Parent v. MacDougall, 2017 NSSC 365

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Parent v. MacDougall , 2017 NSSC 365 Date: 2017-05-09 Docket: SFH-MCA 67181 Registry: Halifax Between: Briand Parent Applicant v. Amanda MacDougall Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore

Summary: In contempt proceeding where parties self-represented, information came to light at the penalty phase which might provide a defence. Parties offered the opportunity to have a re-hearing in front a new judge or, only if both agreed, to have the contempt finding vacated and re-open the initial phase of the proceeding. Key words: Family, Contempt THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Parent v. MacDougall , 2017 NSSC 365 ENDORSEMENT Briand Parent v.

Amanda MacDougall SFH-MCA 67181 May 9, 2017 Decision: At the penalty phase of a contempt application, evidence came to light which could suggest Ms. MacDougall has a defence to the allegations which might result in Ms. MacDougall not being found in contempt of court. There are two options for dealing with this evidence, which must be addressed in the interests of justice. One option requires the consent of both Mr. Parent and Ms. MacDougall. The parties must advise whether they consent by June 2, 2017. Reasons:

1 . Briand Parent applied to have Amanda MacDougall found in contempt of fourteen provisions of a decision made on May 2, 2016, which was formalized into an order issued on September 6, 2016. 2 . Throughout this application, both Briand Parent and Amanda MacDougall have been unrepresented. 3 . The contempt portion of the application was heard on March 28, 2017. Mr. Parent filed an affidavit containing his evidence. 4 . Ms. MacDougall did not ask Mr. Parent any questions about his evidence in support of his application to have her found in contempt. 5 . Ms. MacDougall made no closing submissions about Mr.

Parent’s application: Mr. Parent did make closing submissions. 6 . At the conclusion of the hearing on March 28, 2017, I rendered an oral decision in which I found that Ms. MacDougall was in contempt of three provisions of the September 6, 2016 order: paragraph 11, paragraph 17 and paragraph 32. 7 . The penalty phase of the contempt hearing was scheduled for May 1, 2017. At this phase, both Mr. Parent and Ms. MacDougall offered evidence. Each was cross-examined by the other. I asked questions of each. 8 .

During the penalty phase, both parties offered evidence which suggested a possible defence and thereby called into question my findings that Ms. MacDougall was in contempt of court. I made no decision in this regard. When the evidence came to light, I adjourned the hearing and told the parties I would advise them, as soon as possible, how I would approach the situation. 9 . Contempt applications are quasi-criminal proceedings with serious consequences. Ms. MacDougall is without the advantage of legal representation.

It is in the interest of justice that I ensure a person is not convicted of contempt because the person has chosen to be self-represented. 10 . In these circumstances, there are two options available to me. First, I can declare that there has been a mistrial, vacate my finding that Ms. MacDougall is in contempt and arrange for Mr. Parent’s application to be heard by another judge. This would be done without Mr. Parent being obliged to re-file his application or to pay any additional filing fees. The parties would then have a conference before one of my colleagues to arrange and

schedule a hearing of Mr. Parent’s application to find Ms. MacDougall in contempt. If she was convicted, a penalty phase would follow. At the first hearing, each party would offer the evidence they had regarding Mr. Parent’s allegations – subject, of course, to Ms. MacDougall’s right to remain silent in the face of the allegations. 11 . I realize the first option puts the parties to the inconvenience and expense of repeating steps they have already taken. It has the advantage of giving both the chance to be heard by a different judge who will hear the application with no preconceptions about the evidence. 12 .

The second option is to vacate my finding that Ms. MacDougall is in contempt and to re-open the initial phase of the application. I would then admit all the evidence heard during the penalty phase into consideration on the initial issue of whether Ms. MacDougall is in contempt. Both Mr. Parent and Ms. MacDougall would make submissions as to whether Ms. MacDougall should be found in contempt. If she was convicted, a penalty phase would follow. 13 . This option avoids putting the parties to the inconvenience and expense of repeating steps they have already taken.

It has the disadvantage that the parties are not heard by a different judge. I would only exercise this option if both parties agreed. 14 . By Friday, June 2, 2017, Mr. Parent and Ms. MacDougall must each write to me (and send the other a copy of the letter), telling me whether they consent to the second option. If both parties do not agree or if I do not hear from either or both parties, I must follow the first option. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)