M.B. v. D.B., 2024 PESC 6

SUPREME COURT OF PRINCE EDWARD ISLAND Citation: M.B. v. D.B. , 2024 PESC 6 Date: 20240130 Docket: S2-DV-1102/4273 Registry: Summerside Between: M.B. Petitioner (Moving Party) And: D.B. Respondent Decision on Contempt Motion Before: The Honourable Chief Justice Tracey L.

Clements Appearances: Cindy Cameron, lawyer for the Petitioner (Moving Party) D.B., on his own behalf Place and dates of hearing - Slemon Park, Prince Edward Island November 17 and 22, 2023; December 5, 2023 Place and date of partial oral decision - Slemon Park, Prince Edward Island November 22, 2023 Place and date of written decision - Charlottetown, Prince Edward Island January 26, 2024 (parties only) Place and date of written decision - Charlottetown, Prince Edward Island

January 30, 2024 (for publication) This version of the decision is a de-identified and partially redacted version of the decision previously provided to the parties. FAMILY LAW – request for changes to preservation order – contempt In August 2023, on the wife’s motion, the court issued a preservation order, although not as robust as sought by the wife. In November2023, the wife filed a motion seeking a finding of contempt against the husband and other relief. The husband failed to attend thescheduled November 17 hearing. He was cited in contempt and a warrant for arrest was issued.

At the November 22 hearing, the courtgranted some relief to the wife, including changes to the preservation order. At the husband’s request, the contempt portion of the motionwas adjourned – namely, to December 5. The husband failed to attend the December 5 hearing. The court finds the husband in contempt of specific portions of the preservation order. The husband is fined $2,500 for contempt, and inaddition is to pay to the wife $7,500 in costs.

STATUTES REFERRED TO: Family Law Act, RSPEI 1988, c F-2.1; Judicature Act, RSPEI 1988, c J-2.1; Financial AdministrationAct, RSPEI 1988 c F-9; Courts of Justice Act, RSO 1990 c. C. 43 RULES REFERRED TO: Prince Edward Island Rules of Civil Procedure, Rules 60.12 and 57 CASES CONSIDERED: Heijs v. Gerald W. Breuker, as Dutch Trustee, 2018 PECA 12; Vidéotron Ltée v. Industries MicrolecProduits Électroniques Inc., (SCC), [1992] 2 S.C.R. 1065; R. v. K.(B.)., (SCC), [1995] 4 S.C.R. 186;Carey v. Laiken, 2015 SCC 17; M.J. v. T.J., 2021 PESC 26; Teal Cedar Products Ltd. v.

Rainforest Flying Squad, 2023 BCSC 1406;SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97; Susin v. Susin, 2014 ONCA 733; Oliver v. Severance et al., 2007 PESCAD21; MacPherson v. Ellis, 2005 PESCAD 19 ; Jay v. DHL, 2009 PECA 11; Fraser v. Runighan, 2020 PECA 5 Clements, C.J.: I. Introduction/Overview [1] Should the court take the extraordinary step of finding the Respondent, D.B. (the “Husband”), in contempt?

Yes. [2] The record establishes, beyond a reasonable doubt, that the Husband is in contempt of portions of the order of the SupremeCourt of Prince Edward Island dated August 31, 2023 and filed October 5, 2023. [3] The wife (the “Wife”) urges the court to fine the Husband in the amount of $10,000 and also seeks costs in the amount of$7,500. [4] For the reasons set out, the Husband is fined $2,500 and ordered to pay to the Wife $7,500 in costs, plus applicable taxes. II.

Background/Chronology [5] In this section, I will provide some background facts, and then highlight the chronology, particularly with respect to the filingsand the hearings. 1. Background [6] The parties separated in the spring of 2022 and have two children. The family’s primary source of income has been theHusband’s fishing operation. The Husband fishes snowcrab in the spring in eastern Prince Edward Island and lobster in the fall. He hasan interest in a New Brunswick lobster license (owned by another individual). He also fishes tuna.

[ 7 ] The Wife previously sought a robust preservation order related to the Husband’s fishing operation, essentially giving control of the operation to the Wife. The Wife’s motion was heard in August, 2023 and at that time the Husband had legal counsel. The Wife was very concerned with the Husband’s actions and behaviours, including the Husband’s withdrawal of fairly significant sums from bank accounts; the potential depletion of assets; the potential impact on the Wife’s credit rating; and, the potential impact on the family home.

The Wife was particularly concerned given the Husband’s failure to make two substantial loan payments associated with the fishing operation (and for which the Wife is a guarantor). The Wife also sought spousal and child support. [ 8 ] At the commencement of the August, 2023 hearing, counsel for the Husband advised of his client’s consent to some of the relief sought by the Wife, including that the Wife have interim exclusive possession of the family home and that the parties have joint decision-making responsibility for the children. A consent order reflecting the areas of agreement was filed.

The Wife’s motion was heard on August 11 and additional submissions were provided post-hearing. The decision was rendered on August 31, 2023 ( M.B. v D.B. , 2023 PESC 39 ). [ 9 ] In

summary, I granted a preservation order, although not as robust as sought by the Wife. The order dated August 31, 2023 was filed on October 5, 2023. This is the order subject to the Wife’s contempt motion, and is referred to in this decision as the “October Order” or the “Preservation Order”.

