Keinick v. Bruno, 2012 NSSC 218

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Keinick v. Bruno, 2012 NSSC 218 Date: 20120522 Docket: 1206-004799 Registry: Sydney Between: Paul Keinick Applicant v. Maureen Bruno Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: May 22, 2012, in Sydney, Nova Scotia Oral Decision: May 22, 2012 Written Decision: June 8, 2012 Counsel: Paul Keinick, on his own behalf Jennie Donnelly MacDonald, for the respondent By the Court: I Introduction [ 1 ] Maureen Bruno and Paul Keinick are former spouses who have an ongoing relationship because of their nine year old daughter, Dakota.

The parties share joint custody of Dakota, although Dakota ’ s primary residence is with Ms. Bruno, who resides in the Sydney area. Dakota visits her father, who lives in Waverley, with his wife and two sons.

[ 2 ] On March 29, 2012, Maureen Bruno was found in contempt of the parenting provisions of the court order as reported in Keinick v. Bruno 2012 NSSC 140 . The court adjourned so that evidence and submissions could be produced to aid the court in its penalty disposition. Both parties filed submissions and affidavits. Neither party wished to present oral evidence, nor cross examine on the affidavits. [ 3 ] The penalty hearing was held on May 22, 2012. After reviewing the extensive submissions, the affidavits, and the case law presented, the court imposed a penalty on Ms. Bruno.

II Issues [ 4 ] What is the appropriate penalty to be imposed on Ms. Bruno? III Analysis [ 5 ] What is the appropriate penalty to be imposed on Ms. Bruno? [ 6 ] Position of the Parties [ 7 ] Ms. Bruno seeks to have the contempt expunged because Ms. Bruno states that she has purged the contempt. Ms. Bruno apologized to the court, and to Mr. Keinick, for her conduct. Ms. Bruno confirmed that she is now following all of the terms of the court order since the contempt findings were entered. [ 8 ] In contrast, Mr.

Keinick seeks a suspended sentence for a period of 15 months, which he states is equivalent to the number of months that Ms. Bruno was in default of the court order. Mr. Keinick seeks a change in the defacto custodial parent should Ms. Bruno continue to breach the court order. He also seeks an order directing Ms. Bruno to attend a parenting course to address issues relevant to her failure to abide by the court order. Although not seeking costs at present, Mr.

Keinick seeks costs should there be another breach of the court order. [ 9 ] Decision [ 10 ] Rule 89.13 provides this court with the authority to impose a number of penalties following a contempt finding. Rule 89.13 states as follows: 89.13

(1) A contempt order must record a finding of guilt on each allegation of contempt for which guilt is found and it may impose a conditional or absolute discharge, a penalty similar to a remedy for an abuse of process, or any other lawful penalty including any of the following: (

a) an order that the person must abide by stated penal terms, such as for house arrest, community service, or reparations; (

b) a suspended penalty, such as imprisonment, sequestration, or a fine suspended during performance of stated conditions; (

c) a fine payable, immediately or on terms, to a person named in the order;

(

d) sequestration of some or all of the person’s assets; (

e) imprisonment for less than five years, if the person is an individual.

(2) A contempt order may provide that a penalty ceases to be in effect when the person in contempt causes contemptuous behavior to cease, or when the person otherwise purges the contempt.

(3) A contempt order may provide for, or a judge may make a further order for, the arrest and imprisonment of an individual, or sequestration of the assets of a corporation, for failure to abide by penal terms, fulfill conditions of a suspended penalty, or comply with terms for payment of a fine. [ 11 ] In TJ Industries Ltd. v.

Williams , 2001 NSCA 105 , Cromwell J.A., as he then was, noted that in fashioning a penalty order, the court was “ entitled to do so in a way that will obtain compliance with the order so that the party entitled to the benefit of the order, in fact, receives it: ” para. 35. [ 12 ] Cromwell J.A. also provided a nonexhaustive list of factors to consider at the penalty stage, at para. 38, including the following:

a) The diligence of the alleged contemnor in attempting to comply with the order;

b) Whether there was room for a reasonable disagreement about what the order required;

c) Whether the alleged contemnor benefited from the breach of the order;

d) The extent of the resulting prejudice; and

e) The importance of orders being taken seriously by all affected by them. [ 13 ] Cromwell J.A. further noted that if compliance has been effected by the time of the contempt application, often no further sanctions, beyond an order for costs, will be imposed. Where there has been substantial measures taken by the alleged contemnor to comply, the contempt may be excused or the imposition of a sanction postponed to allow those measures to continue: para 37. [ 14 ] In Rogers v. Rogers , 2008 MBQB 131 , Little J. completed an extensive review of case law before commenting on penalty considerations, in the family context, including the following:

