IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           After a trial of some 11 days commencing in January, and ending in May, 2014, I gave reasons for judgement on July 29, 2014.  Ms. F was awarded guardianship of the child and Mr. B was not to have any contact until he demonstrates that he can successfully devote himself to therapy addressing his psychological issues without further breaching court orders.  He subsequently brought two separate applications for leave to apply for supervised access, which were denied.

[2]           Mr. Nudel now applies for an order expanding the existing protection order; preventing Mr. B from publishing any information related to the litigation and seeking an order to enforce compliance with the court orders, either under s. 228 or 231 of the Family Law Act. 

[3]           Briefly put, the parties were involved in an extra marital relationship which resulted in each of them separating from their respective spouse.  They have a two year old child who was born just weeks before the end of the relationship.  Ms. F has reconciled with her husband and lives with him, their children and this child.  Mr. B is involved in a new relationship. 

[4]           In the course of this litigation, Mr. B conducted himself in a manner that resulted in Judge Hamilton granting a protection order against him.  Mr. B breached that order on countless occasions, particularly, but not exclusively during access exchanges during which he would shout at the applicants and (amongst other things) make sexualized comments and gestures.  Ultimately, criminal harassment charges were laid against him and he pled guilty to those prior to the completion of the family law trial.  He was sentenced on November 28, 2014, to a ten month conditional sentence and three years of probation.

[5]           At the close of the family law trial, in addition to restricting Mr. B’s applications for contact with the child, I ordered a publication ban on the names of the parties and children, and made a Protection Order restricting all contact between Mr. B and the Fs.

[6]           On January 22, 2015, Mr. B informed me that he has no problem with expanding the Protection order as sought by Mr. Nudel.  In fact, he says, he has no interest whatsoever in Ms. F or her family members and has nothing to say to them.  He says he doesn’t want anything to do with them and will not be disseminating any information about them.  The difficulty I have with these assurances is that Mr. B repeatedly gave similar assurances at the trial of this matter which ended last July, more than six months ago.  Since then, he has demonstrated an obsession with the Fs and with distributing material that ranges from rude to grossly inappropriate and defamatory of them.

[7]           For example, despite being on bail pending sentencing on the criminal harassment charges; despite my comments that he needed to address his own impulsivity and anger towards the Fs; and despite my order for a publication ban on the names of the parties and children, Mr. B set up a blog to which he posted voluminous material including Affidavits from the Supreme Court litigation between the Fs; Ms. F’s Victim Impact Statement from the criminal matter; letters purportedly from Ms. F to her family members which he acknowledges he had a hand in writing; and pages and pages of his version of the events which form the subject matter of this litigation, as well as allegations of abuse and crude references to various sexual acts.  The blog names all the parties, including the children.

[8]           On December 19, 2014, I ordered that Mr. B take down the site by December 25, 2014, and he apparently did so. 

[9]           Mr. B also sent Mr. Nudel emails on November 14, and 26^th, 2014, which are not in support of the litigation before the court, but rather make defamatory and rude statements.

[10]        Despite being on a 10 month Conditional Sentence Order, as of November 28, 2014, on terms including to keep the peace and be of good behaviour,:

[11]        The above communications continue a pattern of harassment perpetrated against the F’s since Ms. F broke off the relationship with Mr. B and reconciled with her husband, and which has continued throughout these proceedings. They quite clearly demonstrate that Mr. B has not gained any insight into his own behaviour which appears intended to punish the F’s for what Mr. B perceives to be wrongs perpetrated against him. 

[12]        This pattern of behaviour warrants an expansion of the terms of the Protection Order.

[13]        I am going to issue a further Protection Order that provides that Mr. B is not to communicate directly or indirectly with any family member of Mr. and Ms. F, known to him, including, but not limited to, communicating any of the details of his relationship with Ms. F, or any of the matters that are the subject of this or the Supreme Court litigation between the Fs except communication necessitated by this litigation through Ms. F’s counsel.  The Protection Order granted at the close of trial remains in effect.  This order will not expire.

[14]        As noted above, at the trial of this matter, I made an order that Mr. B not publish the names of the parties or the children of the parties. 

[15]        On December 19, 2014, I made orders, as follows:

[16]        On January 2, 2015, I made a conduct order that Mr. B is not to talk to anyone about Ms. F, Mr. F and the matters that are the subject of this litigation, because he specifically said he intended to speak to the elders at Ms. F’s church to inform them of his version of the events which occurred between himself and the Fs.  Mr. B did not previously have a relationship with the F’s church.

[17]        Mr. B is also bound by section 3(6) of the Provincial Court Act, which states that a person must not publish at any time anything that would reasonably be likely to disclose to members of the public the identity of a child or party to a proceeding.

[18]        Mr. B is also bound by litigation privilege to the extent that it applies to these matters.

[19]        Clearly, Mr. B is motivated to continue to attempt to harass the F’s.  They should not be exposed to such harassment and his actions are frustrating his own attempts to gain access to his son and diverting his energies away from dealing with his anger and inappropriate behaviour.  In these circumstances, it is appropriate to make further conduct orders pursuant to section 222 of the Family Law Act, as follows: 

[20]        The Family Law Act provides for enforcement of orders respecting conduct in s. 228, which states that if a person fails to comply with a conduct order made under Division 5 of the Family Law Act the court may:

[21]        The Act provides “extraordinary remedies” in section 231, which applies if a person has failed to comply with an order made under the Act and the court is satisfied that no other order under this Act will be sufficient to secure the person’s compliance.  The section authorizes the court to imprison the person for a term of no more than 30 days. 

