Fitzpatrick v Fitzpatrick, 2022 ABKB 862

Court of King’s Bench of Alberta Citation: Fitzpatrick v Fitzpatrick, 2022 ABKB 862 Date: 20221229 Docket: 4801 185855 Registry: Calgary Between: Petra Fitzpatrick Plaintiff - and - John Liam Fitzpatrick, Guenter and Hildegarde Doerfler Defendants Corrected judgment: A corrigendum was issued on January 3, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice L.K.

Harris _______________________________________________________ [ 1 ] This is an application by John Fitzpatrick, the Defendant in a divorce action, to have the Plaintiff, Petra Fitzpatrick, found in contempt of court for failing to comply with an order I previously granted in relation to certain matrimonial property.

I. BACKGROUND [ 2 ] The parties are embroiled in a high conflict divorce action in which there has been ongoing litigation about parenting, support, and the division of matrimonial property. They are registered as joint tenants on title to the matrimonial home and a condominium in Calgary. The parties separated in February 2020, and Mr. Fitzpatrick moved out of the matrimonial home in July 2020 into a nearby rental unit. Ms. Fitzpatrick continued to live in the matrimonial home. The condominium is occupied by Ms. Fitzpatrick’s parents, Mr. and Mrs. Doerfler, and according to Mr.

Fitzpatrick, they pay rent for the condominium which is currently being received by Ms. Fitzpatrick. [ 3 ] The parties have a shared parenting arrangement with respect to their two children although it appears that currently the children’s de facto primary residence is with their mother. Mr. Fitzpatrick pays both child and spousal support to Ms. Fitzpatrick. [ 4 ] Mr. Fitzpatrick brought an application in morning chambers on August 18, 2022, on notice to Ms. Fitzpatrick, seeking an order listing the parties’ matrimonial home and the condominium for sale.

The application also sought additional direction regarding the manner in which the properties were to be listed, shown and sold. [ 5 ] Mr. Fitzpatrick provided an affidavit detailing the high conflict nature of the parties’ separation. He expressed frustration at the fact that even though the separation had occurred two and a half years earlier, the divorce proceedings seemed to have stalled, with Ms. Fitzpatrick continuing to live in the matrimonial home, her parents in the condominium, and him in a small rental unit. He wished to purchase his own home that would be more comfortable for the children.

In submissions he argued that he could not afford to do that unless one of the properties was sold. He proposed that the sale proceeds be held in trust pending a resolution of the matrimonial property issues. [ 6 ] Mr. Fitzpatrick argued that he wanted to move forward with the resolution of the various issues between the parties, and despite discussions about settling the division of matrimonial property, the parties were not successful in doing so. [ 7 ] Mr.

Fitzpatrick provided evidence of three competitive market evaluations done on each of the two properties. [ 8 ] At the time of the August 18th application, Ms. Fitzpatrick was self-represented. She provided an affidavit in response to the application opposing the sale of both properties. Her evidence included that in 2013 she and Mr. Fitzpatrick “took over” her parents’ home, which became the matrimonial home. By that, I assume she meant the house was sold to her and Mr. Fitzpatrick, because they became the registered owners of that property.

The parties then took out a loan to purchase the condominium, also using in part the equity in the matrimonial home. Her parents then began to reside in the condominium. She stated that her parents paid the mortgage and all other expenses associated with the condominium. She stated that Mr. Fitzpatrick contributed nothing to the equity, and instead, transferred funds from the home equity line of credit to various personal accounts.

She also noted his late financial disclosure and took the position that he is not paying adequate child and spousal support and stated that she cannot afford to pay for another similar home for her and the children if the matrimonial home were to be sold. [ 9 ] Mr. Fitzpatrick filed a reply affidavit, strongly disputing Ms. Fitzpatrick’s version of events, stating that he has made significant financial contributions to the family and the matrimonial property as it was his salary that paid for the mortgages and family expenses.