In addition to obligating the Husband to pay child and spousal support, the Husband was directed to provide to the Wife detailed banking and related documentation regarding the fishing operation; details regarding the snowcrab; and, a full accounting of the Husband’s interest in the New Brunswick lobster operation. [ 10 ] I move now to a chronology of the matter. 2.

Chronology [ 11 ] Given the gravity of the order sought, I will highlight the chronology in some detail, including of the following hearings: November 17; November 22; and, December 5, 2023. [ 12 ] The Wife filed a motion record on November 9, 2023, which included a notice of motion; the Wife’s affidavit; a factum; and, a draft order.

The notice of motion clearly sets out the relief sought by the Wife, including: 1) an order finding the Husband in contempt of the Preservation Order and specifically, with respect to paragraph 6 of the Preservation Order; 2) an order fining the Husband “for each instance of contempt, and/or imprisoning him”; 3) an order replacing the Preservation Order with other enumerated terms; and, 4) costs.

The Wife’s draft order likewise clearly addresses the relief sought, including a finding of contempt and a vacating and replacement of terms of the Preservation Order. [ 13 ] The motion record was served on the Husband’s lawyer on November 7 and also served personally on the Husband on November 8, 2023. On November 9, the Husband’s lawyer made a motion to be removed as lawyer of record and the court granted that relief. I pause to note the motion for removal as lawyer of record was heard by another member of the court.

The order removing the Husband’s lawyer as lawyer of record was served on the Husband on November 9, 2023. [ 14 ] The Wife’s notice of motion clearly indicates the date and time of the Wife’s scheduled contempt motion – namely, November 17 at 9:30 a.m. at 40 Parkway Drive, Slemon Park. I pause to note the Wife’s August 2023 motion (seeking preservation) was likewise heard at the Law Courts at 40 Parkway Drive in Slemon Park, and the Husband attended and participated in that hearing. [ 15 ] The Husband failed to attend court on November 17.

The Wife’s evidence is that the Husband sent a number of texts to her including on November 8 and 9, 2023. While I will return to some of the Husband’s electronic communications later in this decision, at this stage I note the Husband texted the Wife on November 8, 2023. He acknowledged having received “paperwork” and indicated he would not be attending for court.

The text provides: You can tell your lawyer I just got paperwork last night an everything’s supposed to be in from me tomorrow that ain’t happening me going to court on Nov 17 ain’t happening … (emphasis added) [ 16 ] In the circumstances, and particularly given the direction of the Court of Appeal in Heijs v. Gerald W. Breuker, as Dutch Trustee , 2018 PECA 12 (“ Heijs ”), other than citing the Husband for contempt, I was not prepared to proceed with the Wife’s contempt motion on November 17. In

summary, on November 17, the Husband was cited in contempt of the October Preservation Order; the contempt hearing was adjourned to November 22; the November 17 order was to be served personally on the Husband by the Sheriff; and, I also issued a warrant for the Husband’s arrest – pursuant to Form 60 J of the Civil Procedure Rules (the “ Rules ”). The warrant directed that the Husband be brought before the court for the motion for a contempt order on November 22, 2023 at 1:30 p.m. at 40 Parkway Drive, Slemon Park. [ 17 ] The Husband was served with the November 17 order.

The November 17 order contains a number of recitals, including: 1) reference to the specific relief sought by the Wife, including an order finding the Husband in contempt; 2) the totality of

section 48 of the Family Law Act , RSPEI 1988, c F-2.1 addressing the powers of the court in the context of contempt, including the potential penalty or punishment; and, 3) the totality of Rule 60.12(5) , addressing the potential options available to a judge where a finding of contempt is made. [ 18 ] I move now to the November 22 hearing. Pursuant to the warrant, the Husband was brought before the court for the hearing on November 22.

The Husband was reminded of the gravity of the relief sought by the Wife and the seriousness of the potential penalties, as well as the various rights and safeguards he is entitled to on a contempt motion. He was provided a complete copy of the Wife’s motion record for the duration of the hearing. Ultimately, the Husband requested an adjournment. On consent, the court adjourned the contempt portion of the motion to December 5. At the November 22 hearing the Husband was specifically advised that the motion for contempt was being adjourned to December 5, 2023 at 1:30 p.m. at 40 Parkway Drive in Slemon Park.

The Husband provided assurances to the court that he would be in attendance and I declined to issue (another) warrant for arrest. The court did however proceed with the Wife’s motion for replacement terms in the Preservation Order.

[ 19 ] I pause to highlight some of the evidence of the Wife in support of the request to alter the terms of the Preservation Order. In broad strokes, the Wife’s evidence was that “significant sums of money” were going in and out of the business bank account, and the Wife was continuing to receive email notifications on the fishing business bank account. For example, over a one-month period there were deposits in the amount of approximately $28,000. Over $7,000 had been e-transferred to the Husband’s “girlfriend” and approximately $4,700 had been e-transferred to the “girlfriend’s mother”.

There was evidence before the court regarding other transfers in excess of $35,000 with respect to the fishing bank account. There was also evidence regarding funds of approximately $80,000 having been provided to the Husband. I granted relief from the bench in relation to the Preservation Order. At the risk of oversimplifying, I essentially granted the Wife access to the applicable bank accounts associated with the fishing business and granted the Wife fairly significant control over the fishing operation. [ 20 ] The Husband failed to attend for the hearing on December 5.

