MICHAEL GORDON JACKSON PETITIONER - v. -, 2022 SKKB 207

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 207 Date: 20 22 09 13 Docket: FLD-RG-00007-2017 Judicial Centre: Regina BETWEEN: MICHAEL GORDON JACKSON PETITIONER - and - MARIECAR LATINA JACKSON RESPONDENT Counsel: Roch Dupont for the petitioner Lara Bonokoski for the respondent JUDGMENT MEGAW J. September 13, 202 2 INTRODUCTION [ 1 ] The respondent, mother, has brought this application to have the petitioner, father, cited for contempt of court and to have him sentenced to a term of imprisonment and a fine for his contemptuous actions.

The father admits he deliberately disobeyed the court orders of Layh J. dated November 26, 2021 and McCreary J. (as she then was) dated January 5, 2022 but asserts that he had a reasonable excuse for his actions. [ 2 ] I have determined that the father was acting in contempt of the existing court orders and that he did so without any reasonable excuse. I have further determined that a term of imprisonment for such contempt is the appropriate sentence on the facts of this case. [ 3 ] My reasons follow.

BACKGROUND [ 4 ] The factual background is set forth in the judgment rendered on the father’s preliminary application reported at 2022 SKQB 114 . However, to ensure the record on this matter is complete, I set it out again for the purposes of the application now before the court. [ 5 ] The parties have been separated since late 2016. They have one child who is seven years old. The mother is the primary parent for the child and the father is to have prescribed parenting times. The parenting arrangement was determined by McIntyre J. following a trial which was held back in mid-December 2018.

McIntyre J. rendered his judgment on June 24, 2019 ( 2019 SKQB 155 ) [ McIntyre judgment ]. In addition to setting the parenting arrangement, the judgment also provided the mother with final decision-making authority for all matters involving the child. McIntyre J. stated as follows: [57] In the present circumstance before the court, I have concluded it remains in Sarah’s best interests that her parents have joint legal custody. The nature of Michael’s conduct does not make joint legal custody inappropriate.

Joint custody means Michael is to be kept informed and told of matters involving Sarah’s health, welfare, education and activities. Where appropriate, Michael’s views and input is to be sought. However, given Michael’s view that his opinion is the only one that counts, like the decision in I.D. [ I.D. v P.R.A.D. , 2012 SKQB 281 , 401 Sask R 114 ], I am of the view that joint custody will only work so long as Mariecar has the final say on all matters.

She is to consult and seek Michael’s views and ought to promote achieving a consensus when they can, but if they cannot, she will have the final say. [58] Michael and Mariecar shall have joint legal custody of Sarah, whose primary residence shall be with Mariecar. Mariecar shall

keep Michael informed of all matters involving the health, education and welfare of Sarah. Mariecar shall consult with Michael on all major decisions affecting Sarah, but Mariecar’s decision is final. [ 6 ] That judgment was appealed by the father. However it does not appear that appeal has progressed to the hearing stage. At the time the appeal was taken, the mother successfully applied to lift the stay of proceedings imposed by Rule 15 of The Court of Appeal Rules .

As a result, the parenting of the child, as determined by McIntyre J. has been fully operational. [ 7 ] The parties have been involved in continual and constant litigation since the time of their separation over parenting issues involving the child. The father has represented himself and advanced both his applications and his arguments on his own behalf. The father has advanced applications seeking specific relief. He holds the view, as expressed in his affidavit filed on this application that generally his applications have not been well-received by the court that has heard them.

He does not feel that he has been as successful as he thinks he should have been in this regard. [ 8 ] This brief background then brings the matter to November 2021. On November 10, 2021, the father began his regular scheduled parenting time with the child. At the conclusion of that parenting time, he refused to return the child to the mother as had been previously arranged by him with the mother. [ 9 ] The mother last spoke to the child on November 21, 2021, after which the father refused to engage in any further communications with the mother and did not arrange for the child to speak to her mother either.

As well, at that time, the child was abruptly removed from her school by the father. There is no evidence to suggest the father made arrangements for the child’s educational requirements when she was not attending school. The father has provided no information to suggest he contacted the school to tell the authorities the child would not be attending school. [ 10 ] As a result of the non-return of the child by the father, the mother applied to the court for an order requiring the child to be returned to her together with a police assistance clause to enforce the court’s order.

On November 26, 2021, that application was argued before Layh J. who granted the application directing the child be returned to the mother and that the police assist in enforcing that order. The father fully participated in the argument on that application in putting forth his position on the return of the child to the mother. [ 11 ] The father immediately appealed the order of Layh J. The mother, in turn, brought an application to lift the stay of proceedings imposed by Rule 15 of The Court of Appeal Rules .

The application to lift the stay of proceedings came before Leurer J.A., Jackson v Jackson (8 December 2021) Regina, CACV 3935 (Sask CA), who ordered that the stay be lifted. His lordship then made the following specific comments in his judgment: [17] It is evident that Mr. Jackson is refusing to respect the existing court order that sets out the parenting arrangements for the child. Mr. Jackson indicated this in his November 25, 2021 affidavit, when he stated that he “clearly informed [Ms. Jackson] that [he] would not allow her to retrieve [the child]”. He reiterated this in his submissions to me.

The choice confronting the Chambers judge was whether to order the police assistance for the enforcement of the order or allow Mr. Jackson to ignore its terms. The choice I must make in this application is whether the child’s best interests are served by allowing Mr. Jackson to continue to ignore this court order while his appeal is heard or whether they are served by lifting the stay. It is my conclusion that it is not in the child’s best interests to allow Mr.

Jackson to ignore the extant parenting order while his appeal is prosecuted. [18] I would begin by noting that the existing parenting arrangements were ordered after a lengthy trial. While I recognize that this order is under appeal, a judge of this Court has already determined that this best interests of the child are served by lifting the stay of the Trial Decision [ Jackson v Jackson , 2019 SKAB 155] until that appeal is decided.

Although in making this decision Caldwell J.A. was not asked to consider issues relating to the vaccination of the child, his determination was that the child’s best interests were served by leaving the arrangements ordered by McIntyre J. in place pending the outcome of the appeal. This must mean that the Trial Decision is to remain operative unless and until it is altered on appeal, or by way of an application to vary. This conclusion is a sufficient answer to all of Mr.

Jackson’s arguments that center on the best interests of the child. [19] Although I do not consider it proper to second-guess this previous judicial determination, it is appropriate to make some additional observations. [20] First, although Mr. Jackson has expressed concerns with respect to the safety of the vaccine, he has brought forward no evidence in relation to this issue. In this regard, even were it appropriate for me to consider this issue in the present procedural context – which, for the reasons I have given, it is not – Mr.

