L.M. v. D.B., 2020 NSSC 189

SUPREME COURT OF Nova Scotia Citation: L.M. v. D.B. , 2020 NSSC 189 Date: 20200617 Docket: Yarmouth , No. 1208-003687 Registry: Yarmouth Between: L.M. Applicant v. D.B. Respondent Judge: The Honourable Justice Pierre L. Muise Heard: February 21, 2020, in Halifax, Nova Scotia Counsel: Leora Lawson, for the Applicant Terrance Sheppard, for the Respondent INTRODUCTION [ 1 ] Ms. M. brought this application against Mr.

B. alleging that he was in contempt of the Corollary Relief Order issued June 26, 2019 ( the “CRO”) because he refused to return their daughter, P., to her primary care. [ 2 ] In his notice of contest, and other responding materials, Mr. B. also alleges contemptuous breaches of the same Court order by Ms. M. However, there is no contempt application against Ms. M. before me. I need not determine whether contempt by Ms. M. has been proven. It is not alleged that her action or inaction prevented Mr. B. from complying with the order. Therefore, I need not determine that either. [ 3 ] P. has now been returned.

Therefore, any contempt that may have existed has been purged. ISSUES [ 4 ] So, the issues to be determined on this application are as follows: 1. Was Mr. B. in contempt? 2. If he was in contempt, what punishment should be imposed? LAW AND ANALYSIS GENERAL LAW OF CONTEMPT [ 5 ] CPR 89.04 allows any “interested person” to bring a contempt application. Ms. M. is an interested person. [ 6 ] CPR 89.06 provides that the notice of application must contain the information specified in CPR 89.03. The amended notice in the case at hand contains the required information. [ 7 ] The Court in Godin v.

Godin , 2012 NSCA 54 , at paragraph 47 , summarized the legal principles applicable to contempt applications as follows: “1. finding a party in contempt falls within a trial judge’s discretion; ….

4. notwithstanding its civil nature, contempt of court is quasi-criminal; 5. the standard of proof in contempt proceedings is proof beyond a reasonable doubt; 6. the party alleging contempt has the burden of proof; 7. in a case of civil contempt the following elements must be established beyond a reasonable doubt: (

i) the terms of the order must be clear and unambiguous; (ii) proper notice must be given to the contemnor of the terms of the order; (iii) there must be clear proof that the contemnor intentionally committed

an act which is in fact prohibited by the terms of the order, and (iv) mens rea must be proven which, in the context of civil contempt proceedings, means that while it is not necessary to prove a specific intent to bring the court into disrepute, flout a court order, or interfere with the due course of justice, it is essential to prove an intention to knowingly and wilfully do some act which is contrary to a court order.” [ 8 ] This

summary of principles supports Mr. B.’s argument that determining whether intention and mens rea have been proven occurs at two different steps in the analysis. However, the court in Godin did not engage in separate assessments of intention and mens rea . Rather, it only referred to whether the alleged contemnor violated the order “with the requisite intent”. [ 9 ] The court extracted the listed principles from Soper v. Gaudet , 2011 NSCA 11 . In that decision, the court did not outline intention and mens rea as two separate elements. It discussed the intention required to establish mens rea .

It also dealt with the element of a breach of the order having been committed, by act or omission, without examining whether it was intentional or not. [ 10 ] The danger of adding a mens rea analysis, to a requirement to find an intentional breach, is that it may lead to a search for an intention to deliberately disobey a court order, which need not be proven. That was confirmed by the Supreme Court of Canada in Carey v. Laiken , 2015 SCC 17 , where, at paragraphs 32 to 35, the Court stated, with references omitted: [32] Civil contempt has three elements which must be established beyond a reasonable doubt … .

These three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases: … . [33] The first element is that the order alleged to have been breached “must state clearly and unequivocally what should and should not be done”… . This requirement of clarity ensures that a party will not be found in contempt where an order is unclear … .

An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning … . [34] The second element is that the party alleged to have breached the order must have had actual knowledge of it … .

It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine … . [35] Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels … . [ 11 ] At paragraph 38, it further explained the requisite intent as follows: It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice … . … [T]o require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” … .

Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt … . [ 12 ] Therefore, determining whether it has been proven that the alleged contemnor had the required intent or mens rea is one, and the same, analysis. [ 13 ] The court in Godin , at paragraph 70 , added the following guidance: “I fully appreciate the significance of the contempt power in a trial judge’s arsenal as a ready means to maintain respect for the rule of law and to dispense even-handed justice to all parties.

Nonetheless, it is a blunt instrument only to be wielded sparingly, in circumstances where no other sanction will do. Its penal consequences require a strict application of proper procedures. This critical balance is aptly described by Melissa N. MacKovski in Administering Justice: The Law of Civil Contempt , [2009] Annual Review of Civil Litigation 80: ... civil contempt may attract severe consequences. Court orders are meant to be followed and breaches in a civil context may result in criminal penalties.

