Campbell v. Campbell, 2011 MBCA 61

Citation: Campbell v. Campbell, 2011 MBCA 61 Date: 20110810 Docket: AF 10-30-07446 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Martin H. Freedman Mr. Justice Alan D. MacInnes BETWEEN : ) R. H. Johnston, Q.C. BRENDA MARLENE CAMPBELL ) for the Appellant ) (Petitioner) Respondent ) K. R.

Ferriss ) for the Respondent - and - ) ) Appeal heard: DENIS ALLEN CAMPBELL ) May 19, 2011 ) (Respondent) Appellant ) Judgment delivered: ) August 10, 2011 HAMILTON J.A. 1 The appellant (the husband) appeals a finding of contempt against him and an order that he pay solicitor and client costs. At issue is how the motion judge applied the law in this case, particularly in light of conflicting affidavit evidence. 2 The contempt proceedings arose in the context of a marital property dispute over the use by the respondent (the wife) of the parties’ trailer as her temporary residence.

The motion judge ordered that she have “the interim use, possession and control of the parties 5 th wheel trailer and its contents effective immediately.” She obtained possession of the trailer seven days after the order was pronounced, but had many complaints about its condition and missing contents, including a “H.D.” (heavy duty) electrical extension cord. 3 In finding the husband in contempt, the motion judge focussed on the missing “heavy duty power cord.” In his view, it was “not a trifling matter to have the electrical power supply to one’s lodging, however temporary that lodging might turn out to be, cut off or disconnected.” 4 As will be seen, I agree with the husband that the finding of contempt was premised on a palpable and overriding error arising from a misapprehension of the evidence concerning the extension cord and that the motion judge fell into further error when he ignored the contested nature of the evidence about it.

Background 5 The husband and wife separated in September 2009. The husband continued to live on the family farm and the wife made temporary living arrangements with a friend. Because the wife’s temporary accommodation was coming to an end, she sought the use of the trailer. The June 25, 2010 Interim Order 6 On June 25, 2010, the motion judge pronounced an interim order (the June 25th order).

By consent, he ordered a reference to the Master for an accounting and valuation of assets and disclosure by the husband of the progress of his appeal to the Canada Pension Plan Review Tribunal concerning his disability benefits.

7 With respect to the trailer, he ordered: 6.1 [The wife] shall have the interim use, possession and control of the parties’ 5 th wheel trailer and its contents effective immediately; 6.2 [The husband] shall forthwith provide the registration documents respecting the 5 th wheel trailer and all duplicate keys to the 5 th wheel trailer to [the wife]; 6.3 [The husband] shall not duplicate any further keys for the 5 th wheel trailer; 6.4 The value of the camper, contents, registration and keys (unduplicated) shall be determined by the Master. 8 The wife obtained possession of the trailer on July 2, 2010. 9 The June 25th order was signed on August 24, 2010.

The Contempt Motion and Proceedings 10 On July 22, 2010, the wife moved for an order finding the husband in contempt of the June 25th order and for return of the trailer contents and solicitor and client costs. 11 The wife filed an affidavit in support, the husband responded by affidavit and the wife filed a reply affidavit. There were no cross-examinations on the affidavits.

The Wife’s Affidavit 12 In her affidavit, the wife set out her difficulties in obtaining possession of the trailer, relying primarily on hearsay evidence from her sister as to her sister’s communications and dealings with the husband to arrange for the delivery of the trailer. The wife stated that once she had possession of the trailer she could not live in it until the health hazard caused by a mouse infestation had been addressed and because numerous contents were missing from the trailer.

In regard to the missing contents, she stated: It was also clear pursuant to the order of June 25 th , 2010 that the contents of the camper were to remain in the camper. When I received the camper, substantial contents were removed. Attached hereto and marked as Exhibit “E” to this my affidavit is a list of what was removed. There were several items which are necessary for the operation of the camper including the heavy duty RV extension cord, the large outside RV mat and the large chair and foot stool.

I do not have the means to go out and replace all of the household items in the camper as is listed in exhibit “E”. 13 In her handwritten Exhibit E, the wife listed 31 missing items of various significance, such as flashlights, a small electric heater, bathroom supplies, cassette tapes and the “Heavy duty RV extension cord,” about which she stated: … I need this to be able to reach most plug ins from the camper. They are $50-$60 to buy – I can’t afford this and its for an RV – he has no RV – why does he need it?

