Martineau v Henry Espina, 2023 ABKB 664

Court of King’s Bench of Alberta Citation: Martineau v Henry Espina, 2023 ABKB 664 Date: 20231123 Docket: 4806 022213 Registry: Lethbridge Between: Tyler Alan Martineau Plaintiff - and - Siobhan Henry Espina Defendant _______________________________________________________ Reasons for Decision on Contempt Application of the Honourable Justice G.H. Poelman _______________________________________________________ I. Introduction [ 1 ] This decision addresses allegations by Ms. Espina that Mr. Martineau was in contempt of court under various orders for conduct related to the children of their relationship.

The evidence comprises primary affidavits of Ms. Espina (sworn August 18, 2023), Mr. Martineau (sworn August 18, 2023) and a third party, Melanie Joy Jones (sworn September 8, 2023). [ 2 ] In addition, viva voce evidence by cross-examination and redirect examination was heard on September 21, 2023.

[ 3 ] Only the issue of whether there was a contempt of court is addressed in this decision. Any sanctions are reserved for a later date. II. Factual Overview [ 4 ] A brief description of the background will give context to matters in dispute. [ 5 ] The parties married on October 21, 2003. They have two children: a daughter, E, about 14.5 years old; and a son, L, about 13. They separated on September 2, 2019. [ 6 ] Since separating, the parties have engaged in hard-fought litigation. The record is full of applications, affidavits and orders.

No doubt this has taken a serious toll on each party’s financial and emotional resources. The impact on E and L has been far more damaging. [ 7 ] Over a year ago, Hartigan J., as case management justice, started a series of orders that recognized a concern that Mr. Martineau may have been alienating the children (particularly

E) from Ms. Espina. That resulted in directions from Hartigan J. and an arbitrator putting the children in Ms. Espina’s care with severe limitations on Mr. Martineau’s contact with the children, to the end of facilitating a reunification process directed by professionals. That came to an end in April 20, 2023 when E left her mother’s home for the home of a friend and obtained an emergency protection order against her mother. She still resides at her friend's home, under guardianship of her friend’s mother, Ms. Jones. [ 8 ] Ms. Espina alleges that Mr.

Martineau has acted in contempt of a number of court orders and, in general, has sought to undermine the reunification process. Mr. Martineau vigorously disputes these allegations and says, among other things, that the children’s alienation from Ms. Espina results from her abusive parenting. III. Procedural History [ 9 ] The orders relevant for the contempt applications are as follows: a. July 13, 2022 Order (Miller J.) directing Practice Note 8 assessment.

It is in the usual terms, including para 7 as follows: The parties may view the entire Assessment Report in their counsel’s office, or where one or both of the parties is self-represented, the party may make arrangements with the Clerk of the Court to read the Report with the Clerk. The self-represented party shall not receive or make a copy of the report but may take notes on the contents of the Report. The self-represented party must provide those notes to the Clerk who will make a copy for the judge making the order which copy shall be forwarded to the judge for that judge’s file. Mr.

Martineau was self-represented at the time. b. June 2, 2022 Order (Hartigan J.) , in which the court accepted Mr. Martineau’s proposal for reunification therapy (Hartigan J.). The wording of the order is confusing (inconsistently describing the parties as plaintiff or defendant, rather than by names). Mr. Martineau had made a proposal for reunification therapy and was directed to engage the services of an agency for that purpose.

Pending commencement of the program, “there shall be the following changes made to the interim parenting arrangement to reflect the necessity of reintegrating E with the defendant” which included over the following two Saturdays Ms. Espina having an unsupervised lunch or coffee with E, of one hour in duration. It was ordered that Mr. Martineau would make “no further mention of the defendant’s mental health to the children of the marriage.” The

preamble of the order includes the following: AND UPON recognizing that this is a high conflict matter, where in past efforts to reunify the children with [Ms. Espina] have been frustrated, with both parties having contributed to the conflict; AND UPON finding that [Mr. Martineau] has engaged in alienating behaviour that has contributed to the alienation of E . . . from [Ms. Espina]. c. June 15, 2022 (Hartigan J.) granting by consent an order prepared by the parties’ chosen arbitrator, Asif K. Muhammad, as mediator with arbitration powers. Mr. Martineau remained self-represented.

The order is detailed and lengthy. It refers to Mr. Muhammad having decision-making authority on a wide range of matters, including direction and enforcement regarding any specific therapy or programs to be engaged; granting sanctions or imposing financial penalties against a party who has been non-compliant or in breach of prior court orders or arbitration awards.

It further provides that “any arbitrated decision or award issued by the mediator shall be deemed an order of this court, unless otherwise stated in a subsequent order” and that “the terms of this order shall not in any way constitute a conferral of the court’s authority, and the court shall maintain full jurisdiction over all issues in this action.” d. August 15, 2022 arbitration award (Mr. Muhammad) , directing completion of the High Road Program (a reunification program) which would involve Mr. Martineau delivering the children to the office of Mr. Muhammad and thereafter requiring Mr.