The contempt power remains an important tool in ensuring compliance with court orders which is fundamental to the rule of law and the fair and proper administration of justice. Without the ability to sanction for contempt, the dignity of the court and the integrity of the justice system are threatened. ... the use of the contempt power should be tempered and reserved for those cases where the breach is both serious and beyond a reasonable doubt. Otherwise the power itself risks being diluted. .... ” [ 14 ] Similarly, the Court in Carey v.

Laiken , at paragraph 36 , stated that “[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders”, and highlighted that it “cannot be reduced to a mere means of enforcing judgments”.

[ 15 ] At paragraph 37, it added: For example, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt … . … I wish to leave open the possibility that a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case. [ 16 ] Our Court of Appeal, in TG Industries Ltd. v.

Williams , 2001 NSCA 105 , at paragraph 31 , also noted that: “There is authority for the view that contempt should not be found where the defendant has exercised due diligence and done everything possible to comply with the terms of the order”:. ISSUE 1: WAS MR. B. IN CONTEMPT? [ 17 ] The following is not in dispute. [ 18 ] The CRO clearly provides that both children shall reside with Ms. M. primarily and be in her day-to-day care in New Brunswick.

It also provides that, “unless the parties agree otherwise”, the parties or someone on their behalf “are to meet halfway between Shelburne County and Riverview at 7:00 pm on the last day of school before [D. B.]’s access and meet again at 7:00 pm on the day before school resumes”. [ 19 ] The parties agreed to meet at 10:30 am on January 6, 2020, at the Holiday Inn Express, near the Halifax Airport, to exchange P. following Mr. B.’s Christmas access. Mr. B. did not do so. He informed Ms.

M., on January 5, he would not be forcing P. into a vehicle as she had decided, for what, in his view, were legitimate reasons, to live with him and stated many times she would not be getting in the vehicle. [ 20 ] He also did not do so after their lawyers became involved, nor after the contempt motion was filed and he was given notice. [ 21 ] He did so on February 7, 2020, after being informed, on February 6, that the RCMP would be enforcing the order. [ 22 ] Mr.

B. acknowledges the first two elements, that the order was clear and unequivocal, and he had actual knowledge of it. [ 23 ] His position is that the application should be dismissed because: 1. He did not intentionally breach; 2. He did not have the necessary mens rea ; and/or, 3. Since Ms. M. repeatedly failed to comply with the order by not permitting him the parenting time provided for in the order, it would work an injustice to find him in contempt. [ 24 ] I will address the 3 rd point when assessing whether I should exercise a discretion not to enter a finding of contempt to prevent an injustice.

Intentional Breach / Mens Rea [ 25 ] As noted, it need not be proven that Mr.

B. intended to disobey the CRO. [ 26 ] Godin , at paragraph 94 , stated the following in relation to the mental element that must be proven beyond a reasonable doubt: “In the context of civil contempt proceedings, this means that while it is not necessary to prove a specific intention to bring the court into disrepute, flout a court order, or interfere with the due course of justice, it is essential to prove wilful and deliberate conduct that has the effect of contravening the order. … [I]n deciding whether the actions of the alleged contemnor were wilful, deliberate, and contemptuous, or whether a reasonable doubt arises on the evidence with respect thereto, the judge will likely wish to consider such things as the alleged contemnor’s explanations for his or her conduct; the efforts made to ensure compliance; and whether there were obstacles not of the alleged contemnor’s making, or other reasons which might provide an adequate excuse to the charge. [ 27 ] Mr.

B. argues that the following points raise a reasonable doubt regarding whether he had the requisite mens rea : 1. P. had repeatedly told him, since moving to New Brunswick in September 2019, that she wanted to live with him instead of Ms. M. 2. He encouraged her to return. 3. She stated she did not feel comfortable or safe living with Ms. M. and gave reasons he considered to be legitimate. 4. She was scared to tell her mother because she was afraid of her mother’s reaction and that her mother would not love her anymore. 5. He respected and supported her decision and informed Ms. M. he would be keeping P. 6.

He insisted P. call her mother to inform her of her decision. 7. He tried to have Ms. M. speak with P. in the presence of her counsellor Ms. Campagnoni. To his knowledge, she did not

attempt to meet with P. and discuss her concerns. 8. He was hoping Ms. M would respect P.’s wishes as she repeatedly told him she would do. 9. In October 2019, at a midway exchange, when P. was refusing to go with Ms. M., she physically removed P. from the vehicle and yelled at her and S., Mr. B.’s partner. 10. P.’s anxiety about returning to her mother’s home was so severe it manifested itself in physical symptoms. On January 20, he brought her to the hospital, where she had a private conversation with a doctor and nurse. As a result, CFS was called. 11.

It is his understanding that the local CFS contacted their counterpart in New Brunswick to investigate. [ 28 ] He argues that the circumstances in Godin were analogous to those in the case at hand, and the Court of Appeal overturned a finding of contempt. In that case, two teenage sons refused to go live with their father. The mother had actively encouraged them to respect the court’s order. The Court of Appeal stated that, short of throwing them out on the street, there was nothing more she could have done. [ 29 ] Mr. B. clearly communicated in his January 5 email to Ms.

