court considers necessary, and (

h) a sheriff take possession of any of the property of the person in contempt and collect the rents, profits and income therefrom and holdthe property until the person complies with the terms of the order. [71] The Court provided the parties with copies of two decisions that explain the test to establish contempt to guide them in theirdeliberations: K.H. v. M.S., 2021 NBQB 263 and Jensen v. Jensen Estate, 2020 NBQB 8 . [72] In K.H. v.

M.S., supra the Court explained what a party alleging contempt of court must establish at paragraphs 78 to 80: [78] For a party to be found in contempt, three elements must be proven beyond a reasonable doubt: (1) the order alleged to havebeen breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the ordermust have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibitsor intentionally failed to do the act that the order compels: Carey v.

Laiken, 2015 SCC 17 , at paras. 32-35; Calvy v. Calvy,2015 NBCA 53 , at para. 27. [79] Courts have acknowledged that the contempt power is discretionary: Carey v. Laiken, supra, at para. 36, MacDougall v. Boivin,2005 NBCA 62 ; Chong v. Donnelly, 2019 ONCA 799 ; Moncur v. Plante, 2021 ONCA 462 . In exercisingtheir discretion, courts must be cognizant that contempt is a remedy of last resort and its routine use to obtain compliance with courtorders is discouraged. As stated by the Supreme Court of Canada, “contempt of court cannot be reduced to a mere means of enforcingjudgments”: Vidéotron ltée v.

Industries Microlec produits électroniques inc., (SCC), [1992] 2 S.C.R. 1065 (S.C.C.) atp. 1078. In other words, contempt power must be exercised “cautiously and with great restraint”. [80] In Carey v. Laiken, at para. 37, Cromwell J. declined to delineate the scope of this discretion as the issue had not been arguedbefore the Supreme Court of Canada. He however left open the possibility of not imposing a contempt finding “where it would work aninjustice in the circumstances of the case”. [Emphasis in original] [73] As noted above, the Court referred to the Supreme Court of Canada Decision in Cary v.

Laiken, 2015 SCC 17 aswell as Calvy v. Calvy, 2015 NBCA 53 , a decision by Quigg, J.A. of our Court of Appeal.

[74] Cary v. Laiken, supra as well as Calvy v. Calvy, supra were referred by our Court of Appeal in Alan Schelew et al. v.Lillian Schelew et al., 2016 NBCA 14 , where the law of contempt was summarized as follows: [28] The law of contempt in Canada, and more specifically in New Brunswick, is without question clearer today than it was when themotion judge rendered the decision now under appeal. This is primarily so for two reasons: the decision of the Supreme Court in Careyv. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, reasons by Cromwell J., and the subsequent decision of our Court in Calvy v.

Calvy, 2015NBCA 53, [2015] N.B.J. No. 202 (QL), Quigg J.A. on behalf of the Court. That said, and while the motion judge had the benefit ofneither decision to guide his deliberations, in my opinion his disposition of the matter is in line with both. [29] In Carey v.

Laiken, Cromwell J. discusses civil contempt and sets out three elements of contempt that must be established beyond areasonable doubt: Contempt of court “rest[s] on the power of the court to uphold its dignity and process. … The rule of law is directly dependent on theability of the courts to enforce their process and maintain their dignity and respect”: United Nurses of Alberta v. Alberta (AttorneyGeneral), (SCC), [1992] 1 S.C.R. 901, at p. 931. It is well established that the purpose of a contempt order is “first andforemost a declaration that a party has acted in defiance of a court order”: Pro Swing Inc. v.

Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R.612, at para. 35, cited in Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 20. The common law has developed to recognize two forms of contempt of court: criminal contempt and civil contempt. The distinction,which the parties to this appeal accept, rests on the element of public defiance accompanying criminal contempt: see, e.g., United Nurses,at p. 931; Poje v. Attorney General for British Columbia, (SCC), [1953] 1 S.C.R. 516, at p. 522.

With civil contempt,where there is no element of public defiance, the matter is generally seen “primarily as coercive rather than punitive”: R. J. Sharpe,Injunctions and Specific Performance (2nd ed. (loose-leaf)), at ¶ 6.100. However, one purpose of sentencing for civil contempt ispunishment for breaching a court order: Chiang (Trustee of) v. Chiang, 2009 ONCA 3, 305 D.L.R. (4th) 655, at para. 117. Courtssometimes impose substantial fines to match the gravity of the contempt, to deter the contemnor’s continuing conduct and to deter othersfrom comparable conduct: Sharpe, at ¶ 6.100.