Martineau and his partner, Jennifer Coutts, as well as their relatives, friends and associates to have no contact with the children or Ms. Espina, and Mr. Martineau and Ms. Coutts not initiating any third party contact with them. The duration of the program was to be determined by Mr. Muhammad, “but shall be no less than 90 days from return of the family to [Ms. Espina’s] home after the successful completion of phase one.” e. August 30, 2022 Order (Hartigan J. ): The order holds that Mr. Muhammad’s August 15, 2022 award “shall be and is hereby declared an order of this court . . . and [Mr.

Martineau] shall be and is hereby directed to comply with any such awards in all respects. These awards shall accordingly be viewed by any assisting peace officer as fully enforceable orders of the court.” In addition, the children were to be forthwith returned by Mr. Martineau to the care of Ms. Espina; Mr. Martineau was to make all efforts to ensure he does not converse with the children or express any form of discouragement about complying with the order and “shall tell the children that they are safe in the care of Ms. Espina.” The

preamble to the orders stated that it was essential for the children to resume their

relationship with their mother immediately. f. December 1, 2022 Order (Hartigan J.) , apparently dismissing an application by Mr. Martineau for a change of parenting; directing that the August 30, 2022 order would remain in full force and effect until the High Road Program was completed; and the involvement of counsel for the children was to be suspended until completion of the program. g. May 26, 2023 Order (Hartigan J.) directing continuation of the August 30, 2022 order and the High Roads Program except the requirement for E to reside with Ms. Espina was suspended until further order.

In the meantime, a one day viva voce hearing was scheduled for Ms. Espina’s various contempt applications which had been put on pause in earlier orders. h. July 19, 2023 Order (Hartigan J.): the

preamble contains strong statements, not usually seen in an order. It recognizes that the issue of parental alienation by Mr. Martineau “is a live issue.” It expresses “strong concerns with respect to alienation potentially having occurred.” Finally, the court being unable to return E to Ms. Espina’s custody because of “other court Orders” (presumably, the emergency protection order obtained by E against her mother) the court “reluctantly finds E’s best interests is to reside a parent instead of a third party” thus returning her to Mr. Martineau’s full time care. The order required Mr.

Martineau not to discuss the proceedings, Ms. Espina, or any criminal, police or EPO matters with E, and to not allow this to occur with any third party. IV. Contempt Applications [ 10 ] Ms. Espina has applied for contempt findings against Mr. Martineau by applications of August 29, 2022, November 29, 2022 and June 2, 2023. The hearing also involved evidence about alleged incidents of contempt that occurred after June 2, 2023. [ 11 ] The alleged breaches of court orders primarily relate to no-contact provisions in the orders. V. Legal Principles A.

General Principles [ 12 ] Legal authorities have settled “that 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”: Carey v Laiken , 2015 SCC 17 , para 38 ; JLZ v SMZ , 2021 ABCA 200 , para 34 . Rule 10.52(3) of Alberta Rules of Court codifies the requirement for contempt in similar words, but makes express the provision that the breach of an order must be without reasonable excuse: 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[.] [ 13 ] Three elements must be established beyond a reasonable doubt before civil contempt can be found: the order alleged to have been breached must state clearly and unequivocally what should and should not be done; the party alleged to have breached the order must have had actual knowledge of it; and the party alleged to be in breach must have intentionally done what is prohibited or intentionally failed to do what was compelled: Carey , paras 32 and 35 ; Envacon Inc v 829693 Alberta Ltd , 2018 ABCA 313 , para 42 . [ 14 ] As noted, the cases require the three elements to be proved beyond a reasonable doubt.

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: Envacon , para 42. [ 15 ] The codification of contempt in rule 10.52(3) adds the requirement that failure to comply was “without reasonable excuse.” Because the primary burden is on the party alleging contempt, the reasonable excuse defence will come up only after a prima facie breach has been established: Envacon , paras 42 and 48.

However, “the court is entitled to presume that the alleged contemnor acted with knowledge of the facts, unless there is some evidence to the contrary from the alleged contemnor who alone can know on what belief he acted and on what ground the belief, if mistaken, was held”: Envacon , para 48, citing authority.

It is not a shifting of a burden because there is no obligation on an alleged contemnor to prove anything, but as a matter of tactics and prudence the weight of adverse evidence may compel an alleged contemnor to put forward countervailing evidence “either to provide a reasonable excuse or to prove that it did what was required of the order”: Envacon , paras 48 and 49. [ 16 ] The absence of reasonable excuse merely is another way to emphasize that the contempt power – both as to liability and sanctioning aspects – is highly discretionary.

Citing authorities, Carey holds that the contempt power is discretionary and should not routinely be used to obtain compliance with court orders; contempt of court cannot merely be a means of enforcing judgments; contempt should be used cautiously and with great restraint; and contempt is an enforcement power of last resort: para 36. [ 17 ] Koch v Koch , 2017 ABCA 310 , also emphasizes that civil contempt is primarily coercive rather then punitive and thus largely concerned with ensuring compliance with court orders: para 14.