M. that he would not be forcing P. in his vehicle and would be enrolling her in a Shelburne County school. He admits having subsequently tried to enroll P. in Forest Ridge Academy, and having complained that Ms. M. prevented it. [ 30 ] There is no evidence that he did anything on January 6 to even attempt to deliver P. to Ms. M. [ 31 ] P.’s expressed wishes, and his belief, or hope, Ms. M would respect them, do not provide an explanation or excuse which raises a reasonable doubt as to mens rea .

Those are factors supporting a variation application, not withholding a child contrary to an existing order. [ 32 ] An incident of physical removal and yelling at exchange, three months prior, on Thanksgiving weekend, even if it occurred, also would not provide an explanation or excuse that raises a reasonable doubt. That is particularly so, considering there were multiple uneventful exchanges between then and January 6. [ 33 ] Further, Mr. B. could not recall ever communicating to Ms. M. that he felt she had handled P. in a rough manner during that Thanksgiving exchange.

Therefore, more likely than not, his description of what occurred is exaggerated. I accept Ms. evidence that she held P. by the hand and P. walked with her. [ 34 ] It is positive that, prior to January 6, he had encouraged P. to return. However, given that she was only 11 years of age at the time, those were insufficient efforts towards compliance to raise a reasonable doubt as to mens rea . [ 35 ] In Godard v Godard , 2015 ONCA 568 , the “appellant argued that she had done her best to facilitate the respondent's access, but S. had persistently refused to see the respondent”.

S. was 11 years old during the last period of access and 12 at the time of the contempt motion. [ 36 ] At paragraph 29, the court stated: No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can.

In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant's failure to do do {sic} all that she reasonably could: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order". [ 37 ] At paragraphs 32 and 33, it concluded: [T]here was ample evidence in the record to support the motion judge's conclusion that the appellant essentially left the decision concerning compliance with the access order up to S. … It is possible that nothing short of physical force could have brought S. to the access visits.

However, this does not excuse the appellant given the motion judge's finding that she has not done all that she could to attempt to comply with the access order. The motion judge found that despite being on notice that attempts at stronger forms of persuasion may be required, the appellant did not go beyond mere encouragement. In these circumstances, the motion judge properly concluded that deliberate and wilful disobedience was established beyond a reasonable doubt. [ 38 ] Similarly, Mr.

B.’s efforts did not go beyond mere encouragement, and those efforts pre-dated the day he was to return P. to her mother. [ 39 ] There have been cases, including Godin , in which mere encouragement was found to be sufficient. However, those involved children who were 13 years of age and older. They recognize that measures to implement parental authority that could reasonably be expected with younger children, may no longer be expected to be effective at those ages. [ 40 ] In Godin , the two teenaged sons refused to live with Mr. Godin. One was 14, and the other was 16. Mr.

Godin himself was unable to keep them at his home when he had them. The younger son, Joey, walked to a friend’s house, 1.6 kilometers away, when Mr. Godin refused to drive him to his mother’s home. When Mr. Godin waited outside their mother’s home to pick them up, Joey texted that he was not coming out. The 16-year-old did not answer Mr. Godin’s emails and did not speak to him. Their mother did not feel “she could physically throw them out on to the street and destroy what ‘little amount of relationship … [they had] left’”.

She had told both sons the court had ordered them to live with their father and that they should do so. The Court of Appeal concluded she had “actively encouraged her sons to respect the court’s order and take up residence with their father”. The Court further commented, at paragraph 64,

that: “Short of physically throwing her sons out of her apartment and on to the street, it is difficult to imagine what more the appellant could have done with two teenage boys who refused to move in with their father.” It vacated the contempt finding. [ 41 ] In Soper v. Gaudet , s upra , 13-year-old twins were spending court-ordered access time with their grandparents, and refused to return to their mother’s residence, even though she had custody of them. The grandparents had offered to allow the police to take the children.

However, the children told the police that they feared being hit by their mother, and the police decided not to remove them. The Court of Appeal concluded that it had not been proven that the grandparents did, or failed to do, anything to influence the children to remain with them, and set aside the finding of contempt. [ 42 ] In DeMatos v. DeMatos , 2016 ONSC 5139 , the mother, who was the alleged contemnor, had sole custody of the daughter of the marriage, who was 13 years of age. The court accepted that she believed the daughter had reached the age where she could choose her own access times.

Though the court was not convinced it was a reasonable belief, it was left with a reasonable doubt regarding whether it was unreasonable in the circumstances. In addition, the court found that the father had “contributed in a substantial way to the problems in his relationship with” their daughter. Further, the mother had made attempts to restore access and supported the daughter’s idea for doing so. It is the father who rejected the idea.

