Calvy v. Calvy, (2015) 440 N.B.R.(2d) 85 (CA)

• Judge: Larlee, Deschênes and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: August 27, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 440 N.B.R.(2d) 85 (CA);2015 NBCA 53

Calvy v. Calvy (2015), 440 N.B.R.(2d) 85 (CA);

    440 R.N.-B.(2e) 85; 1148 A.P.R. 85

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. AU.017

Renvoi temp.: [2015] N.B.R.(2d) TBEd. AU.017

Danielle Calvy (appellant) v. Christian Calvy (respondent)

(84-14-CA; 2015 NBCA 53)

Indexed As: Calvy v. Calvy

Répertorié: Calvy v. Calvy

New Brunswick Court of Appeal

Larlee, Deschênes and Quigg, JJ.A.

August 27, 2015.

Summary:

Résumé:

Spouses separated in 2007 after 33 years' marriage. An interim order required the husband to pay $11,958 per month spousal support, which was secured by maintaining the wife as beneficiary of the husband's life insurance policy with the Ontario Medical Association. As the now 64 year old husband's life insurance would decrease from its current $400,000 to $240,000 at age 66 and $40,000 by age 74, the wife asked the husband to cooperate with her obtaining, at her own expense, additional life insurance as security. The husband, without reason, refused to cooperate and make himself available to the insurance company. The wife moved for an order to force the husband to cooperate with the wife's obtention of life insurance.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment not reported in this series of reports, allowed the motion and ordered the husband to cooperate. The husband appealed.

The New Brunswick Court of Appeal, in a judgment reported (2012), 389 N.B.R.(2d) 329; 1008 A.P.R. 329, dismissed the appeal. The husband still refused to comply with the order respecting his wife's obtention of life insurance. The matter proceeded to trial.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment not reported in this series of reports, declined to find the husband in contempt for refusing to cooperate, but did order the husband to pay $10,000 (costs and disbursements on contempt motion) for his "disobedience" of the court order. The husband appealed the order and moved to stay the order pending the hearing of the appeal.

The New Brunswick Court of Appeal, per Bell, J.A., in a judgment reported (2014), 426 N.B.R.(2d) 390; 1110 A.P.R. 390, denied a stay absent any evidence of irreparable harm to the husband in complying with the order. The husband's vexatious and oppressive use of the court process to harass the wife made this one of those rare and exceptional cases where solicitor-client costs against the husband was appropriate. The wife appealed the failure to find the husband in contempt and the decision limiting costs to $10,000 rather than solicitor and client costs plus disbursements.

The New Brunswick Court of Appeal allowed the wife's appeal. The motion's judge erred in failing to find the husband in contempt of the court order. The wife was entitled to solicitor and client costs plus disbursements, to be assessed by the Registrar and costs of $5,000 on the appeal.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - Spouses separated in 2007 after 33 years' marriage - An interim order for $11,958 per month spousal support was secured by the husband maintaining the wife as the beneficiary of his life insurance policy with the Ontario Medical Association - As the now 64 year old husband's life insurance would decrease from its current $400,000 to $240,000 at age 66 and $40,000 by age 74, the wife wished to obtain, at her own expense, additional insurance on the husband's life as security - The husband, without legitimate reason, refused to cooperate - A motions judge ordered the husband to cooperate and make himself available to the wife's insurance company to obtain the requested life insurance - The order was affirmed on appeal - The husband continued to refuse to cooperate - When he finally cooperated, the insurance product requested was no longer available - A motions judge declined to find the husband in contempt for the four year delay in complying, as there was a "doubt" as to whether the noncompliance was contemptuous - However, the judge did order the husband to pay the wife $10,000 for the costs of the contempt motion for his "disobedience" of the court order - The New Brunswick Court of Appeal allowed the wife's appeal and found the husband in contempt - The husband deliberately refused, without legitimate reason, to comply with the court order - The refusal was solely to harass the wife and was not a mere lack of diligence - The court order was clear, the husband understood what he was required to do, and he deliberately refused to cooperate - As an appropriate sanction, the court set aside the $10,000 award and substituted an order of solicitor/client costs plus reasonable disbursements, to be assessed by the Registrar.