Even where the necessary elements for a contempt finding are made out, sometimes it may be inappropriate to make a contempt finding because of the serious consequences and criminal element of contempt proceedings: Broda v Broda , 2002 ABCA 73 , para 12 . [ 18 ] Particularly in family cases, courts should use civil contempt “sparingly and as a last resort”: M.E.L. (P.) v B.J.L , 2013 ABQB 227 , para 38 .

B. Arbitration Awards [ 19 ] One of the alleged breaches underpinning the contempt application is Mr. Martineau’s continued contact with – and assuming care of – the children from August 25-30, 2022. During that time, the arbitration award had directed that Mr. Martineau, Ms. Coutts (his partner) and others “shall have no contact with the children” (arbitration award, para 13). [ 20 ] The question is whether there can be a finding of civil contempt for a breach of this award.

Rule 10.52 speaks of not complying with an “order”; the definition of “order” ( Alberta Rules of Court Appendix, “Definitions”) says an “ ‘order’ means an order of the Court.” When the leading cases speak of orders in the contempt context, they mean court orders: for example, Carey , paras 30 and 31 ; R.O. v D.F. , 2016 ABCA 170 , para 9 ; Envacon , passim . [ 21 ] Mr. Martineau’s argument on this point is articulated in his affidavit sworn August 18, filed August 21, 2023: 10. It is important to note that paragraphs 1 and 2 of the August Hartigan Order affirms that the arbitration award granted by Asif K.

Muhammad on August 15, 2022 . . . [sic]. 11. Paragraphs 1 and 2 of the August [30] Hartigan Order clearly declare the August [30] Asif order, “along with any prior or subsequent arbitration awards by Mr. Muhammad and the plaintiff shall be and is hereby directed to comply with any awards in all respects”. The phrasing of this order thus retroactively enforces the no contact provision of the August Asif Order as of August 15, 2022. [ 22 ] Ms. Espina has not expressly articulated her argument on this point. At its strongest, I would take it to be as follows: a.

The June 15, 2022 order appointing the arbitrator stated that “any arbitrated decision or award issued by the mediator shall be deemed an order of this court, unless otherwise stated in a subsequent order.” b. The alleged breach, if established, was therefore a breach of a decision or award deemed in advance to be a court order. c. All of this was confirmed when the arbitration award was “declared an order of this court” by Hartigan J.’s August 30, 2022 order. [ 23 ] These arguments must, in my view, fail.

Civil contempt proceedings are quasi-criminal in nature ( Carey , para 42 ) with potentially severe consequences. The requirements must be strictly construed. [ 24 ] Further, the power to find someone in contempt rests on the need for the court to uphold its dignity and respect: Carey , para 42 . These principles explain why the first element to be proved beyond a reasonable doubt is a clear, unequivocal court order of what should or should not be done. An arbitration award is not a court order, although it may become one: Arbitration Act , RSA 2000 c. A-43,

section 49 . In this case, it became a court order pursuant to Hartigan J.’s August 30, 2022 order. The Act contemplates throughout that enforcement of an arbitration award occurs by application to make it a court order after the award is issued: see, for example, sections 6, 25 and 49. [ 25 ] At least for contempt purposes, the June 15, 2022 consent order appointing the arbitrator and stating that any decision or award would “be deemed an order of this court, unless otherwise stated in a subsequent order” did not give advance court order status to anything the arbitrator might decide.

Even a court order cannot by decree make something what it is not. Further, arguably its very words are provisional. All of this was implicitly recognized in the need to declare the arbitration award to be “an order of this court” as was done in Hartigan J.’s August 30, 2022 order. VI. Evidence A. Siobhan Henry Espina 1. Affidavit [ 26 ] Ms. Espina’s affidavit begins with background information. It then summarizes the orders on which she relies and states why Mr. Martineau would have been aware of them. [ 27 ] The main part of Ms. Espina’s affidavit sets out her allegations of breaches by Mr.

Martineau, drawing from her earlier affidavits. Primarily, her allegations are the following (briefly stated, as I will address them in more detail later): a. On June 2, 2022, Mr. Martineau was ordered to provide Ms. Espina with unsupervised lunch dates with E before commencement of the reunification program. These were a failure, because (according to Ms. Espina) Mr. Martineau remained in constant communication with E during the visit, resulting in E locking herself in a bathroom (para 12). b. Ms. Espina believes that on numerous occasions, Mr.

Martineau breached the no-contact provisions of the August 15, 2022 arbitration award and the August 30, 2022 court order. She infers this from an extreme change in the children’s behaviour and attitude towards her following a constructive initial phase in Calgary of the High Road Program (paras 15 and 16). On August 25, 2022, the children left Ms. Espina’s residence. They went to Mr. Martineau’s parents’ residence (a short walk away) where they were picked up by Mr. Martineau and driven to his house in Coalhurst.