Jackson has brought forward no evidence that would allow the necessary weighing to take place. He has brought forward no evidence relating to the risks of the vaccine. He also has not brought forward any evidence relating to the risks the child faces of becoming infected with COVID-19 or, if she were to become infected, the relative risk to her health were that to occur relative to the risk, if any, she were to face if she were to be vaccinated. Therefore, I see no foundation to make the assessment that this part of Mr. Jackson’s position invites me to consider. [21] Second, I would emphasize that Mr.

Jackson’s self-help remedy means that the child has been removed from the primary care of the parent to whom the court has assigned the responsibility for the child’s day-to-day care. Mr. Jackson’s self-help also means that the child cannot attend school or attend extracurricular activities, both of which are in her best interests. Mr. Jackson attempted to meet this latter point with evidence that he was meeting some of the child’s educational needs by remote learning. I cannot accept this.

In the absence of some evidence to the contrary, I would proceed on the basis that it is in the child’s best interests to be schooled in the fashion that is consistent with the program that has been developed and implemented by the appropriate school officials. [22] Third, Mr. Jackson’s self-help undermines the foundation for all other parenting arrangements between the parties as they exist now or may exist in the future. Whatever stability exists in the child’s parenting arrangements – something that is very important to the well-being of the child – is grounded in the extant court order.

In this high-conflict situation, it is likely that the parties will need the certainty and strength of enforceable court orders to ensure stability in these arrangements into the foreseeable future. This latter concern transcends the immediate interests at stake in this application.

]23] The proper course for Mr. Jackson to take, given his belief that Ms. Jackson was intending to exercise the authority given to her by the Trial Decision to act in a way that was contrary to the child’s best interests, was for him to seek an order varying the existing parenting order. In this regard, Mr. Jackson has argued that he was prevented by Ms. Jackson from making an application to vary the parenting order because Ms. Jackson had delayed in providing him with a clear statement of her position with respect to the vaccination of the child. [24] However, although Ms.

Jackson’s early communications may not have been completely clear or prompt, I am not able to accept that it was appropriate for Mr. Jackson to exercise self-help. A review of the court file confirms that he is capable of making an application to court where he determines it to be necessary. Again, this was the proper route for him to follow if he felt that Ms.

Jackson was intending to exercise the authority given to her by the court order to act in a way that was contrary to the child’s best interests. [ 12 ] The father determined not to pay heed either to the order of Layh J. or the roadmap laid out by Leurer J.A. and continued to refuse to return the child to the mother. He further continued to refuse to engage in communication with the mother and refused to allow the child to communicate with the mother.

This state of affairs resulted in the mother making a further application, this time to vary the McIntyre judgment to provide her with sole custody and decision-making authority for the child, and further to have the father’s parenting time of the child supervised. The father was served by email with the application materials but did not appear on the return date of the application.

McCreary J. (as she then was) granted the mother’s application on January 5, 2022. [ 13 ] Despite the orders then in place, the father determined to continue to disobey their requirements and continued to refuse to return the child to the mother. He refused to engage in any discussion with either the mother or her counsel. He further refused to engage in any discussion with the authorities with a view to returning the child to her mother. Until his ultimate capture and arrest, both his and the child’s whereabouts were unknown to the mother, and apparently to the authorities.

How the father was supporting both himself and the child was unknown. The child’s emotional and physical state as well as her health were all, of course, also unknown. [ 14 ] To avoid the application of the orders, the father ultimately fled the province with the child and went to British Columbia. On February 24, 2022, the RCMP located the father in Vernon, British Columbia and placed him under arrest. The mother then flew to Vernon to be reunited with the child and to have the child returned to her care. [ 15 ] The father has remained in custody since February 24, 2022.

He has been charged criminally with an offence concerning the abduction of the child. It is not known what that charge is nor what stage those criminal proceedings are at as no evidence in this regard has been placed before the court. Presumably he remains on remand and the Crown has been opposed to his interim release. The father has not disclosed what efforts he has made to obtain such interim release nor whether the criminal charge(

s) have been set to proceed to a hearing. [ 16 ] On January 17, 2022, the mother commenced these contempt proceedings. The documents were served on the father by email. The application could not proceed until the father was located. Ultimately, the contempt application came back before the court on March 11, 2022, with the father then in custody. [ 17 ] While the application has been before the court, it has been adjourned and delayed on a number of occasions. Those adjournments and delays have occurred almost exclusively at the request of the father.

Initially an adjournment was sought to permit him to obtain counsel through a Legal Aid appointment. Then the matter was adjourned to allow the father to bring a preliminary application. That application was brought, and argument heard. A decision was rendered, reported at 2022 SKQB 114 . Following that decision Mr. Jackson determined to discharge his counsel and time was granted to allow new counsel to be appointed through Legal Aid.

That counsel sought an opportunity to get up to speed on the file and the father sought to file affidavit evidence on this application. [ 18 ] The argument on the application was ultimately heard on August 2, 2022. Prior to argument being heard, the court instructed the local registrar to forward to counsel an indication of two issues counsel might want to consider addressing during their argument. At the hearing, counsel for Mr. Jackson indicated he had not had an opportunity to discuss those issues with his client in advance of the hearing. Because Mr.

Jackson was in custody, an opportunity was provided by the court during an adjournment of the hearing to allow him and his counsel to speak privately. Following that consultation, and at the invitation of the court, Mr. Jackson’s counsel indicated an interest in filing a further brief to address the two issues posed. Timelines were set for the filing of the briefs from both parties. [ 19 ] Some time following the conclusion of that argument, by letter to the Local Registrar, Mr. Jackson advised he and his current counsel had a disagreement and he indicated that his current lawyer was no longer acting for him.

Upon receipt of that letter, the court granted an extension of time within which Mr. Jackson could file any further written material, should he decide to do so. No further material was filed within that extended period of time. [ 20 ] Mr. Jackson then forwarded a further undated letter to the local registrar which was received on August 25, 2022. In that letter, he indicated he was applying for new counsel to be appointed by Legal Aid. He did not indicate what specific relief he was seeking as a result of his pursuit of a lawyer.

The court invited him to provide further submissions in this regard. [ 21 ] A letter dated September 2, 2022 was received by the local registrar from Mr. Jackson. In that letter he indicates he seeks to have the matter placed in abeyance until he is able to retain and instruct counsel and until that counsel has an opportunity to properly familiarize themselves with the file. Mr. Jackson then goes on to renew his complaints regarding Megaw J. remaining as the presiding justice in this matter.

