Carroll v. Richardson, 2013 NSSC 187

• Judge: Jollimore, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 10, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSSC 187;(2013), 331 N.S.R.(2d) 129 (SC)

Carroll v. Richardson (2013), 331 N.S.R.(2d) 129 (SC);

    1051 A.P.R. 129

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JN.047

Joann Carroll (applicant) v. Michael Richardson (respondent)

(SFHMCA-069321; 2013 NSSC 187)

Indexed As: Carroll v. Richardson

Nova Scotia Supreme Court

Family Division

Jollimore, J.

June 10, 2013.

Summary:

The Nova Scotia Supreme Court, Family Division, in a decision reported at [2012] N.S.R.(2d) Uned. 8, found a mother in contempt of the provisions of a court order related to the father's specified access and joint custody of the parties' daughter. The court adjourned the penalty phase of the hearing and gave the parties directions for filing affidavits. This decision related to the penalty phase.

The Nova Scotia Supreme Court, Family Division, ordered the mother to pay a fine of $1,000 to the father, no later than July 30, 2013.

Contempt - Topic 3301

Punishment - General (incl. considerations) - [See both Family Law - Topic 2175 ].

Contempt - Topic 3315

Punishment - Fines - [See second Family Law - Topic 2175 ].

Contempt - Topic 3335

Punishment - Loss of custody or access - [See second Family Law - Topic 2175 ].

Family Law - Topic 2006

Custody and access - Access - Access order - Noncompliance - Punishment - [See second Family Law - Topic 2175 ].

Family Law - Topic 2175

Custody and access - Enforcement of orders - Contempt proceedings - This decision related to the penalty phase of a contempt motion - Sawler was found in contempt of the provisions of an order related to specified access and joint custody - The Nova Scotia Supreme Court, Family Division, commented that "contempt motions are unlike the proceedings we usually see in the Family Division. The peculiar nature of contempt proceedings is apparent in my consideration of the principles relevant to sentencing Ms. Sawler. ... I'm to punish Ms. Sawler for the specific offences of which she's been convicted. The punishment is to be in proportion to her breach of the court order. I'm to consider whether there are mitigating or aggravating circumstances. Penalties are to coerce compliance ... Penalties are to deter people from breaching orders in the future and to denounce those who fail to obey court orders." - See paragraphs 19 to 21.

Family Law - Topic 2175

Custody and access - Enforcement of orders - Contempt proceedings - A motion judge found a mother in contempt of the provisions of a court order related to the father's specified access and joint custody of the parties' daughter - The penalties suggested were transferring primary custody to the father, requiring the mother to apologize to the father and his family; ordering the mother to pay a $4,000 fine, and compelling the child to attend counselling - The Nova Scotia Supreme Court, Family Division, ordered the mother to pay a fine of $1,000 to the father, no later than July 30, 2013 - Changing the child's primary residence was not an appropriate penalty in a contempt hearing - A child's parenting arrangement was based on the child's best interests; punishing a parent was not a relevant consideration - Requiring an apology would shift the focus of the penalty from the mother's defiance of the court to the feelings of the father and his family - "A contempt motion's focus is the contemnor's conduct vis à vis a judge or a court order" - Compelling the child to attend counselling put the burden on the child and did not punish the mother - The mother provided no evidence that she had purged her contempt - She defied the order for one year and continued to do so - The parenting terms of the order were negotiated and agreed upon by the parties - The mother defied an order which she had a part in tailoring to meet her concerns (the father's alcohol consumption and the child's reluctance to spend time with her father).

Cases Noticed:

Kopaniak v. MacLellan (2002), 159 O.A.C. 37; 2002 CanLII 44919 (C.A.), refd to. [para. 21].

Rogers v. Rogers (2008), 227 Man.R.(2d) 118; 2008 MBQB 131, refd to. [para. 26].

Authors and Works Noticed:

Lowe, Nigel, and Sufrin, Brenda, Borrie and Lowe on the Law of Contempt (3rd Ed. 1996), pp. 655 to 656 [para. 21].

Counsel:

Michael Richardson, self-represented;

Fergus Ford, for Joann Sawler.

This penalty phase of a contempt motion was heard and decided on June 10, 2013, by Jollimore, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following oral decision.