There was a heated verbal exchange on his driveway involving the two parties and E; a policeman was present as well, and on his inquiry, Mr. Martineau gave information about Ms. Espina’s mental health history. He kept the children in his care until ordered by the court to return them to Ms. Espina on August 30, 2022 (paras 17 to 22). c. Some time following return of the children to Ms. Espina’s care the children caused significant damage in her home. In her primary affidavit (para 24, quoting from the November 29, 2022 affidavit), she stated that E had become “very unstable and there were

significant behavioural issues” and E encouraged her brother become involved. To quote Ms. Espina again, “they wrote profanities all over the walls and destroyed artwork in the home with permanent marker, and even went so far as to urinate in the air vents” causing damage of approximately $30,000. d. Another breach of no-contact provisions occurred on November 20, 2022, where the children attended again at their grandparents’ house. They are captured on video ringing the doorbell, resulting in a conversation between them and their grandparents who were in Hawaii.

E talks about having suicidal thoughts and self-harming; Mr. Martineau’s father tells her that she “should have her freedom pretty soon” and not to worry because “your dad and I and Grandma are working on getting you out of there, so don’t worry. We are trying to get you a lawyer” (para 27(b)). Shortly after, Mr. Martineau brought an unsuccessful application seeking to change parenting, which would end the High Roads Program. Ms. Espina believes E’s language seems scripted and must have been manipulated. e. E had knowledge of court proceedings, in particular Mr.

Martineau’s November 25, 2022 court application to change parenting based on the November 20 incident. Ms. Espina believes this must have resulted from communications with Mr. Martineau (para 28). f. Documents found in E’s bedroom and school locker led Ms. Espina to believe that she was being contacted by Ms. Coutts and Mr. Martineau (para 31). g. Mr. Martineau, as a self-represented litigant, had a copy of the Practice Note 8 report and attached it to an affidavit responding to Ms. Jones’s guardianship application heard on May 17, 2023.

This was in breach of the order directing the Practice Note 8 assessment (para 31(e)). h. In

summary, Ms. Espina alleges that Mr. Martineau has repeatedly and intentionally breached many court orders with an aim to interfere with the reunification process and further alienating Ms. Espina from her children (para 32). 2. Testimony [ 28 ] No significant facts were elicited during Ms. Espina's cross-examination. Primarily, she was challenged on her inferences and opinions about Mr. Martineau’s conduct. [ 29 ] For the August 25, 2022 incident, she denied that there was a shouting match and denied that she threatened her children with never seeing them again if they persisted in their conduct.

Rather, she testified that she explained to them that if the current process were to continue, it would result in her never seeing them again. [ 30 ] She testified that, as captured by the audio video recording, the children told her that they loved her. [ 31 ] With agreement of counsel, I viewed the audio/video recordings after the hearing. Both were recorded by Mr. Martineau; as usual in these cases, he is off camera and his words are few and carefully chosen. [ 32 ] The first episode begins as Mr. Martineau and children are exiting his vehicle on the driveway of his home and Ms.

Espina has arrived in her vehicle, parking on the street. Her exchanges are with the children; she speaks mostly in Spanish, the children in English. [ 33 ] From the words spoken, gestures and responses, I infer that Ms. Espina requested the children to come back with her to her home. They decline. E responds to something Ms. Espina says with “are you saying goodbye forever”? [ 34 ] The children become very aggressive, displaying anger with Ms. Espina. They both say “don’t you dare blame it on him” (presumably meaning Mr. Martineau).

They say “this is us” and that they could get in her car right now if they wanted to. [ 35 ] Ms. Espina says, in English, “you know the rules, Dorcy [Pruter, from the High Roads Program] explained it all to you.” L responds that she is an evil woman, E calls her a liar. [ 36 ] There are further exchanges much to the same effect; that the children are not going with her, and as she turns to get into her car, E says “you’re leaving forever?” [ 37 ] Both children say Mr. Martineau will let them see her whenever they want to which Ms.

Espina responds “that’s not true.” They ask their father if what they say is true, and he responds “of course.” [ 38 ] They reiterate that they do not want to speak to Ms. Pruter, because “all she does is brainwash.” L addresses his mother by saying “I don’t fucking care, you fucked up” in very angry tones. [ 39 ] The conversation then comes to involve Mr. Martineau more actively who resists Ms. Espina’s request that he send them back; he says I understand the process and I have encouraged them to go back.

Again, the children say their father has told them they can see her whenever they want and that she has “fucked up.” [ 40 ] At the end of the exchange, the children and Ms. Espina all say they love each other. [ 41 ] The second video shows a police officer being present and, at some distance, Ms. Espina talking emotionally to both children. She then moves some distance off while Mr. Martineau tries to get the children in the house. [ 42 ] E says to the officer and her father “she says we’re never going to see her again.” [ 43 ] Ms.

Espina continues to try and convince them to come and asks the officer for help, but he refuses to get involved in enforcing her request. At one point, E says “now you know how it feels to get your money taken away,” the meaning of which is unclear.

[ 44 ] E says emphatically that she “was not talking to him” – which I infer to be a reference to allegations that she had been in contact with Mr. Martineau before leaving Ms. Espina’s home. [ 45 ] Once again, at the end E says “goodbye mom I love you” in what appears to be a genuine expression of her feelings. [ 46 ] These were urgent, emotional conversations between Ms. Espina and the children. I do not accept, however, Mr. Martineau’s statement that Ms. Espina was “screaming” during the exchange. In my view, while emotional and concerned, she maintained a reasonable demeanour. 3. Assessment [ 47 ] Ms.

