C.M. APPELLANT AND: S.M. RESPONDENT, 2012 NLCA 59

Date: 20120907 Docket: 11/22, 11/35, 11/60, 11/61 & 11/92 Citation: C M… v S M…, 2012 NLCA 59 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: C.M. APPELLANT AND: S.M. RESPONDENT Coram: Welsh, Rowe and Barry JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Unified Family Court, 201002F0696 Appeal Heard: June 18 and 26, 2012 Judgment Rendered: September 7, 2012 Reasons for Judgment by Barry J.A. Concurred in by Welsh and Rowe JJ.A. Counsel for the Appellant: Self-represented Counsel for the Respondent: Daniel Glover

Barry J.A.: [ 1 ] C.M. appeals the following five decisions of the Unified Family Court, which relate to custody of and access to the parties’ three children, the child support obligations of Mr. C.M., contempt proceedings that arose out of non-compliance with court orders, and division of matrimonial property: (1) 2011 01H 0022 – a decision of Skanes P.C.J., dated February 11, 2011, in which she varied an Emergency Protection Order (“EPO”) against Mr.

C.M. to allow for supervised access by him of the parties’ three children. (2) 2011 01H 0035 – a decision of Dunn J., dated March 28, 2011 in which she ordered that Mr. C.M. pay $1,129 per month in child support retroactive to January 24, 2011, after imputing income of $62,400. (3) 2011 01H 0060 – a decision of Butler J., dated June 29, 2011, in which she granted Ms. S.M. sole custody of the children of the marriage and awarded her $10,000 in costs, with supervised access for Mr.

C.M.. (4) 2011 01H 0061 – a decision of Butler J., dated June 30, 2011 (formal orders filed August 24, 2011 and September 27, 2011), in which she held Mr. C.M. to be in contempt of court, pursuant to Rules 53 and 56A.02(2) of the Rules of the Supreme Court, 1986 , and first ordered that Mr. C.M. be precluded from seeking further relief from the Court until he has purged himself of the contempt, while later ordering that he be precluded from participating in any further proceedings. (5) 2011 01H 0092 – a decision of Fowler J., dated November 28, 2011 (formal order filed December 6, 2011) in which he granted

summary judgment against Mr. C.M. respecting division of matrimonial assets and debt. BACKGROUND FACTS [ 2 ] Mr. and Ms. M. were married on September 3, 1994 and separated on August 17, 2006. They reconciled in January, 2008 but as of January, 2010 slept in different bedrooms. They have three children, born 1997, 1999, and 2001. It is helpful at this point to have a brief

summary of the facts and arguments relating to each decision appealed. More details will follow on analysis of the issues. 2011 01H 0022 [ 3 ] An EPO was granted against Mr. C.M. on December 20, 2010 prohibiting contact with Ms. S.M. and their three children. Skanes P.C.J. noted that there had been an incident with Child, Youth and Family Services (“CYFS”) on December 17, in which Mr. C.M. had attended at their offices. This resulted in security and police being called and the building “locked down”. The CYFS after this recommended to Ms. S.M. that unsupervised access not continue given concerns regarding Mr.

C.M.’ mental health. This appears to have precipitated the EPO application. [ 4 ] Prior to the issuance of the EPO, however, Ms. S.M. had retrieved the children from their school on December 17 th , at a time when Mr. C.M. was supposed to have access. At this point, Mr. C.M. formed the impression that Ms. S.M. was attempting to leave the jurisdiction with the children. He then waited at the departures gate of St. John’s airport for five-and-one-half hours until he was noticed by airport security, removed by police and brought to the Waterford Hospital. He was held there for 13 days. [ 5 ] Mr.

C.M. previously had been involuntarily admitted to the Waterford in May, 2010. That same month an EPO was granted by the Provincial Court, pursuant to the Family Violence Protection Act , SNL 2005, c. F-3.1. It prohibited Mr. C.M. from contact with Ms. S.M. and their children. [ 6 ] On May 27, 2010, in an Interim Consent Order, the parties agreed that Mr. C.M. would refrain from communicating with Ms. S.M., except in accordance with the order; that the parties were to have joint custody of the children; and that Mr. C.M. would have supervised access. The order also gave Ms.

S.M. exclusive occupation of the family home on an interim basis and made provision for payment of matrimonial expenses, including mortgage payments and utilities. [ 7 ] On August 19, 2010, an interim custody order of Fry J. allowed Mr. C.M. unsupervised access to the children. That followed a psychiatrist’s report of August 16, 2010, saying that Mr. C.M.’ mental state did not then pose a danger to himself or others or affect his ability to parent his children. [ 8 ] Judge Skanes, on February 11, 2011, after noting that she did not have adequate psychiatric information to conclude whether Mr.

C.M. was a danger to himself or the children, held that the December EPO should be varied to allow supervised access to the children. Mr. C.M. now appeals this order and seeks sole custody and access. [ 9 ] Mr. C.M. raises the following grounds of appeal: (

i) The applications judge did not give sufficient weight to the evidence adduced by Mr. C.M.. (ii) The applications judge erred in awarding Mr. C.M. supervised access when he had exercised unsupervised access prior to the issuance of the EPO. [ 10 ] He also argues that: (iii) Skanes P.C.J. erred in holding that Mr. C.M.’ actions provided a basis to make an EPO. (iv) The evidence presented with respect to the CYFS incident arose out of collusion between Ms. S.M. and members of the CYFS staff. (

v) Skanes P.C.J. erred in not finding that Mr. C.M. was mentally fit to care for his children. 2011 01H 0035

[ 11 ] As a result of Mr. C.M. failing to provide the court with a copy of his 2010 tax return, his income was imputed to be that on his 2009 return. On the basis of this, Dunn J. made an interim order that Mr. C.M. pay $1,129 per month in child support. Mr. C.M. seeks to have this order varied retroactively once his appeal in 0060 succeeds and if he obtains sole custody and access. [ 12 ] Mr. C.M. raises the following grounds of appeal: (

i) The interim Court order of Dunn J. is based on the current custody and access arrangement which, Mr. C.M. argues, was incorrect (he has appealed the decision at 2011 01H 0060). He therefore argues that, if this Court varies the current custody and access arrangement, this child support order will have to be varied. (ii) Dunn J.’s order did not consider the undue hardship that Mr. C.M. will endure if required to pay this amount in child support. 2011 01H 0060 [ 13 ] As noted above, in May, 2010, Mr.