The Husband’s Affidavit 14 In his response affidavit, the husband denied most of the wife’s assertions and allegations and reviewed some of the parties’ acrimonious history. He explained that he was not present in court for the pronouncement of the June 25th order, but that he was advised

about it by his lawyer: I was told that the Interim Order was in effect immediately and that [the motion judge] had ordered ownership , use, and possession of the 5 th Wheel camper and its contents, keys (no duplicates) be transferred to the Petitioner.

Both my lawyer of record and myself were under the impression that the Petitioner had obtained an order for a transfer of the camper into her name since that is what her Notice of Motion and her evidence by affidavit said she wanted. 15 The husband then provided further detail of “his efforts to comply” by communicating with MPI as to what was required to transfer ownership of the trailer, until he learned that “my lawyer of record and I were both mistaken” about this aspect of the order.

The record includes correspondence between counsel for the parties that confirms the husband’s belief that he was to transfer ownership of the trailer, not just possession. 16 With respect to the alleged missing contents, the husband stated that he: … [A]dmit[s] to removing some personal things from the camper such as my clothes and my own towels and facecloths (the Petitioner had taken all towels and facecloths that we had in the house) but felt that these were not really “contents” in my view.

Many of the items referred to by the Petitioner in her “list” were not in the camper on June 25, 2010 .... 17 He addressed each of the 31 items on the wife’s list. His notation with respect to the “H.D.

Extension Cord” was: “in use for cattle waterer (did not come with the trailer).” The Wife’s Reply Affidavit 18 In her reply affidavit, in addition to further commentary about their rancorous history, the wife listed the contents that she “need[ed] to properly use and live in the camper”: [The husband] is now saying the trailer contents which I am stating he removed from the camper were not in the camper at the time the order was granted. [The husband] did remove substantial contents from the trailer. While some items are more trivial, several items I need to properly use and live in the camper.

The more important ones are as follows: a. Blue Swivel Chair ...; b. H.D. Extension Cord – we have never used this cord for cattle. The only use of it has been for the camper. I cannot use the camper without it; c. R.V. Matt .... 19 After again referring to these three items, as well as a photocopy of the bill of sale for the trailer, small black heater and a stainless steel bucket container, she stated: If [the husband] returned those items to me I could properly use the camper, the issue of his contempt and return of these items would be resolved and we could get on to bigger issues ....

The September 15, 2010 Order (of Contempt) 20 On September 15, 2010, after a contested hearing, the motion judge pronounced the following order (the September 15 th order) : 3.1 [The husband] is in contempt of the Interim Order pronounced June 25, 2010 ...; 3.2 [The husband] shall return to [the wife] via third party ... to [the wife’s] current place of residence by 3.00 p.m. on September 16 th , 2010 the following: - Blue swivel chair; - H.D. extension cord; - RV Mat; - Photocopy of the bill of sale for the parties 5 th Wheel Camper; - Small black heater; and - Stainless Steel bucket container . 3.3 [The husband] shall pay [the wife] solicitor and client costs of $5,000.00 all inclusive with respect to the motion for contempt and costs of $800.00 all inclusive with respect to the hearing on August 4 th , 2010; 3.4 The costs as set out in the preceding paragraph as well as the costs in the amount of $700.00 ordered June 25 th , 2010 shall be paid to [the wife] on or before October 1 st , 2010; 3.5 The disposition of the contempt is adjourned to October 6 th , 2010 at 10.00 a.m.; Appearances on October 6, 2010 21 On October 6, 2010, counsel for the wife advised the motion judge that the husband had complied with the September 15 th order in its entirety and that the contempt had been purged.

The motion judge stated: .... The contempt having been purged .... …. Mr. Campbell, I’m going to dismiss this portion of the application, but I think you’ve got the message .... Oral Reasons of the Motion Judge for the September 15th Order

22 After noting that he ordered possession and use of the trailer and its contents to the wife on June 25, 2010, the motion judgestated: I recall in my reasons indicating that it would be unwise to presume the charity of [the husband] in regard to leaving a decision open as towhether [the wife] would have a place to live if and when her then temporary accommodation was sold and she was required to move. 23 He then commented on the “power cord”: While I recognize the value of the items in question as to contents may not be great, I thought the utility of the heavy duty power cord forthe trailer, so as to render it usable as a residence, would have been obvious.