He stated that he is up to date on all court ordered child support, and stated that any funds that were transferred from the HELOC to other accounts was done with Ms. Fitzpatrick’s full knowledge and consent and would be accounted for and distributed in accordance with any settlement of the property issues. [ 10 ] Notably, during the August 18th application, there was no evidence before me from either party as to the exact nature of any interest Ms. Fitzpatrick’s parents had in the condominium. The parties made submissions during argument on that issue: Mr.

Fitzpatrick’s asserted that the Doerflers paid rent and the condominium was an income property for the Fitzpatricks, and Ms. Fitzpatrick asserted during submissions that the equity in the condominium was part of her prospective inheritance from her parents, for her sole benefit, and that the payments made by the Doerflers were for the mortgage and all the expenses – the implication being that they had some sort of beneficial ownership interest in the condominium. [ 11 ] After reviewing the affidavits and hearing submissions from counsel for Mr. Fitzpatrick and from Ms.

Fitzpatrick, I ordered the sale of the condominium property, but declined to order the sale of the matrimonial home. My order included the following directions: • Ms. Fitzpatrick had an additional four weeks to buy out Mr. Fitzpatrick’s interest in the condominium; • If Ms. Fitzpatrick did not buy Mr. Fitzpatrick’s interest in the condominium, then the condominium would be listed for sale at a price to be determined by the listing realtor; • If Ms. Fitzpatrick would not sign the listing agreement, then Mr. Fitzpatrick had authority to sign alone; • Ms.

Fitzpatrick, and anyone occupying the condominium with notice of the order shall cooperate with the listing realtor, shall maintain the property in a marketable condition and shall allow access to the condominium to the listing realtor, any other realtor and prospective purchaser upon receiving 24 hours notice; • Ms.

Fitzpatrick was to provide keys to the condominium to the listing realtor to facilitate access; • Upon the condominium being sold, the proceeds were to be held in trust pending a resolution of the matrimonial property issues between the parties either by way of settlement or trial. [ 12 ] Four weeks passed, and Mr. Fitzpatrick did not receive an offer from Ms. Fitzpatrick to buy out his interest in the condominium. He retained a realtor for the purpose of listing the condominium for sale. The realtor contacted Ms. Fitzpatrick several

times commencing September 15, 2022 to obtain the keys so she could view the condominium. On September 21, 2022 the listing realtor met with Ms. Fitzpatrick and her father, Mr. Doerfler, and was told that Ms. Fitzpatrick did not have keys to the condominium, that Mr. Doerfler had keys to the condominium, and that he would not provide them to the listing realtor. Mr. Doerfler also advised they had arranged for an appraisal, and his intent was to purchase the condominium. [ 13 ] An affidavit of service indicates that the Doerflers were personally served with my August 18th order on September 27th.

Attempts were made to serve Ms. Fitzpatrick with the order but the process server was not able to serve her in person. Accordingly, a copy of the filed order was posted to the front door of the matrimonial property on September 30th. [ 14 ] The realtor, Ms. Fitzpatrick and Mr. Doerfler then exchanged emails discussing a walk-through and keys for access to the condominium although no progress was made. On October 12, 2022, Mr. Doerfler emailed the realtor to request a meeting to discuss the issue of keys and the walk-through. He also advised that there was a caveat pending against title to the condominium.

The realtor responded, requesting a meeting and a walk-through, keys for access and requested permission to have photographs taken for the listing. Mr. Doerfler responded: “Dear Ashley, Nice try, but I asked for a meeting to discuss our options. If you are interested in that, surely we can meet tomorrow…” [ 15 ] According to Mr. Fitzpatrick, the realtor concluded that she could not meet with Mr. Doerfler as that put her outside of her professional role. [ 16 ] On October 5th, Mr. Fitzpatrick filed a notice to attend docket court seeking a date for an application to cite Ms.