He repeats his previous concerns that the presiding justice is extremely biased against him. [ 22 ] With respect to the contempt application, the father seeks to justify his failure to obey the court orders in place because of his concern that the mother would proceed to have the child vaccinated for the COVID-19 virus. The father is very concerned about the effect of such vaccinations on a child and has opined that they will do the following to a child: 10) Specifically, the COVID 19 vaccines’ deleterious side effects include:

a) Compromising people’s immune systems;

b) Changing recipients’ DNA, and the way in which their immune systems react to illness and disease; and

c) Comprising female’s reproductive health, including disrupting menstrual cycles and negatively affecting reproductive capabilities. [ 23 ] The father has also filed the affidavit of Dr. Paul E. Alexander together with certain professional opinions. Those opinions comment on the appropriateness of vaccinating children. [ 24 ] There was discussion before Layh J. and Leurer J.A. about the mother’s intention to have the child vaccinated.

The father was concerned the mother would not listen to his opposition to the vaccine and was further concerned she was taking no independent steps to research the appropriateness and the efficacy of the vaccine. According to him, the mother had told him she would be relying on the direction of the government with respect to the administration of the vaccine. It appears he preferred that she accept the research he had completed and accept the child should not be vaccinated. [ 25 ] When the father refused to return the child, he was involved in negotiations with the RCMP regarding the vaccination issue.

The mother’s affidavit evidence provides as follows: 6. Commencing on January 22, 2022 until Michael’s arrest, my counsel and I were in close contact with the RCMP with respect to the investigation into Sarah’s whereabouts. The particulars are as follows: a. The RCMP maintained contact with Michael through a third party liaison, now known to be Shawn Sims. This third party attempted to negotiate on Michael’s behalf, through the RCMP, terms of Sarah’s release to me. b. The RCMP engaged a negotiator and several analysts to negotiate Sarah’s release with Michael. On several occasions, through the third party Mr.

Sims, the RCMP were approached with terms requested by Michael surrounding commitments I would make for his ongoing contact with Sarah, and variation of the existing custody order / parenting arrangements. My counsel and I conferred frequently with the RCMP regarding this aspect of the negotiation. c. The RCMP approached me about whether or not I would provide Michael an undertaking to not vaccinate Sarah against Covid-19. This was a specific request raised by Michael through Mr. Sims.

Through my counsel, I provided a letter a Michael, along with an Affidavit, the terms being that if Michael returned Sarah, I would agree to not vaccinate Sarah and provide to him an original copy of the Affidavit. My understanding from the RCMP is that they provided the letter and Affidavit to Michael, but he did not ultimately return Sarah voluntarily, as per the terms proposed. d. The RCMP advised on a number of occasions that individuals were harbouring and / or assisting Michael. e.

On February 12, 2022, I met with my counsel with the RCMP at F-Division to record several press releases, seeking information and public assistance with respect to locating Michael and Sarah. The first press statement was released on February 22, 2022 on a number of national and social media platforms. The press release noted on behalf of RCMP that Michael was being assisted in evading the police by third parties. f. On February 21, 2022, I was contacted directly by Mr. Sims, asking me to set up a “Signal” account, to speak directly with Michael, and possibly Sarah. I told Mr.

Sims that Michael needed to speak directly to police and / or my counsel. 7. RCMP officers advised me on several occasions that Michael’s “demands” were “escalating” in relation to his requests of me, regarding the family law matters pending. [ 26 ] At no time, prior to retaining the child, during the time he withheld the child, or since he has been remanded into custody, did Mr. Jackson bring any court applications to vary the parenting terms of the McIntyre judgment. Neither did he bring any ex parte applications to seek an order preventing vaccination of the child pending any such variation application.

His material does not indicate he contemplated bringing any such applications nor that he saw the need to bring such applications. DECISION The Respondent’s Request That This Matter be Held in Abeyance Pending Him Retaining Counsel [ 27 ] This matter first came before the court with both parties present in late March 2022. As indicated in the background section, the application has been adjourned at the request of the respondent on several occasions. Certain of those applications were allowed to permit counsel to be retained, to be instructed, to get properly prepared, and to bring the preliminary application.

Throughout this matter the court has indicated there is also a corresponding need to have this application heard and determined. This has meant setting dates as expeditiously as could be done in the circumstances. It is this present request to hold the matter in abeyance until Mr.

Jackson can find a lawyer to retain that is now before the court. [ 28 ] In determining a request for an adjournment, while there are many authorities that address the issue, the comments of Danyliuk J. in Sir v Fleury , 2018 SKQB 6 capture the elements involved in such a decision: [24] The decision on an adjournment request involves an exercise of judicial discretion. While that discretion is broad and appellate review of same is narrow, the authorities clearly dictate that the discretion must be exercised properly.

In exercising that discretion, a judge must consider whether the party seeking the adjournment will be placed at a serious disadvantage if that request is denied. One must balance that with a consideration of any prejudice accruing to the other side if the adjournment is given. In the background are concerns as to the proper administration of justice. The overarching consideration is to ensure the proceeding is fair. [25] In the course of coming to the discretionary decision regarding an adjournment, it would also be appropriate to consider matters

such as any prejudice to the party seeking an adjournment if it is denied; any prejudice to the opposite party emanating from delay or from the trial not proceeding; and the wider public interest in ensuring the proper administration of justice which includes making the best use of court time. [ 29 ] The decision on granting or refusing an adjournment request is discretionary. However, in exercising that discretion, the court must act judicially and consider the prejudice to both sides in granting or refusing the request and also must consider the effect of such a request on the proper administration of justice.

The court must endeavour to act fairly to the proceeding and to the parties involved. [ 30 ] Here, the argument of the matter has been concluded. The questions posed by the court prior to argument were as follows: 1. Is this a relevant issue on this contempt application? 2. Is the court able to take judicial notice of the efficacy of the Covid-19 vaccines? [ 31 ] There has been no further discussion of those questions, however they were the basis upon which Mr. Jackson’s opposition to the application was made and were addressed in his affidavit material.

Accordingly, I see no prejudice to either party in continuing with this matter to decision in the absence of a response on the specific matters raised. [ 32 ] By the time of argument, the parties had in excess of four months to gather their evidence and marshal their arguments. In light of the respondent’s entreaties, he was given a further month to allow counsel to be retained. That has not happened. This matter is an application within a family law proceeding.

While a contempt application is quasi-criminal in nature, like all other applications before the court, it must get on for hearing and determination in a reasonable manner. It cannot be placed on hold at the convenience of one party or the other. To do so is to do a disservice both to the parties and to the administration of justice. Parties have a right to have their matters heard. [ 33 ] Mr. Jackson’s lack of counsel is not something which automatically should prevent this matter from proceeding. He has retained and discharged two counsel during this process.