C.M. was involuntarily committed to hospital pursuant to the Mental Health Care and Treatment Act , SNL 2006, c M-9.1 for three days. Subsequently a psychiatrist made a provisional diagnosis of a brief psychotic disorder. [ 14 ] Following this, that same month, an EPO was granted by the Provincial Court, pursuant to the Family Violence Protection Act . It prohibited Mr. C.M. from contact with Ms. S.M. and their children. [ 15 ] On August 19, 2010, the Family Division made an interim custody order providing that Ms. S.M. would have custody and Mr. C.M. unsupervised access at scheduled times. [ 16 ] Mr.

C.M. was, however, subsequently readmitted involuntarily to a psychiatric ward on December 18, 2010. Following this, the Family Division granted an interim access arrangement which required Mr. C.M.’ access to be supervised. [ 17 ] The Provincial Court granted a second EPO on December 20, 2010, but after a review hearing on February 11, 2011, Skanes P.C.J. varied the EPO to permit supervised access on the same terms as those imposed by the Family Division. [ 18 ] Ms. S.M. then brought an application for sole custody and sought confirmation that Mr.

C.M.’ access should be supervised. [ 19 ] On the application, Butler J. held that it was in the best interests of the children that Ms. S.M. be granted sole custody and that Mr. C.M.’ access be supervised. The bulk of Butler J.’s decision, dated June 29, 2011, relates to Mr. C.M.’ mental health, his failure to take responsibility for his actions and his lack of practical ability to act as a parent. [ 20 ] Mr. C.M. now appeals this order, asking that the Court give him sole custody and access until such time as the Court deems Ms. S.M.’ psychological condition sufficient to enable her to care for her children.

In his factum, he seeks to adduce evidence regarding the alleged deteriorating mental condition of Ms. S.M.. [ 21 ] Mr. C.M. raises the following grounds of appeal: (

i) There are errors in the presentation of select facts within the decision. (ii) There are omissions of some facts. (iii) There are omissions of important contextual considerations and details. (iv) Butler J. misconstrued certain facts. [ 22 ] Mr. C.M. also argues that: (

v) Dr. Mekawy, who presented medical evidence on the application relevant to Mr. C.M.’ psychiatric health, was not qualified to give expert evidence on this topic. (vi) Butler J. erred in her

interpretation of the psychiatric evidence adduced. (vii) Butler J. was biased in that she heard this application as well as the contempt application and allegedly had some prior relationship with Ms. S.M.. (viii) Butler J. erred in her

interpretation of the evidence regarding whether Mr. C.M. exercised his access pursuant to the order of Skanes P.C.J. prior to the trial. (ix) Butler J. erred by accepting the “unsubstantiated” evidence of, inter alia , Ms. S.M. and J.P. (Ms. S.M.’ mother). (

x) Butler J. erred by placing undue reliance on the events of May, 2010. (xi) Butler J. erred by finding that the actions of Mr. C.M. resulted in a lock-down of one of the children’s schools. (xii) Butler J. erred by considering statements made by Mr. C.M. “out of proper context”. (xiii) Butler J. erred in inappropriately limiting Mr. C.M.’ examination of certain witnesses and his testimony. 2011 01H 0061 [ 23 ] Ms. S.M. brought an ex parte , interim application for contempt against Mr. C.M. for failing to comply with a number of Court

orders. [ 24 ] Butler J. granted leave to bring the contempt application by order dated May 31, 2011. The application was originally set for June 7, 2011, but was set over to June 20, 2011 to allow Mr. C.M. to consult with Legal Aid. On June 20, Mr. C.M. was still waiting to hear regarding an appeal of Legal Aid’s decision to deny him a certificate, and he had not consulted with the Court’s duty counsel. Butler J. indicated that she would proceed, at which point Mr. C.M. indicated he was leaving despite Justice Butler’s warnings of possible prejudice. In his factum, Mr.

C.M. argues that Justice Butler erred in continuing with the proceedings after he left the courtroom. [ 25 ] At the hearing, Butler J. found that Mr. C.M. was in contempt by: - Failing to make regular payments on a line of credit (in violation of a May 27, 2010 consent order endorsed by Cook J.); - Freezing the line of credit in violation of the May 27, 2010 consent order; - Failing to provide income information to Ms. S.M. or the Court as required by an order of Butler J. dated March 15, 2011. In his factum, Mr.

C.M. argues that Butler J. erred in finding that he did not file the requisite financial information; - Failing to make payments on a mortgage causing it to fall into arrears contrary to both the order of May 27, 2010 and an order of Dunn J. dated March 28, 2011; and - Causing cable, internet and phone services to be disconnected contrary to the May 27, 2010 order. [ 26 ] Butler J. held that the above failures to comply with the Court’s orders were willful and that they were proven beyond a reasonable doubt. She ordered that Mr.

C.M. be precluded from pursuing any further relief from the Court until he purged himself of the contempt by: - Bringing the mortgage into good standing and continuing to make payments as they become due; - Repaying all payments he missed on the line of credit; and - Filing his income information with the Court. Ms. S.M. was also awarded costs on a solicitor-client basis. [ 27 ] Mr. C.M. now appeals from this contempt order, taking issue with a number of Butler J.’s findings of fact.