Espina gave her testimony in a confident, straightforward manner. She addressed all questions put to her on cross- examination. She was very opinionated; mainly that was because the questions called for her opinion on what she thought would be reasonable for Mr. Martineau to do, or what she might have done, rather than factual matters. B. Tyler Alan Martineau 1. Affidavit [ 48 ] Mr. Martin deposes that the incident in which he took the children into his care on August 25, 2022 occurred after the arbitration award but before the court order enforcing it.

Implicitly, he suggests that he could not be in breach of an order not yet enforced by the court. [ 49 ] While at work on August 25, Mr. Martineau was telephoned by his mother who advised that his children were at her house in hysterics. He contacted Mr. Muhammad, the arbitrator, who advised him to go to his parents’ residence to check on his children and encourage them to go back to Ms. Espina’s home. Mr.

Muhammad texted that “at this point in time if she calls the cops so be it there’s nothing we can do to help with that if the kids are going to go they’re gonna stay with you”. [ 50 ] On arriving at his parents’ residence, the children ran to Mr. Martineau, telling him how terrified they had been over the last number of days. Ms. Espina then arrived at the residence of Mr. Martineau’s parents. Mr. Martineau left with the children, followed in another vehicle by Ms. Espina. There was a heated verbal exchange on the driveway of Mr. Martineau’s home (which he recorded) involving Ms.

Espina, the children and a police officer. [ 51 ] Mr. Martineau also accuses Ms. Espina of breaching court orders, and therefore not coming to the court with clean hands. Primarily, these allegations concern Ms. Espina speaking to the children about court proceedings or showing them court documents. Additionally, he states (based on what his children have told him), that Ms. Espina speaks negatively about him. 2. Testimony [ 52 ] Mr. Martineau acknowledged that the June 2, 2022 order of Hartigan J. required him to make no mention of Ms. Espina’s mental health to the children.

On August 25, 2022, after he had taken the children from his parents’ home to his own, there was an angry verbal exchange involving himself and Ms. Espina, with a police officer and the children present. In response to an officer’s inquiries, he said that Ms. Espina had spent time in a mental health facility. [ 53 ] Hartigan J.’s July 19, 2023 order, which on an interim basis gave Mr. Martineau sole parenting time and decision making for E, prohibited him from discussing these proceedings, Ms. Espina, or criminal, police or EPO matters with E. Paragraphs 48(g), (h), (i), (

j) and (

k) of his affidavit describe a number of conversations between Mr. Martineau and E after the July 19, 2023 order. (E elected to remain with Ms. Jones during this period, but Mr. Martineau was permitted time with her.) [ 54 ] These interactions involve E telling Mr. Martineau that, while still living with Ms. Espina, she had been able to read court documents and the Practice Note 8 parenting assessment which had been left “lying freely on the basement floor” and likewise could view documents on Ms. Espina’s electronic devices; that she was disturbed about allegations against Mr.

Martineau contained within the report, claiming that Ms. Espina lied and was trying to make him look bad; that E told him about numerous instances where Ms. Espina and her mother would sit with the children to go over court orders in depth; that she discussed court proceedings with school staff who told her they were unable to be involved because of court orders; that Ms.

Espina “went to great lengths to communicate to both children that if they do not follow the court order, that she will make sure that Dad, my partner Jennifer, and their paternal grandparents would be put in jail and that the High Roads Program would start over”; and that she became aware of the parenting hearing on July 19, 2023 from a therapist with the High Roads Program. [ 55 ] When challenged about how he obtained this detailed information, Mr.

Martineau said that on each occasion, he tried to prevent E from speaking, telling her not to put him “in this position”; and that he would either try to have her stopped, or walk away from the conversation. [ 56 ] Exhibited to his affidavit are two letters from his son L, with transcriptions. He testified that he received these notes from his parents. He was aware that he was prohibited by the arbitration award and court order not to have any direct or indirect contact with E or L. [ 57 ] He explained that L threw these notes over his parents’ fence (a short walking distance from Ms. Espina’s residence).

He denied having any communication with L about the letters or their contents. He agreed that the damage described in one of L’s notes occurred after that damage had occurred to Ms. Espina’s residence, sometime following August 30, 2022 when Mr. Martineau was ordered to return the children. To quote from one of L’s letters “we have peed in the vent yelled at her recked the painting and made her

spn a lot.” [ 58 ] Mr. Martineau acknowledged that he attached part of the PN parenting assessment report to an affidavit responding to Ms. Jones’s guardianship application. [ 59 ] He was asked whether he remembered E telling her mother during the confrontation on the driveway at his Coalhurst residence that “now you know how it feels to lose your money.” He claimed to have no idea what prompted Ms. Espina to say this. [ 60 ] He acknowledged that he refused to return the children to Ms. Espina’s care after August 25, 2022, until ordered to do so. He was aware of the arbitrator’s no contact directions. [ 61 ] Responding to Ms. Espina’s allegation (para 31(

d) of her affidavit) that a dolphin figurine from SeaWorld came from Ms. Coutts, he denied that Ms. Coutts went to SeaWorld before April 6, 2023. Her trip was to Disneyland only. Ms. Coutts, he testified, did not give the dolphin figurine to E. [ 62 ] He testified that he was not present or involved in instructing his parents during the November 20, 2022 ring doorbell video. Further, he denies contacting E to follow up on that exchange. 3. Assessment [ 63 ] Mr. Martineau was a very careful, suspicious witness who at times became very angry with opposing counsel. He was not forthcoming in his evidence.