Fitzpatrick in contempt of court for failing to comply with my August 18th Order. Subsequently, Mr. Fitzpatrick received an offer to purchase the condominium from the Doerflers. He states that the offer was “well below market value, and certainly not pursuant to a formal real estate appraisal”. He has never seen the appraisal that Ms. Fitzpatrick says her father had obtained in September. [ 17 ] On October 27th, Mr. Fitzpatrick attended the condominium with a locksmith to change the locks.

The locksmith made five copies of the new keys so that the Doerflers, each of the parties and the realtor would each have keys. Mr. Doerfler arrived home as this was occurring. Once the locks were changed, Mr. Fitzpatrick gave Mr. Doerfler two keys, then drove to Ms. Fitzpatrick’s home to provide her a key. [ 18 ] The following day, Mr. Doerfler had the lock rekeyed, which prevented the realtor and Mr. Fitzpatrick from having access to the condominium once again. [ 19 ] Ms. Fitzpatrick did not appeal my August 18th Order. [ 20 ] Mr.

Fitzpatrick’s current application includes the following request for relief: “Finding that the Plaintiff, either on her own, or in collusion with her parents, Guenter Doerfler and Hildegarde Doerfler, to be in civil contempt for failure to abide by the Court Order granted on August 18, 2022…for the listing and sale of the condominium property…” “Declaring that Plaintiff/Respondent Petra Fitzpatrick, either on her own or in collusion with her parents, Guenter Doerfler and Hildegarde Doerfler, without reasonable excuse, failed to comply with the Court Order granted on August 18, 2022…despite having had knowledge of, notice of, and being served with, the August 18, 2022 Court Order.” “Imposing such punishment, penalties, or sanctions for civil contempt, pursuant to Rule 10.53, that this Honorable Court deems meet, in its discretion, against Plaintiff/Respondent Petra Fitzpatrick and/or her parents, Guenter Doerfler and Hildegarde Doerfler…” [ 21 ] At the application, Mr.

Fitzpatrick and Ms. Fitzpatrick each appeared by way of counsel. The Doerflers also appeared by way of counsel. II. Discussion a. The Position of the Respondents [ 22 ] Ms. Fitzpatrick and both of her parents each swore affidavits in response to Mr. Fitzpatrick’s contempt application. [ 23 ] Ms. Fitzpatrick describes the circumstances under which the matrimonial home and the condominium were purchased. She states that her parents had provided her and Mr. Fitzpatrick $225,000 for the down payments on the matrimonial home and the condominium, but that those funds were not a gift.

She disagrees that the condominium was an income property and says that her parents do send her money each month for the mortgage and expenses on the condominium instead of directly paying those expenses themselves. As a result of those payments, the mortgage has been reduced over time. She requests that the August 18th Order be amended to allow her to sell the condominium to her parents. [ 24 ] Mr. and Mrs. Doerfler’s affidavits are essentially identical. Interestingly, they state that “to the best of my knowledge, my daughter, Petra does not now, and has not since August 18, 2022, had a key to the Condo.”

[ 25 ] Both go on to make statements regarding their interest in the condominium. The Doerflers take the position that they have a beneficial interest in the condominium based upon arrangements made with the Fitzpatricks in 2013. The Doerflers state that they sold the matrimonial home to the Fitzpatricks for below market value as they were taking $100,000 in equity to purchase the condominium. They were not able to get a mortgage as their income was derived solely from foreign pensions, and so the Fitzpatricks became the registered owners of the condominium.

They never signed a lease agreement with the Fitzpatricks because it was their home, and they did not see the need. Since moving into the condominium, they have paid all of the mortgage, utility, condo fee payments by transferring the amounts due to the Fitzpatricks and paid for maintenance and repairs. The Doerflers take the position that the Fitzpatricks have not actually paid anything towards ownership of the condominium. [ 26 ] Ms. Fitzpatrick and the Doerflers argue that they are not in breach of the August 18th Order. b.