He also indicates in his notice of appeal that he objects to the “unsubstantiated” statement that he willfully defaulted on the provisions of the Orders of the Court. Further to this, he submits that Butler J. was biased in that she allegedly knows one of Ms. S.M.’ brothers. [ 28 ] Mr. C.M. raises the following grounds of appeal: (

i) Butler J.’s decision regarding the contempt proceedings pursuant to rule 53 and 56A.02(2) contains errors in fact and/or errors in the application of law. (ii) Mr. C.M. had no opportunity to defend his position in regards to one allegation (regarding a cable bill), but Butler J. went on to make a decision on this issue despite the fact that he was still waiting for “proof from a vendor”. (iii) Mr. C.M. objects to the “unsubstantiated” reference to “willful default on the provisions of three Orders of the Court.” [ 29 ] Mr. C.M. also argues: (iv) That the cable service was terminated by Rogers Cable, and he therefore disputes the finding of fact that he caused the termination of service; (

v) That Butler J. erred in continuing with the proceedings after he left the courtroom; (vi) That Butler J. is biased in that she knows one of Ms. S.M.’ brothers; and (vii) That Butler J. erred in finding that he did not file the requisite financial information. 2011 01H 0092 [ 30 ] At the hearing of an application for division of matrimonial property, Fowler J. noted that Mr. C.M. had failed to purge himself of the contempt order made by Butler J. on September 21, which required him to file certain documents by October 31, 2011. Fowler J. therefore held that Mr. C.M. was not properly before the Court and did not hear his arguments on this matter. Fowler J. went on to grant Ms. S.M.

summary judgment regarding the division of matrimonial assets. [ 31 ] Mr. C.M. lists one ground of appeal: That Fowler J. should not have proceeded with the application for

summary judgment when Mr. C.M.’ appeal from the order of Butler J. finding Mr. C.M. in contempt (see 2011 01H 0061, above) had not yet been heard. [ 32 ] Mr. C.M. seeks a retrial of this issue once the above appeals are dealt with. THE STANDARD OF REVIEW

[ 33 ] The applicable standards of review are correctness for errors of law and palpable and overriding error, that is, manifest error, for findings of fact. When the legal principle is not readily extricable, in a matter of mixed law and fact, the general rule is that, where the issue on appeal involves the trial judge’s

interpretation of the evidence as a whole, this Court will not intervene in the absence of palpable and overriding error. Where the trial decision is of a fact-based and discretionary nature, such as one involving custody or support, involving the balancing of various factors with an appreciation of the particular facts of the case, appeal courts will defer to trial judges and not intervene without material error, a serious misapprehension of the evidence, or an error of law. See Locke v.

Goulding, 2012 NLCA 8 , 318 Nfld. & P.E.I.R. 91, at paragraphs 18-19 . [ 34 ] The decision to find a party in contempt and to order a particular remedy are both matters of discretion to which this Court must accord considerable deference. See Langor v.

Spurrell (1997), 157 Nfld. & P.E.I.R. 30 (NFCA), at para. 34 , where Green J.A. (as he then was) stated in discussing the standard of review applicable to setting aside default orders (another discretionary order): … this Court ought not to interfere with the order that was made unless it can be said that the discretion was exercised beyond jurisdiction, contrary to principle, on the basis of palpable error in appreciation of the facts, or would cause a manifest injustice. THE ISSUES [ 35 ] The issues generally involve whether Mr.

C.M. has established that the judges below committed errors of fact or law in arriving at their decisions. Mr. C.M. holds the erroneous view that this Court should engage in a broad investigation of the child welfare and matrimonial laws of the Province and a rehearing of all decisions to uncover alleged conspiracies against him and other “single dads”. THE LAW AND ANALYSIS 2011 01H 0022 [ 36 ] The appeal of the EPO granted December, 2010 is moot [1] since by its provisions it expired in February, 2011 and the decision of Butler J. on June 29, 2011 now governs regarding custody of the three children.

However, because Mr. C.M. submits all decisions against him, including custody, stem from errors made in granting the two EPOs of May 6, 2010 and December 20, 2010, I will discuss the specific facts upon which the EPOs were based and consider the reasons of Skanes P.C.J. for granting them. [ 37 ] In May, 2010, Mr. C.M. was admitted to the Waterford Hospital involuntarily due to paranoia and extreme distress, pursuant to the Mental Health Care and Treatment Act , while Ms. S.M. was visiting her brother in Toronto. On that occasion, Mr.

C.M. made a number of statements to his wife and his physicians that exhibited paranoia and disordered thoughts. In particular, he refused to allow the children to be fed, concerned they might be poisoned. He refused to let them or his mother, who was with him in the house, speak to Ms. S.M. by telephone or leave the house. At one point, while on the telephone, he told Ms. S.M. that the children “will soon be with me, alone, forever”. [ 38 ] His mother became so concerned about his behaviour that she called other family members to come over and give a second opinion concerning him.

They agreed he was not like himself. His mother called 911 and paramedics and police attended the scene and eventually persuaded him to go with them to the Waterford. He later told his wife the color red was the devil’s color and there were too many red cars around. He accused her of wearing purple, also an evil color. A psychiatrist provisionally diagnosed a brief psychotic disorder. [ 39 ] Ms. S.M. subsequently obtained an EPO pursuant to the Family Violence Protection Act , in which she was granted temporary custody of the children and exclusive possession of the matrimonial home.

As part of her application Ms. S.M. stated that Mr. C.M. had previously been physically and emotionally abusive toward her and the children. [ 40 ] In the interim consent order, dated May 27, 2010, the parties agreed that Mr. C.M. would refrain from communicating with Ms. S.M. except in accordance with the order, that the parties were to have joint custody of the children, and that Mr. C.M. would have supervised access to the children. [ 41 ] This order was varied by Fry J. on an interim application to allow unsupervised access with a status hearing to follow. Her order is dated September 10, 2010.