I nevertheless proceeded with the Wife’s contempt motion. III. Alleged breaches [ 21 ] The specific basis upon which the Wife sought a contempt order evolved. Initially, in the Wife’s notice of motion for contempt and supporting materials, the Wife argued three breaches or groups of breaches of the Preservation Order: 1.

Failure to comply with the disclosures and reporting obligations – namely, failure to provide to the Wife the banking and related records; failure to advise the Wife of the information related to the snowcrab; and, failure to provide to the Wife information regarding the Husband’s interest in the New Brunswick lobster operation. 2. Breaches in relation to the snowcrab, including the prohibition against selling or disposing any portion of the snowcrab landings from 2022 or 2023 without the Wife’s consent or alternatively leave of the court. 3.

Breaches in relation to the lobster fishing, including prohibition against selling any lobster privately or for cash and breaches arising from the obligation to deposit the Husband’s proceeds for the lobster operation into the fishing operation bank account. [ 22 ] However, at the hearing on December 5, counsel for the Wife advised the Wife was only seeking a contempt finding with respect to the Husband’s disclosure and reporting obligations. More specifically, the Wife argues the Husband should be found in contempt of paragraphs 6 (d), (g), (

j) and (

k) of the October Preservation Order. The totality of paragraphs 6 (d), (g), (j), and (

k) of the October Preservation Order are reproduced in the Appendix. [ 23 ] The Wife specifically withdrew her request that the court find the Husband in contempt with respect to paragraphs 6 (

h) and (

i) of the Preservation Order (prohibition against selling or disposing any portion of the snowcrab landings and related provisions). The Wife also withdrew her request that the court find the Husband in contempt with respect to paragraphs 6 (

l) and (m) (specific direction with respect to the lobster landings). Counsel for the Wife candidly conceded that given the standard of proof beyond a reasonable doubt, the Wife was not pursuing a contempt finding in relation to those specific clauses. This was prudent. IV. Highlights of Evidence [ 24 ] In this

section I will provide some highlights of the evidence that touches directly on the issue of contempt. However, before doing so, I pause to address some evidence regarding the issue of child and spousal support. 1. Child and spousal support [ 25 ] Counsel for the Wife makes clear the Wife is not seeking a finding of contempt in the context of child and spousal support. However, counsel does emphasize that the context is important. [ 26 ] At the commencement of the August 11, 2023 hearing counsel for the Husband readily acknowledged the Husband’s obligation to pay child and spousal support.

In particular, counsel indicated the Husband was prepared to pay child support in the monthly amount based on the Husband’s 2022 income. Counsel also advised the Husband was prepared to pay spousal support -- namely, the mid range figure based on the Divorce Mate calculations. [ 27 ] At the contempt hearing, counsel for the Wife reiterated the Husband’s testimony at the August hearing – namely, that he would pay child support “to the kids”.

In my written decision I agreed with the Wife’s counsel that it is somewhat difficult to reconcile the Husband’s evidence on cross-examination, with the position of the Husband as articulated by his counsel. In my August 31 decision I ordered that the Husband pay monthly child support to the Wife and I also ordered the Husband to pay monthly spousal support. [ 28 ] The evidence before the court is that the Husband has not paid any child or spousal support to the Wife .

The Wife’s evidence is that the Husband has paid “some money” directly to the children and based on the evidence it appears the Husband provided approximately $2,000 to the oldest child in the fall on 2023. I understand counsel’s argument to be that this is illustrative of the Husband’s evidence in August 2023, essentially to the effect that he was prepared to provide some financial support to the children, but not to provide the support to the Wife.

Nevertheless, for greater certainty, the Wife is not seeking any specific relief from the court on this motion in relation to child and spousal support, and counsel advised the Wife is pursuing enforcement with Maintenance Enforcement. [ 29 ] I move now to some highlights of the evidence. 2. Chronology and Evidence – Contempt Allegation

[ 30 ] While I will return to more detailed highlights of the chronology later, I note at this stage the written decision was provided to legal counsel for the parties on August 31, 2023. A de-identified version of the decision was published on September 5, 2023. The order was presented to the court and filed on October 5, 2023. The Wife’s counsel communicated with the Husband’s counsel and requested that the Husband immediately comply with the reporting and disclosure obligations in the Preservation Order.

The evidence is that “nothing” has been provided to either the Wife or the Wife’s lawyer – namely, in compliance with the disclosure and reporting obligations set out in the Preservation Order. [ 31 ] As noted earlier, the Wife led evidence regarding the Husband’s communications to her, including electronic communications. Some of the communications address what could be characterized as the Husband’s “intentions”.

The Wife’s affidavit of November 2, 2023 (filed November 9, 2023) provides the Husband “has indicated to me on several occasions that he does not intend to comply with the Orders” and further that he has told the Wife he is “going to drag this out for years”. [ 32 ] There are also a multitude of communications before the court, including text messages. To characterize the Husband’s communications as inappropriate would very much be an understatement.

The communications contain significant “name calling”; the Husband makes repeated statements to the effect that he is going to “charge” the Wife with fraud; and, he makes various other statements in relation to the court matter and the fishing operation.