Civil contempt has three elements which must be established beyond a reasonable doubt: Prescott-Russell Services for Children andAdults v. G. (N.) (2006), (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists, at para. 71;Bhatnager v. Canada (Minister of Employment and Immigration), (SCC), [1990] 2 S.C.R. 217, at pp. 224-25; Jacksonv. Honey, 2009 BCCA 112 , 267 B.C.A.C. 210, at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105 , 196N.S.R. (2d) 35, at paras. 17 and 32; Godin v. Godin, 2012 NSCA 54, 317 N.S.R. (2d) 204, at para. 47; Soper v.

Gaudet, 2011 NSCA 11,298 N.S.R. (2d) 303, at para. 23. These three elements, coupled with the heightened standard of proof, help to ensure that the potentialpenal consequences of a contempt finding ensue only in appropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11. The first element is that the order alleged to have been breached “must state clearly and unequivocally what should and should not bedone”: Prescott-Russell, at para. 27; Bell ExpressVu, at para. 28, citing with approval Jaskhs Enterprises Inc. v. Indus Corp., (Ont. S.C.J.), at para. 40.

This requirement of clarity ensures that a party will not be found in contempt where an order isunclear: Pro Swing, at para. 24; Bell ExpressVu, at para. 22. An order may be found to be unclear if, for example, it is missing anessential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances haveobscured its meaning: Culligan Canada Ltd. v. Fettes, 2010 SKCA 151, 326 D.L.R. (4th) 463, at para. 21.

The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager, at p. 226;College of Optometrists, at para. 71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attractliability on the basis of the wilful blindness doctrine (ibid.). Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act thatthe order compels: Sheppard v. Sheppard (1976), (ON CA), 12 O.R. (2d) 4 (C.A.), at p. 8.

The meaning of this elementis one of the main points in contention on appeal and I will turn to consider it in more detail momentarily. The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders: see,e.g., Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3. If contempt is found too easily, “a court’s outrage might be treated

as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect”: Centrecommercial Les Rivières ltée v. Jean Bleu inc., 2012 QCCA 1663, at para. 7. As this Court has affirmed, “contempt of court cannot bereduced to a mere means of enforcing judgments”: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., (SCC), [1992] 2 S.C.R. 1065, at p. 1078, citing Daigle v. St-Gabriel-de-Brandon (Paroisse), (QC CA), [1991] R.D.J.249 (Que. C.A.). Rather, it should be used “cautiously and with great restraint”: TG Industries, at para. 32.

It is an enforcement power oflast rather than first resort: Hefkey, at para. 3; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89 O.R. (3d) 81, at paras.41-43; Centre commercial Les Rivières ltée, at para. 64. [paras. 30-36] [75] In his argument, the Respondent stated he made the contempt Motion “out of anger” and that he “threw the whole kitchensink” in it. He conceded that he “met the test” on some of his allegations of contempt, but not on others. He says a phone call or twowould have “avoided all of this”.

He still sees the children every other week consistently. [76] The Applicant argues that the allegations are so broad and unfounded that she is not sure how to defend against them. Shepoints out that the Respondent himself is not really sure about them. She says there is no proof of her not allowing the children to makecalls, that they do call the Respondent and she has done nothing to limit access.

Finally, the Applicant says that the 2018 Order fromJustice McLellan is “vague” or lacks clarity, and in any event, the children always had devices, even multiple devices. [77] Most of the Respondent’s evidence was unfocused and evasive on certain key points. He seemed unable to answer basicquestions in a clear and coherent manner.

In addition, the Court observed the Respondent laughing at the Applicant several times whiletestifying on cross-examination. [78] There was no evidence that the Applicant was prohibiting or coercing their oldest child from speaking to the Respondent ina more private setting. [79] There is no intentional interference from the Applicant in terms of her prohibiting communication between the children andthe Respondent. I find that

section 4 of Justice McLellan’s Order dated October 21, 2019, has been substantially complied with. Bothchildren have at least one phone and/or another device and they were paid for by one parent or the other. In any event, an allegation ofcontempt requires specific evidence on the contested point. In this case, the Respondent claims that he has not been paid back for aphone expense, yet he has submitted no receipts or invoices to establish the cost, nor any written request he made to the Applicant to pay50 percent of that cost.

The evidence is that the Applicant now pays for the children’s phones herself in any event. [80] The Respondent’s contempt allegations were vaguely pled in the Notice of Motion. Only with assistance from the Court didthey become clearer with reference to the Minutes of Settlement and certain specific Orders from Justice McLellan.

But they were notclear and unequivocal enough to satisfy the Court about what the Applicant should, and should not, have done. [81] Furthermore, there is no credible evidence to establish that the Applicant intentionally breached the Minutes of Settlementor any Order or intentionally failed to follow them. In fact, the preponderance of the evidence establishes that the Applicant didsubstantially comply with the Minutes of Settlement and the Orders of Justice McLellan. Proof of intent must not only be cogent incontempt motions.