[22]        The applicant is seeking an order that Mr. B be fined or jailed for his conduct.  I find that Mr. B has contravened the orders I have made by:

[23]        All these acts are contrary to my order that prohibited publication.

[24]        Sections 228 and 231 of the Act deal only with Conduct Orders and not with Protection Orders which are dealt with through the criminal law procedure and which invoke application of section 718 of the Criminal Code, R.S.C. 1985, c. C-46.  That section sets out the considerations to be applied in assessing the appropriate penalty for breach of a Protection Order.

[25]        By contrast, the remedies under s. 228 and 231 are not intended to punish, but rather to secure compliance with conduct orders.  This objective is similar to that of the civil law sanction for contempt.  In Larkin v. Glase, 2009 BCCA 321, in paragraph 49, the Court of Appeal stated that “the primary objective of the civil law sanction for contempt is to secure compliance with the courts’ orders rather than punishment”.  They also found that deterrence and to a lesser extent, rehabilitation are important considerations and found that unlike in sentences for criminal contempt, concern for the administration of justice is less of a priority (para 50).

[26]        The BC Ministry of Justice Explanatory Notes to the Family Law Act, indicate that the range of remedies (under s. 228) is intended to empower the court with progressively more serious responses, “without unduly limiting the court’s discretion to make orders appropriate to the circumstances of the case”. The objective is to fashion a remedy that ensures that existing and future court orders will be respected.  It is clear that any remedy is intended to specifically address the actual situation before the court. 

[27]        In light of this, Mr. B’s conduct must be viewed in the context of the entire proceeding, in which he has established a pattern of harassing Mr. and Ms. F to the extent that he was charged with and pled guilty to criminal harassment.  Subsequent to being sentenced for that offence, he engaged in the conduct complained of, and other acts which appear to be intended to punish Mr. and Ms. F for perceived offences against Mr. B. 

[28]        While this context suggests that the lower range of the remedies offered may be inappropriate, it is well established that the sanction of imprisonment should be used sparingly, and only when no other remedy will be sufficient to secure the person’s compliance.  However, neither party suggests that an alternative order is appropriate in these circumstances as this is not a situation where limits on conduct have not been previously considered.  In fact, the restrictions on Mr. B’s contact with his son arise directly from his behaviour and his failure to address his lack of impulse control, issues regarding anger management, and the degree of his hostility and anger towards the Fs.

[29]        I note as well, that neither party suggests that an adverse inference is an appropriate remedy in these circumstances.  In fact, the risk of an adverse inference being drawn did not inspire Mr. B to fully disclose his financial circumstances prior to the commencement of the trial.

[30]        With respect to an award of costs, a financial penalty or fine, Ms. F notes in her Affidavit of January 15, 2015, that Mr. B owes $12,000 in child support arrears despite the fact that he has apparently been employed throughout these proceedings.  At the end of the trial, he was also ordered to pay $5,000 to Ms. F, representing the remainder of his one-half share of the cost of the report prepared by Dr. Colby pursuant to section 211 of the Family Law Act.  Mr. B had previously been ordered to contribute to that cost, but failed to meet his obligation.  Mr. B has not made any payment towards either debt.  In addition, counsel for Ms. F points out that Mr. B was released on cash bail of $1,000 after being charged with criminal harassment and that did not deter him from breaching his bail conditions to keep the peace and be of good behaviour.  In fact, Mr. B continued to breach the Protection Order and his bail conditions until he was ordered detained. 

[31]        In these circumstances, I do not believe that imposing any kind of financial consequences for Mr. B’s behaviour will have the effect of securing his compliance with court orders.  No sanction, other than incarceration has worked to date to impress upon him the importance of complying with court orders and I find that “no other sanction will force upon his will the authority of this court” as was the case in Manolescu v. Manolescu (1991), 1991 CanLII 802 (BC SC), 31 RFL (3d) 421 (BCSC). 

[32]        The cases on civil contempt are of assistance for the reasons noted above; however, I have not been provided any cases where there is a prior conviction for criminal harassment followed by what is in effect civil harassment where it is apparent that a fine and alternative orders are not sufficient to effect compliance with court orders.  The fact that Mr. B previously spent 12 days in jail when bail was denied is not of assistance, as that process has entirely different objectives and considerations than this enforcement process.  However, it is informative in that Mr. B has not since been charged with criminal harassment or further breaches of the Protection Order. 

[33]        I find that the following considerations apply when determining the duration of the appropriate period of incarceration:

[34]        In these aggravating circumstances, I find that more than a nominal period of incarceration is required to bring home to Mr. B the fact that he must respect the court’s authority.  On the other hand, Mr. B must understand that further action will be taken if he continues to disrespect court orders in the future.  In the result, I am going to sentence Mr. B to ten days in jail, to be served forthwith.

[35]        A warrant will issue for Mr. B’s arrest and he will be detained in custody at a Provincial facility for 10 days, commencing upon his arrest.