He has been given periods of time to retain both of those counsel. The argument on the matter has concluded with the evidence in support being submitted. This matter is ready now to proceed to a decision. [ 34 ] The respondent’s ongoing complaints about the presiding Justice and the issue of bias are not something which can be considered any further, at this stage, by this Court. A decision has been made on the submissions which were advanced. That decision may well be the subject of review by the Court of Appeal. It cannot be reviewed now before this court.

My colleagues on this court do not sit in appeal of me, and I, of course, am not entitled to sit in appeal of myself. As a result, those ongoing concerns expressed by Mr. Jackson are not a reason to hold this matter in abeyance. [ 35 ] Finally, the very nature of this application compels the court to make effort to bring it to a conclusion expeditiously. The application asserts that the respondent is thwarting the authority of the court and deliberately disobeying court orders.

As such, the court must move to address those concerns both in the context of this file but also in the broader societal context of endeavouring to act so as to preserve the public’s respect for the court and for the rule of law. [ 36 ] For all of these reasons, I determine to exercise my discretion to decline to grant any further adjournments of this application. In this case, the respondent is not seeking an adjournment to a specific date but rather until he has retained and instructed counsel.

It is not appropriate to continue to delay this matter without any resolution for both sides and for the public’s information. [ 37 ] In the result, I decline to grant an order holding this application in abeyance and determine to render my judgment on the application now. It should be noted that the name of the last counsel to act for Mr. Jackson has been left on the style of cause. At this stage, a notice of withdrawal of counsel has not been received. Accordingly, the last counsel remains the counsel of record.

The Law with Respect to Contempt Applications [ 38 ] Counsel for the father indicated during argument that the father admits the orders requiring him to return the child were in full force and effect. He further admits that the father had been effectively served with the orders and was well-aware of their existence. Counsel advised the court that the father did not seek to argue any procedural issue with respect to the contempt application.

As a result, the requirements set forth in Berg v Bruton , 2006 SKQB 17 , 276 Sask R 130 are acknowledged by the father to have been satisfied by the mother’s application materials. [ 39 ] The orders in issue were served by email on Mr. Jackson. He participated directly in the hearing before Layh J. He accepts he had notice of both of the subject orders. The comments of Tholl J.A. in Jones v Jones , 2020 SKCA 141 : [18] After receiving the application for contempt, Evan filed material in response and then appeared and argued the application in Chambers.

This full participation satisfies the portion of Rule 12-2(5) that deems a commencement document to have been personally served if the person has “taken any action that is necessary to participate in the proceedings”. As such, the combined operation of Rules 11-26(1), 12-2(1) and 12-2(5) deemed Evan to have been personally served with the application for civil contempt. This deeming, based on active involvement by the alleged contemnor in the contempt proceedings, fits comfortably with the requirement that a person be aware of the nature of the contempt application and its potential ramifications.

Evan was deemed to be personally served so the application was properly before the Chambers judge. This ground of appeal cannot succeed. [ 40 ] The father asserts that he had a right not to return the child due to his concerns over the COVID-19 vaccine and its effect on a child. The father seeks to avoid a finding of contempt solely on the basis that he therefore had a reasonable excuse for his failure to follow the orders.

[ 41 ] An application for contempt is governed by The Queen’s Bench Rules at Rule 11-26: 11-26(1) Except when a person is before the Court as described in subclause (3)(a)(ii) or (v), before an order declaring a person in civil contempt of Court is made, notice of the application for a declaration for civil contempt must be served on the person in the same manner as a commencement document.

(2) A notice of the application pursuant to subrule (1) must be in Form 6-5.

(3) A judge may declare a person to be in civil contempt of Court if: (

a) the person, without reasonable excuse: (

i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge; (ii) is before the Court and engages in conduct that warrants a declaration of civil contempt of Court; (iii) does not comply with an order served on the person, or an order of which the person has actual knowledge, to appear before the Court to show cause why the person should not be declared to be in civil contempt of Court; (iv) does not comply with an order served on the person, or an order of which the person has actual knowledge, to attend for questioning pursuant to these rules or to answer questions that the person is ordered by the Court to answer; (

v) is a witness in an application or at trial and refuses to be sworn or affirmed or refuses to answer proper questions; or (vi) does not perform or observe the terms of an undertaking given to the Court; or (

b) an enactment so provides. [ 42 ] The Children’s Law Act, 2020 , SS 2020, c 2 provides for penalties should an individual display wilful contempt of a court order regarding decision-making responsibility or parenting time for a child: 44(1) If the court on its own motion or on application is satisfied that any person has displayed wilful contempt of its orders or resistance to the court’s process or orders with respect to decision-making responsibility or parenting time with respect to a child, the court, in addition to any other remedy including variation of the order, may impose: (

a) in the case of a first finding of contempt: (

i) a fine of not more than $5,000; (ii) imprisonment for a term of not more than 90 days; or (iii) both that fine and imprisonment; and (

b) in the case of a second or subsequent finding of contempt: (

i) a fine of not more than $10,000; (ii) imprisonment for a term of not more than 2 years; or (iii) both that fine and imprisonment.

(2) If the court imposes a sentence of imprisonment pursuant to subsection (1) that does not exceed 90 days, the court may: (

a) order that the sentence be served intermittently at those times that are specified in the order; and (

b) direct that at all times when not in confinement pursuant to the order, the person comply with conditions set out in the order.

(3) The court may order that if a person defaults in payment of a fine imposed pursuant to subsection (1) the person shall be imprisoned for a period not exceeding 6 months.

(4) Proceedings pursuant to subsection (1) may be taken without having taken any other step for the enforcement of the order.

(5) The sheriff or any other officer or person pursuant to the sheriff’s or court’s direction may convey any person to be committed to prison without any further warrant other than a copy of the minutes of the court certified by a judge or the registrar.

(6) The keeper of the prison and all other persons whose duty it is to receive the person to be committed into custody are authorized and required to: (

a) receive the person to be committed into custody; and (

b) carry out and execute the order. [ 43 ] In Envacon Inc. v 829693 Alberta Ltd. , 2018 ABCA 313 , 426 DLR (4th) 472, the court speaks to what may be considered a reasonable excuse:

[35] There is another

interpretation of Carey [ Carey v Laiken , 2015 SCC 17 , [2015] 2 SCR 79 ]. The main issue in Carey was whether an alleged contemnor must have “contumacious” intent—that is, a desire to willfully disobey the court or to interfere with the administration of justice. The contemnor, Carey (a lawyer), was found to have breached an injunction that prohibited any person from “disposing of, or otherwise dealing with” the assets of one of his clients, including assets held in trust accounts.