I will provide a few examples. [ 33 ] On September 17, 2023 (which of course was after the August 31 decision), the Husband sent the Wife the following message: Ya right on see ya in court how’d ya fair out last time good luck next time hopefully ya got enough money to go another 4-5 times cause I’m gonna keep ya there for another year or two (emphasis added) [ 34 ] The Husband sent the following text to the Wife on November 3, 2023: Where ever you got this idea you think you can have anything to do with my company you won’t get to see a stamp with fishy business name on it with 7 accounts of fraud don’t worry if you think your gonna have anything to do with me from now on ya better think again Your not very smart trying to fuck me don’t worry let’s go now ya pissed me off really bad … Wait until ya see my next lawyer And it’s gonna be your fault the kids are gonna get dragged into this they’ll be coming to court don’t worry (emphasis added) [ 35 ] The Wife’s evidence is that after the Husband was served with the contempt motion record in November 2023, he sent the Wife a “barrage of text messages”, including the following sent on November 8, 2023: Do you know the judge already told you to stay away from me an my company are you fucked in the head you want full control of my company I left you cause I want fuck all to do with you an you think I’m gonna deal with you everyday running my company your fucked in the head your the one stealing my money out of my account paying for pools trips paying for your lawyer taking out money left an right paying off your visa takin out money putting in your account an you think I’m letting someone like you run my company your a piece of shit an want nothing to do with you I hope you stole lots of money cause we going to court for a long while you stupid bitch… … and you think you own part of my company your fucked in the head it’s my company you are not attracted in any way so let’s gho to court again you stupid bitch [ 36 ] As noted earlier, the Husband also sent the Wife a text on November 8 specifically indicating that he would not be going to court for the scheduled November 17 hearing. [ 37 ] The Husband also sent the Wife a text on November 8 or 9 indicating he would be putting the crab license in another individual’s name; there would be zero dollars in his own name; his personal name will have “no income from now on”; and, the Wife will owe him “monthly money”.

He suggests the Wife should settle with him for specified amounts (which have been redacted from the text messages in the materials filed) or the Husband will go to jail “for the winter”. He indicates it would be “just like camp in Alberta”; and, the Wife can spend a “few hundred thousand chasing” the Husband to go to court.

The text provides: I’m putting the crab license back in [redacted] name I’m putting 0 dollars in [ D.B. ] name next year so you’ll get sweet fuck all plus you getting charged for fraud so you’ll either take an offer of getting the house plus [redacted] an I’m taking care of 100% of the kids or else it’s gonna cost ya a lot more … … final offer or I’m going to jail for the winter be just like camp in Alberta I got nothing else to do an my personal name is gonna have no income from now on an you will owe me monthly money so take it or you can go spend few hundred thousand chasing me around getting me to go to court (emphasis added) [ 38 ] Having highlighted some of the communications, including regarding the Husband’s “intentions”, I move now to the analysis.

V. Analysis [ 39 ] In this

section I will first address the law of contempt and will then proceed with the discussion and decision.

1. Law [40] The issue of contempt is addressed in both the Family Law Act and Rule 60. [41]

Section 48 of the Family Law Act specifically provides the court may punish, by fine or imprisonment – or both – any “willfulcontempt of resistance to its process, rules or orders”. Section 48(1) provides a fine shall not exceed $5,000, nor shall the imprisonmentexceed 90 days.

Section 48 provides: 48.

(1) In addition to its powers in respect of contempt, the court may punish by fine or imprisonment, or by both, any wilfulcontempt of or resistance to its process, rules or orders under this Act, but the fine shall not exceed $5,000 nor shall the imprisonmentexceed ninety days.

(2) An order for imprisonment under subsection (1) may be conditional upon default in the performance of a condition set out in theorder and may provide for the imprisonment to be served intermittently. (emphasis added) [42] Rule 60 addresses enforcement of orders and Rule 60.12 specifically addresses contempt. Rule 60.12(5) provides that on acontempt motion the judge may make such order as is just and enumerates terms that may be ordered by the court: 60.12(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made,the judge may order that the person in contempt, (

a) be imprisoned for such period and on such terms as are just; (

b) be imprisoned if the person fails to comply with a term of the order; (

c) pay a fine; (

d) do or refrain from doing

an act; (

e) pay such costs as are just; and (

f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under Rule 60.10 against the person's property. [43] Directions, particularly with respect to the rights and safeguards individuals are entitled to, and the proper procedure, are set outin the Heijs decision.

Mitchell, J. (for the court) points out that notwithstanding the public/private difference between civil and criminalcontempt, there is “precious little difference in the punishment available” and the court notes as well that fines and incarceration arepossible in both cases (Heijs, para. 55). Therefore, one cited for civil contempt is accorded the protection normally associated with acriminal prosecution (Heijs, para. 55). Specifically, a person cannot be compelled to give evidence and the case must be proven beyond areasonable doubt (Vidéotron Ltée v.

Industries Microlec Produits Électroniques Inc., (SCC), [1992] 2 S.C.R. 1065;Heijs, para. 55) [44] As pointed out by the court in Heijs, there is a very important difference between citing someone for contempt and findingsomeone in contempt: citing an individual in contempt is putting the individual on notice that they may have been contemptuous and thatthey will be required to “show cause” why they should not be held in contempt (R v. K.(B.), (SCC), [1995] 4 S.C.R.186, para. 11; Heijs, para. 58).