Overview of the Contempt Proceedings Generally [ 27 ] Superior Courts have inherent jurisdiction to control the proceedings before them. This has been described as a “broad function-driven inherent jurisdiction to control its own processes”: McClelland v Harrison , 2022 ABKB 852 at para 6 . For a court to operate effectively, it requires an ability to maintain order in its proceedings and ensure its directions are followed.

This is part of the rule of law: Schitthelm v Kelemen , 2013 ABQB 42 at para. 19 . [ 28 ] A finding of contempt of court is part of this Court’s authority to compel compliance with its orders and maintain the rule of law. [ 29 ] In Alberta, contempt of parties in civil matters is governed in part by Rules 10.52 and 10.53 of the Alberta Rules of Court , which provide: Declaration of civil contempt 10.52(1) Except when a person is before the Court as described in subrule (3)(a)(ii) or (v), before an order declaring a person in civil contempt of Court is made, notice of the application in Form 27 for a declaration of civil contempt must be served on the person in the same manner as a commencement document.

(2) If a lawyer accepts service of a notice of an application seeking an order declaring the lawyer’s client to be in civil contempt of Court, the lawyer must notify the client of the notice as soon as practicable after being served.

(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 under these rules or to answer questions 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 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. Punishment for civil contempt of Court 10.53(1) Every person declared to be in civil contempt of Court is liable to any one or more of the following penalties or sanctions in the discretion of a judge: (

a) imprisonment until the person has purged the person’s contempt; (

b) imprisonment for not more than 2 years; (

c) a fine and, in default of paying the fine, imprisonment for not more than 6 months;

(

d) if the person is a party to an action, application or proceeding, an order that (

i) all or part of a commencement document, affidavit or pleading be struck out, (ii) an action or an application be stayed, (iii) a claim, action, defence, application or proceeding be dismissed, or judgment be entered or an order be made, or (iv) a record or evidence be prohibited from being used or entered in an application, proceeding or at trial.

(2) The Court may also make a costs award against a person declared to be in civil contempt of Court.

(3) If a person declared to be in civil contempt of Court purges the person’s contempt, the Court may waive or suspend any penalty or sanction.

(4) The judge who imposed a penalty or sanction for civil contempt may, on notice to the person concerned, increase, vary or remit the penalty or sanction. [ 30 ] Carey v Laiken , 2015 SCC 17 at paras 32 and 33 , establishes that Mr. Fitzpatrick must prove beyond a reasonable doubt that there has been an intentional act or omission that is in breach of a clear order of which the contemnor has notice. The order said to have been breached must state clearly and unequivocally what should and should not be done.

Further, Alberta courts have incorporated the words “without reasonable excuse” into the test for finding civil contempt : Envacon Inc. v 829693 Alberta Ltd ., 2018 ABCA 313 at para 34 . [ 31 ] The order in question must be clear, precise, and unambiguous, and the alleged contemnor is entitled to the most favorable

interpretation of the order: Porter v Anytime Custom Mechanical Ltd ., 2016 ABQB 322 at para 20 . A respondent will not be held in contempt for breach of an implied or inferred term in an order. [ 32 ] Hearsay evidence is not admissible to establish contempt as a contempt order is a final order: Porter at para 21 . [ 33 ] In Schitthelm , Yamauchi, J. quoted with approval Placentia-St.

Mary’s Roman Catholic School Board v Newfoundland Association of Public Employees, Local 5802 , (1986), 60 Nfld & PEIR 350 at para 4 (Nfld SC (TD)) , wherein Steele J said “[t]he penalty for contempt of court may involve a fine or committal to jail and is therefore a punishment affecting the liberty of the person.

Consequently, contempt proceedings may have definite overtones of a criminal nature.” Steele J went on to quote the following passage from Nigel Lowe & Sir Gordon Borrie , Borrie & Lowe’s Law of Contempt , 2nd ed (London, UK: Butterworths, 1983) at 393, where the authors said: Although this aspect of contempt is designated civil , because of the penal sanctions, it has been said to 'partake of a criminal nature' and many of the rules that normally apply when seeking to prove an accused guilty of a crime, apply when seeking to show that the defendant has committed civil contempt.