Carey breached the order by returning to his client funds that he had been holding in trust and argued that his professional duties as a lawyer required him to return the funds. He contended that while he had in fact breached the order, he did not intend to disobey the court or interfere with the administration of justice, and accordingly, he should not be found in contempt. The Supreme Court rejected this argument. Contumacious intent is not an essential element of contempt.

It is not the intent to disobey the order that constitutes contempt, it is the disobedience itself: “all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice” (para 38). [36] We do not read Carey as changing the law that requires courts to look at reasonable excuse as an aspect of the test for finding contempt. Carey focusses primarily on the mens rea or the “mental element” of contempt: paras 28, 40–43.

The Supreme Court found that once an alleged contemnor has acted, or failed to act, in contravention of a clear court order of which he or she had notice, no special mens rea in the form of contumacious intent need be proved. Thus, excuses (such as Carey’

s) that went to the motivation or the intention behind the breach did not affect the finding of contempt. We also reject the suggestion that Carey changed this approach and that reasonable excuse is only to be considered with respect to the penalty after a finding of contempt. [37] However, not all reasonable excuses are an element of mens rea . Reasonable excuses may also go to the actus reus of contempt.

In order to be found in contempt, “the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels” ( Carey at para 35 , emphasis added). Particularly in the case of mandatory orders, an alleged contemnor may argue that his or her failure to do what the court required was not intentional. In these cases, a finding of contempt will turn on whether the alleged contemnor did enough to bring about the result the court order required.

This enquiry is distinct from the question of mens rea or contumacious intent, which was at issue in Carey .

Thus, not all “reasonable excuses” encompassed by rule 10.52(3) are excluded by the Supreme Court’s rejection of contumacious intent as an element of contempt. [38] Indeed, Cromwell J, writing for the Court in Carey at para 37 , acknowledged that in some cases, an alleged contemnor who tries diligently to obey an order but fails may avoid a finding of contempt (citations omitted and emphasis added): [W]here an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt ....

While I prefer not to delineate the full scope of this discretion, given that the issue was not argued before us, I wish to leave open the possibility that a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case. [39] In such cases, the alleged contemnor in effect has a reasonable excuse for failing to comply. That excuse goes to the finding of contempt, and not to the remedy or penalty. [40] In our view, Carey is consistent with the possibility of a due diligence defence to a finding of contempt.

On the facts of Carey a defence of due diligence was not possible. The order restraining Carey was prohibitory: it required him to refrain from “disposing of, or otherwise dealing with” funds belonging to his client. Carey intentionally did the act—the transfer—that contravened the order. The actus reus was clear. He chose not to obey the order. This differs from the situation where an alleged contemnor fails to comply with an order despite taking every reasonable step to do so.

In this situation, as Cromwell J acknowledged, acting in good faith in taking reasonable steps to comply may rightly avoid a finding of contempt where it would work an injustice in the circumstances of the case. [41] This

interpretation of Carey is in keeping with established principles pre- Carey . Courts have long held that a person to whom an order applies is required to make all reasonable efforts to comply: Ouellet v BM , 2010 ABCA 240 at para 34 , 323 DLR (4th) 745 ; Michel [ Michel v Lafrentz , 1998 ABCA 231 , 219 AR 192 at para 21 ; Free (Estate) [ Free (Estate) v Jones , 2004 ABQB 486 , 364 AR 384 ] at para 28. 2.

Burdens of Proof [42] With respect to civil contempt, Carey makes clear that the party alleging contempt must prove beyond a reasonable doubt the three requirements for a finding of contempt (clear order binding on the alleged contemnor of which the contemnor has notice and which the contemnor intentionally breached); see also Morasse v Nadeau-Dubois , 2016 SCC 44 at paras 19–21 , [2016] 2 SCR 232 . The persuasive burden is on the party alleging contempt and that party also has the burden to adduce evidence or point to evidence on the record, to support the allegations.

So by the time the topic of reasonable excuse comes up, the party seeking a contempt finding will have already proven the prima facie breach. [43] The difficult question is whether the words “without reasonable excuse” in rule 10.52(3)(

a) somehow alter the burden on the party alleging contempt or imposes a burden on the alleged contemnor? Said another way, does an evidential or persuasive burden apply to a reasonable excuse for what is proven beyond a reasonable doubt (contempt by disobedience to a court order). There may often be not much practical difference when the prima facie case of contempt is shown and the only evidence of the alleged excuse must be given by the alleged contemnor. But it is not always so. [44] For one type of non-compliance, the proffered excuse might be easy to see.

For another, there might have to be rather compelling evidence to avoid a finding of contempt. For a type of non-compliance which is said to be excused on a basis that only the alleged contemnor would know, one would assume that the alleged contemnor must produce that evidence. For yet another type of non- compliance, it may be that the excuse is revealed in the overall circumstances without any need for the alleged contemnor to prove anything because as a matter of legal principle or policy a finding of contempt would work an injustice in the circumstances of the case.

Further, an excuse may apply to part of the alleged contempt but not to another part. [45] In many cases, the moving party’s burden of proof will be met by proving non-compliance with the order because, absent persuasive evidence to the contrary, the court would be entitled to infer “no reasonable excuse.”

Determination of the Issue of Contempt [44] The father argues his concern over the child being vaccinated excused his contemptuous behaviour of theexisting court orders. He deposes to his concerns over the vaccine and its effect, according to his information, on the human body. Theaffidavits filed in support by the father are intended to bolster that concern over the administration of the vaccine on children. [45] However, while his concern over the vaccine may have been driving him, the contents of Mr.

Jackson’saffidavit quite clearly illustrate his real reasons for not obeying the court orders in place were because he disagreed with the existingparenting judgment; he was of the view that he would not be able to obtain a variation order in his favour because the court hadconsistently decided against him on other issues; and, he was right in his views on the vaccine and therefore he was entitled to take hisown self-help steps to avoid such vaccination of the child.

As a result of all of those rationales, he determined the only available courseof action for him was to take matters into his own hands to avoid the burden of the existing court order. I explain this conclusion asfollows. [46] I begin by observing that the focus of this judgment is not to pass comment on Mr. Jackson’s beliefs regardingthe COVID-19 vaccine. He has indicated to the court in his comments and his affidavit his concerns in this area. He is entitled to believewhat he wants, and he is entitled to profess those beliefs as he determines. The issue before the court is solely whether Mr.

Jackson’sfirmly held views provided to him a reasonable excuse for his failure to comply with a court order, and not whether those views arecorrect. [47] The father deposes that the mother would not listen to his concerns over the vaccine and further, would notprovide him with sufficient assurances that she would not have the child vaccinated due to his concerns.