At that stage, the person has the same procedural safeguards as if the person had been charged with acriminal offence, including the right to raise any available defence. As emphasized by the court in Heijs, it is only after according thecontemnor their procedural rights that a finding of contempt may be made (Heijs, para. 58). [45] On the motion before me, the Wife highlights the leading decision of the Supreme Court of Canada in Carey v. Laiken, 2015SCC 17 (“Carey”) as well as the decision of this court in M.J. v. T.J., 2021 PESC 26 (“M.J.”).

The three elements of civil contempt,which must be established beyond a reasonable doubt, are well-known: 1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done. 2. The party alleged to have breached the order must have had actual knowledge of the order. 3. The party allegedly in breach of the order must have intentionally done the act that the order prohibits, or intentionally failed to dothe act that the order compels. (Carey, paras. 33-35). [46] The court’s contempt power is discretionary.

Courts have consistently discouraged the routine use of the contempt power toobtain compliance with court orders; rather, the power should be used with restraint and as a last resort (Carey, para. 36). 2. Discussion/Decision

a) Elements of Contempt [47] I will now deal with each of the three elements required to establish civil contempt, recognizing of course that all three elementsmust be established beyond a reasonable doubt. Question No. 1. Has the Wife established beyond a reasonable doubt the subject paragraphs in the October Preservation Orderare clear and unequivocal? [48] Paragraphs 6 (d), (g), (

j) and (

k) of the Preservation Order put reporting and disclosure obligations on the Husband. These

paragraphs provide: … 6.

Preservation of Assets/Depletion of Property - - For the purpose of preserving assets and preventing the depletion of property pending a trial, … d. [D.B.] shall provide copies of all business banking and credit card records associated with [F.B.] to [M.B.] each week, via her counsel, including but not limited to banking and credit card records with [redacted] and [redacted] , including company credit cards, including at [redacted] (and including visa card ending in [redacted] , bank account [redacted] and any other accounts or credit cards owned or held by [F.B.]) and at the [redacted] (member number [redacted] , account number [redacted] ). … g. [D.B.] shall provide to [M.B.] via her counsel, the current location and contact information regarding where the frozen snowcrab is currently being stored. [D.B.] is to advise [M.B.], via her counsel, of any changes in the location or contact information. … j. [D.B.] shall provide a full accounting of [D.B.’s] interest in the New Brunswick lobster operation of [redacted] for the 2023 fall season including: i. name and contact information for the buyer; ii. weekly catches/landings; iii. price obtained; and iv. expenses, including but not limited to for bait, fuel and hired hands. k.

For greater certainty, the information with respect to [D.B.’s] interest in the lobster operation shall be provided to [M.B.], via her counsel on a weekly basis. [ 49 ] In broad strokes, pursuant to paragraph 6 (

d) of the Preservation Order, the Husband was to provide to the Wife via her counsel each week copies of all business banking and credit card records associated with the fishing operation. Paragraph 6 (

d) enumerates a non- exhaustive list of this information including references to specific bank accounts and credit cards. [ 50 ] Pursuant to paragraph 6 (

g) of the Preservation Order, the Husband was to provide to the Wife via her counsel the current location and contact information regarding the frozen snowcrab. He was also to advise of any changes in the location or contact information. [ 51 ] Pursuant to paragraphs 6 (

j) and (

k) of the Preservation Order, the Husband was to provide to the Wife via her counsel each week, a full accounting of the Husband’s interest in the New Brunswick lobster operation for the 2023 fall season, including information of the buyer; weekly catches/landings; price obtained; and, expenses. [ 52 ] I am satisfied paragraphs 6 (d), (g), (

j) and (

k) of the Preservation Order state clearly and unequivocally what the Husband was ordered to do. [ 53 ] I move now to the second question. Question No. 2. Has the Wife established beyond a reasonable doubt the Husband had actual knowledge of the October Preservation Order? [ 54 ] Before addressing the evidence which relates to the question of whether the Husband had actual knowledge of the October Preservation Order, I pause to highlight the context. [ 55 ] It is important to remember in the Wife’s original motion, the Wife sought a very robust preservation order.

The Husband was served with these documents, had legal counsel at the hearing in August, 2023 and fully participated in the hearing. Counsel for the Husband advanced specific arguments, including alternative arguments regarding the suggested order and the scope of any preservation order. One of the terms proposed by the Husband, albeit as an alternative, was that the Husband would provide to the Wife, via her counsel each week, copies of all business banking and credit card records.

An order imposing reporting and disclosure obligations on the Husband was very much “in play” – and specifically contemplated by the Husband. [ 56 ] I move now to the evidence that specifically addresses the issue of the Husband’s knowledge. As noted earlier, the August 31, 2023 written decision was initially provided to counsel for both parties.

A de-identified version of the decision was published on September 5, 2023. [ 57 ] Paragraph 93 of the written decision enumerates the terms of the Preservation Order, including the reporting and disclosure obligations that were subsequently set out in the actual court order. I understand the Preservation Order was signed by counsel on October 4. On October 5 the order, as signed by both parties, was presented to the court.