In an affidavit filed for the status hearing, Ms. S.M. noted several concerns with respect to Mr. C.M.’ unsupervised access to the children. These concerns were later confirmed in the evidence at the parenting trial before Butler J. and are not seriously challenged by Mr. C.M.. They included:

i) October 8 – The children expressed concerns about things Mr. C.M. said to them about Ms. S.M. – for example, continually calling her a liar and a cheater. They also informed Ms. S.M. that he watched their house. ii) October 21 – The children met with two counselors for an initial consultation. The two youngest spoke with one counselor and the eldest spoke with another. iii) October 22 – The eldest child’s counselor informed Ms. S.M. that she had called CYFS after some of the things the child had told her in the previous day’s session because she was concerned about some of Mr.

C.M.’ behavior when he was with the children. A CYFS worker met and interviewed the children at school. He said he would speak to Mr. C.M. about his behavior around the children. iv) October 24 – Mr. C.M. dropped the children off after their weekend together, entered the house and began to verbally abuse Ms. S.M. in front of the children. He left when she threatened to call the police. Once he left she called the police and filed a complaint. An officer spoke with Mr. C.M. that evening and told him not to come back onto the property.

v) October 27 - A social worker with CYFS came to the house to interview Ms. S.M.. She told him about the incident on October 24 th , which prompted another visit with the children. The eldest child confirmed what had happened the previous Sunday. The social worker said he would speak to Mr. C.M. again.

vi) Nov. 5 – Mr. C.M. came to the house to pick up the children for a visit. As each of the children left through the door, Mr. C.M. yelled profanities at Ms. S.M.. She refused to respond to him, as instructed by the CYFS worker. vii) November 10 – Mr. C.M. attempted to pick up the children at the babysitters’ early, without Ms. S.M.’ knowledge and without informing the sitter in advance. She was hesitant to give him the children without Ms. S.M.’ knowledge and he became very angry with her – to the point where she threatened to call the police. When Ms. S.M. arrived she intervened and allowed Mr.

C.M. to leave with the children. [ 42 ] Other incidents included Mr. C.M. banging his fists on the steering wheel of his vehicle with the children in his care, parking the vehicle to watch the matrimonial home, telling the children to watch the house to see Ms. S.M.’ “new man” come and go, and trying to recruit the children to take his side in the dispute between the parties. [ 43 ] On December 17, 2010, Ms. S.M. received a telephone call from CYFS. She was advised that due to Mr. C.M.’ mental state she needed to take steps to protect her children. As a result Ms. S.M. filed an application for an EPO.

This was granted. Mr. C.M. applied to lift the EPO. The hearing took place on January 21, 2011 and continued on February 7, 8 and 11th, 2011. Evidence provided at the January 21st and February 7, 8 and 11th hearings relates to Mr. C.M.’ ability to parent the children. [ 44 ] In particular, the evidence shows:

i) That termination of the relationship with his lawyer prompted him to contact CYFS directly concerning access; ii) That he called his case worker at CYFS and left a series of voicemails for the case worker’s supervisor, attended the CYFS Charles R. Bell building in person on December 16 th and was told by the social worker that he would be contacted by the supervisor, and called again the next day; iii) That Catherine O’Rourke, a supervisor at CYFS, phoned him that same morning and told him, “Mr.

C.M., we are not prepared to deal with your issues today, and in fact, … you are pestering my staff here at the Kenmount Road building and we’d prefer it if you do not show up in this building ever again and if you do I will call the Royal Newfoundland Constabulary and have you arrested”; iv) That his response to Ms. O’Rourke’s warning was to leave a voicemail message for her telling her, “I will be there for 10:30” (about 15 minutes later);

v) That the RNC received a report from Ms. O’Rourke and told Mr. C.M. they wanted to talk to him. Four officers went to his office at Memorial University and interviewed him. The police concluded they had no ground to arrest Mr. C.M. or take him to hospital at that time; vi) That after CYFS expressed concerns to Ms. S.M. about Mr. C.M.’ mental health, Ms. S.M. interrupted access by him and he became concerned she intended to leave the Province with the children. He went to St. John’s airport on December 18 th and waited five- and-one-half hours for her to show up with the children.

His attendance at the airport caught the eye of security, who alerted the police. He was eventually removed under police escort and brought to the Waterford Hospital; and vii) That he had been detained in a psychiatric ward for thirteen days. [ 45 ] The evidence also indicates:

i) That Mr. C.M. told his children not to eat their food because he thought they were being poisoned. ii) That he has refused to take medications prescribed by his treating psychiatrists. iii) That he was diagnosed with a psychotic disorder. [ 46 ] At one point the EPO proceedings had to be interrupted by a sheriff’s officer who observed Mr. C.M. making a threatening gesture to Ms. S.M.. [ 47 ] In an Interim Order, dated February 9, 2011, LeBlanc J. ordered that Mr. C.M.’ access to the children be supervised pending trial. It was further ordered that Mr.

C.M. provide the court with an updated psychiatric assessment, including a full report on the status of his mental health and treatments. [ 48 ] The court ordered that if the updated psychiatric assessment revealed no further concerns in relation to Mr. C.M.’ ability to parent the children, Mr. C.M. could bring the matter back to the court for a hearing to re-examine the issue of access to the children. [ 49 ] Mr. C.M. has never provided any updated psychiatric assessments or any medical updates of any kind to Ms. S.M., but called a psychiatrist as a witness before Butler J. at the parenting trial.

The psychiatrist indicated that Mr. C.M.’ symptoms were suggestive of bi-polar phase 1 and that, if he were to have a manic episode, it might detrimentally affect his ability to parent the children. The psychiatrist described Mr. C.M.’ behaviour on his second admission to hospital as very agitated, very confrontational, expressing irrational thoughts, suspicious, writing everything down, and demanding. [ 50 ] At the parenting trial Mr. C.M. made several admissions, including that he “would rather be manic” than take his medication, that he refused and would continue to refuse to supply Ms.

