2022 NLSC 88, 2022 NLSC 88

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : 2022 NLSC 88 Date : May 24, 2022 Docket : 201508G0094 BETWEEN M.e.g. Applicant AND S.P. RESPONDENT Before: Justice Stacy Ryan Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date(

s) of Hearing: May 12, 2022 Appearances: Brian Wentzell Appearing on behalf of the Applicant Victoria Gregory Appearing on behalf of the Respondent

Authorities Cited: CASES CONSIDERED: Carey v. Laiken , 2015 SCC 17 ; Hefkey v. Hefkey, 2013 ONCA 44 ; Squires v. Smith, 2019 NLCA 54 ; Peddle v. Peddle , 2019 NLSC 130 STATUTES CONSIDERED: Children’s Law Act , R.S.N.L. 1990 c. C-13 REASONS FOR JUDGMENT Ryan, J. : INTRODUCTION [ 1 ] M.E.G., the Applicant, was given leave to file an Application for Contempt of Court against the Respondent, S.P. [ 2 ] The Applicant claims the Respondent has breached a Court Order issued on December 15, 2020. This Order was the result of a five day hearing regarding parenting and access. It contains a number of provisions but those relevant to this Contempt Application are: (

a) Paragraph 13 – R.G. will continue to attend School 1 and will attend all his further schooling in the Town 1 area, unless both parties agree to alternate arrangements. (

b) Paragraph 16 – neither party will post any negative comments about the other on social media, nor will they make any comments relating to the proceedings on any social media platform. [ 3 ] The Applicant claims the behaviors that are in breach of this Court Order are: (

a) The Respondent, in March 2022, changed R.G.’s school from School 1 in Town 1 to School 2 in Town 2. (

b) The Respondent has made numerous social media posts regarding the court proceeding and had set up a “Go Fund Me” to raise money for legal proceedings. This “Go Fund Me” page was shared on social media. Position of the Parties [ 4 ] The Applicant states I should find the Respondent in contempt of the Court Order. As a remedy, I should impose a nominal fine of $1.00; a further order that the Respondent refrain from making social media posts about the Applicant or the Court proceedings; and an order that the child, R.G., shall be returned to School 1 in Town 1. [ 5 ] The Respondent states that she did violate the Order by making social media posts and by changing the child’s school. She

asks me to exercise my discretion and not make a finding of contempt. She undertakes to remove the social media posts and to refrain from posting in the future. In the alternative, she is prepared to accept a finding of contempt and is prepared to pay a nominal fine and asks that I allow the child to stay at School 2 in Town 2. Issues [ 6 ] The Issues for me to decide are: Issue 1: Should there be a finding that the Respondent is in contempt? Issue 2: If there is a finding that the Respondent is in contempt, what is the appropriate remedy/penalty?

ANALYSIS Issue 1: Should there be a finding that the Respondent is in contempt? [ 7 ] To make a finding of contempt, I must find, on proof beyond a reasonable doubt that: 33 . . . The order alleged to have been breached “must state clearly and unequivocally what should and should not be done” . . . 34 . . . The party alleged to have breached the order must have had actual knowledge of it . . . 35 . . . the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels . . . (Cary v.

Laiken , 2015 SCC 17 ) [ 8 ] The Respondent admits to the presence of all three elements of contempt. The Order breached was clear in what she was required to do; keep the child at the school in Town 1, and in what she was prohibited from doing; making negative posts about the other party on social media, or making comments about the proceedings on any social media platform. [ 9 ] The Respondent has knowledge of this Court Order and admits to having knowledge of the Court Order.

[ 10 ] The Respondent intentionally failed to do what the Order requires and admits to engaging in the prohibited behavior. [ 11 ] Notwithstanding the presence of all three elements, should there be a finding that the Respondent is in contempt? [ 12 ] The Applicant suggests there should be a finding of contempt for a number of reasons. Firstly, there should be an official record of the Respondent having been found to have breached a Court Order. Secondly, there ought to be consequences if one chooses not to follow an Order.