I signed the order on October 5 and the Preservation Order was also filed on October 5, 2023. [ 58 ] On October 4, the Wife’s counsel sent a detailed email communication to the Husband’s counsel specifically requesting that the

Husband immediately comply with the order. I highlight the following from the email communication: … As you know, I have now signed the Interim Order for consent to form and sent it to the Court for filing. The Order became effective on the date of the Judge’s decision: August 31, 2023. I am therefore asking that your client immediately comply with the following: 1. Provide copies of all business banking and credit card records associated with [F.B.] each week, (per paragraph 6(d)).

We ask that this disclosure is made immediately for each week from August 31, 2023 to present, and then made on a weekly basis going forward. 2. Provide to [M.B.], via her counsel, the current location and contact information regarding where the frozen snowcrab is currently being stored. If any change has bene [sic] made in that regard since August 31, 2023, we should be provided with the details on that change. (per paragraph 6(g)) … 5.

Provide a full weekly accounting of [D.B.’s] interest in the New Brunswick lobster operation of [redacted] for the 2023 fall season including: i. name and contact information of the buyer; ii. weekly catches/landings; iii. price obtained; and iv. expenses, including but not limited to for bait, fuel and hired hands. (per paragraph 6(j)) We ask that this disclosure is made immediately for each week from August 31, 2023 to present, and then made on weekly basis going forward. [ 59 ] The Wife’s counsel followed up with the Husband’s counsel on October 19, via email, requesting a response to the October 4 email. [ 60 ] Counsel for the Wife acknowledges that one cannot know with certainty the communications between the Husband and the Husband’s legal counsel at the time (namely, in the context of what was communicated to the Husband).

However, counsel argues that certainly based on the record, the Husband was aware of the court’s decision no later than September 17, 2023. I highlight the following electronic communications as between the Husband and the Wife on September 17, 2023: Husband: Ya right on see ya in court how’d ya fair out last time good luck next time hopefully ya got enough money to go another 4-5 times cause I’m gonna keep ya there for another year or two Wife: Bring it. Do you have a copy of the court order?

I faired out fine Husband: How did you fair out fine… got few surprises for you next time… don’t always believe what your lawyer tells ya they in it for the money … Wife: … It’s public knowledge for everyone to read the outcome online if you Google it … Here’s the public link everyone can read about us :) [ 61 ] In addition, the Wife’s evidence is that she sent the Husband the CanLII link to the reported decision on September 17, 2023 and the record includes a screenshot of a portion of the party’s communications which illustrates “canlii.org”.

Counsel highlights as well the record illustrates the Husband “stopped bragging” that he had “won” the case in court in August, once the Wife provided him the CanLII link to the decision. Alternatively, counsel for the Wife argues the Husband was ”willfully blind” (relying on Teal Cedar Products Ltd. v. Rainforest Flying Squad , 2023 BCSC 1406 , paras. 5-6 ) [ 62 ] I appreciate one could reasonably expect, and infer, that upon receipt of the written decision on August 31, 2023 counsel would have advised the Husband.

Nevertheless, I agree with the Wife’s counsel that, at the very latest, the Husband had actual knowledge of the decision no later than September 17, 2023. [ 63 ] I am satisfied on the record before me the Wife has established beyond a reasonable doubt the Husband had actual knowledge of the Preservation Order including the subject paragraphs. [ 64 ] I move now to the third question. Question No. 3.

Has the Wife established beyond reasonable doubt that the Husband intentionally failed to comply with the subject provisions of the Preservation Order? [ 65 ] In considering the question of intention, it is worthwhile to review some of the Husband’s text messages to the Wife, as

addressed earlier in this decision. [ 66 ] In the Husband’s September 17, 2023 text to the Wife he states “hopefully ya got enough money to go another 4-5 times cause I’m gonna keep ya there for another year or two”.

After the Husband was served with the Wife’s contempt motion he sent her a “barrage of text messages” and specifically states to the Wife that he is going to: put the crab license in someone else’s name; put “0 dollars” in his own name for the following years so the Wife would get “sweet f— all”; and, that his “personal name” will have “no income from now on” and that the Wife will owe him “monthly money”.

He states as well that if the Wife does not take his “final offer” he is going to go to “go to jail for the winter” and indicates it would be “just like camp in Alberta” and that he has “nothing else to do”. [ 67 ] In

summary, in the face of the Wife’s contempt motion for failure to comply with the terms of the Preservation Order, the Husband in no way suggests or infers that he is going to comply with the Preservation Order – quite the opposite. [ 68 ] I am satisfied the Wife has established beyond a reasonable doubt the Husband’s breach of paragraphs 6 (d), (g), (

j) and (

k) of the Preservation Order is intentional. [ 69 ] It is difficult to come to any conclusion other than the conclusion that the Husband has utter disregard, and perhaps even distain, for the Wife, the process of the court and the court order. The actions are very serious, cannot be ignored or explained away, and simply cannot be tolerated. [ 70 ] The court finds the Husband in contempt of paragraphs 6 (d), (g), (

j) and (

k) of the October Preservation Order (dated August 31 and filed October 5, 2023). [ 71 ] Given the finding of contempt, I move now to the issue of an appropriate penalty.

b) Penalty [ 72 ] As noted, both section 48(1) of the Family Law Act and Rule 60.12(5) specifically address the potential penalty where a finding of contempt has been made. Penalties include, but are not limited to, costs, a fine, or imprisonment. [ 73 ] Although the Wife’s notice of motion specifically indicates the Wife was seeking an order fining the Husband for each instance of contempt, “and/or imprisoning him” counsel for the Wife clarified at the hearing that the Wife is not suggesting the court order the Husband be imprisoned.

