Sydor v Sydor, 2016 MBCA 102

Citation: Sydor v Sydor, 2016 MBCA 102 Date: 20161024 Docket: AF16-30-08542 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : RICHELLE ANN SYDOR ) ) R. A. Sydor ) on her own behalf (Petitioner) Appellant ) ) J. A.

Schofield - and - ) for the Respondent ) CORY WAYNE SYDOR ) Appeal heard and ) Decision pronounced: ) October 24, 2016 (Respondent) Respondent ) MAINELLA JA (for the Court): [ 1 ] The petitioner was found in contempt by the motion judge as a result of moving the parties’ three children from Brandon, Manitoba to Winnipeg, Manitoba contrary to the terms of an order as to the care and control of the children.

She appeals, asking this Court to set aside the finding of contempt, and resulting award of costs of $7,673.29, based on the submission that the motion judge erred in applying the correct test for civil contempt (see Carey v Laiken , 2015 SCC 17 at paras 32-35 , [2015] 2 SCR 79). [ 2 ] While the motion judge found the petitioner liable for contempt, she adjourned the question of the appropriate sanction sine die because counsel for the petitioner asked for the petitioner to be given an opportunity to purge her contempt.

Subsequently, a trial was heard by a different judge of the Court of Queen’s Bench on various custody-related issues relating to the three children. Relevant to this appeal, the trial judge dismissed the petitioner’s request for permission to relocate the two youngest children from Brandon to Winnipeg. [ 3 ] In our view, the case is not yet ripe for appeal because no sanction for the finding of contempt has yet been imposed by the motion judge.

A similar situation occurred in Willms v Willms , 2001 MBCA 123 , 156 ManR (2d) 281, where Lyon JA stated (at para 9): In any event, Hanssen, J.’s, order was an interim order only and no penalty for the alleged contempt has been meted out. Indeed, the trial judge’s jurisdiction on the contempt order is not complete until the penalty is ordered or the matter is otherwise disposed of. There is no basis for an appeal at this stage. [ 4 ] Accordingly, the appeal is dismissed with costs in the sum of $1,000 in the cause. JA JA

JA