If there are no consequences, disrespect for Court Orders will abound. [ 13 ] The Respondent asks the Court to exercise its discretion and to not make a finding of contempt. She asks the Court to consider the context and circumstances surrounding the breach. In terms of R.G.’s school, the Respondent asks the Court to consider that attempts to negotiate the move were not successful.

By way of example, an offer to give the Applicant more access if she agreed to let the child attend School 2 was rejected. [ 14 ] The Respondent also asks the Court to consider the burden placed on her by complying with the Court Order. She lives in a community approximately 45 kilometers away from School 1. To comply with the Order, she would drive approximately 180 kilometers per day on, what she describes, as a dangerous highway.

She has other children and this makes it difficult to comply with the Order. [ 15 ] A compromise was reached when the Applicant agreed to meet the Respondent halfway between the communities.

The Respondent terminated this arrangement due to a near accident while switching the child from one car to the other on the highway. [ 16 ] Counsel for the Respondent advised that her client was aware of the option to apply for a variation of the Order but chose not to pursue that route due to a lack of financial resources. [ 17 ] The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings ( Hefkey v. Hefkey , 2013 ONCA 44 ). [ 18 ] Contempt should not be the usual procedure for enforcement of court orders.

Contempt is a remedy of last resort in family law matters and should not be the remedy of choice when other alternatives are available. Too often family law litigants, especially in high conflict cases, seek to use the power of contempt inappropriately ( Squires v. Smith , 2019 NLCA 54 ). [ 19 ] I find there is no reason why the Respondent should not be found in contempt. She deliberately ignored the Court Order despite being aware of the possible consequences of her actions.

Knowing that, she engaged in the prohibited behavior regardless of the possible consequences and knowing there were other avenues by which she could have proceeded. This is a blatant disregard for the Order. [ 20 ] I find the Respondent is in contempt of the Order dated December 15, 2020.

Issue 2: Given my finding that the Respondent is in contempt, what is the remedy? [ 21 ] The Applicant and the Respondent agreed the contempt hearing and issue of penalty could be heard on the same day. [ 22 ] As a remedy for the contemptuous behavior, the Applicant is seeking a nominal fine and an order prohibiting the Respondent from making any further social media posts about the Applicant and on court proceedings. The Applicant also seeks an order that the Respondent return the child to School 1 immediately. [ 23 ] The Respondent is willing to accept a nominal fine.

She undertakes to erase social media posts (to the extent that it can be erased) and she also undertakes to refrain from making further social media posts involving the Applicant and court proceedings. [ 24 ] The Respondent is also seeking an order that the child remain at the new school, School 2. [ 25 ] I will impose a fine, but the fine will be more than the $1.00 requested by both parties. I will set the fine at $100.00.

This amount takes into account the Respondent’s financial circumstances and that she is financially responsible for the child. [ 26 ] With respect to ordering the return of the child back to the School 1; I will Order that he return in September 2022. [ 27 ] I find it is not in R.G.’s best interests to order the return to School 1 immediately. He was moved from School 1 to School 2 in March 2022. There is approximately six school weeks remaining of the school year. To move the child again would be too disruptive. [ 28 ] However, I order the return to the School 1 in September 2022.

I have been asked to vary the original Order that is to allow the child to remain in School 2. If the Respondent wishes a change in the schooling arrangements, a contempt hearing is not the appropriate proceeding in which to make the change she is requesting. [ 29 ] The Respondent must follow the Court Order from December 15, 2020 unless the parties reach an agreement between themselves or further Order of the Court. [ 30 ] I decline to make a further order regarding social media posts as the Respondent is prohibited from doing that in any event.

[ 31 ] There will be no order as to costs as they were not sought in the Application or at the hearing. _____________________________ STACY RYAN Justice