He indicates his concern that shewas not doing her own independent research on the vaccination issue but rather was prepared to rely on the government approval system.Furthermore, he was not prepared to believe the mother, at the end of this ordeal, when she provided an assurance she would not get thechild vaccinated if she was returned to her. [48] This recitation of the father’s rationale brings into focus his ongoing disagreement with the McIntyre judgmentwhich provided the mother with final decision-making authority for the child with respect to matters involving health. Mr.

Jackson quiteclearly does not agree that the mother should have this power and further does not agree that she should be able to make decisionscontrary to that which he wants to see done. [49] This appears to be confirmation that the comments of McIntyre J. continue to apply. Mr. Jackson believes he isright and that his opinion is the one that matters.

He did not, and does not, accept that the mother should have the ability to makedecisions regardless of what McIntyre J. held in his judgment and regardless that judgment is the one that is binding upon the parties. [50] This is the father asserting his ongoing view that the McIntyre judgment was wrong, and he should havedecision-making power with respect to this child. Of course, the judgment is presumed to be valid and enforceable, and Mr. Jackson isnot entitled to either ignore its terms or attempt to enforce his will on the mother in contravention thereof.

The following comment inAlberta Health Services v Scott, 2021 ABQB 490 is appropriate here: [30] Likewise, I too will neither stay or adjourn these proceedings at this time pending counsel’s intention to review theappropriateness of the Rooke Order with Associate Chief Justice Rooke. Counsel may have leave to re-argue this point to determinewhether a stay of enforcement of any sanction I impose may be warranted based on the circumstances of this review. There is simply nojustification in my mind to entertain either an adjournment or a stay.

It is important that allegations of contempt be dealt withexpeditiously or the public will come to disregard the effect of court orders. At the present time, the Rooke Order is in full force andeffect and as Justice McLachlin in United Nurses [United Nurses of Alberta v Alberta (Attorney General), (SCC), [1992]1 SCR 901, (1992) 89 DLR (4th) 609 (SCC)] pointed out, a contempt hearing is not the place to look behind a valid court order unlessand until it has been successfully appealed or revoked. Even that, may not temper the effect of a contempt while the order was in effect. [51] Mr.

Jackson then suggests that due to the emergent nature of the vaccine issue, and the mother’s originalindications that she would not withhold having the vaccine administered, he did not have an opportunity to initiate any court proceedings.Essentially, it appears he is arguing that by the time any such court application was made, he believes the mother would have spirited thechild to the vaccine centre to have the vaccine administered. [52] As observed by Leurer J.A., a review of the court file confirms that Mr.

Jackson was well-familiar with thecourt process and with the procedure involved in making a court application. He was an experienced litigant who had been self-representing for a considerable period of time and who had brought a number of applications on his own behalf and had appeared beforethe court on a number of occasions. [53] Despite this knowledge and experience, he determined his self-help remedy was the appropriate way to proceed.Really what he was doing was determining the court process would not give him what he wanted and accordingly it was of no use to himto engage that process.

Again, while his personal concerns with the vaccine may well be honestly held, his lack of faith in the ability ofthe justice system to respond to his concerns quickly and effectively is not validly held. [54] The proper course for him to follow was both known to him, and quite clearly outlined by Leurer J.A. He oughtto have brought an application to vary the existing judgment of McIntyre J. If the situation was emergent and the mother would notprovide a sufficient assurance to refrain from the vaccination, Mr. Jackson’s appropriate course of action was to engage with the court byway of ex parte application.

This procedure allows the court to consider whether it is appropriate to provide immediate relief, based onthe evidence provided, pending hearing from both parties to the litigation. [55] Finally, Mr. Jackson appears to hold the view that the justice system and the Justices who hear his matters aredetermined not to grant him the relief he seeks. Perhaps this issue is in reality a subset of the earlier issues as well as a completestatement of Mr. Jackson’s approach to the system of justice. In short, Mr.

Jackson does not believe that he will obtain the relief hedemands because the court will not agree with him in any event. This is expressed by his affidavit comments concerning the discussion

had with Layh J. during the original argument on this matter. This is further expressed by his comments that he has not found success in the various applications he has brought. [ 56 ] Putting the position in this way quite clearly illustrates that the father’s assertions are little more than him advancing the position that because the court would not give him what he wanted, he was justified in ignoring the existing terms of the orders that were in place. This is him asserting he operates above the law and does not feel the need to follow lawful orders constraining his conduct. [ 57 ] Mr.

Jackson was completely aware of the order in place requiring him to return the child to the mother. Unusual as it may be, he also had both specific discussion and specific direction from a Court of Appeal justice on what he ought properly to do as a result of his disagreeing with the order then in place. Despite that, Mr. Jackson decided to take matters into his own hands. [ 58 ] There is no evidence before the court that Mr. Jackson took any reasonable steps, acting in good faith, to comply with the court order.

In fact, the entirety of the evidence is directly to the contrary in that he determined immediately that he was not going to comply with the court order because that would not allow him to get what he wanted. [ 59 ] The power to find an individual in contempt of court is available to protect and preserve the integrity of the court and the rule of law. However, it is first and foremost intended to ensure there is a mechanism to enforce compliance with valid and subsisting orders. Mr. Jackson’s behaviour flies directly in the face of this latter most fundamental societal requirement. [ 60 ] Mr.

Jackson is, in effect, asserting he did not have to comply with the court order because it was interfering with what he wanted. He is, of course, not entitled to take this position. To permit such a position to be recognized is to recognize anarchy: citizens comply with those orders they like and do not comply with those orders that run contrary to what they want. [ 61 ] In making a finding of contempt, I am mindful that this is a discretionary power, and it must only be used with great restraint.

In the family law context, this Court is always reluctant to impose a finding of contempt except in both the clearest of cases and in those situations where a finding will facilitate appropriate compliance with the existing order. In Heck (Meszaros) v Meszaros , 2021 SKQB 295 , the court stated: [68] To make application to utilize the court’s considerable power to find contempt is to invoke the full weight of the court machinery. It is a procedure not to be taken lightly and to be invoked only in those rare, clear cases where it will indeed be applicable.