He resentment toward Ms. Espina was palpable (perhaps reciprocated, but not so evident in Ms. Espina’s testimony). [ 64 ] Some of his explanations I do not believe. Particularly this is so with his assertions that, on each of the occasions E was giving him information about Ms. Espina or life at her home, he tried to get her to stop or would walk away. Notwithstanding this, his affidavit relies on fulsome accounts he says E gave him. [ 65 ] Further, some of his explanations seem rather late in the day. They were not given in his affidavit even though he would know his conduct was at issue. C. Melanie Joy Jones 1.

Affidavit [ 66 ] A daughter of Ms. Jones is friends with E. Through that connection, E came to live with Ms. Jones and Ms. Jones is one of her guardians. [ 67 ] Part of her affidavit relates things E told her. The SeaWorld figurine found in her locker came from a friend. E told her that she became aware of court proceedings by looking at court documents Ms. Espina left out, or left open on her computer. [ 68 ] Ms. Jones assumed the role of a support person for E. In that capacity, she helped obtain information and documents.

Summarizing her role, she states as follows: Throughout the time E has been in my care, I have supported her in every way I possibly could. This included supporting her while she wrote e-mails requesting her records. E and I and E and Victim Services have also sent many e-mails to community organizations who support women and children who have experienced abuse. She has also filed numerous complaints and/or inquiries about her being upset with a Court, Justice Hartigan, Asif Muhammad, her mother’s legal team, children’s services, her court appointed lawyer (Tess), counsellors, teachers, and school administrators.

She believes no one was listening to her, supporting her, or keeping her safe. I fully supported E in doing this as it provided her an opportunity to be heard and express herself and hopefully obtain referrals or resources about the things she has experienced. [Para 20.] 2. Testimony [ 69 ] Ms. Jones clearly is a partisan of E. She is devoted to what she says are E’s best interests, but in her mind, largely that has meant advocating E’s position against Ms. Espina in particular and anyone else who seems to be in the way of what E desires. [ 70 ] She testified that she was casually acquainted with each of Mr.

Martineau and Ms. Coutts before becoming involved with E. In the fall of 2023, she came to know E through E’s friendship with her daughter. Before E moved in at Ms. Jones’ residence, she stated that she had no contact with Mr. Martineau or Ms. Coutts in any form. [ 71 ] This was quickly established as untrue. She copied a November 23, 2022 letter from E to Mr. Martineau and sent it to him. 3. Assessment [ 72 ] Ms. Jones’ evidence has little relevance to what is at issue.

Where relevant, it must be heavily discounted because of her self- appointed role as an advocate for E’s views and the fact that, despite her statement under oath, she was proved to have had direct contact with Mr. Martineau before E began living with her. VII. Findings

A. Lunch Dates [ 73 ] The court order of June 2, 2022 directed “two unsupervised lunch or coffee dates” that Ms. Espina would have with E. They were intended to improve the relationship between them before the High Roads Program began. [ 74 ] Ms. Espina says in her affidavit that Mr. Martineau breached the order “by encouraging E . . . to be in constant communication with him during her court-ordered visitation with me, during which she locked herself in the bathroom for her entire visit” (para 12).

She was challenged on this in cross-examination, but was adamant that “he was texting the whole time.” [ 75 ] I accept Ms. Espina’s evidence. It is highly unlikely that Mr. Martineau’s communications were designed to encourage E to participate in the visit (the best means of doing that would have been to remain silent). On the evidence, I am satisfied beyond a reasonable doubt that Mr. Martineau was communicating with E during the court-ordered unsupervised visit. [ 76 ] Mr. Martineau’s behaviour was improper and likely contributed to a visit that failed in all its objectives.

However, the strict conditions required for a contempt finding are not met. The June 2, 2022 order says nothing about refraining from communications during these visits. Arguably, Mr. Martineau’s communications with E during such a visit was contrary to the spirit of the order. But contempt findings must be based on breaches of clear, unequivocal orders. However improper Mr. Martineau’s conduct was, I cannot find that it breached a court order. B. Children’s “Escape” August 25-30, 2022 [ 77 ] Ms. Espina alleges that when the children went from her home to their paternal grandparents’ home and then stayed with Mr.

Martineau, there was a breach of the arbitrator’s direction that Mr. Martineau have no contact with the children. She alleges as well that there must have been prior communications that were likewise in breach of the arbitrator’s award. [ 78 ] Ms. Espina asks for inferences to be drawn about Mr. Martineau’s communications from the change in the children’s demeanour and relationship with her between phase one of the High Roads Program and her time with the children in Calgary until the morning of August 25, 2022, when the children suddenly left her home. There are grounds for suspicions here, based on Ms.