Therefore, the court found that contempt had not been proven. [ 43 ] At paragraph 196, the court referred to another decision of the Ontario Superior Court of Justice in which the court concluded that the child’s age, and the length of time he had consistently expressed he did not want to live with his father, made it unreasonable for the court to expect the mother to physically force the child to go. [ 44 ] In the case at hand, a reasonable measure Mr. B. could easily have taken, which would not have detrimentally affected his relationship with P., was to: tell her, as Ms.

Godin did, that the existing court order required her to live with her mother, and required him to deliver her to the exchange location; and, that he was going to drive there with her, so that he would not be in breach of the order. He could have explained that he respected her wishes and would take steps to get the order changed so that she could live with him. [ 45 ] He did nothing at the time to help ensure he would be able to return P. to the primary care of her mother. He had a parental responsibility, under the CRO, to take reasonable steps to ensure compliance.

Prior to that time, he had been convincing her to return. [ 46 ] According to his evidence, the only time he told P. that the CRO required her to live with her mother was in September 2019, when she told him she felt guilty for choosing to live with her mother. He did not remind her of that as the January 6 drop off date approached.

Even later in January, after a stand-alone enforcement order was granted, all he did was tell P. she “probably” would have to return to her mother’s home. [ 47 ] Instead, he encouraged P. to stay by telling her he would not force her to go, emailing her mother a message that P. would be staying with him, and attempting to enroll her in school in Shelburne County. [ 48 ] The email to Ms. M. was sent to her on January 5, 2020. It conveyed the following. P. had decided to stay with him and stated many times she was not getting in his vehicle on the 6 th . He would not be forcing her. He supported her decision.

It was for legitimate reasons. However, he did not specify the reasons. He merely stated that: there were issues that needed professional assistance; he was concerned for her mental health; and, she had been having “breakdowns and anxiety attacks” over not wanting to go back. [ 49 ] He deposed that, on December 13, 2019, the guidance counsellor at P.’s school told him that P. did not want her to share, with Ms.

M., what she and P. discussed, for “fear of punishment for how she feels”. [ 50 ] In his evidence at the hearing, he added that she was crying herself to sleep. [ 51 ] P. was only 11 years of age at the time. Thus, she had not yet reached the age where her wishes would carry significant weight. In my decision following the divorce hearing, I noted that her older brother, who was 13, had reached an age where, given his level of maturity, his wishes should be given significant weight. It would be unreasonable for Mr.

B. to believe that P. had reached the age where she could decide who she wanted to live with. [ 52 ] Less than 6 months before January 6, 2020, she was saying she wanted to live with her mother in the Moncton area. It was in September 2019 that she expressed guilt for having chosen to live with her mother. According to Mr. B., by early January 2020, it had only been “four months of trying to convince P. to go”. Thus, she had not been consistently wishing to live with her father for very long. [ 53 ] Mr. B. testified that Ms. M. had always said she would support the wishes of the children.

He noted that, in the course of the divorce proceedings, she had communicated to him that, if the children had been saying they wanted to stay with him, there would not be a need for a hearing. He also deposed that he “honestly thought [Ms. M.] would respect P.’s wishes”. That indicates he believed Ms. M. would simply agree to P. staying with him. [ 54 ] However, the situation during the divorce proceedings was different. Both children were expressing the same wish. Thus, whether they should be separated was not a factor to consider. Ms. M. did not unilaterally move to the Moncton area with the children.

The parties engaged in discussions, then lengthy court proceedings, to address the issue. In addition, irrespective of the outcome of the divorce hearing, she agreed the children should finish the school year in Shelburne County. In contrast, Mr. B. acted unilaterally, and essentially without discussing the matter with Ms. M. He deposed that he tried to discuss keeping P. with Ms. M., but she dismissed the subject. However, he did not provide any specifics of those attempts, nor state when they occurred.

He did not point to any email raising that issue, despite having submitted numerous emails and text messages into evidence. It is only on January 5 that he had P. call her mother and state her wishes. Then he sent the January 5 email stating that he was not returning her and would be enrolling her in school. [ 55 ] Ms. M. did not give Mr. B. any indication she would agree to P. staying with him. His January 5 email stated that any further communication, other than that expressing agreement, was to be through their lawyers. It was sent at 10:43 a.m. Ms.

M. forwarded that email to her lawyer at 11:12 a.m., noting that she was in St. Lucia, flying back that night and asking for her help in enforcing the court order. Therefore, she clearly expected P. to be returned.

[ 56 ] Mr. B.’s affidavit and email say he “hoped” Ms. M. would support P.’s decision. In his email he added that, if she chooses not to, she is to “forward all correspondence through the lawyers”. That is inconsistent with an honest belief she would do so, and shows he was not open to any direct communication with Ms. M. over the subject. That, along with the fact that the email was sent only moments after P. told her mother she was staying with her father, indicates Mr. B. had made up his mind what he was going to do and was not prepared to consider Ms. M.’s views on the matter.