It also means that the rules safeguarding contemners' [ sic ] rights must be strictly complied with. ( see Schitthelm at para. 26 ). [ 34 ] Yamauchi, J. concluded that Rules 10.53(1)(

b) and 10.53(1)(

c) are penal in nature. The threat of that punishment alone makes the Rules that govern civil contempt subject to the Charter , or at least some of its provisions (see Schitthelm at para. 26 ). Yamauchi, J. then went on to conclude at paras 28 and 29: In a civil contempt proceeding, the court may not discard the alleged contemnor’s rights. The court must, however, carefully balance those rights against those of the party who alleges that the alleged contemnor has committed civil contempt.

Above all, when a court considers the procedural requirements that are engaged in a civil contempt proceeding, it must ensure that the alleged contemnor is not found to have committed contempt without adequate proof of culpability. This informs all aspects of contempt procedure.

The procedure required to address the competing interests in contempt applications will not always remain constant; each case depends on its particular facts. [ 35 ] Carey confirms that where Rules of Court do not prescribe the form of contempt proceedings, as a general rule, they are bifurcated into a liability phase and, if liability is established, a penalty phase. In all cases, courts must examine the particular facts before them and determine the procedures that natural justice requires.

Nonetheless, because the contempt remedy is quasi-criminal, the utmost care must be taken in all cases to ensure that a contemners’ rights are observed. c. Is Petra Fitzpatrick in Contempt of the August 18 th Order? [ 36 ] I will consider each of the relevant provisions of the August 18 th Order individually. [ 37 ] The first provision gives Ms. Fitzpatrick an opportunity to purchase Mr. Fitzpatrick’s interest in the condominium. This opportunity expired four weeks from the date of the Order, or September 15, 2022. It is apparent that Mr.

Fitzpatrick received no offer to purchase in that timeframe, but as this provision is not compulsive it cannot form the basis for a finding of contempt. [ 38 ] Next, the August 18 th Order directed that if Ms. Fitzpatrick did not purchase Mr. Fitzpatrick’s interest in the condominium, it

was to be listed for sale. There were terms setting out who could sign the listing agreement if Ms. Fitzpatrick failed to sign, and as such, her failure to do so does not form the basis for a finding of contempt. [ 39 ] The first provision that required Ms.

Fitzpatrick to take positive steps was paragraph 3(d), which states: The Plaintiff/Respondent, Petra Fitzpatrick or any person in possession of, or occupying, the condominium property with notice of this Order, shall cooperate with the listing realtor, shall maintain the condominium property in a manner that is presentable and marketable to potential purchasers as reasonably directed by the listing realtor, and shall allow access to the condominium property to the listing realtor, any representative of the listing realtor, any other realtor approved by the listing realtor, and any prospective purchaser, upon receiving TWENTY-FOUR (24) hours written notice by text or email for a viewing on any Monday, Wednesday, or Friday evening between 5 pm to 8 pm and any Saturday or Sunday between 10 am to 6 pm.

Furthermore, the Plaintiff/Respondent, PETRA FITZPATRICK, or any person in possession of or occupying the condominium property that has notice of this Order shall either vacate the condominium property during viewings or shall refrain from interfering with viewings. [ 40 ] The following provision, paragraph 3(e), states: The Plaintiff/Respondent, PETRA FITZPATRICK, to provide keys for the condominium property to the listing realtor, to facilitate access to the matrimonial home during viewing hours. [ 41 ] Ms. Fitzpatrick swore in her November 15, 2022 affidavit that she does not have keys to the condominium.

I note that she did not swear to that in her affidavit of August 3, 2022, which was the evidence I had before me in making the August 18 th Order, nor did she raise that during the August 18 th application. [ 42 ] I further note Mr. Doerfler’s evidence that “…my daughter, Petra does not now, and has not since August 18, 2022 ” had a key to the condominium (emphasis added). [ 43 ] The only conclusion that can be reached from this evidence is that upon hearing my August 18 th decision, Ms. Fitzpatrick immediately gave the keys she had to the condominium to her parents.