Proof beyond a reasonable doubt of all three elements is required, as the Supreme Court of Canada stated in Cary v.Laiken supra, and our Court of Appeal in Alan Schelew et al. v. Lillian Schelew et al., supra, and Calvy v. Calvy, supra. It is importantto ensure that the standard of proof is met because contempt is a remedy of last resort and without such evidence, the Court will, as I amhere, exercise its discretion “cautiously and with great restraint”.

In this case, I am satisfied that the Respondent has failed to meet theapplicable standard of proof with respect to all of his allegations of contempt. [82] In my view, the Applicant has done nothing here to offend the dignity and respect of the Court, nor has she acted in defianceof any Court Order. In the final analysis, this is certainly not an appropriate case to make a finding of contempt and I will not do soagainst the Applicant. [83] Lastly, the allegation of contempt against B.C. at ground 15 of the Motion that he did not follow the Orders of JusticeMcLellan is equally devoid of merit. Mr.

C. was not even served with the Motion filed over two and one half years ago. TheRespondent’s allegation in Ground 15 that Mr. C. gave “perjured statements to Judge Marie-Claude Belanger-Richard” is broughtwithout any credible evidence of what Mr. C.’s precise statements were, when they were made, and what might make them perjurious. Inany event, this Court is not seized with any perjury charge.

[ 84 ] The Respondent’s Motion with respect to all allegations of contempt at grounds 6 to 15, 19 and 26 is dismissed. Issue 4 – Reinstatement of Lawsuit [ 85 ] Ground 16 of the Respondent’s Motion asks this Court to reinstate a civil lawsuit the Respondent started against B.C. for defamation. The Respondent alleges he “withdrew” this lawsuit “under duress”. [ 86 ] The Respondent provided the Court with no evidence whatsoever to support this ground in his motion.

He has not submitted the lawsuit, any documentation pertaining to this lawsuit, or any transcripts, even assuming the Court could entertain such a request. [ 87 ] Ground 16 has no evidentiary basis or legal merit and is dismissed. Issue 5 – Enforcement Clause [ 88 ] Ground 23 of the Respondent’s Notice of Motion asks the Court to “add an Enforcement Clause in accordance with the standards set in the case of Patterson v. Powell , 2014 ONSC 1419 .” I gave the parties a copy of the case Patterson v.

Powell , 2014 ONSC 1419 at the hearing so they could review it and present arguments on this point. [ 89 ] Because the request for an enforcement clause is based, as the Respondent suggests, on the decision of Patterson v. Powell , supra, I will refer to what the Court said in that case regarding “Enforcement Clauses”. First the Court reviews the law, as it exists in Ontario, at paragraphs 10-12: 10 There are two basic – and quite distinct – scenarios in which a police enforcement clause is requested to be included in a family court order: 11. The first deals with the present : An existing situation.

It usually involves some urgency (for example, an abduction) where a child needs to be retrieved from one party and transferred to the care of another. The objective may be to enforce immediate compliance with an existing order, or to quickly remove the child from potential harm or threat of abduction. 12. The second scenario deals with the future : a more general concern that on some unspecified date a party may not comply with a custody or access order, and that police assistance may be required to ensure the scheduled exchange of a child from one party to another.

Typically, the extent and frequency of such police involvement cannot be determined ahead of time. [ 90 ] The Court then referred to the Children’s Law Reform Act ( CLRA ) in Ontario, which provides the statutory authority for police enforcement. Similar legislation does not exist in New Brunswick. [ 91 ] In Patterson v. Powell , supra the Court reviewed the CLRA and provided an insightful analysis of how the legislation has been erroneously relied upon by parties as a remedy in high conflict parenting cases and the consequences of doing so. Here is what Justice Pazaratz said: 17.

This narrow statutory basis is frequently overlooked by counsel and parties who typically request “the usual police enforcement clause” – often on consent – in both temporary and final orders. As in the case before me, many lawyers and parties seem to regard such requests as both perfunctory and harmless. The implicit assumption seems to be that while all court orders must obviously be followed, there is reason to doubt that one or more of these parties will follow this particular court order .

18. In that context, the police enforcement clause takes on the nature of an instant remedy for anticipated future contempt of court. A fail-safe precautionary measure “just in case” somebody misbehaves. As Mr. Kerr put it, the parties in this case want to know that there will be “immediate consequences by calling police.” 19. All of which raises a number of fundamental questions: a. Why do we issue court orders – especially court orders involving children – if we have so little confidence they will be obeyed? b.

Why would we entrust a parent with either custody or access if we have reason to believe they will abuse that privilege? c. If we know in advance that timesharing exchanges are likely to be problematic, shouldn’t we consider better options at the very outset – intermediaries; parenting co-ordinators; institutional exchange facilities; pick-ups and drop-offs at school or daycare; fewer exchanges; etc. – rather than delegate crisis management responsibilities to over-burdened and ill-equipped police services? d.

