C.L. v. H.B.

2011 BCSC 1188 C.L. v. H.B. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.L. v. H.B., 2011 BCSC 1188 Date: 20110901 Docket: E100878 Registry: Vancouver Between: C.L. Claimant And H.B. Respondent Before: The Honourable Mr. Justice Harris Reasons for Judgment Counsel for the Claimant: Pamela S. Boles Counsel for the Respondent: Valerie M. Little Place and Date of Hearing: Vancouver, B.C. August 30, 2011 Place and Date of Judgment: Vancouver, B.C. September 1, 2011 [1] This is a contempt application. The respondent is alleged to be in contempt of the following term of an order made after trial, but by consent: The parties are at liberty to vary the terms of the Restraining Order pronounced June 10, 2010 by written agreement. Communications between the parties regarding any emergent issues in relation to E . and their communications in E 's journal will not constitute a breach of the restraining order. [2] The June 10, 2010 agreement was a consent order in which the respondent was "restrained from molesting, annoying, harassing or communicating with or attempting to molest, annoy, harass or communicate with the claimant". [3] The claimant conceded that on the plain meaning of the order communications in E's journal would not breach the terms of the order, even if those communications did not relate to "any emergent issue in relation to E". In other words, the word "and" in the order should be read disjunctively so that communications about matters other than emergent issues in relation to E would not breach the order if those communications were in E's journal. There is no restriction, it is conceded therefore, on the subject matter of communications between the parties if they are written in E's journal. [4] It appears clear that in the time leading up to this order the parties communicated about E in a journal placed in E's backpack. The journal was placed there by the claimant, who is E's mother. At some time after the order was made the claimant stopped putting that journal in the backpack because she was distressed by some of what was written in it by the respondent. It seems equally clear that the respondent substituted a journal in E's backpack in place of the one that had previously been put in it by the claimant. [5] Given the concession that was made by the claimant that the writings alleged to be in contempt of the order would not be in breach of the order if they were written in E's journal, a critical question becomes whether the writings were not in E's journal within the meaning of the order. [6] It is common ground that this is a criminal or a quasi-criminal proceeding. The claimant must prove wilful disobedience of the court order to a standard of proof beyond a reasonable doubt. This requires that the meaning of the order be precise and unambiguous. If an order is ambiguous, the alleged contemnor is entitled to the most favourable interpretation of the meaning of the order. [7] In my opinion, the meaning to be attached to the phrase "E's journal" is unclear. It is not clear that it refers exclusively to a particular journal selected by the mother and placed by her in E's backpack when the father has access to her, as opposed to any journal carried by E on access visits for the purpose of facilitating communications between the parents regardless of who selected it and put it in the backpack. [8] The evidence appears to establish that the respondent wrote in a journal he placed in E's backpack after the claimant had decided not to send with E the journal that had previously been used. [9] The order contemplates that E would carry a journal on access visits and that it would be the means by which the parties would communicate with each other. The order does not unambiguously identify a particular journal as "the journal". It does not unambiguously identify which of the parties can determine what constitutes "the journal" or authorize one party to decide whether E would carry a journal at all. [10] The respondent is entitled, for the purpose of this application, to the most favourable interpretation of the order. On that interpretation, the communications were made in a journal that may be regarded as "E's journal". In construing the meaning of the order, I am entitled to have regard to the factual matrix in which it was made. I am not, however, entitled to have regard to subjective intentions or understandings of its meaning or the negotiations that led to it. In my view, having regard to the factual matrix, the meaning of the order is ambiguous for the reasons I have stated. [11] As a result, the claimant has not established wilful disobedience of the terms of the order to a standard of proof beyond a reasonable doubt. This is sufficient, without more, to require that the application for contempt be dismissed. [12] The claimant applied in the alternative that the order be varied so that no communication be permitted between the parties. [13] Although I have dismissed the contempt application, I have done so on the basis of an ambiguity in the order as drafted. That ambiguity related to the meaning to be attached to the words "E's journal". But I am satisfied that the wording of the order did not adequately achieve what was intended. The purpose of the order was to provide a means by which the parties could communicate with each other about E. It was a means by which the parties could communicate about such matters as her health and well-being, and could provide any pertinent information about E that was relevant to the father's access or arose during that access. It was not intended by the claimant that the respondent could communicate with her on any subject matter provided the communication was in writing and was carried between the parents by E. [14] Moreover, some of the respondent's writing went beyond matters relating directly to E, her interests or her welfare, although most if not all of them related to the family litigation and could arguably be seen as tangentially touching on the consequences of that litigation and its conduct for E's welfare. The respondent would do well to pay particular regard to the comments made by the trial judge about the importance of obeying court orders. [15] In my view, it is necessary that the order be varied to remove its ambiguities and clarify its scope. The order needs to deal both with the means by which the parties may communicate and the subject matter of the communications. I do not accept that it is in E's best interests that there be no communication between the parents about her health and welfare and other pertinent matters. [16] I do not consider that I am in a position to redraft the order. I invite counsel to agree to a form of order. If the parties are unable to agree, each party may submit to me their preferred form of order and I will decide which order will apply, provided that I am satisfied that the order is couched in terms that are in E's best interests. [17] As I take the view that success has been divided on this application, each party will bear their own costs. "Harris J."