It’s retention by [the husband] made things most difficultfor [the wife], the spouse who left the marital home with precious little. That item, the power cord, was certainly prominently featured atExhibit G of [the wife’s] initial affidavit in this motion sworn the 22nd of July 2010. While I agree ... that trifling matters ought not to occupy the Court’s time, it is, in my respectful view, not a trifling matter to haveelectrical power supply to one’s lodging, however temporary that lodging might turn out to be, cut off or disconnected.

I find that the power cord was an integral item of use with the trailer, and it’s not being provided for use in the usual course amounts to adeliberate act. [emphasis added] 24 After these comments, the motion judge summarized the applicable legal principles. He stated that the essential elements ofcontempt were knowledge of the provisions of the order, breach of the order, and wilful and persistent conduct, relying on MacNaughtonv. MacNaughton (1998), (MB KB), 132 Man.R. (2d) 318 (Q.B.). He quoted from Paton v.

Shymkiw (1996), (MB KB), 114 Man.R. (2d) 303 (Q.B.), to explain that the standard of proof is beyond a reasonable doubt and that afinding of intention does not require direct intention to disobey, and from Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R.612, to underscore that a finding of contempt is a “serious matter.” 25 He followed this

summary with these findings: I find there was knowledge of the terms of the order. I find that there was a breach. And I find that it was willful in that there ispersistent conduct in not returning at least the power cord. There is therefore, a contempt. 26 The motion judge then pronounced the September 15th order. The Law 27 The contempt at issue here arises in the context of an allegation of non-compliance with a court order in a private matter. Itis an allegation of civil contempt, as opposed to criminal contempt which pertains to more public matters.

The primary role of civilcontempt is remedial; that is, it is used to enforce compliance with a private order. Having said that, there is a public aspect to civilcontempt given that compliance with any court order is fundamental to the rule of law. See United Nurses of Alberta v. Alberta(Attorney General), (SCC), [1992] 1 S.C.R. 901, and Apotex Fermentation Inc. et al. v. Novapharm Ltd. et al. (1998), (MB CA), 129 Man.R. (2d) 161 (C.A.). 28 A motion for contempt, no matter the nature of the allegation, is a very serious matter. It is quasi-criminal in nature asincarceration, for example, is a possible penalty.

See Pro Swing at paras. 34-38, and Court of Queen’s Bench Rule 60.10. It calls for“strict adherence with all procedural requirements” (Paton at para. 23). 29 The party bringing the motion has the evidentiary burden to prove all the elements of contempt beyond a reasonable doubt. See Jeffrey Miller, The Law of Contempt in Canada (Scarborough: Carswell, 1997) at 33, and Paton at para. 24. As stated in G. (N.) c.Services aux enfants et adultes de Prescott-Russell (2006), (ON CA), 29 R.F.L. (6th) 92 (at para. 27): “[a]ny doubt

must clearly be resolved in favour of the person or entity alleged to have breached the order.” When material facts are in dispute, thecredibility of the deponents is to be tested by vive voce evidence. See Miller at 52 and G. (N.) at para. 45. 30 The elements of civil contempt may be stated as follows: 1. knowledge of the provisions of the order; 2. breach of the order; and 3. the breach was wilful. 31 The foregoing elements demand that the provisions of the order must be clear and unambiguous as “ambiguity in an ordermay be a complete answer to a contempt citation” (Miller at 95).

However, it is not necessary that the order be in writing (BaxterTravenol Laboratories of Canada Ltd. et al. v. Cutter (Canada) Ltd., (SCC), [1983] 2 S.C.R. 388 at 397). Nor isspecific intention to disobey the order necessary as “[t]he expression ‘willful’ … is intended to exclude only casual, accidental orunintentional acts of disobedience (Paton at para. 25). In other words, the wilful disregard of an order is sufficient. 32 The courts advocate restraint and caution against resorting to powers of contempt when other orders will suffice.

This isoften discussed in the context of custody matters, but is pertinent to all family disputes. See Paton at para. 27. Consistent with theprinciple of restraint, the law of contempt does not concern itself with matters that are “trifling” in nature. See Barker v. Barker, 2009MBQB 10, 235 Man.R. (2d) 152. In addition, the courts often look to whether the breach was persistent in nature. See Paton at para.29. The Positions of the Parties 33 The husband does not take issue with how the motion judge explained the applicable law.

