2019 NLCA 54, 2019 NLCA 54

Glenn Squires (appellant) v. Angie Smith (respondent) (19/27) Indexed As: Squires v. Smith 2019 NLCA 54 5 C.A.N.L.R. 1 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Hoegg JJ.A. September 9, 2019

Summary: Mr. Squires applied for leave to file a contempt order against Ms. Smith, whom he alleged was in contempt of a 2016 parenting order respecting the parties’ child. The applications judge denied the application. There was no reason to forego the process at Family Justice Services. On appeal, Mr. Squires argued that the judge erred in referring the matter to Family Justice Services, which had no authority to negotiate or mediate a matter of contempt. Held: Appeal allowed. Fry C.J.N.L. (Welsh and Hoegg JJ.A. concurring): The Family Law Rules do not address contempt proceedings. By virtue of

section F.1.02(2) of those rules, rule 53 of the Rules of the Supreme Court apply (paragraphs 6-13). Three elements must be proven beyond a reasonable doubt: the court order must clearly state what should or should not be done; the party in breach must have actual knowledge of the order; and the party in breach must have intentionally done or failed to do the act in question (paragraph 14). Leave must be granted before proceeding with a contempt application (paragraphs 14-17). The contempt power is a matter of discretion and should be used sparingly in the family law context (paragraphs 18-21, and 41).

In this case, the meaning of the applications judge’s endorsement was not clear. If the endorsement meant that the judge was referring the matter to Family Justice Services to deal with the alleged contempt, that referral was in error. If the endorsement denied the application for some other reason, those reasons should have been stated. Mr. Squires was entitled to know the reason for the denial of his application and the endorsement was deficient in this regard (paragraphs 33-40). Where possible, an attempt should be made to find alternate solutions to address the issue.

See sections 41 and 43 of the Children’s Law Act (paragraph 42). Cases cited: Carey v. Laiken, 2015 SCC 17 , [2015] 2 S.C.R. 79 Re Brake; Anderson v. Nalcor Energy, 2019 NLCA 17 True North Springs Ltd. v. Power Boland (2000), 197 Nfld. & P.E.I.R. 143 (NFSC) Hynes v. Suncor Energy Inc. , 2016 NLTD(G) 117

Hefkey v. Hefkey , 2013 ONCA 44 M.B-W. v. R.Q. , 2015 NLCA 28 Meadus v. Meadus , 2011 NLCA 46 Rules considered: Rules of the Supreme Court, 1986 , rule 53 Supreme Court Family Rules , under

Part IV of the Rules of the Supreme Court, 1986 , rule F.1.02(2) Counsel: Nick Avis Q.C. and Sarah Fitzgerald, for the appellant; Daniel Glover, for the respondent. The appeal was heard on June 18, 2019 before Fry C.J.N.L., Welsh and Hoegg JJ.A. The following judgment was filed on September 9, 2019 by Fry C.J.N.L. for the Court. ______________________________________________________________ Fry C.J.N.L.: [ 1 ] The appellant and respondent are the father and mother of a five-year-old child. They were involved in a short-term relationship that ended before the child was born.

The parties had a trial in the Family Division which resulted in a comprehensive final order, containing 67 paragraphs pertaining to custody, parenting and support of the child, which has been in place since March of 2016. [ 2 ] On January 30, 2019, an originating application for variation was filed by the father. The application sought, among other changes, an increase in parenting time for both himself and his parents. He noted that his parenting time was originally limited because of the child’s young age and that his relationship with the child was still developing.

The application also alleged that certain terms of the 2016 order were not being complied with by the mother. The originating application for variation is not before the Court in this appeal. [ 3 ] On February 12, 2019, the father filed an interim application seeking leave, that is, permission, to file for a contempt order. The application alleged that the mother was in contempt of the 2016 order on the following grounds: a. Not informing the child’s school about Mr. Squires or having him added to email lists; b. Not including Mr. Squires in the decision on whether or not the child should attend daycare; c.

Not bringing the child to Mr. Squires’ home at the times required by the order; d. Introducing the child to a new partner without first informing Mr. Squires; e. Not informing Mr. Squires about the child’s medical issues; f. Minimizing the child’s contact with Mr. Squires’ parents; and g. Planning a trip to Florida with the child without obtaining Mr. Squires’ permission. [ 4 ] On the standard Family Division Interim Application Form (F18.03), permission (which was required) for the application to be heard was denied.

The form signed by the applications judge, states: “No pressing reason established to forego FJS”. [Family Justice Services] [ 5 ] This endorsement responding to the application for permission to proceed with the contempt application is the subject of this appeal. ISSUES The issues raised by this appeal are as follows: 1. What is the procedure to be followed for contempt applications under the new Supreme Court Family Law Rules ? 2. What is the appropriate test for leave or permission to file a contempt application and was it met in the current case?