His expressed belief, more likely than not, is an after-the-fact rationalization. [ 57 ] Even if he had an honestly held the belief that Ms. M. would agree to P. staying to live with him, in the circumstances, operating under that assumption, would have amounted to wilful blidness. [ 58 ] Mr. B. also suggested that P.’s brother, K., not going to visit his father, sent a message to P. that she did not have to return to her mother’s home if she did not want to. However, the only times K. did not visit with his father was when it would interfere with his commitments to the provincial basketball team he was on.

In addition, each time Ms. M. brought P. to the parenting exchange location, she also brought K., so that Mr. B. at least was able to see him and exchange hugs with him. P. had no such other commitments, and Mr. B. did not bring her to the exchange location as required. Consequently, K.’s visitation record does not provide reason for P., or Mr. B., to conclude P. could decide where she would live, and does not raise a reasonable doubt regarding Mr.

B.’s intention. [ 59 ] On February 7, 2020, when P. was ultimately delivered to a meeting point, she exited the vehicle on her own and went with her mother without protesting. Mr. B. testified that, by then, he had told P. she had to go. He added that P. accepted she was going back, no matter how much she pleaded with her mother to stay. Therefore, more likely than not, had he told her, prior to January 6, that she had to return, she would have gone. [ 60 ] Mr.

B. argued a distinguishing feature was that, on February 6, 2020, he was informed that the RCMP would be enforcing the order, so he did not want to put P. through that additional emotional stress. However, that would not change what measures were effective in getting P. back to her mother in accordance with the order. [ 61 ] He also testified that, on January 5, P. told him that he would have to physically force her to go. However, he told her that he would not force her. He did not tell her she had to go. He took no steps towards transporting her to the meeting spot on January 6.

Therefore, he could not reasonably use the possible need for some physical intervention as an excuse. He had to at least try something. As indicated, something did work on February 7. [ 62 ] It was not until on, or after, January 24, 2020, that he was informed that P. was saying the environment in her mother’s home was volatile, and she was subject to what could be described as physical and mental abuse. That is when he saw a medical report dated that day. The report had been generated following a hospital visit, when Mr. B. brought P. to the emergency room because of what he believed to be a panic attack.

The information in that report may have provided justification to withhold P. However, it is unnecessary to decide that point, as the breach of the CRO had already been ongoing for almost 3 weeks, and P. was delivered to her mother about two weeks after the report.

Prior to the report, he only knew P. was saying she was: unhappy; and, afraid to go back to her mother’s home, and did not want her guidance counsellor to share her information with her mother, for fear of what her mother would say about her feelings and wanting to live with her father. [ 63 ] So, the question is whether P.’s anxiety symptoms, unhappiness and expressed fears, of which Mr.

B. was aware on January 6, provide explanations or excuses, which raise a reasonable doubt in relation to mens rea . [ 64 ] In assessing that point, it is important to note that P. had also exhibited such symptoms and expressed such fears, prior to moving to Moncton with her mother. During the divorce hearing, the following was demonstrated. P. had anxiety attacks over her idea to start a cheerleading team being rejected by her school.

Her, and her brother’s, counselling sessions with Toni Campagnoni were increased in the month and a half preceding the divorce hearing because their anxiety, over the outcome of the proceedings, was causing them to have having difficulty sleeping. Ms. Compagnoni noted that P. was having anxiety over not knowing whether she would be allowed to move to Moncton, to live with her mother, or not. [ 65 ] Ms. M.’s evidence is that, before P. left to spend Christmas Holidays with Mr.

B., P. was happy, had made lots of friends and was eliciting positive feedback from her teachers about how well she had settled in and how well she was doing. The exceptions were as follows. When P. returned from visiting Mr. B. she was withdrawn and angry, for a short while, then returned to her “loving, sweet, self”. [ 66 ] In addition, in November 2019, P. was upset at Ms. M. because she believed Ms. M. lied in court about Mr. B. having sexually assaulted her. During the divorce hearing, I did not need to decide whether the sexual contact was an assault. However, I found that, though Ms.

M. could not recall the activity, she believed it was, and the discoveries she made the next day, combined with Mr. B.’s admissions, made it reasonable for her to hold that belief. [ 67 ] It has not been proven beyond a reasonable doubt that Mr. B. deliberately created P.’s negative feelings towards M. by telling her Ms. M. had falsely accused him of rape, which had caused him to be off work, and the matter had been dismissed by a judge. The children did tell Ms. M., after she had found them having a very serious conversation, that Mr. B. had told P. that. Mr.

B. explained he simply told P. the case had been dismissed at a hearing, by way of explanation as to why he was able to go back to work. If the deliberate alienation tactic had been proven, it would be an aggravating factor on sentencing. It is not a circumstantial factor required to establish contempt in the case at hand. [ 68 ] However, Mr. B. admitted he was aware, prior to January 6, 2020, that Ms. M. had had that conversation with the children, and that P. was upset. Therefore, in assessing her expressed feelings towards her mother, it would have been reasonable for him to bear that issue in mind. [ 69 ] Mr.