S.M. information about his medical treatments and status despite being ordered to do this by the Court, that he had commented adversely about Ms. S.M. in front of the children, that he confronted his eldest daughter at a time when access was supposed to be supervised to grill her for information about his wife and made his daughter cry, and that he blamed this confrontation on his daughter’s unwillingness to disclose information. [ 51 ] A review of the two decisions ordering that Mr. C.M. be subject to an EPO, reveal no errors of law or palpable and overriding

errors of fact. The uncontradicted evidence noted above provided reasonable grounds for the judges issuing the orders to have concerns about an unacceptable risk of harm to the children if Mr. C.M. had unsupervised access. [ 52 ] Mr. C.M. shows no insight concerning how his behaviour in May and December, 2010 would be viewed by reasonable, objective, third party observers.

Regarding the May, 2010 incident, he seizes upon what he views as an erroneous statement in police notes that he had barricaded himself in his bathroom. (This appears to be a misunderstanding arising from the fact that his mother had gone into the bathroom to conceal the fact she was about to make a 911 call concerning him.) Mr.

C.M. ignores the uncontradicted evidence that his unusual behaviour indicates he was suffering some form of mental breakdown in May, 2010, evidence corroborated by the testimony of his mother, who had called other family members for assistance, and by the provisional diagnosis of a psychiatrist. Mr. C.M. unreasonably believes the May, 2010 committal to hospital arose solely from the erroneous police reference to barricading in the bathroom. [ 53 ] As for the December, 2010 EPO, Mr.

C.M. attributes his committal to hospital on that occasion to a conspiracy involving his wife, officials of CYFS and, indeed, provincial legislators, who he says he believes have enacted the Family Violence Protection Act to give women an advantage upon separation from their husbands in custody and matrimonial disputes. [ 54 ] Mr. C.M. stresses that he in fact never did attend at the CYFS offices after leaving a telephone message that he intended to do so.

He unreasonably ignores the fact that persistent and aggressive telephone calls might have given rise to legitimate concerns regarding the safety of employees at the CYFS offices, sufficient to justify a building lockdown without his actual presence. [ 55 ] Mr. C.M. also unreasonably refuses to acknowledge that his behaviour at the airport in the circumstances might have given rise to legitimate concerns about his mental health. [ 56 ] My review of the decision of Skanes P.C.J. on February 11, 2011, indicates no error of law or palpable and overriding error of fact.

She thoroughly reviewed the evidence and properly exercised her judgment concerning possible risk to the children. This Court must defer to that decision. In particular, she correctly noted that Mr. C.M. had the burden of showing there was no danger to the children and that she had been provided no medical report following Mr. C.M.’ readmission to hospital in December. She reasonably concluded, considering that the EPO expired on February 20, 2011, that the best approach was to vary the EPO to allow supervised access until the Family Division had an opportunity to fully deal with the matter.

The events surrounding the May and December EPOs will be discussed again below on my review of Butler J.’s decision on custody and access. 2011 01H 0035 [ 57 ] The Federal Child Support Guidelines , SOR/97-175 provide: 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: ... (

f) the spouse has failed to provide income information when under a legal obligation to do so … [ 58 ] Mr. C.M. submits that Dunn J. had no basis for imputing income to him in the calculation of child support. He states he had filed all the financial information required of him. The record does not support this. It shows he supplied some T-4s for certain years, but not his complete income tax return for 2010 as required.

Dunn J. reasonably exercised her judgment and made no error of law or fact in imputing income of $62,400 as on his 2009 tax return and ordering $1,129 per month in child support, calculated in accordance with the Child Support Guidelines . [ 59 ] Dunn J. did not explain why she ordered the continuation of mortgage payments in addition but this was not unreasonable on an interim basis in the circumstances.

While child support payments include a component for housing, where appropriate, a court may order one party to pay a greater share, or all, of the mortgage on the matrimonial home to preserve the status quo pending final distribution of the matrimonial property. Upon distribution of the property, any necessary adjustments arising from payment of the mortgage or other related expenses or obligations will be made.

In this case, the mortgage payments had to be made to preserve the status quo until the question of exclusive occupancy was determined or the property sold. 2011 01H 0060 [ 60 ] Justice Butler arrived at certain conclusions from the evidence before her, which I will quote from her decision. [ 61 ] At paragraph 43: … I conclude that Mr. C.M. lacks complete insight into either his mental health problems or the behaviour he exhibits in relation to these problems.

He has no appreciation of how this behaviour is perceived by others and how it has negatively affected his family. … At paragraph 45: His own evidence confirmed his feelings of being conspired against, cheated on and harassed, consistent with the features of the delusional disorder provisionally diagnosed by Dr. Mekawy. He made accusations that the J.P. family ganged up on him, that S.M. was having an affair or was “off with her man” (a statement he acknowledged making to the Children). … At paragraph 48: His evidence was also riddled with references of a paranoid nature.

For example, “Child, Youth and Family Services have their hands all over this.” He alleged that Child, Youth and Family Services had offices in the Charles R. Bell building, and that since his wife did the

leasing for that building, this suggested a conspiracy. Similarly, he believed that the psychology clinic [the eldest child] attended for counseling was closely aligned with Child, Youth and Family Services. He also testified that he had a suspicion that his mother and his wife had “an arrangement made.” At paragraph 50: Consistent with the features of the Delusional Disorder of a persecutory type that Dr. Mekawy provisionally diagnosed in December 2010, Mr.

C.M. has engaged in repeated attempts to obtain satisfaction by appeal to the courts, the police, the RNC Complaints Commission, Customs Canada, Canada Transport Agency, Child, Youth and Family Services and other agencies. He is resentful and angry in his description of the marriage, the marriage breakdown and the responses of the various agencies and the Courts …. [ 62 ] At paragraphs 51 and 53, Butler J. notes the psychiatric diagnosis of Bi-Polar Disorder 1 and Delusionary Disorder of a persecutory type and points out that prescribed medication had been rejected by Mr.