Rather, the Wife does seek an order that the court fine the Husband in the amount of $10,000. [ 74 ] Section 48(1) of the Family Law Act provides the fine shall not exceed $5,000. Counsel highlights paragraph 6 (

d) of the Preservation Order which obligates the Husband to provide copies of the business banking and credit cards records associated with the fishing operation to the Wife on a weekly basis. In addition, paragraphs (

j) and (

k) of the Preservation Order obligate the Husband to provide detailed information of the Husband’s interest in the New Brunswick lobster operation on a weekly basis. I understand counsel’s argument to be that the legislative regime allows for a $5,000 fine for each breach .

Given the number of weeks, and even months, that have passed since the Preservation Order, if the court were to fine the Husband $5,000 for each breach (or even per week), the total fine would be significant and certainly well in excess of $10,000. [ 75 ] Specifically dealing with the appropriateness of a fine, it is important to point out, as made clear by the Ontario Court of Appeal in SNC-Lavalin Profac Inc. v. Sankar , 2009 ONCA 97 (“ SNC-Lavalin ”) that contempt of court for breach of a court order is an offence against the authority of the court and the administration of justice.

Therefore, a fine imposed for contempt is payable to the Provincial Treasurer ( SNS-Lavalin , paras. 13-14). [ 76 ] I pause to provide some highlights of the decision in SNC-Lavalin . In this case, the motions judge found the defendants in contempt of court for disobeying an injunction and ordered the fine be payable to the plaintiff. This was overturned by the Ontario Court of Appeal. The court references in particular section 143(2) of the Courts of Justice Act , RSO 1990 c. C. 43 which provides the fine for contempt should go to the Crown.

Under that provision it is the Attorney General, rather than a party to the litigation, who may enforce a fine for contempt of court ( SNC-Lavalin , para. 17). [ 77 ] Of note is s. 66(2) of Prince Edward Island’s Judicature Act , RSPEI 1988, c J-2.1 : 66.

(2) A fine for contempt of court may be enforced by the Minister of Justice and Public Safety and Attorney General of Prince Edward Island in the same manner as an order for the payment of money or in any other manner permitted by law. [ 78 ] I also note some provisions of Prince Edward Island‘s Financial Administration Act , 1988 c F-9.

Section 20 of the Financial Administration Act provides that other than as otherwise provided by an enactment, all public money shall be paid to the Minister.

Section 1(

l) defines Minister as the Minister of Finance. In addition, s. 1(

q) specifically defines “public money”. [ 79 ]

Section 23 of the Financial Administration Act provides: 23. Every person employed in the collection or management or charged with the receipt of public money and every other person who collects or receives public money shall pay all public money to the credit of the Minister and shall keep a record of receipts and deposits thereof in such form and manner as the Comptroller may direct. [ 80 ] I also note the decision of the Ontario Court of Appeal in Susin v.

Susin , 2014 ONCA 733 (“ Susin ”) where the court, relying on SNC-Lavalin , reiterates that a fine imposed for civil contempt of court is not to be payable to a party in the action but rather is to be payable to the Provincial Treasurer ( Susin , para. 39 ). The court concludes that the motions judge had erred in imposing a fine payable to one of the parties and therefore the issue of a fine was open for reconsideration.

Of note as well in Susin , is that given the court’s conclusion that any fine was payable to the Provincial Treasurer and not the moving party, the moving party in fact expressed the preference that no fine be imposed. The reason was that payment of a fine to the Provincial Treasurer would have the effect of further diminishing the other party’s assets and making it even more difficult for the moving party to recover.

[ 81 ] Returning to the facts before me, I leave for another day whether the proper

interpretation of s. 48(1) of the Family Law Act potentially “caps” a fine for contempt, in these circumstances, at $5,000 or whether the legislation allows for a $5,000 fine for each breach , including each weekly breach. [ 82 ] I do pause to note that in the Wife’s original (August) motion record, the Wife led evidence regarding addiction issues and she expressed very significant concerns about what she perceived to be the Husband’s addiction issues, including drug use. The Husband denied this.

In the underlying decision, I concluded it was very difficult on an interim motion, the focus of which was on financial and related circumstances, to make a finding in relation to the alleged addiction issues of the Husband and I declined to do so.

I note as well the comment of the Wife’s counsel as well on the contempt motion to the effect that it is exceedingly difficult to know what is essentially “going on” with the Husband. [ 83 ] Given all of the circumstances, including the fact that any fine imposed will not be payable to the Wife, and including the Husband’s financial obligations to pay spousal support and child support, I am exercising some restraint: I am fining the Husband $2,500 for contempt. [ 84 ] The Husband’s $2,500 fine is payable to the Minister of Finance and is to be paid at the Supreme Court of Prince Edward Island.

