Zilke v Epp, 2020 MBCA 99

Citation: Zilke v Epp, 2020 MBCA 99 Date: 20201005 Docket: AF19-30-09331 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Holly C. Beard Mr. Justice William J. Burnett BETWEEN : JURI ZILKE ) A. K. Gowenlock and ) B. F. Greenberg (Petitioner) Respondent ) for the Appellant ) - and - ) M. G.

Mercier ) for the Respondent IRINA EPP ) ) Appeal heard and (Respondent) Appellant ) Decision pronounced: ) October 5, 2020 beard JA (for the Court) : [ 1 ] The respondent, Irina Epp (the mother), has appealed an order dated June 20, 2019, finding her in contempt of court orders pronounced on June 8, 2018, December 6, 2018, and April 30, 2019, essentially for failing to comply with the provisions dealing with custody and access.

She is also appealing the penalty imposed on August 9, 2019, regarding the contempt finding, of 21 days’ incarceration and costs of $10,000. [ 2 ] The mother alleges that the trial judge erred by failing to provide sufficient reasons to support the finding of contempt and in imposing a penalty that was excessive and plainly wrong.

The mother has recently retained new counsel and is requesting an adjournment to amend the notice of appeal to add a new ground of ineffective assistance of counsel in relation to the contempt proceedings. [ 3 ] The petitioner, Juri Zilke (the father), is opposed to the adjournment, given that this matter has been ongoing for several years and the appeal of the contempt order was filed over a year ago. The mother was taken into custody on August 9, 2019, when the penalty was imposed and she served six days in custody before she was released on bail pending appeal, which was with the consent of the father.

The father states that, since then, she has been following the custody and access order, and he is not looking to have her serve the rest of her sentence in custody. [ 4 ] At the Court’s invitation, we stood down the appeal hearing for the parties to explore the possibility of resolving this matter. They were able to come to a resolution with which we agree, therefore the appeal will be granted to the extent that the order of August 9, 2019, will be varied as follows: (

i) the remainder of the period of incarceration will be suspended for two years from today on the condition that the mother comply with the terms of all orders dealing with custody and access, including the final order of June 8, 2018, the variation order granted on December 6, 2018, and any further variation thereof; and (ii) the costs that were ordered on August 9, 2019, will be reduced from $10,000 to $7,500, payable forthwith. [ 5 ] As the parties resolved this matter by consent, there will be no costs on the appeal.

JA CJM JA