B. agreed that P. was happy with her friends and school in New Brunswick. However, he deposed that P. told him “she puts on a fake smile at school to hide her sadness and she does the same at [Ms. M.’s] residence in fear of getting into trouble for saying how she really feels”. [ 70 ] That may be true, or it may simply be P. saying things to Mr. B. to please him. Either way, it does not provide a reason to

unilaterally alter the primary care arrangement. Rather, it raises an issue to be addressed in a variation application. Plus, it is corroborative of Ms. M.’s evidence that the anxiety symptoms, and expressions of unhappiness and fear, only manifested themselves while P. was with Mr. B. [ 71 ] The only reasonable inference to be drawn from the circumstances discussed is that Mr. B. intentionally failed to make reasonable efforts bring P. to the ½ way meeting spot as required by the order. Therefore, the requisite intention or mens rea has been proven beyond a reasonable doubt.

Discretion Not to Enter a Contempt Finding [ 72 ] Courts have clearly stated that the contempt powers should be used cautiously and with great restraint. It would not in the interest of the administration of justice to encourage continuation of contempt proceedings based on failures to comply with a provision in an order where the alleged contemnor had: provided a reasonable explanation for noncompliance; expressed a clear desire to comply; and, complied as soon as reasonably practicable after becoming aware of the contempt proceeding. [ 73 ] For the reasons noted, I have found that Mr.

B. has not done any of those things. For the same reasons, I find he has not “acted in good faith in taking reasonable steps to comply with the order. [ 74 ] The Supreme Court of Canada, in Carey v. Laiken , also left open “the possibility that a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case”. Therefore, I will examine whether I should decline entering a finding of contempt to avoid an unjust result. [ 75 ] Mr. B. argues it would be unjust to find him in contempt when Ms.

M. has been in contempt of the CRO, by not ensuring that P., and her brother, K., went to his home for all parenting times provided for in the CRO. [ 76 ] Any contempt by Ms. M. can be dealt with as a separate proceeding and is not even considered a mitigating factor on sentencing: Richardson v. Carroll , 2013 NSSC 187 , paragraph 31 .

If it is not even a mitigating factor on sentencing, it would not make a contempt finding unfair. [ 77 ] Therefore, this is not one of the type of situations envisaged in paragraphs 36 and 37 of Carey v Laiken , where it would be appropriate for me to use my discretion not to grant a contempt order, simply because of breaches by Ms. M., which did not make it such that Mr. B. could not comply. [ 78 ] Even if I am wrong in so concluding, the circumstances advanced by Mr. B. do not appear to establish contempt by Ms. M. [ 79 ] Ms.

M. explained that K. could often not go because of the need to attend provincial basketball games and practices. P. also had weekend activities. However, it was not essential that she attend them. So, she was free to go more often. However, Ms. M. encouraged Mr. B. to have his parenting time in Moncton so that he could attend K.’s basketball activities. Mr. B. himself acknowledged that she “continually” suggested “that the majority of [his] parenting time should be in Moncton where the children’s activities are”. [ 80 ] It makes sense that Ms. M. would expect Mr.

B. to want to watch K.’s basketball, as he had coached K.’s basketball in Shelburne County, and the love of basketball was something they had in common. [ 81 ] In addition, the parties have generally met halfway to exchange the children. That means they have been sharing access costs relatively equally. Yet, they agreed that, irrespective of who was granted primary care, the other would not have to pay child support, to make up for access costs.

That only makes sense if it had been intended that the non-primary care parent would exercise a significant amount of their parenting time in the area where the other lived. That would mean less time on the road for the children, and more opportunity for that parent to spend time with them in their community and at their activities. [ 82 ] Therefore, the no-child support clause supports Ms. M.’s expectation that Mr. B. would spend more parenting time in Moncton and go to more of K.’s basketball events.

However, he only went to one game and only spent one other weekend parenting in the Moncton area. [ 83 ] Further, when Ms. M. could not accommodate a weekend requested by Mr. B., she suggested alternate parenting times, many of which were turned down by Mr. B. [ 84 ] Mr. B was questioned about being invited to exercise access in Moncton and to attend K.’s basketball, and only wanting to have parenting time in Shelburne County. He responded that he would like unfettered time with his children, irrespective of whether they have activities booked, at times of his choosing, not at dictated times.

So, he is clearly taking a self-centered approach to his parenting time, rather than focussing on the best interests of the children. [ 85 ] In addition, K. was 13 during the time period in question. [ 86 ] As indicated in DeMatos , supra , when a primary care parent makes reasonable effort to arrange alternate parenting time, for teenagers who decide to choose their own access times, and the other parent rejects those alternate times, a contempt finding may not be appropriate.