Any questions the Husband has regarding the mechanics of making this payment may be addressed with the Registrar of the Supreme Court of Prince Edward Island.

c) Costs [ 85 ] The Wife also seeks costs in the amount of $7,500 in relation to the totality of the Wife’s recent motion – namely, both the motion to change the terms of the Preservation Order and the contempt. [ 86 ] In the circumstances, and given the number of court appearances, counsel for the Wife made oral submissions on the issue of costs and I did not require counsel to file formal written submissions on costs. Counsel advised the court that from October 3 until December 5, 2023 she had spent 27 hours and based on an hourly rate of $290, the total is $7,830.

However, upon review of her time docket, counsel in fact advised that she had neglected to docket her time for the November 22 hearing. In addition, the $7,830 figure did not reflect counsel’s attendances at court on December 5. In

summary, certainly counsel argues that given all of the circumstances, $7,500 is “quite reasonable”. Counsel highlights as well the process serving costs alone were in excess of $500. [ 87 ] The court has broad discretion in relation to costs as clearly articulated in s. 60(1) of the Judicature Act . Comprehensive and specific guidance is also provided in Rule 57.

Rule 57 provides that in exercising the court’s discretion in relation to costs under s. 60 of the Judicature Act , the court may consider, in addition to the result in a proceeding and any offer to settle, a number of additional enumerated factors, including: the principle of indemnity (including the experience of the lawyer for the party entitled to costs as well as the rates charged and the hours spent by that lawyer); costs that an unsuccessful party could reasonably expect to pay; the complexity of the proceeding; the importance of the issues; the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceedings; whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution; a party’s denial or refusal to admit anything that should have been admitted; and, any other matter relevant to the question of costs. [ 88 ] Also of note is Rule 60.12(5), which provides that where a finding of contempt is made, the judge has broad discretion, including ordering that the person in contempt “pay such costs as are just” ( Rule 60.12(5)(e)). [ 89 ] I also note the 2023 Costs Guide , effective September 1, 2023. [ 90 ] The Prince Edward Island Court of Appeal has provided significant direction on the issue of costs in numerous decisions, including for example Oliver v.

Severance , 2007 PESCAD 21 ; MacPherson v. Ellis , 2005 PESCAD 19 ; Jay v. DHL , 2009 PECA 11 ; and, more recently, Fraser v. Runighan , 2020 PECA 5 . [ 91 ] I have specifically considered the factors enumerated in Rule 57 as well as the totality of the circumstances before me. I note in particular what I would characterize as the Husband’s conduct and I conclude these are flagrant breaches of the Preservation Order. Of note as well is that the Husband failed to attend the scheduled court hearing on November 17 (although he was properly served).

He also failed to attend the court hearing on December 5, despite having given assurances to the court that he would attend. [ 92 ] I conclude the Wife’s request for costs is appropriate and I hereby order the Husband to pay to the Wife costs in the amount of $7,500 (inclusive of disbursements), plus applicable taxes. VI.

Summary/Other Directions [ 93 ] The Husband has been found in contempt of paragraphs 6 (d), (g), (

j) and (

k) of the order of the Supreme Court of Prince Edward Island dated August 31, 2023 and filed October 5, 2023. The Husband is fined $2,500 and the fine is payable to the Minister of Finance. [ 94 ] The Husband is ordered to pay the Wife’s costs in the amount of $7,500 (inclusive of disbursements), plus applicable taxes. [ 95 ] Counsel for the Wife is requested to prepare a draft court order reflecting the court’s direction for the court’s consideration. Counsel for the Wife is not required to provide the draft order to the Husband and the court is not expecting or requiring the Husband to provide his consent to the form of the order.

[ 96 ] Counsel for the Wife is also directed to serve the within decision, and the court order (once finalized and filed) on the Husband and service is considered effective by serving the Husband at the following two email addresses: [redacted] and [redacted] . Counsel for the Wife is also directed to file an affidavit of service confirming service of the written decision and the court order on the Husband, forthwith, after service has been effected. ____________________________ C.J.

January 26, 2024 (parties only) January 29, 2024 (for publication) Portion of Preservation Order dated August 31, 2023 and filed October 5, 2023: NOW THEREFORE this Court Orders as follows: … 6.

Preservation of Assets/Depletion of Property - - For the purpose of preserving assets and preventing the depletion of property pending a trial, … d. [D.B.] shall provide copies of all business banking and credit card records associated with [F.B.] to [M.B.] each week, via her counsel, including but not limited to banking and credit card records with [redacted] and [redacted] , including company credit cards, including at [redacted] (and including visa card ending in [redacted] , bank account [redacted] and any other accounts or credit cards owned or held by [F.B.]) and at the [redacted] (member number [redacted] , account number [redacted] ). … g. [D.B.] shall provide to [M.B.] via her counsel, the current location and contact information regarding where the frozen snowcrab is currently being stored. [D.B.] is to advise [M.B.], via her counsel, of any changes in the location or contact information. … j. [D.B.] shall provide a full accounting of [D.B.’s] interest in the New Brunswick lobster operation of [redacted] for the 2023 fall season including: i. name and contact information for the buyer; ii. weekly catches/landings; iii. price obtained; and iv. expenses, including but not limited to for bait, fuel and hired hands. k.

For greater certainty, the information with respect to [D.B.’s] interest in the lobster operation shall be provided to [M.B.], via her counsel on a weekly basis.