Contempt - Topic 3322

Punishment - Solicitor and client costs - [See Contempt - Topic 684 ].

Family Law - Topic 4094

Divorce - Corollary relief - Incidental matters - Insurance policies, pension plans or health plans naming spouse or children beneficiaries - [See Contempt - Topic 684 ].

Family Law - Topic 4210

Divorce - Practice - Enforcement of judgments and orders - Contempt (incl. procedure) - [See Contempt - Topic 684 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Contempt - Topic 684 ].

Cases Noticed:

MacDougall v. Boivin (2005), 286 N.B.R.(2d) 57; 748 A.P.R. 57; 2005 NBCA 62, refd to. [para. 13].

Rose v. New Brunswick (Departments of Justice) et al. (2015), 435 N.B.R.(2d) 259; 1134 A.P.R. 259; 2015 NBCA 26, refd to. [para. 14].

Leger v. Fredericton Exhibition Ltd. et al. (2015), 434 N.B.R.(2d) 186; 1132 A.P.R. 186; 2015 NBCA 20, refd to. [para. 14]

Shanks v. Shay et al. (2015), 429 N.B.R.(2d) 290; 1119 A.P.R. 290; 2015 NBCA 2, refd to. [para. 14].

Williamson et al. v. Gillis et al. (2011), 374 N.B.R.(2d) 311; 965 A.P.R. 311; 2011 NBCA 53, refd to. [para. 14].

Sabourin and Sun Group of Companies v. Laiken (2015), 470 N.R. 89; 332 O.A.c. 142; 2015 SCC 17, refd to. [para. 26].

New Brunswick (Minister of Health and Community Services) v. S.L. et al. (1998), 200 N.B.R.(2d) 127; 512 A.P.R. 127 (C.A.), refd to. [para. 28].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 2011 NBCA 44, refd to. [para. 35].

Flieger v. Adams (2012), 387 N.B.R.(2d) 322; 1001 A.P.R. 322; 2012 NBCA 39, refd to. [para. 42].

R. v. Langlais (M.) (2008), 328 N.B.R.(2d) 201; 841 A.P.R. 201; 2008 NBCA 20, refd to. [para. 44].

R. v. Black (D.M.) (2010), 360 N.B.R.(2d) 132; 930 A.P.R. 132; 2010 NBCA 36, leave to appeal refused (2011), 416 N.R. 399 (S.C.C.), refd to. [para. 44].

R. v. Black (D.M.) (2010), 363 N.B.R.(2d) 316; 936 A.P.R. 316; 2010 NBCA 65, leave to appeal refused (2011), 422 N.R. 387 (S.C.C.), refd to. [para. 44].

R. v. Hachey (T.) (2012), 383 N.B.R.(2d) 197; 991 A.P.R. 197; 2012 NBCA 14, refd to. [para. 44].

C.M.H. v. J.R.H. (2012), 393 N.B.R.(2d) 154; 1017 A.P.R. 154; 2012 NBCA 71, refd to. [para. 44].

R. v. Downey (D.R.) (2012), 392 N.B.R.(2d) 238; 1016 A.P.R. 238; 2012 NBCA 78, refd to. [para. 44].

Statutes Noticed:

Rules of Court (N.B.), rule 76.02 [para. 11]; rule 76.06 [para. 12].

Counsel:

Avocats:

Marie-Claude Bélanger-Richard, Q.C., for the appellant;

Christian Calvy did not appear.

This appeal was heard on May 13, 2015, before Larlee, Deschênes and Quigg, JJ.A., of the New Brunswick Court of Appeal.

On August 27, 2015, Quigg, J.A., delivered the following judgment in both official languages for the Court of Appeal.