3. What was the decision of the applications judge? Was permission or leave to file a contempt application deferred or denied and why? 4. Should the Court of Appeal interfere with the endorsement under appeal? ANALYSIS Procedure [ 6 ] The Rules of the Supreme Court, 1986 SNL 1986, c.42,

Schedule D were amended in 2017.

Part IV, referred to as the Supreme Court Family Law Rules , came into force on March 1, 2017. These “new rules” apply to the conduct of family law procedures in Supreme Court, General Division and Family Division.

At this hearing each counsel suggested that there may be confusion with respect to the procedure for bringing an application for contempt. [ 7 ] It was argued that the new rules did not have a provision similar to the previous Family Law Rule 56A.02(4) which stated: The general practice and procedure of the Court apply with the necessary modifications unless this part provides otherwise. [ 8 ] Rule F.1.02(2) of the new Family Law Rules provides that: Where an issue respecting practice or procedure arises which is not covered by this Part or by an applicable statute, any of rules 1 to 4 or the rules in

Part I may be applied as required, with any necessary modifications. [ 9 ] I see these as equivalent statements taken to mean that the Family Law Rules govern practice and procedure except where an issue arises that is not covered. Resort may then be had to the Rules of the Supreme Court, 1986 , generally with necessary modifications. The reason that this issue is relevant to the current matter is that there was argument as to whether rule 53 of

Part I of the Rules of the Supreme Court was still applicable to contempt proceedings. [ 10 ] Rule 53 outlines provisions pertaining to contempt in eight subsections. The subject matter headings are as follows: power to grant contempt order , application for leave to apply for a contempt order , power of court to order person to appear in court , hearing of an application for a contempt order , the contempt order, contempt by a body corporate, contempt by a person not a party, and variation of a contempt order.

Rule 53 provides a substantive procedural process for the engagement of the contempt process. [ 11 ] The Family Law Rules themselves make no specific provisions for the procedure to be followed in making a contempt application, although the rules do refer to contempt in a number of sections as a potential remedy. [ 12 ] By virtue of rule F.1.02(2), rule 53 continues to govern, with the necessary modification, the procedure to engage the contempt process. [ 13 ] Rule 53.02. (1) requires that “An application shall not be made to the Court for a contempt order unless the Court on an ex parte application first grants leave to make the application.” The application, affidavit and schedules using the Form associated with rule F18.03A seeking permission to file a contempt application were properly placed before the applications judge for consideration.

Contempt and the Test for Leave [ 14 ] There are three essential elements which must be proved beyond a reasonable doubt for a finding of contempt. The court order must clearly and unequivocally state what should or should not be done, the party alleged to be in breach must have actual knowledge of the order and that party must have intentionally done or failed to do the act that the order compels or prohibits. ( See Carey v. Laiken , 2015 SCC 17 , [2015] 2 S.C.R. 79 at paragraphs 32-35 ). [ 15 ] An application seeking a contempt order is not heard as a matter of right.

In this jurisdiction, unlike some other jurisdictions, the rules require an applicant to seek leave to proceed. The requirement to obtain leave before engaging the contempt process has been described as a screening tool. It is used to ensure persons will not be subjected to this type of quasi-criminal process unless there is some good and apparent reason for doing so. [ 16 ] In Re Brake ; Anderson v. Nalcor Energy, 2019 NLCA 17 , Green J.A. observed: [54] The granting of leave should not therefore become a rubber-stamping process.

The judge considering the application should undertake a careful analysis, aided by the obligation of any applicant on an ex parte application to make full disclosure, to ensure that there is a basis for proceeding further, in the sense that there is a plausible case for the alleged contemnor to answer and that the matter is serious enough to merit a response from the court. [ 17 ] I agree that the following factors which have been described or adopted by this Court, in several cases, should generally be considered by an applications judge before granting leave (see Brake ; True North Springs Ltd. v.

Power Boland (2000), 197 Nfld. & P.E.I.R. 143 (NFSC) ; Hynes v. Suncor Energy Inc. , 2016 NLTD(G) 117): 1. The application is made bona fide and not for some ulterior and improper purpose; 2. The alleged contemnor has been made aware of the existence of the court order that allegedly has not been complied with; 3. There is some prima facie evidentiary basis, beyond de minimis , for believing that there has been a breach of the order in question; 4.

It is in the interests of justice, from the point of view of the maintenance of the rule of law or ensuring the enforcement of the court’s orders, that the contempt power be utilized; and 5. Whether issuing a contempt order would be premature, in the sense that the alleged contemnor is making efforts to comply or that the

order could be enforced by other less drastic means or to enforce it would work an injustice in the circumstances of the case. [ 18 ] In screening or considering the granting of leave on a contempt application in the family law context it is worth bearing in mind that the jurisprudence has suggested that the contempt power itself should be used sparingly. [ 19 ] In Hefkey v. Hefkey , 2013 ONCA 44 , the Ontario Court of Appeal set out the following principles regarding the use of contempt in family law cases: 1. The civil contempt remedy is one of last resort; 2.