Espina’s evidence (not challenged in her cross-examination). But there is a complete denial in Mr. Martineau’s affidavit. [ 79 ] Further, there are other possible reasons for a change in the children’s behaviour that would not require Mr. Martineau’s communications (for example, allegations about the nature of Ms. Espina’s relationship with her children). It would be unsafe to conclude, from circumstantial evidence of a change in demeanour and behaviour, that this was a set up based on covert communications.

Thus, on the facts I could not find contempt even if there was a legal basis for doing so. [ 80 ] There can be no reasonable doubt, however, that Mr. Martineau actively engaged in contact with the children from August 25- 30, 2022, when he took them to his residence and kept them in his primary care until the August 30, 2022 court order. Clearly this was in breach of the arbitrator’s August 15, 2022 award. As explained above, however, this cannot found a finding of contempt of court. C.

Children at Grandparents’ Door: Fall 2022 [ 81 ] E went to her paternal grandparents’ home and was recorded on audio-video via door bell camera. Her grandparents were away in Hawaii. [ 82 ] During the interaction, Allan Martineau stated that “you should have your freedom pretty soon” and that “you’re dad and I and grandma are working on getting you out of there . . . . We are trying to get you a lawyer.” E refers to the fact that she is self-harming and having suicidal thoughts. She shows marks on her arm.

At the end of the conversation, she says “please work on the lawyer thing, please get me out of here.” [ 83 ] On behalf of Ms. Espina it is submitted that I should view this interaction as contemptuous of the August 30, 2022 order of no contact, in the sense that the children were prompted by Mr. Martineau and he had an obligation to ensure that such events did not occur, even with third parties. [ 84 ] There is no evidence upon which I could conclude with any confidence that E’s conduct and statements were prompted. Ms. Espina refers to obvious scripted language, but that is not so easy to infer.

In his affidavit sworn July 5, filed July 12, 2023, he states that when the incident occurred he had not seen or spoken to his children for close to three months. His viva voce testimony confirmed that he was not present and gave no instructions to his parents on what to say. [ 85 ] The evidence does not establish beyond a reasonable doubt any breach, directly or indirectly, of the no contact provisions that were in place. Perhaps E’s grandparents should have been more circumspect in their discussions. However, there is no basis on which I can hold Mr. Martineau in contempt for that. D.

Mental Health [ 86 ] On August 25, 2022, Mr. Martineau was asked questions about Ms. Espina’s mental health by the police. He answered by giving information about her mental health history, including treatment. [ 87 ] As acknowledged on Ms. Espina’s behalf, this may have been a technical breach of the June 2, 2022 order but there is a reasonable excuse in that Mr. Martineau was being questioned by the police. Thus, there was no contempt of court on this occasion.

E. Knowledge of Court Proceedings [ 88 ] Ms. Espina alleges that E was aware of the parenting application scheduled at Mr. Martineau’s instance shortly after the recorded incident at E’s grandparents’ home. She states in her affidavit that E knew she was going to court that morning. [ 89 ] This is insufficient to show that Mr. Martineau advised E of the court proceedings. It may have been a “lucky guess” from the way Ms. Espina was getting ready for her day. Even on Ms. Espina’s evidence, there is no explanation of exactly what E knew or how she became aware of it. Similarly, Ms. Espina’s belief that Mr.

Martineau communicated his intention to have a case management meeting to E, and to have her write a letter to Hartigan J., is too speculative for the strict requirements of a contempt finding. F. Letter and Figurine [ 90 ] Ms. Espina infers impermissible contact between Mr. Martineau and Ms. Coutts on the one hand, and E on the other hand, from pieces of real evidence. [ 91 ] On March 23, 2023, she found a letter addressed to E, which she believed was authored by Ms. Coutts. In her affidavit and testimony, Ms. Jones testified confidently that this was a letter written by E to herself, in the third person.

She recognized E’s handwriting. The point was not squarely addressed in the cross-examination of Ms. Espina. [ 92 ] The facts necessary for a contempt finding have not been proved beyond a reasonable doubt. Both Ms. Espina and Ms. Jones presumably know E’s handwriting, but Ms. Jones’ evidence on this point was direct and very convincing. Ms. Espina bases her belief on the content of the letter and the fact that it was in the third person. I prefer the evidence of Ms. Jones on this point. [ 93 ] On April 6, 2023, Ms. Espina found items in E’s school locker that she believed indicated impermissible contact from Mr.

Martineau or Ms. Coutts. One item was a SeaWorld figurine. Unchallenged testimony establishes that neither Mr. Martineau or Ms. Coutts were at SeaWorld at relevant times. [ 94 ] Ms. Espina also refers to a photograph of Mr. Martineau, a new jewelry box and a St. Michael necklace. None of these were addressed in Mr. Martineau’s affidavits or his cross-examination. There is no evidence of how or when E may have obtained these items. The facts fall far short of establishing beyond a reasonable doubt a contemptuous origin of these articles. G. Use of Practice Note 8 Report [ 95 ] Mr.