There is even more reason to find that contempt has not been proven where, as in the case at hand, the reason for choosing alternate parenting time is to accommodate that child’s participation in a competitive sport, for which they and the other parent share the same passion. [ 87 ] For these reasons, the circumstances of the case at hand are not such that I may properly exercise a discretion to refuse to enter a finding of contempt to prevent an injustice. Contempt Finding

[88] All the elements of contempt have been admitted or proven beyond a reasonable doubt. The breach was serious. It involved aunilateral change of primary residence, without adequate justification, over several weeks. It resulted in P. being unable to attend herschool and jeopardized her ability to continue in the French immersion program. The circumstances do not warrant the exercise ofdiscretion to refuse to enter a finding of contempt. Therefore, I find Mr.

B. in contempt. [89] Following a finding of contempt, the penalty phase is usually set to a later date to give the contemnor the opportunity to purgethe contempt and prepare for the imposition of penalty. [90] However, Mr. B. has already purged the contempt, and the parties have made submissions, so I will go on to consider whatpunishment would be appropriate. ISSUE 4: IF HE WAS IN CONTEMPT, WHAT PUNISHMENT SHOULD BE IMPOSED? [91] The Ontario Court of Appeal stated in Ajax & Pickering General Hospital, Re (1981), (ON CA), 132D.L.R. (3d) 270 (Ont.

C.A.), leave to appeal denied [1982] 1 S.C.R. vi (S.C.C.), at 284, stated: Purging of contempt by compliance does not deprive the court of power to punish the person who has flouted its orders. It is merely amatter to be taken into account in assessing the penalty to be imposed upon the contemnor.” [92] Ajax was cited with approval, for that principle, by our Court of Appeal, in Sleigh v. McLean, 2019 NSCA 71, at paragraph76, which noted that purging of contempt prior to sentencing is a mitigating factor. [93] Ms. M. suggests the following as a penalty: 1.

A fine in the range of $2,500 to $5,000, which could be paid into an RESP in the names of the children; 2. A requirement that Mr. B. take a parenting course to gain insight into his actions and their impact; 3. A requirement that the children be permitted to engage in counselling in Riverview, New Brunswick and that Mr. B. is topay all associated expenses not covered by insurance; and, 4. That Mr. B. pay Ms. M.’s costs of the contempt motion on a solicitor-client basis. [94] In support, she submits that Mr.

B.: - Flagrantly disregarded the CRO and “was not diligent in attempting to comply”; - Unilaterally made up his own terms; - Did not apologize; - By his conduct, caused “prejudice, chaos and emotional damage”, as well as alienating effect, which he does not appear to recognize; - Put P. in the position of making adult decisions; and, - Caused P. to miss a month of school. [95] Mr. B. suggests that the penalty be limited to a “stern rebuke”.

In support, he argues he was in a difficult situation, and, thoughthe justifications he advanced did not render his conduct non-contemptuous, they have mitigating effect. [96] CPR 89.03 states: “

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

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 tocease, 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, orsequestration of the assets of a corporation, for failure to abide by penal terms, fulfill conditions of a suspended penalty, or comply withterms for payment of a fine.” [97] Some of the sentencing principles applicable to a contempt proceeding were referenced at paragraphs 20 to 31 of Richardson v.Carroll, supra. They include the following.

- The contemnor is to be punished for the specific offences for which they have been convicted. - The punishment is to be proportionate to the breach of the court order. - Mitigating and aggravating circumstances are to be considered. - Objectives of punishment include: coercing compliance; deterring people from breaching orders in the future; and, denouncing failure to obey court orders. - Changing a parenting arrangement as punishment is not an appropriate penalty because it is to be based upon the best interests of the child, not on punishment of a parent. - “The primary purpose of sentencing in contempt proceedings is the preservation of the integrity of the administration of justice.” The focus is on the conduct as it relates to the court or a court order. - The focus is not on the feelings of the other party.

However, if the contemnor has apologized for the breach, that is a mitigating factor. - Requiring the child to do something, such as attending counselling, is not an appropriate penalty as it does not punish the contemnor parent.

Instead, it puts a burden on the child. - Purging the contempt prior to sentencing is a mitigating factor. - Using circumstances of which the contemnor was aware prior to an order to justify a breach of that order is an aggravating factor, particularly in the case of a consent order. - It is aggravating if the breach is continuing, repeated or prolonged. - Breach of the same court order by the other party is not considered a mitigating factor.

A separate proceeding can be brought to address that contemptuous behaviour. [ 98 ] It is aggravating if the contemnor acted or failed to act in deliberate stubborn resistance to the authority of the Court order: Carey v Laiken , supra , para. 38 . [ 99 ] In Keinick v. Bruno , 2012 NSSC 218 , at paragraphs 11 to 14 , the court outlined contempt sentencing principles emanating from the caselaw as follows: [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 the welfare 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 to the 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 from spending time with the nonoffending parent; and

l) Penalties are often multifaceted and can include incarceration, discharges, suspended penalties, costs, fines, and parenting courses … . [ 100 ] In A.U.P.E. v Strathcona , 2001 ABQB 338 , where the contempt was purged in advance of the hearing, solicitor-client costs were ordered as a penalty for contempt. Our Court of Appeal, in Sleigh v. McLean , supra , at paragraph 79 , noted that, in contempt proceedings, “more often than not costs are awarded on a solicitor-client or full or substantial indemnity basis”. [ 101 ] I agree that, from the point of view of his own emotions, Mr.