While there are many judicial discussions on this power and its rare implementation in the family law context, I refer to Schultz v Schultz , 2015 SKQB 399 , Ackerman v Ackerman , 2017 SKQB 7 , Garand v Garand , 2016 SKQB 151 . [ 62 ] In B.B. v E.B. , 2020 SKQB 56 , Turcotte J. stated with respect to the power to find a family law litigant in contempt: [38] In respect of the contempt application brought by the respondent, I find as follows: (

a) The petitioner had clear notice and was aware of the terms of the Parenting Judgment. No issue was raised by the petitioner with respect to the procedural requirements underpinning the respondent’s contempt application against him. (

b) The petitioner withheld K.B., J.B. and R.B. from the care of the respondent when the children otherwise should have been in her care under the terms of the Parenting Judgment. (

d) The petitioner believed, based on K.B. being upset by the respondent’s drinking, he had a reasonable excuse for initially not returning K.B. into the care of the respondent and subsequently withholding K.B., J.B. and R.B. from the respondent’s care until additional protocols were put in place in respect of the respondent’s consumption of alcohol. (

e) Under the Parenting Judgment, the petitioner had an obligation to have K.B. and J.B. in counselling. Although the petitioner had arranged for the boys to be in counselling with C.F., a registered doctoral psychologist, C.F. withdrew as the boys’ counsellor in May 2019 due to her objectivity being compromised. In her discharge summaries of K.B. and J.B. (Exhibits “C” and “D” of the affidavit of B.B. sworn May 23, 2019), C.F. does not highlight that alcohol use by either parent was a source of stress or concern for either K.B. or J.B.

C.F. recommended ongoing counselling for K.B. and J.B. to help with their coping mechanisms and to reduce emotional stress. From and after the withdrawal of C.F., the petitioner took no steps to engage another counsellor for the boys until the commencement of this proceeding and following the first day of the hearing before me on January 29, 2020. (

e) The parties have not completed the joint counselling/mediation directed by Justice Goebel under the terms of the Parenting Judgment.

Although they attended a mediation session in or about May 2019, they have not subsequently attended any counselling or mediation in respect of the parenting of their children as required under the Parenting Judgment, despite the further direction of Justice Goebel on June 27, 2019. [39] In these circumstances, the overholding of the children from the respondent is not a clear breach of the Parenting Judgment by the petitioner for which no reasonable excuse has been provided by him. It is uncontroverted that K.B. was upset seeing his mother drinking an alcoholic beverage on New Year’s Day.

Given the determinations made by Justice Goebel regarding the impact of the respondent’s historical misuse of alcohol on her parenting capacity and the mistrust it created between the parties in their attempts at co-parenting, it is understandable the petitioner was deeply concerned when he heard K.B. report he had seen the respondent drinking.

However, it is also uncontroverted that K.B. has not been in counselling since May 2019 and the parties have not been in counselling to address their communication protocols and parenting protocols within the ambit of the co-parenting arrangement imposed upon them by the Parenting Judgment… [46] In all the circumstances, I am not prepared to find the petitioner in contempt of the Parenting Judgment for withholding K.B., J.B. or R.B.

As the Ontario Court of Appeal has recently identified in Ruffolo v David , 2019 ONCA 385 , 25 RFL (8th) 144 , and Chong v Donnelly , 2019 ONCA 799 at para 9 , citing from Carey v Laiken , 2015 SCC 17 at para 36 , [2015] 2 SCR 79 :

[9] … “[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with courtorders”.

This power should be exercised “cautiously and with great restraint” as “an enforcement power of last rather than first resort”.The [Supreme Court of Canada] added, at para. 37, that “a judge may properly exercise his or her discretion to decline to impose acontempt finding where it would work an injustice in the circumstances of the case.” [63] The comments in Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79 are of assistance in directing the inquiry as tothe purpose of the power of contempt: [30] Contempt of court “rest[s] on the power of the court to uphold its dignity and process. . . .

The rule of law is directly dependenton the ability 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. [31] The common law has developed to recognize two forms of contempt of court: criminal contempt and civil contempt. Thedistinction, 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. Withcivil 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 contemptis punishment 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. [32] Civil contempt has three elements which must be established beyond a reasonable doubt: Prescott-Russell Services forChildren and Adults v.

G. (N.) (2006), (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27; College of Optometrists[College of Optometrists (Ont) v SHS Optial Ltd., 2008 ONCA 685, 241 O.A.C. 225], at para. 71; Bhatnager v. Canada (Minister ofEmployment and Immigration), (SCC), [1990] 2 S.C.R. 217, at pp. 224-25; Jackson v. Honey, 2009 BCCA 112, 267B.C.A.C. 210, at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105, 196 N.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 threeelements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt findingensue only in appropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11… [36] The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with courtorders: 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 outragemight be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks toprotect”: Centre commercial Les Rivières ltée v. Jean Bleu inc., 2012 QCCA 1663, at para. 7. As this Court has affirmed, “contempt ofcourt cannot be reduced 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), (QCCA), [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 anenforcement power of last rather than first resort: Hefkey, at para. 3; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89O.R. (3d) 81, at paras. 41-43; Centre commercial Les Rivières ltée, at para. 64. [64] In Schulz v Schulz, 2015 SKQB 399, the purpose of contempt proceedings both specifically to the case at hand,and more generally to our society was discussed: [38] As a result, the power of contempt is to be wielded for the co-purposes of: 1. Causing compliance with a court order; 2.

Ensuring continued respect both for the court order and for the rule of law generally. [39] Both of these purposes are important and both must be considered when determining the issues now before the court. The purposeof causing compliance is to allow the court to use its coercive powers to get the situation before it remedied. First and foremost the courtwants parties to conclude their litigation.

To obtain this conclusion, it is necessary that those things mandated in the judgment becompleted. [40] The purpose of maintaining respect for the rule of law, while obvious, requires a gentle but firm hand from the court. The power isto be used “cautiously and with great restraint”. It is not to be wielded without regard for the particular circumstances presented. It is notto be an expression of outrage nor is it to become a convenient remedy of enforcement. [41] These co-purposes must be considered not just at the determination stage. They must also be foremost in consideration at thepenalty phase.

Again, has the judgment now been complied with? If so, what is a measured response to the actions of the party who wasreticent in his compliance? [65] And, in Bell/Gagne v VonRichter, 2021 SKQB 246 the observation that no one may put themselves above thelaw was pointed out directly: [41] The rule of law is the very rock upon which our society stands. The absolute requirement of all citizens to follow and obey courtdirection is an essential and fundamental part of that rule of law. No one member of our society is entitled to simply decide on their ownthat they will not follow the law.

To allow such is to invite anarchy. This is no less so in the family law setting. [66] As indicated, generally the court is always reluctant to both find a contempt and to punish for that contempt onissues of parenting. Rather, the court would prefer to address the parenting concerns directly and develop a parenting plan which willwork for the parties, always in the best interests of the child or children. However, such is not an option here. The father has determined

he is entitled to disregard clear orders.

As egregious as that statement is, it is made worse by the clear disregard of the discussion had by Leurer J.A. on the steps the father needed to take to deal with the concerns which he had. [ 67 ] The whole situation is then made even more concerning by the father’s actions in denying the mother any contact with the child, or even updating her on the child’s condition; his removal of the child from her school for an extended period of time; and his fleeing the jurisdiction to further his own goals of imposing his will on the situation involving the child. [ 68 ] Throughout these proceedings, the father has asserted he was right in proceeding as he did.