Martineau, of course, does not dispute that he had the entire Practice Note 8 report in his possession and attached parts of it to his materials responding to Ms. Jones’s guardianship application. His only explanation is that he was self-represented at the time and “struggling with immense shock of the application [for guardianship] . . . and that E had obtained emergency protection orders against [Ms. Espina].” [ 96 ] Thus, Mr. Martineau acknowledged that he breached a court order.

I observe that, while it is no excuse for a self-represented litigant to ignore court orders, probably the breach in this case was more by ignorance than intent and, if necessary, Mr. Martineau could have put information he thought relevant before the court by other means. It is a breach that is easily rectified. H. Aid to Ms. Jones [ 97 ] Ms. Espina alleges that Mr. Martineau must have provided to Ms. Jones documents which he used in her application for guardianship. [ 98 ] Ms. Jones says she got the relevant court orders from the police.

It is reasonable to doubt that, given the absence of court stamps on the documents and the irregularity of the process by which she attempts to explain that omission. From her evidence, I have no difficulty concluding that she was in league with Mr. Martineau throughout. [ 99 ] However, Ms. Jones is not on trial for contempt. Even if Mr. Martineau provided documents to someone who wanted to apply for guardianship of a troubled girl, I could not find that contemptuous conduct on the orders before me. I.

Letters From L [ 100 ] There is no dispute that letters written by L were thrown into his paternal grandparents’ yard sometime after August 20, 2022. Ms. Espina says the contents reveal communications with Mr. Martineau which he should have controlled. Mr. Martineau denies any involvement. [ 101 ] The letters are addressed to “Alan and Paty,” L’s paternal grandparents. The first letter states that it is from L and requests the grandparents to show them to his dad and leave any replies in their mailbox.

He says that his mother is trying to make them talk to a High Roads facilitator “and if we don’t we go to jail.” [ 102 ] The second letter explains that “what I meant by jail was this camp in” Red Deer where children with mental health issues go. [ 103 ] In my view, it is clear that the contents of the second letter address an inquiry made in response to the first letter. The circumstances lead me to conclude beyond a reasonable doubt that the inquiries were made by Mr. Martineau. I have no doubt, as well, that he was given the letter in response to L’s request that it be passed onto him.

[ 104 ] Also in the second letter, L states that “we have peed in the vent yelled at her wrecked the painting and made her spend a lot” (spelling errors corrected). Clearly, this is a reference to the incidents at Ms. Espina’s residence that occurred shortly after the children were returned to her care following the August 30, 2022 order. [ 105 ] Given the hostility between the parents (dramatically shown in the August 25, 2022 incident), the damage done by E and L shortly after their return to Ms.

Espina’s primary care, the evidence of communications in L’s letters, and his request that the letters be given to Mr. Martineau, I conclude beyond a reasonable doubt that Mr. Martineau communicated with his children after they left his care following the August 30, 2022 order. I have no reasonable doubt that Mr. Martineau was communicating with his children about how to respond to the order directing them back in to Ms. Espina’s care. J. Communications After July 19, 2023 Order [ 106 ] I have expressed my reservations about some of Mr. Martineau’s testimony.

Based on those reservations, and the implausibility of his affidavit evidence, I conclude that he engaged in conversations with E after Hartigan J.’s July 19, 2023 order, which removed E from Ms. Espina’s custody. [ 107 ] Paragraph 48 of his affidavit sworn August 18, 2023 contains a list of detailed communications and events that allegedly occurred between Ms. Espina and the children. There are also discussions about other communications between the children and those dealing with them in relation to the court proceedings. Mr. Martineau put this information forward in the belief that it would help him impugn Ms.

Espina’s conduct in discussing proceedings with the children. In fact, I find, he has proved his own communications that were specifically prohibited by Hartigan J.’s last order, despite his testimony about trying to avoid such contact. [ 108 ] I am satisfied beyond a reasonable doubt that Mr. Martineau engaged in impermissible communications with E following the July 19, 2023 order. The hearsay evidence he collected from the children (improperly) is not strong enough for me to find that Ms. Espina’s conduct should convince me not to exercise my discretion in finding contempt on the part of Mr. Martineau.

I am, however, gravely concerned that her conduct also has been improper on a number of occasions. K.

Summary of Findings [ 109 ] As explained in the foregoing, I find that Mr. Martineau was in contempt of court by using a Practice Note 8 report, communicating with E and L about their response to being put back into Ms. Espina’s care after the August 25, 2022 court order, and was communicating directly or indirectly with L in relation to L’s letters. I have grave suspicions that Mr. Martineau was in breach of court orders by other conduct and communications but cannot find it to be proved beyond a reasonable doubt. [ 110 ] The parties may

schedule a further appearance to address sanctions, costs and other related matters. Heard on the 21 st day of September, 2023. Dated at the City of Lethbridge, Alberta this 23 rd day of November, 2023. G.H. Poelman J.C.K.B.A. Appearances: Garrett Horvath for the Plaintiff John D. Evans, K.C. for the Defendant