C.M., without any evidence by him regarding recommended treatment. At paragraph 69, Butler J. stated: Further, Mr. C.M. lacks the practical ability to act as a parent. By denying his diagnosis and refusing to take treatment, he is impaired in his functioning and has exhibited extremely poor judgment since May 2010, to the detriment of the Children. … [ 63 ] All of these conclusions are supported by the evidence. The following behaviour of Mr. C.M. at the hearing in this Court also indicates Justice Butler’s conclusions were correct: - Mr. C.M. continuously attacked the mental health of Ms.

S.M., without any supporting evidence and despite instructions from the Court to desist from this line of comment; - Mr. C.M. drew far-fetched conclusions of conspiracy from the fact that an employee of CYFS had the same family name as Ms. S.M.’ maiden name; - Mr. C.M. set himself up as the champion of “single dads” who he believes are being persecuted by female judges and female social workers as well as being disadvantaged by legislation he sees as designed to give women an unfair advantage in matrimonial disputes; - Mr. C.M. continuously alleged, without any factual foundation, that Ms.

S.M. conspired against him and acted on the basis of evil and vindictive motives, when the evidence supports the conclusion of Butler J. that Ms. S.M. has acted in a responsible fashion in the best interests of the children; and - Mr. C.M. repeatedly requested broad “investigations” by this Court into alleged, unsubstantiated conspiracies and requested action to change the system of child welfare legislation. [ 64 ] Mr. C.M. has been unable to point to any error of law or fact which would warrant reversing Butler J.’s decision of June 29, 2011. Mr.

C.M.’ own evidence, his argument, and his behaviour before this Court support the conclusion that it is in the best interests of the children that Ms. S.M. have sole custody with supervised access by Mr. C.M.. 2011 01H 0061 [ 65 ] Butler J. on June 30, 2011, on a contempt application by Ms. S.M., found Mr. C.M. to be in willful default of the provisions of three orders of the court relating to child support. She made the following findings of fact in the course of her decision: 1) As of May 27, 2010, Mr. C.M. was obliged by virtue of a Consent Order endorsed by Cook, J.:

a) to pay the mortgage on the home in which Mrs. S.M. and the Children resided;

b) to reactivate the line of credit he had frozen prior thereto so that Mrs. S.M. had access to funds to pay expenses;

c) to pay half of the monthly payments required by the bank on the line of credit; and

d) to refrain from terminating the basic services of utilities for the home in which Mrs. S.M. and the Children resided. 2) The very next day (May 28, 2010), Mr. C.M. withdrew $40,000.00 against the line of credit thereby increasing its outstanding balance to approximately $77,000.00 of $90,000.00 in available credit. Nevertheless, the line of credit remained available for Mrs. S.M.’ use. 3) Mr. C.M. made regular payments on the line of credit until October 2010 only, and the only subsequent payment was $262.73 on April 18, 2011. 4) In January 2011, Mr.

C.M. froze the line of credit for the second time. 5) In February 2011, Mr. C.M. emailed Mrs. S.M.’ counsel suggesting that since Mrs. S.M. had a mental illness and a personality disorder that remained untreated, he would be “canceling the joint Scotia Bank account shortly and freezing the CIBC line of credit.” 6) In response to this, Mrs. S.M. made Application to the Court for child support, and this came before LeBlanc, J., together with Mr. C.M’ Application for an Interim Custody Order. The transcript confirms that LeBlanc, J. assured Mr.

Glover that if circumstances changed concerning the use of the bank account or the payment of the mortgage, he could come back and get a child support order. 7) The parties were before me on Case Management on March 15, 2011, and I made a Procedural Order that required Mr. C.M. to file his 2008, 2009 and 2010 income information and deliver the records to Mr. Glover by Friday, March 18, 2011.

8) The child support hearing proceeded before Dunn, J., on March 28, 2011. Mr. C.M. was in default of my Order requiring disclosure of his financial records and the judge therefore imputed income to him of $62,400.00, and ordered basic child support of $1,129.00 per month retroactive to January 24, 2011. She also ordered Mr. C.M. to continue to make the mortgage payments. 9) On May 17, 2011, the cable, internet and phone services to Mrs. S.M.’ home were disconnected. Since Mrs.

S.M.’ name was not on the account, when she enquired why the action was being taken, the service provider would not provide her with any information. This left Mrs. S.M. and the Children without a telephone, cable or internet services for several days until she could open a new account in her name only. 10) Mr. C.M. did not make payments of child support after March 28, 2011, but the Support Enforcement Agency collected $5,645.00 on June 9, 2011, representing payment in full of the $1,129.00 per month, due under Dunn, J.’s Order. 11) Mr.

C.M. had regularly deposited $260.00 to the Bank of Nova Scotia account from which the mortgage payments of $253.18 weekly were automatically withdrawn. However, because other bills were automatically withdrawn from this account (his life insurance and a $50.00 per month transfer to his own savings plan), and because Mr.

C.M. charged other expenses to the account (Don Cherry’s Sports Bar and Dominion Supermarket), his deposits were insufficient to cover the mortgage payments due on April 15 and April 25, 2011, and both were returned for non-sufficient funds. [ 66 ] Butler J. found some ambiguity in the order of Dunn J. on March 28, 2011 as to whether the $1,129.00 child support was meant to be a substitution for the requirement of the May, 2010 Consent Order that Mr. C.M. reactivate the line of credit. Therefore, she concluded she could not find Mr.

C.M. in default because of a failure to make payments on the line of credit after March, 2011. [ 67 ] Butler J. also found that, in light of the fact that the Support Enforcement Agency had garnished funds, Mr. C.M. was not in default of the child support provision of the March 28th order. [ 68 ] Butler J. did, however, conclude that Mr.

C.M. had breached the clear and unequivocal provisions of three orders of the court as follows: • he failed to make regular payments on the line of credit between October 2010 and March 28, 2011 (a violation of paragraph 6 of the May 27, 2010, Order); • he froze the line of credit for a second time in January 2011 (a violation of paragraph 6 of the May 27, 2010, Order) prior to Dunn, J.’s Order of March 28, 2011, the provisions of which may have intended to be in substitution for this provision; • he failed to provide his income information to either Mr.