He asserts that the motion judge’sfundamental error was how he applied the law to the facts in this case. He points to his evidence about his initial misunderstanding of what the June 25th order required of him, the delay in reducing the order to writing and its lack of particularity with respect to the“contents” of the trailer. 34 He also asserts that the motion judge misunderstood the affidavit evidence concerning the extension cord and as a result hemade a palpable and overriding error when he likened its non-delivery to cutting off the electrical power supply to the wife’s home.

Furthermore, he says that the motion judge wrongly disregarded the conflicting evidence between the parties about the extension cord,which called for a determination of credibility and proof beyond a reasonable doubt. In any event, he says that such a trifling matter asthe extension cord should not have founded a finding of contempt. 35 Relying on West v.

West, 2007 MBCA 62, the husband asserts that the award of solicitor and client costs against him cannotbe sustained because the motion judge failed to give any reasons why he awarded them. 36 In response, the wife says that the motion judge made no error in how he applied the law to the facts and this court shouldnot intervene, given the discretionary nature of the ruling. She disagrees that the finding of contempt was related solely to the extensioncord and says that the finding was premised on the motion judge’s finding that the husband had not provided the use of the trailer, asordered.

In the alternative, she says that the June 25th order implied that the usual contents would be delivered. As for the solicitor andclient costs, she says that the motion judge had the discretion to order such costs pursuant to Queen’s Bench Rule 60.10. Decision Standard of Review 37 Although motions for contempt and for

summary judgment involve fundamentally different legal concepts, both call for ajudge to assess the evidence, make findings of fact, if possible, apply the law to the facts and ultimately exercise judicial discretion. Therefore, the well-developed law with respect to standard of review in the context of

summary judgments is appropriate to apply forthis appeal. 38 In Homestead Properties (Canada) Ltd. v. Sekhri et al., 2007 MBCA 61, 214 Man.R. (2d) 148, a

summary judgment appeal,Freedman J.A. explained the applicable standards of review (at para. 13):

The applicable standard of review with respect to errors of law is correctness. For errors of mixed fact and law, or of fact alone, thestandard is palpable and overriding error, unless an error of mixed fact and law involves an error relating to an extricable principle oflaw, in which case the standard of correctness applies to that extricable legal question: Housen v. Nikolaisen et al., 2002 SCC 33, [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, at paras. 8, 10, 37. Moreover, the granting ordenying of a motion for

summary judgment is in a judge’s discretion, and that discretion should not be overturned unless the judge hasmisdirected himself or if his decision is so clearly wrong as to amount to an injustice (Elsom v. Elsom, (SCC), [1989]1 S.C.R. 1367; 96 N.R. 165, at 1375; see also R. v. Regan (G.A.), 2002 SCC 12 , [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, at para. 117). See also Towers Ltd. v. Quinton’s Cleaners Ltd. et al., 2009 MBCA 81, 245 Man.R. (2d) 70. 39 The husband rightly does not take issue with how the motion judge summarized the law.

This appeal, broadly stated, isabout two issues: first, whether the motion judge erred in how he characterized the wife’s evidence about the extension cord; andsecond, whether he failed to address the conflicting nature of the evidence concerning the extension cord. The former raises a questionof fact. As will be seen, the latter raises a question about whether the motion judge applied the burden of proof beyond a reasonabledoubt, which is an extricable principle of law, as well as questions that go to the exercise of the motion judge’s discretion.

Analysis 40 The reasons of the motion judge demonstrate that he was aware of the parties’ history, that he was not impressed with thehusband’s conduct and that, by his June 25th order, he had wanted to ensure that the wife had a place to live. Notwithstanding thatcontext, the only issues before the motion judge on September 15th with respect to the wife’s motion for contempt were whether the wifehad demonstrated beyond a reasonable doubt that the husband had breached the June 25th order and, if so, whether that breachconstituted contempt.

See Paton at para. 5. 41 I disagree with the wife that the reasons of the motion judge demonstrate that he found that the husband was in contempt ofthe June 25th order because he had not provided use of the trailer as ordered. His reasons are more specific than that. 42 Given how the wife’s evidence developed in her affidavits (the items sought in her contempt motion were reduced from theoriginal 31 to 5), the motion judge understandably addressed his mind to whether the items sought by the wife were trifling in nature.