Further, I conclude that this was done to avoid compliance with my August 18 th Order because it allowed her to advise the listing realtor that she had no keys to provide. [ 44 ] Even if this conclusion is wrong, the fact remains, Ms. Fitzpatrick was and continues to be a registered owner to the property. As such, she has the right to a key to the premises. Despite this right, she failed to either keep her key or failed to require her parents to provide her with a key. The purpose of this was to avoid compliance with my August 18 th Order. [ 45 ] Does this render Ms. Fitzpatrick in contempt?

I conclude that it does. I am satisfied beyond a reasonable doubt that despite having actual notice of my August 18 th Order (because she was in court when it was granted) she intentionally took steps to avoid providing keys to the listing realtor despite the clear direction in the August 18 th Order to do so. Ms. Fitzpatrick is in contempt of paragraph 3(

e) of the August 18 th Order. [ 46 ] Turning to paragraph 3(

d) of the August 18 th Order, I also conclude that Ms. Fitzpatrick is in contempt of that provision, which requires her to cooperate with the listing realtor. She failed to cooperate because she, at the very least, failed to provide the realtor with keys or as a registered owner, failed to require her parents to provide the keys. [ 47 ] Ms. Fitzpatrick and the Doerflers argue that a requirement to “cooperate” with the listing realtor is too vague to form the basis for a finding of contempt because it does not specify how they are to cooperate with the listing realtor. [ 48 ] In Ms. Fitzpatrick’s case, I disagree. When paragraph 3(

e) is read in conjunction with the requirement to cooperate, it is readily apparent that Ms. Fitzpatrick was obliged to cooperate by, in part, providing the realtor keys to the condominium. She failed to do so and took active steps to avoid that obligation. d. Are the Doerflers in Contempt of the August 18 th Order? [ 49 ] Rule 10.52(3)(a)(

i) requires that the order which requires a person’s compliance be served upon that person in accordance with the rules for service of commencement documents unless they have actual knowledge of the subject order – in other words, the Doerflers must have been personally served with my August 18 th Order unless I am satisfied that they had actual knowledge of the August 18 th Order. [ 50 ] My examination of the evidence before me does not show that the Doerflers had actual knowledge of the August 18 th Order at any time prior to it being served upon them personally on September 27 th .

Although the Doerflers met with the listing realtor before that date, there is nothing that establishes that they had actual knowledge of the Order. Therefore, I cannot conclude that the Doerflers are in contempt of the August 18 th Order until after they were personally served on September 27 th . [ 51 ] The only provision of the August 18 th Order which requires the Doerflers to take any action is paragraph 3(d), reproduced above.

That paragraph requires the Doerflers to: • Cooperate with the listing realtor; • Maintain the property in a presentable and marketable manner; • Allow access upon receiving 24 hours written notice for a viewing ;

• Vacate the property or to refrain from interfering with viewings. [ 52 ] The Doerflers argue that there is no evidence that they failed to comply with any of these directions. [ 53 ] Certainly, there is no evidence that the Doerflers did not maintain the property. Further, there have been no viewings (because the listing realtor could not do a walk-through or take photographs of the property in order to assess and list it) and so no 24- hour notice was ever given and there was no need for the Doerflers to vacate the property.

They cannot be found to be in contempt on that basis. [ 54 ] Thus, the issue is whether, after September 27 th , the Doerflers failed to cooperate with the listing realtor. Again, they argue that there is no evidence that they failed to cooperate, and in any event, the requirement to “cooperate” is too vague and does not comply with the need for the terms of the order to be clear and unequivocal. They also argue that any evidence relied upon by Mr.