A contempt order should not be granted where other adequate remedies are available to the aggrieved party; 3. Great caution should be exercised when considering contempt motions in family law cases; 4. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed. [ 20 ] The Supreme Court of Canada, in Carey v.

Laiken , specifically endorsed the commentary of the Ontario Court of Appeal in Hefkey as well as several other principles drawn from Canadian case law as follows (citations omitted): [36] The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders. 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”.

As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments”. Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort. [ 21 ] These cautionary principles should be considered but do not preclude the granting of leave in appropriate cases where the criteria for leave have been met. At times, the power of a finding of contempt may be the only effective remedy to reach those individuals who despite having specific knowledge of a clear and direct order of the court choose to willfully disobey.

Position of the Appellant [ 22 ] The appellant argues that the applications judge did not deny the application but erroneously referred the matter to Family Justice Services (“FJS”). The appellant argues that FJS has no authority to negotiate or mediate a matter of contempt.

He advised that FJS confirmed that it is beyond their mandate to negotiate a contempt application. [ 23 ] The appellant further submits that the applications judge’s endorsement “No pressing reason to forego FJS” did not dismiss the application for leave as clear language would have been required to do that along with reasons, neither of which was provided. [ 24 ] The appellant argues that the application for leave to file the contempt application should have been dealt with on its merits and not co-mingled with the application to vary the original order.

He further argues that leave should have been granted as all elements of the test for leave were met. The originating application for variation should have been referred to FJS as is required by rule 22. Position of the Respondent [ 25 ] The respondent argues that the Family Court is a court with specialized procedures, including the use of Family Justice Services prior to the first case management meeting in all but extraordinary cases.

Case management hearings and the ability of judges to control the procedural milestones of family proceedings play an essential role in the proper functioning of the family division ( M.B-W. v.

R.Q. , 2015 NLCA 28 ). [ 26 ] The respondent argues that the denial of permission to proceed with the contempt application was properly made by the applications judge because the information provided in the appellant's application did not identify any of the criteria that would ordinarily need to be present in order for the court to exercise its discretion to allow the interim application for contempt to proceed. [ 27 ] The respondent argues that the delay caused by engaging an appellate court to determine a procedural order offends the principle of non-interference with interim procedural orders and endorsements under rule F18.

On this point, I note in passing that the Court of Appeal Rules provide for appeals of interlocutory orders, that is, orders made in an uncompleted matter, whether the appeal engages substantive or procedural issues (see rule 35). Two Applications [ 28 ] The appellant filed two applications. The first, the originating application to vary the current custody order, was future oriented. As the child was getting older, the appellant sought to increase his access and not having been able to resolve the matter with the other parent through agreement, asked to have the original order varied.

The second, the application seeking leave to file a contempt application, was to seek a remedy for the alleged breaches of the original custody order, which he alleged was not being followed. Unlike the other application, this one was past oriented.

[ 29 ] Each application was filed with the Registry, the first on January 30, 2019 and the second on February 12, 2019. Each application was distinct and needed to be dealt with individually. Originating Application to Vary [ 30 ] The originating application to vary, once proof of service is received by the Registry, is required to be forwarded to FJS (see rule F22.01). In matters involving parenting, the first case management is not conducted until the parties complete an intake session and a parenting information session through FJS.

The parties may also participate in mediation services offered by FJS. [ 31 ] The Family Law Rules require that permission be granted for most interim applications prior to the first case management hearing.

Rule F18.03 provides a number of exceptional circumstances where a judge may grant a party permission to proceed with an interim or interlocutory application before the first case management meeting. [ 32 ] In this case, the originating application to vary would likely follow the normal process and should have been referred to FJS where, if mediation was unsuccessful or declined, the matter would be returned to the Court for case management and any other suitable process as determined by the parties and the judge. The variation application was not before this Court.

Application for a Contempt Order [ 33 ] The second application, filed on February 12, 2019 sought leave to proceed with a contempt application against the respondent for failure to comply with the court order of 2016. This application would not be referred to FJS for consideration as it is not within their mandate.

While the appellant argues that the applications judge erroneously referred the matter to FJS, it is not clear to me that that is the meaning of the endorsement. [ 34 ] The applications judge’s endorsement “No reason to forego FJS”, may have meant, in the context of the variation application being filed and the likelihood that the issues involving custody and access would be the subject of the discussion at FJS, there was no need to proceed with the contempt application. The box on the Form, permission denied, was ticked.