a) The penalty should ensure compliance to preserve the integrity of the administration of justice;

b) The penalty should reflect an element of deterrence, both general and specific;

c) Sentences should not reflect a marked departure from those imposed in similar circumstances;

d) Restraint is always appropriate, given the twin objectives of protecting the best interests of children and the administration of justice. There is, however, a presumption that the current order is in the child ’ s best interests and should be obeyed;

e) A fine is appropriate in some circumstances, as are costs, provided such are at a level which would not negatively impact on thewelfare of the children;

f) The sentence must be proportional to the gravity of the wrong doing;

g) Imprisonment should only be imposed in cases that are the most serious and deliberate of disobedience;

h) The penalty must be assessed in light of the number of breaches, and the duration over which such breaches have occurred;

i) The penalty should reflect the presence or absence of remorse, and whether an apology has been transmitted to the court, and tothe other party;

j) All sentences for contempt in family law should have regard for the children’s best interests;

k) A recognition that victims of contempt include not only the applying party, but also the children who have been prevented fromspending time with the nonoffending parent; and

l) Penalties are often multifaceted and can include incarceration, discharges, suspended penalties, costs, fines, and parenting courses(Little J. citing Paton v. Shymkiw, (MB KB), [1996] M.J. No. 569; and MacNaughton v. MacNaughton, (MB KB), [1998] M.J. No 575 (Q.B). [15] In fixing Ms. Bruno’s penalty, I note the following factual findings:

a) Ms. Bruno extended to the court, and to Mr. Keinick, an apology for her failure to comply with the terms of the court order datedAugust 14, 2007. This apology was reiterated during the court appearance on May 22, 2012;

b) After the contempt finding was entered, Ms. Bruno complied with the parenting schedule. All changes made to the schedule, although at the request of Ms. Bruno, were made with the prior consent of Mr. Keinick;

c) Prior to entering the contempt findings on March 29, 2012, Ms. Bruno was given many opportunities to comply with the courtorder. Ms. Bruno chose not to comply;

d) Ms. Bruno’s past, numerous breaches negatively impacted upon Dakota’s relationship with her father;

e) Ms. Bruno’s past contemptuous conduct was contrary to Dakota’s best interests; and

f) The circumstances which lead to the contempt findings were serious and egregious. [16] Mr. Keinick is not seeking a fine, nor is he seeking costs. Mr. Bruno ought to be grateful for that concession as costs areordinarily assigned to the successful litigant, especially in the contempt context.

[ 17 ] This court cannot entertain Mr. Keinick ’ s requests for a predetermination of future penalties should further breaches occur, such as costs or a change in the primary care parent. To do so would be speculative and contrary to due process principles. [ 18 ] This Court has determined that a suspended penalty is imposed on Ms. Bruno, after considering Rule 89.13, the case law, the evidence, and the submissions of the parties. The suspended penalty will operate from May 22, 2012 until September 21, 2012. During the period of the suspended penalty, Ms. Bruno must comply with the parenting schedule.

Further, Ms. Bruno must engage in parenting counselling to address parenting deficits associated with the contempt. Ms. Bruno is solely responsible for all costs associated with the counselling. The counsellor will be provided with a copy of the decision and order. The counsellor will report back to the court when Ms. Bruno has successfully completed the counselling which is to be finalized before September 21, 2012. The following will be addressed with Ms. Bruno during counselling:

a) Identifying why the father daughter relationship is important to Dakota ’ s emotional security;

b) Identifying how Ms. Bruno ’ s past conduct has negatively affected the relationship between Mr. Keinick and Dakota, and identifying ways that Ms. Bruno can encourage that relationship now, and in the future;

c) Identifying how Dakota is negatively affected when she is placed in the middle of parental conflict; and

d) Identifying how Ms. Bruno ’ s past conduct, either direct or indirect, has resulted in Dakota being placed in the middle of the parental conflict. [ 19 ] If Ms. Bruno obeys the parenting provisions of the court order, and completes the counselling as stated, then the suspended penalty will terminate on September 21, 2012. If, however, Ms. Bruno does not obey the parenting provisions, or if she fails to successfully complete the counselling, then the matter will be remitted back to court for further submissions as to penalty pursuant to rule 89.13(3).

The parties will next appear on September 21, 2012 at 10:00 a.m. [ 20 ] Ms. MacDonald is to draft the order, and forward to Mr. Keinick for his signature as to form. If there are any drafting difficulties, either party may contact my assistant to arrange for a brief appearance. Forgeron, J.