Glover or the Court (as required by the March 15, 2011, Order); • he failed to make payments on the mortgage causing it to fall into arrears on April 15, 2011 (contrary to both paragraph 7 of the May 27, 2010, Order and paragraph 2 of the March 28, 2011, Order); • his actions caused the cable, internet and phone services to the home to be disconnected on May 17, 2011 (contrary to paragraph 8 of the May 27, 2010, Order). [ 69 ] Butler J. went on to find that the actions of Mr. C.M. were “deliberate, willful and not accidental” and “motivated by vindictiveness”. She supported these findings: (

i) By reference to an email of February 18, 2011, by Mr. C.M. where he stated his intention to freeze the line of credit and to cancel the joint account because of his unsubstantiated claims that Ms. S.M. had a mental illness and a personality disorder; (ii) By reference to the conscious omission of Mr. C.M. to ensure that sufficient funds were in the bank account to permit payment of the mortgage; (iii) By reference to Mr. C.M.’ making it impossible for Ms. S.M. to pay for her utilities through freezing the line of credit and cancelling the bank account; and (iv) By reference to Mr.

C.M.’ failing, without excuse, to disclose his income information. [ 70 ] To warrant intervention by this Court, Mr. C.M. has to establish that Butler J. erred in principle or palpably in her appreciation of the facts or that a manifest injustice occurred. See Langor v. Spurrell . Mr. C.M. has not met this onus. [ 71 ] Mr. C.M. has provided no reasons to justify this Court’s overturning the finding of contempt against him. [ 72 ] Our Rules of Court provide: 53.05(1) The Court may make a contempt order in Form 53.04A which may order that ... (

e) when a person cited for contempt is a party to a proceeding (

i) that person’s pleading, or any part thereof, be struck out, (ii) the proceeding be stayed or dismissed, or judgment entered against that person, or (iii) that person be prohibited from introducing into evidence any designated document, thing or testimony …

[73] Butler J. acted within her jurisdiction in making the order after finding that Mr. C.M. intentionally acted contrary to court ordersor consciously omitted to do what was required of him. [74] While the court’s power to cite for contempt should be used sparingly, especially in family matters, the integrity of the law mustbe maintained. Anarchy will result if people are permitted to take the law into their own hands. Courts must ensure compliance withtheir lawful orders and contempt proceedings are employed for this. See Health Care Corp. of St. John’s v.

Newfoundland and LabradorAssociation of Public and Private Employees (2000), (NL SC), 196 Nfld. & P.E.I.R. 31, (NFTD) and Surgeoner v.Surgeoner (1992), 6 C.P.C. (3d) 318 (Ont. Ct. J.). Butler J. made no error of law. [75] Mr. C.M. has not established any palpable error by Butler J. in her appreciation of the facts. The record supports her findings. Nor has Mr. C.M. shown any manifest injustice will result from her finding him in contempt. On the contrary, any injustice that hasoccurred has been suffered by Ms. S.M. and the children because of Mr.

C.M.’ vindictiveness and bitterness and flagrant refusals tocomply with court orders and assume his responsibilities to Ms. S.M. and the children. [76] Some comment is required regarding the remedy ordered in the present case. The initial order by Butler J. on August 24, 2011was that Mr. C.M. “be precluded from pursuing any further relief from this Court until he has purged himself of the contempt”. A laterorder on September 27, 2011 provided “he shall be precluded from participating in any further proceedings before this Court, includingthe

summary Judgment Application scheduled to be heard on November 28, 2011.” Mr. C.M. was given until October 21, 2011 to purgethe contempt by: (

i) Bringing the mortgage on the matrimonial home into good standing and making mortgage payments as they become due; (ii) By repaying payments missed on the line of credit between October 2010 and March 28, 2011; and (iii) Filing his 2008, 2009 and 2010 Income Tax Returns (in full) plus his 2008-2010 Notices of Assessment and 2011 currentinformation. [77] There is a significant difference in the two orders. The first one precludes Mr. C.M. from initiating applications to the court. The second precludes him from participating in any fashion; he is not even permitted to defend his interests in applications by Ms.

S.M.. [78] An order precluding a party from participating in a matter should only be made in exceptional circumstances, particularly infamily law cases: Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121 at paras. 47-48; Hadkinson v. Hadkinson, [1952] 2 All E.R. 567.

In the latter case, Lord Denning noted, at pp. 574-5, that it is a step which the court will only take when the contempt itself impedes thecourse of justice by making it more difficult to ascertain the truth or to enforce orders made, and there is no other effective means ofsecuring compliance. [79] In Purcaru, the Ontario Court of Appeal noted that the rationale for the restrictive use of this remedy is that the adversarialsystem functions to safeguard against injustice and the adversarial structure should be maintained whenever possible.

Denying a partythe right to participate at trial may lead to factual errors giving rise to an injustice. [80] But the Ontario Court went on to note that such a decision is a discretionary one that is entitled to deference on appeal whenexercised on proper principles. The exercise of discretion will be upheld where the judge below fashioned a remedy that is appropriatefor the conduct at issue.

The Court held that dismissal of the action might be an appropriate remedy to ensure the proper administrationof justice where a plaintiff has repeatedly failed to comply with orders relating to discovery and other matters. [81] In Purcaru, the Court upheld the order striking the respondent’s pleadings and limiting his participation in the hearing becauseof his intransigence and other circumstances indicating Mr. Purcaru would neither remedy his misconduct nor comply with his disclosureobligations.

