Contempt is a powerful, but rarely practical tool in family law proceedings that carries some risk to it if it backfires. Frequently, initial contempt applications do not result in incarceration or in a fine of any significant amount. Eventually, however, the judicial system does respond to failure to pay. In one recent case, T.T. v. C.G., 2014 BCSC 1279, it did so by committing the payor to 7 days in jail, but suspended the sentence if he was able to pay approximately $20,000 in the next 30 days to the recipient. In that case, the payor had not complied with an order for support made in August of 2012. From the judge’s reasons, it seems as if there had been several applications in between August 2012 and July of 2014 when the Application was heard. The Honourable Mr. Justice Jenkins enumerated four components to contempt:
- An Order was made;
- The Order was not obeyed;
- The contempt must be willful (i.e., the action must be deliberate)
This third point was established by the judge’s finding that the payor had not paid simply because the other party had not been facilitating access and had used some money to pay legal fees instead of child support. Finally, the fourth and question is whether the payor was actually capable of complying with the order. It was found that his income had increased and while the precise figures were not clear, it was found that his income was at least $100,000. The judge noted in his reasons:
 I find, however, after hearing the claimant through seven days of trial in 2012 and many chambers applications since that time during which he usually represented himself without counsel, that the claimant is often not willing to accept any outcome other than that which he selects whether or not his actions are in the best interests of his children. It is a difficult task, in these circumstances, to find a sanction that will result in compliance with the order.
It appears as if this is not the first time that this issue or similar issues were brought before the Honourable Mr. Justice Jenkins, and that this was a decision carefully reached after many other instances of breaches of an order and other unreasonableness was demonstrated. There are two lessons that can be drawn from this:
- If you are a payor, and you believe your income has decreased, you should take steps as soon as possible to vary the Order so that you’re not facing a contempt application and so that you can know with a certainty what your obligations are and you’re not letting arrears stack up.
- If you are a recipient, while it can be difficult getting there, eventually enforcement measures do begin and they can scale up to fairly serious ones such as in this instance, where the payor either had to pay his arrears within 30 days or be incarcerated.
It’s important that both parties understand when they need to vary an order and what they need to do it, and also when they need to enforce an order. A lot of people, for example, simply give up after writing a letter or two, asking for disclosure which has already been ordered in a final order (most commonly, exchanges of income tax information) and take no further court action to actually resolve the issue, and this can work against them. If you’re confused or don’t know how to move forward, you should consult with a lawyer about your individual circumstances and what actions it may be appropriate to take.
Contact one of our Family Law lawyers for more information.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.