B. was in a difficult situation. If your child is telling you she is unhappy living with her mother and is afraid to tell her because of how she may react, and is having anxiety over the situation, that would naturally pull at your heartstrings. However, as a parent of an 11-year-old, having a responsibility to make reasonable efforts to comply with parenting provisions in a court order, he was not in a difficult position.

All he had to do was to remain consistent in his position that she had to return to live with her mother unless and until the parenting provisions were varied, and act accordingly, including by telling P. he had to take her to the exchange point at the agreed-upon time, and by taking reasonable steps to put that into effect. If, after he had done so, she had, on January 6, refused to get in his vehicle, as she threatened, he could easily have called Ms. M., explained the situation, and invited Ms.

M. to come and see if she could get P. to go. [ 102 ] Since P. has now been returned, coercing compliance is not now a relevant factor in this sentencing. [ 103 ] However, there is still a need for a sentence to have some deterrent and denunciatory effect. Otherwise, there will be much less incentive for Mr. B. to refrain from such conduct in the future. [ 104 ] It is mitigating that Mr. B. eventually purged the contempt by returning P. However, he refused to do so until he learned the police would be enforcing the order. At that point he effectively had no choice but to comply.

That diminishes the mitigating effect. [ 105 ] It is aggravating that, prior to that point, he held steadfast to his position P. would be staying with him, in flagrant breach of the CRO. Even after a recorded telephone conference with the court, in which he participated, and in which a stand-alone enforcement order was granted, he continued in stubborn resistance to the authority of the court.

His attempt to enroll her in school shows he intended the unilaterally imposed living arrangement to have some permanency. [ 106 ] He took advantage of an 11-year-old’s pre-existing anxiety issues, and her feelings of guilt for having expressed a wish to live with her mother, to justify his conduct, and achieve a result he had sought in the divorce hearing. He could have eased her anxiety and guilt, by making it clear to her that the decision as to where she had to live was not hers to make. Instead, he put the decision in her hands, by telling her he would support her in it and not force her to go back.

That is a heavy burden for an 11-year-old to bear. [ 107 ] It created unnecessary emotional stress and turmoil for her, K., and Ms. M. [ 108 ] The breach continued for over a month, a relatively long period of time for an 11-year-old. [ 109 ] Mr. B. did not express any remorse. I will treat that as the absence of an otherwise mitigating feature. [ 110 ] Mr. B.’s failure to deliver P., as ordered, caused Ms. M. to incur legal expenses that she would not otherwise have incurred, initially to attempt to force compliance, then to establish contempt.

Her total legal account, with reasonable disbursements and HST, up to and including the day before filing the materials in support of the contempt motion (i.e. February 18, 2020), was $9,355.25. That represents reasonable and necessary legal expenses up to that point. [ 111 ] I must exercise restraint in sentencing. I must remember that I cannot impose a sentence that would have an impact that is contrary to the best interests of the children.

However, the contemnor is commonly ordered to pay costs on a solicitor-client basis. [ 112 ] Following the contempt hearing, counsel informed the court that the parties reached agreement on family counselling with Dr. Manuel Reyes in Moncton. That is ongoing. Therefore, a term addressing that remedial element is not required. Any report or information generated from that counselling ought to provide Mr. B. with insight into the impact of his conduct. Therefore, it is also unnecessary to order him to take a parenting course. [ 113 ] If the CRO and stand-alone enforcement order did not make Mr.

B. comply, it is unlikely that a “stern rebuke” would have much effect. [ 114 ] Considering these points, it fulfills the relevant purposes and principles, to sentence Mr. B. to pay: Ms. M.’s legal fees on a solicitor-client basis; and, as a fine, $3,000 in an RESP for the children. [ 115 ] In the circumstances, it is not contrary to the public interest to do so; and, no more stringent penalty is required to address the principles and objectives of punishment for contempt. [ 116 ] It ought also obviate the need for a separate determination on the costs of this application.

CONCLUSION [ 117 ] For the reasons noted, I find Mr. B. in contempt, for failing to make reasonable efforts to return P. to the primary care of her mother as and when required by the CRO, and impose the following penalty: 1. A fine in the amount of $3,000 to be paid by putting $1,500 in an RESP for P. and $1,500 in an RESP for K., on or before July 31, 2020; and, 2. A requirement that he pay Ms.

M.’s costs of the contempt motion on a solicitor-client basis, plus reasonable disbursements, on or before August 31, 2020. [ 118 ] I have determined that the solicitor-client costs and reasonable disbursements, up to and including February 18, 2020, total $9,3555.25. If there is any dispute regarding the reasonableness or necessity of any costs or disbursements after that date, I will receive submissions in writing on the issue. ORDER [ 119 ] I ask counsel for Ms. M. to prepare the order. __________________ Pierre L. Muise, J.