The Court noted the trial judge was entitled to impose a remedy that would provide a strong disincentive against breachingcourt orders. The trial judge had found that Mr. Purcaru’s participation at trial would only prolong the proceedings and fairness to Mrs.Purcaru required striking his pleadings. [82] Similar considerations arise in the present case. The evidence before Butler J. supported her finding of proof of contemptbeyond a reasonable doubt and established: (

i) That Mr. C.M. had not purged his contempt by paying on the mortgage, repaying money owning on the line of credit or filingincome tax information as ordered; (ii) That Ms. S.M. had been threatened with foreclosure of her home by the bank holding the mortgage because of payments inarrears; (iii) That Ms. S.M. was financially trapped due to Mr. C.M.’ lack of co-operation and his ongoing contempt of court orders; and (iv) That considerable further delay would result before resolution of the matters if Mr. C.M. continued to participate and, in thecircumstances

summary judgment was warranted. [83] I am not persuaded that Butler J. erred in principle or made any palpable and overriding error of fact in the circumstances inordering the remedy of no participation by Mr. C.M. on the application for

summary judgment respecting division of matrimonial assetsand debt. This was needed to ensure the proper administration of justice considering Mr. C.M.’ intransigence and the potential forfurther delay and hardship to Ms. S.M. and the children. However, the order of Butler J. went too far in barring indefinitely andabsolutely any participation by Mr. C.M. in future proceedings commenced by Ms. S.M. and on applications for variation by Mr. C.M..

Normally an order precluding a party’s future participation in proceedings should permit the party to seek leave of the court toparticipate, particularly where purging of the contempt involves financial obligations. [84] Except for the filing of the required financial information, the purging of contempt issue is moot in the present case because of

the order of Fowler J. for the sale of the matrimonial property and the division of equity and debt. The appeal from the decision ofButler J. is allowed to permit participation by Mr. C.M. only with leave of the court until he has filed his 2008, 2009, 2010 and 2011Income Tax Returns and Notices of Assessment with the court and provided copies to counsel for Ms. S.M.. 2011 01H 0092 [85] The decision of Fowler J., dated November 28, 2011, resulting in the formal order of December 6, 2011, on an application forsummary judgment, was not a complex one.

It applied the principle of equality on the division of family property and debt in anunremarkable fashion and fairly settled the amounts for outstanding cost awards. [86] Mr. C.M. has shown no error in principle or fact in the conclusions of Fowler J.

Summary judgment is available in matrimonialmatters: Ledrew v. Brake (1991), (NL CA), 176 Nfld. & P.E.I.R. 288 (NFCA). The record before Fowler J.,including the findings of Butler J., supported his conclusion that further significant delays would result “at the expense and frustration”of Ms. S.M., if he did not proceed with

summary judgment. The record showed that it was highly unlikely that Mr. C.M. could havecontributed anything to affect the result had he been permitted to participate.

SUMMARY AND DISPOSITION [87] In

summary:

(1) Re 2011 01H 0022 [88] The EPO granted December, 2010 is moot since by its provisions it expired in February, 2011. The EPO of May, 2010 is alsomoot. Because Mr. C.M. believes the other decisions he now appeals arose because of errors made in granting the EPOs, I will say that,as set out above, the uncontradicted evidence before the courts provided reasonable grounds for the issuance of both EPOs because of theconcerns raised about unacceptable risks of harm to the children if Mr. C.M. had unsupervised access. No error occurred.

Assuming,without deciding, that this Court has jurisdiction to hear an appeal from an EPO, Mr. C.M.’ appeal of the EPO is dismissed as moot. (2) 2011 01H 0035 [89] Dunn J. reasonably exercised her judgment and made no error of law or fact in imputing income of $62,400 as on Mr. C.M.’2010 tax return and ordering $1,129 per month in child support, calculated in accordance with the Child Support Guidelines. While shedid not explain why she ordered Mr. C.M. to make payments on the mortgage in addition to the $1,129, this was not unreasonable on aninterim basis.

This appeal is dismissed. (3) 2011 01H 0060 [90] The conclusions of Butler J. in her decision of June 29, 2011 were all supported by the evidence, including Mr. C.M.’ ownstatements. He has been unable to point to any errors of law or fact to warrant reversing this decision. Butler J. provided clear andthorough explanations to support her reasonable conclusion that it is in the best interests of the children that Ms. S.M. have sole custodywith supervised access by Mr. C.M.. [91] This appeal is dismissed. (4) 2011 01H 0061 [92] Mr.

C.M. has provided no reason to justify this Court’s overturning the finding of contempt against him by Butler J. in herdecision of June 30, 2011. The record supports Butler J.’s conclusion that Mr. C.M. had deliberately failed to comply with earlier courtorders regarding payments on the line of credit, termination of mortgage payments, and filing of income information. The appeal on thefinding of contempt is dismissed. [93] On the matter of the remedy for his contempt, in the extreme circumstances of Mr.

C.M. intentionally acting contrary to courtorders, deliberately and motivated by vindictiveness, Butler J. made no error in precluding Mr. C.M. from participation in proceedings onthe division of matrimonial property and debt, until he had purged his contempt. However, the orders of Butler J. should have permittedMr. C.M. to seek leave of the court to participate in other later proceedings. The appeal from the decision of June 30, 2011 and that ofSeptember 27, 2011 modifying it, is allowed on the matter of remedy only.

Until he purges his contempt by the filing of his 2008, 2009,2010 and 2011 Income Tax Returns and Notices of Assessment with the court and providing copies to counsel for Ms. S.M., Mr. C.M.shall be entitled to participation in future proceedings regarding Ms. S.M. and the children only by leave of the court. (5) 2011 01H 0092 [94] Mr. C.M. has shown no error of law or fact in the conclusions of Fowler J. regarding the division of matrimonial property anddebt and the settlement of the amount for costs. [95] This appeal is dismissed.

(6) Costs [96] Ms. S.M. shall be entitled to her costs on this appeal on a party-and-party basis. _____________________________ L. D. Barry J.A.

I Concur: _____________________________ B. G. Welsh J.A. I Concur: _____________________________ M. H. Rowe J.A.