Torepeat, he concluded that it was “not a trifling matter to have the electrical power supply to one’s lodging, however, temporary thatlodging might turn out to be, cut off or disconnected … [and found] that the power cord was an integral item of use with the trailer.” Asa result, he found the husband to be in contempt of the June 25th order. 43 This appeal is not about whether or not the extension cord, and the other items, should have been ordered to be delivered tothe wife. I would not disturb that aspect of the September 15th order and the husband does not ask this court to do so.

What he takesexception to is that he was found in contempt for not delivering the extension cord with the trailer. I agree with the husband in thisregard, for the reasons that follow. 44 The motion judge misapprehended the evidence about the extension cord, and, as a result, he overstated its significance. Heequated its non-delivery to a disconnection of the power supply to the trailer. The evidence of the wife does not support such a finding.

While her evidence was that she needed the extension cord, nowhere did she refer to a “power cord,” let alone state that the power supplyto the trailer had been somehow damaged or affected.

I note, as well, that nowhere in her affidavits sworn in support of the June 25thorder does the wife make any mention of a “power cord” or “extension cord.” Given that this mischaracterization was fundamental to hisdetermination that the matter of the extension cord was not trifling in nature and to his ultimate finding of contempt, this was a palpableand overriding error. 45 Further, in the face of the conflicting evidence of the parties as to whether the extension cord was part of the “contents” ofthe trailer, the motion judge failed to address whether the wife had met her burden to demonstrate contempt beyond a reasonable doubt.

This was an error of law. The evidence about the extension cord was material evidence and fundamental to the finding of contempt. Ifthe motion judge had addressed his mind to the requisite burden of proof, he would have had to conclude there was a reasonable doubt asto whether the extension cord was included in the “contents” of the trailer, or at least, as to whether the husband’s failure to deliver theextension cord was wilful default. 46 Finally, and perhaps most importantly, I am of the view that it was premature for the motion judge to rule on the issue ofcontempt.

I say this for two reasons. 47 First, as just explained, the conflicting evidence called for viva voce evidence and credibility findings. The judge shouldhave noted the conflicting evidence of the husband and wife, explained that without further testing of the credibility of the parties he wasnot in a position to rule on the contempt aspect of the motion, and adjourned that issue for cross-examination before him (see Paton atpara. 10). 48 Second, the motion judge was too quick to consider the contempt allegation as a means to resolve the dispute about thecontents of the trailer.

As noted in Paton, the finding of contempt is a “sledge hammer” and need not be resorted to if other orders maysuffice. In keeping with the principle of restraint, the motion judge should have restricted the September 15th order to ordering thehusband to return the specific articles by a specific time. That would have avoided any possibility, if not probability, of disputes as to

what constituted contents and the husband would have known the specific articles that he had to provide to the wife and when. 49 These two errors amount to misdirection on the part of the motion judge. I am of the view that they are of such a nature that they entitle this court to intervene in how he exercised his discretion so as to avoid an unjust result. 50 For all these reasons, I am persuaded that the motion judge’s finding of contempt cannot be sustained.

Given this conclusion, the solicitor and client costs awarded against the husband also cannot be sustained. 51 I would add that it is no surprise that issues arose as to what constituted “contents” for the purposes of the June 25th order. It seems to me that such a general reference will rarely provide the clarity of wording that is demanded to underpin a finding of contempt. This is so because specificity in the language of an order is crucial to ensuring that the order is clear and unambiguous and therefore capable of being complied with.

In other words, without specificity, the party bringing a motion for contempt will be hard-pressed to prove the elements of contempt beyond a reasonable doubt. 52 One final comment. The wife’s affidavit contained much in the way of hearsay evidence about what her sister told her of discussions she had with the husband concerning the delivery of the trailer. This evidence was contentious and material, at least from the wife’s perspective.

Queen’s Bench Rule 60.10(3) provides that: Affidavit in support 60.10(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent’s information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit. The hearsay evidence of the sister is the type of evidence that this rule does not permit.

Conclusion 53 I would allow the husband’s appeal and vary the order of September 15, 2011, by deleting the finding of contempt (para. 3.1) and deleting the order that the husband pay solicitor and client costs in the amount of $5,000 (found in para. 3.3). Because other aspects of the September 15th order are not disturbed, I would not order costs in favour of either party with respect to the September 15, 2011 proceedings in the Court of Queen’s Bench. 54 I would order costs in favour of the husband on this appeal. J.A. I agree: J.A. I agree: J.A.