Whether that endorsement meant the contempt application was deferred or denied is unclear. [ 35 ] The applications judge in reviewing the application for contempt may have considered the screening test for granting leave and determined that it was not appropriate to grant leave on any of the factors previously outlined at paragraph 17 of this decision, but the endorsement did not provide an explanation. [ 36 ] It may have been that the applications judge viewed the list of alleged breaches of the order as de minimus or that the order could be enforced by less drastic means or that there were other suitable alternate remedies available to enforce the order if, in fact, there were breaches.

It may be that there was a determination that it was not in the interests of justice to use the power of contempt in this circumstance recognizing the principle that contempt should be used as a remedy of last resort. [ 37 ] It could also be that the applications judge intermingled the two applications and did not deal with the application for contempt on the merits preferring that the originating application be dealt with first before any decision be taken on the application for contempt. [ 38 ] As Hoegg, J.A. noted in Meadus v.

Meadus , 2011 NLCA 46 in a contempt application with a judicial endorsement stating “… matter should be dealt with through SEA [Support Enforcement Agency] by way of garnishment…” [4] It is not the role of this Court to conduct contempt hearings with respect to compliance of Family Division orders. Rather, this Court’s authority is to review and correct errors of decisions from the courts below. The difficulty this case presents is that there is no record of a decision and reasons from the Family Division respecting Ms. Meadus’ application.

Accordingly, in the absence of a decision and reasons from the Court below, the contempt application was remitted to the Family Division to be dealt with on its merits. [ 39 ] Like the endorsement in the Meadus case, the applications judge here appears to have referred the matter to another agency. If the referral was for that agency to deal with the alleged contempt that referral was in error.

If it was a denial for some other reason, that reason should have been stated so that this Court would have a record of the decision and reasons for review and possible correction. [ 40 ] The appellant also seems to suggest that the requirement for leave in an application for contempt denies him access to have the matter determined in the Family Division. This position cannot be accepted. As has been previously discussed, there is a reason why leave is required for applications for contempt orders and factors established that should be considered when determining whether or not leave will be granted.

The appellant is entitled to know the reason for the denial and in the matter currently under consideration, the endorsement in that regard is deficient. [ 41 ] Contempt should not be the usual procedure for enforcement of court orders. Contempt is a remedy of last resort in family law matters and should not be the remedy of choice when other alternatives are available. Too often family law litigants, especially in high conflict cases, seek to use the power of contempt inappropriately. Judges are aware of this and have been provided with resources and tools to effectively manage non-compliance with court orders.

The new Family Law Rules provide judges and litigants with a number of resources and responsibilities to manage matters coming before the court. Rule F1.03 provides:

(1) The purpose of this

Part is to (

a) promote the just, timely, and cost effective resolution of every proceeding; (

b) minimize conflict and promote cooperation between the parties; and (

c) minimize the impact that the conduct of a proceeding may have on a child.

(2) Promoting the just, timely, and cost effective resolution of a proceeding includes, so far as is practical, conducting the proceeding in

a way that is proportionate to (

a) the interests of any party or child affected; (

b) the importance of the issues in dispute; and (

c) the complexity of the proceeding.

(3) Every party to a proceeding must act in a manner which promotes the purpose of this Part.

(4) A judge, in determining whether to permit or restrict a particular procedural step, must consider whether the procedural step is required after considering the purpose of this Part. [ 42 ] Litigants are increasingly using or being referred to sections 41 and 43 of the Children’s Law Act , RSNL 1990, c. C-13 , where a speedy remedy is provided for breaches of custody or access orders instead of using the contempt process.

Although an application seeking leave for a contempt order is made ex parte, that does not preclude the applications judge from requiring an inter partes discussion or a case management meeting on the issue prior to making the decision on leave. An application for directions may be a useful tool to engage when there appear to be unclear provisions in an order leading to a party misinterpreting the order. These are a few examples of resources available to avoid the blunt instrument of contempt.

There are clearly other times when the contempt remedy is the only tool that will be effective in ensuring respect for and enforcement of orders by those who choose to willfully disobey clear and direct orders of the court. CONCLUSION [ 43 ] In either case, granting or refusing leave to file an application for a contempt order, the applicant should be provided with a decision and reasons. An endorsement on the application for leave need not be lengthy but should demonstrate that the test for leave has been engaged. The endorsement under appeal in this matter is unclear.

If it is a referral of the contempt application to FJS it is in error and if it is a denial of leave, the test for leave has not been demonstrated to have been engaged. [ 44 ] I would allow the appeal, set aside the applications judge’s decision and remit the application for leave to the Family Division for determination of whether leave to file a contempt application should be granted. [ 45 ] Costs shall follow the cause. Appeal allowed.