He has not expressed any measure of remorse or provided any indication he accepts and understands the magnitude of his actions in deliberately ignoring a court order. [ 69 ] In light of all of the foregoing discussion, this is one of those cases where I determine there must be a finding of contempt. The father blatantly refused to do that which he had been directed to do by the court. He then spirited the child away to further his own goals. Finally, he essentially argues this order should not apply to him because of his personally held beliefs.

In the result, I determine to find the father in contempt of this court’s orders by Layh J. and McCreary J. (as she then was). [ 70 ] The order of Layh J. directed as follows: 2. The Petitioner shall return the child, namely Sarah Carmencita Jacksion [ sic ], born April 4, 2014, to the care of the Respondent . 3. That for the purposes of enforcement of the Order of the Honourable Mr.

Justice McIntyre granted on June 24, 20019, the Royal Canadian Mounted Police and/or Regina City Police and/or any local police detachment are hereby instructed to locate, apprehend and deliver to the Respondent , physical possession of the child, Sara Carmencita Jackson, born April 4, 2014, and the said Peace Officer in carrying our this Order shall take whatever steps are necessary to carry out the Order. [Emphasis in original] The order of McCreary J. (as she then was) directed as follows: 5.

Sarah Carmencita Jackson, born April 4, 2014, is to be returned to the care of the Respondent Mother, Mariecar Latina Jackson, immediately. The Royal Canadian Mounted Police, and / or Regina City Police, and / or any local police department in Canada, are directed to locate and apprehend the child Sara Carmencita Jackson, born April 4, 2014, and to physically deliver the child to the respondent, Mariecar Jackson, to allow the Respondent Mother to have physical possession of the child as required by this Order.

The said peace officers shall take whatever steps are necessary to carry out this Order. [ 71 ] I find beyond a reasonable double that Mr. Jackson failed to abide by these orders by failing to return the child, Sarah Carmencita Jackson, to the mother, as directed. What is the Appropriate Penalty Following This Finding of Contempt [ 72 ] The mother seeks as a penalty a term of imprisonment at the maximum set forth in The Children’s Law Act, 2020 . She further seeks a fine be imposed.

She advances these positions because she asserts the severity of the father’s inappropriate behaviour must be brought home to him and, more generally that those in society must understand the absolute necessity to abide by valid and subsisting orders of the court. [ 73 ] The father has given no indication of any intention to follow court orders in the future. He continues to assert he was right in doing what he did. This is reflected in the clear evidence that he attempted to negotiate his way out of the existing court order through his discussions with the RCMP.

A court order is not a starting point for negotiations. It is that which must be complied with unless and until varied by further court order. [ 74 ] As indicated, the father’s behaviour in breaching the court orders was egregious, deliberate, and further it was something which he flaunted through the internet appearance identified in the evidence. He made no attempt to engage the court process to address his concerns over the vaccine. Rather, he quite simply took the law into his own hands and decided he was not compelled to follow the law, and that he knew better than the court.

He determined he could make his own rules and was not compelled to answer to anyone, much less this court of superior jurisdiction. [ 75 ] It is noted that apparently, he continues to be of that same view. As briefly discussed in the preceding section, he has not expressed any remorse for his actions. He has not indicated any level of recognition that his actions were both wrong and attacked the very fabric of our society and the rule of law. He advanced a specious preliminary application in his ongoing attempts to control the process to his liking.

During one chambers appearance he engaged in shouting at the presiding justice because he was not getting his own way and because procedural rulings were being made which were not what he wanted to see. It remains obvious that he neither recognizes his abject failure to act in the best interests of this child, nor understands the terror and agony he put the child’s mother through. Beyond this, it is apparent he does not recognize the error he made in disobeying the orders. [ 76 ] The determination of penalty on a finding of contempt is a discretionary decision for the court.

In Jones v Jones , 2020 SKCA 141 the Court of Appeal stated: [28] The choice of penalty or sanction imposed after a finding of contempt is a discretionary decision subject to a high degree of deference on review: G.(J.D.) [ G.(J.D.) v G.(S.L.) , 2017 MBCA 117 , 2 RFL (8th) 255 ] at para 73; Susin v Susin , 2014 ONCA 733 at para 53 , 379 DLR (4th) 308 ; Majormaki Holdings LLP v Wong , 2009 BCCA 349 at para 31 , [2009] 3 WWR 658 ; and Rimmer [ Rimmer v Adshead , 2002 SKCA 12 , [2002] 4 WWR 119 ] at para 58.

While the Chambers judge did not explain why he chose this particular sanction, I note that the Chambers judge was also deciding the application for

summary judgment. He had the benefit of being able to consider the effect of the striking of the affidavit within the context of the action as a whole and the claim for $38,750. In my view, the penalty was one that was within the range of available options in the circumstances of this matter. I can see no error in his choice. There

is no room for appellate interference on this basis. [ 77 ] The actions of the father here were extreme, deliberate, and deleterious to the child’s best interests. He decided he was entitled to do as he wished. For all of these reasons, I determine that a penalty at the higher end of the range is warranted. However, I decline to impose a penalty at the top of the range set forth in The Children’s Law Act, 2020 . That top end must be reserved for those very extreme cases.

While the father’s actions were extremely serious, I cannot conclude they necessarily amount to a worst- case scenario. [ 78 ] Any sentence imposed must consider both specific deterrence to this individual but also general deterrence to the public. Once it has been determined the offender’s behaviour is contemptuous, the consequences for that behaviour must be such as to deter both this individual and others in society from determining they do not have to obey valid court direction. [ 79 ] In all of the circumstances, I determine to impose a sentence of 60 days imprisonment for the father’s contemptuous actions.

This sentence is at the higher end of the available sanctions and speaks to the deliberateness of the father’s conduct together with his refusal to accept the authority of this court and the orders which it makes. A warrant for his committal to serve this sentence shall issue. [ 80 ] I have declined to impose a fine in addition to the period of incarceration. While not entirely clear from the materials filed, the father’s financial situation appears to be difficult.

I determine imposing a further fine on him would be a burden that is not necessary in light of the term of imprisonment imposed for his actions. [ 81 ] This then leaves the issue of costs. The mother has been successful on her application to have the father found in contempt. His actions, as clearly identified in these reasons were contemptuous of the court process. In these circumstances, I determine to exercise my discretion in favour of determining the mother is entitled to an order for costs. I fix those costs in the amount of $2,000 payable forthwith. J. M.T. MEGAW