Fitzpatrick in an attempt to establish their lack of cooperation consists of hearsay and Porter establishes that hearsay evidence cannot form the basis for a finding of contempt. [ 55 ] Mr. Fitzpatrick relies, in part, upon emails between the listing realtor and Ms. Fitzpatrick and the Doerflers, attached to Mr. Fitzpatrick’s affidavit, to argue that the Doerflers are in contempt of my August 18th Order. There is no evidence from the listing realtor directly setting out the details of her requests of the Doerflers and the details of any failure to comply with those requests on the part of the Doerflers.

The Doerflers themselves do not provide any evidence demonstrating contempt. The emails are hearsay and cannot be used to establish contempt on the part of Mr. and Mrs. Doerfler. [ 56 ] Mr. Fitzpatrick also relies upon his own direct evidence regarding his attendance at the condominium on October 27, 2022, for the purposes of changing the locks, and his statement that the Doerflers rekeyed the locks the following day.

This evidence is also not sufficient to establish contempt on the part of the Doerflers beyond a reasonable doubt as it requires an inference, in part reliance upon the hearsay evidence of the realtor, that the Doerflers failed to cooperate with her request to provide her with the keys. [ 57 ] I therefore conclude that upon the evidence before me, the Doerflers cannot be found in contempt of my August 18 th Order. III. Costs and Further Directions [ 58 ] As I have concluded that Ms.

Fitzpatrick is in contempt of my August 18 th Order, I direct that she immediately retrieve the keys for the condominium from her parents and provide those keys to Mr. Fitzpatrick. I again emphasize that as registered owners, Mr. and Ms. Fitzpatrick are entitled to possession of the keys. If Ms. Fitzpatrick fails to do so, or if the Doerflers refuse to provide her with the keys, or if the keys do not function (because, for example, the locks to the condominium were again changed), then Mr. Fitzpatrick has leave to return to me on an application with notice to Ms.

Fitzpatrick and the Doerflers for a ruling on the penalty to be imposed upon Ms. Fitzpatrick as a consequence of her failure to purge her contempt, and for such further and other relief as may be necessary. If the Doerflers decline to provide the key to Ms. Fitzpatrick immediately upon her request, then Mr. Fitzpatrick has leave to return to me on an application, again on notice to Ms. Fitzpatrick and the Doerflers, for a finding of contempt against the Doerflers. [ 59 ] Further, Ms.

Fitzpatrick and her parents will, within 7 days of their receipt of this decision, allow the listing realtor and a photographer to have access to the condominium for the purposes of a walk through, which will include permission for the realtor or her photographer to take pictures for the purposes of listing the condominium for sale. All other terms of my August 18 th order shall remain in force. [ 60 ] Although Ms.

Fitzpatrick requested that I amend my August 18 th Order to allow the condominium to be sold to her parents, that is not actually an application before me and accordingly, I decline to make that amendment absent further submissions from Mr. Fitzpatrick on this point. However, it would seem reasonable that if the Doerflers could make an offer that was acceptable to Mr. Fitzpatrick then such an amendment could be granted by consent of the parties. [ 61 ] Mr. Fitzpatrick is awarded costs of this application against Ms.

Fitzpatrick to be paid on a solicitor-client basis. [ 62 ] I concluded that the application for contempt against the Doerflers could not succeed as there was not sufficient evidence to establish contempt beyond a reasonable doubt. However, there was sufficient evidence to cause me to have significant concern about the Doerflers’ interference in these matrimonial proceedings between the parties. Accordingly, I decline to award costs in favour of the Doerflers. Heard on the 16 th day of November, 2022. Dated at the City of Calgary, Alberta this 29 th day of December, 2022. L.K. Harris J.C.K.B.A.

Appearances: Sonja Lusignan for the Plaintiff Alex Harris for the Defendant (Mr. Fitzpatrick) Chadwick Newcombe for the Defendants (Mr. and Mrs. Doerfler) _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice L.K. Harris _______________________________________________________ Changed Justice Harris’ signature line at the bottom to J.C.K.B.A.