And -- remembering again that we’re dealing with children – how do we ensure that the benefit of enforcing an order is not outweighed by the emotional and psychological trauma to the child, when police are urgently summoned to highly volatile family disputes? e. How do we punish parental non-compliance without punishing the child? 20. Requests for ongoing police enforcement clauses typically arise in high conflict families. Inevitably, children in such families have already been through enough – and often seen enough of police in their home – long before the first court order is issued.

These are likely damaged, frightened, emotionally vulnerable children, already sensitized to the presence of police as signifying that one or both parents are out of control again. 21. Young children in particular – the ones most likely to be the subject of bitter timesharing disputes – have very immature, unsophisticated and highly emotional perceptions of police: a. The uniforms, cruisers and crackling police radios are both fascinating and frightening. b. Police officers have guns and sometimes shoot people. c. They have handcuffs and sometimes take people to jail. d. They deal with “bad people”. e.

Is mommy or daddy going to be in trouble? f. It’s a lot for a young child to digest during an emotionally charged timesharing exchange. 22. Older children may have a more complex set of socially ingrained perceptions about police: a. They may be embarrassed having uniformed officers come to their home, perhaps repeatedly. Officers invariably respond to “family trouble” calls in pairs, often arriving in separate cruisers. This very public neighbourhood spectacle makes a sham of our often

stated goal to protect the privacy of children. b. Children may feel guilt or pressure to verbalize certain preferences, corroborate parental allegations, or resolve the dispute themselves. c. They may resent one or both parents for having allowed simple things to get out of hand. d. They may feel helpless and afraid for the most important people in their lives. e. For many reasons, they may feel despair. f. The stress of the original parental dispute may become greatly amplified by the stress of having police come to the home. 23.

As stated, when emergency police enforcement is ordered pursuant to s. 36(2) of the CLRA , the existing danger or risk of harm or abduction is usually sufficiently clear that immediate safety concerns must be given priority. Police enforcement may be absolutely essential for a one-time retrieval of a child from a dangerous or inappropriate situation, where time is of the essence. [ 92 ] Justice Pazaratz then concluded at paragraph 26 that: 26. Some embattled parents might be quite content to call the police for every timesharing exchange.

They may perceive dialling 911 as being faster, cheaper, and more emotionally satisfying than returning to court. Is that potential abuse of community resources – not to mention abuse of the children themselves – something we want to leave to the discretion of relentless litigators? Surely s. 36(2) of the CLRA is intended to be a protection for children, not a weapon for disgruntled parents. [Emphasis in original] [ 93 ] The Court in Patterson v. Powell reviewed several cases involving requests for Enforcement Orders. One of those cases was Peer v. Poupore 2011 CarswellOnt 1461 (O.C.J.) .

That matter involved a 13-day custody/access trial. The father in that case filed a motion to change and sought to transfer custody of a five-year-old child from the mother who interfered with access despite a police enforcement clause. Justice Curtis referred to evidence about police involvement in access disputes: • The problem with police involvement regarding conflict or access is that the child learns that conflict only gets resolved through state intervention. There is concern regarding the degree of conflict the child was exposed to.

The risk here, if no steps are taken regarding counselling, and if no steps are taken regarding conflict resolution, is that the conflict would continue and the child would be exposed to the conflict. • The impact on the child may be that the child will take responsibility for the conflict: "what is it about me that I'm creating this conflict?" • Exposure to on-going conflict can be very detrimental and can interfere with how the child does in other aspects of his life because the child is overwhelmed by what is happening at home.

• These are the most important people in the child's life. So this becomes the model for how to resolve conflict. [94] In Peer v. Poupore, supra Curtis, J. stated that the priority should be on reducing ongoing conflict and stress in relation toaccess and declined to treat access denials as merely a police enforcement issue: 127 The literature indicates that parental conflict is a major source of harm to children. High levels of parental conflict in separatedfamilies can have a devastating impact on children and their development: Jackson v. Jackson, (ON SC), 2008CarswellOnt 654, 50 R.F.L. (6th) 149 (Ont.

S.C.J.), para 20. 128 Conflict between parents at this level, sustained with this intensity, and sustained over such a prolonged period of time, is unusual.It is unhealthy for the adults involved, and it presents a clear risk of harm for the children who are cared for by those adults: that meansall of the mother's children, including Rafael, and clearly most significantly Rafael. . . . . 130 A court should not award custody to reward good conduct or punish misconduct But the court cannot ignore the parents'behaviour when that behaviour, as in this case, so strongly impacts on the child's best interests and his life. 131 It is fundamental to the identity of a child to be able to love and accept love from each available parent.

The mother refuses toaccept the under

[…]