Our top rated* Vancouver family law lawyers are often asked what the test is to obtain a finding that a party to a family law action is in contempt of court. We were also asked what the penalties are if a finding of family law contempt is made.
Once the court makes a family law court order and the party becomes aware of it either by being present in the courtroom, being advised of it, or seeing the signed and entered court order the courts of British Columbia expect that person to obey the order. If a person disagrees with the order that was made the remedy is not to simply ignore it but rather to comply with it while at the same time filing an appeal within 30 days. Until the appeal is heard the order is enforced unless the party who is dissatisfied with the order is successful in seeking a stay of enforcement of that order pending the hearing of the appeal. Failure to obey the Order can lead to a nasty result including fines, posting of security, and most seriously JAIL TIME!
Contempt applications can arise in the case of refusal to pay maintenance, refusal to allow access, refusal to obey a custody order, refusal to pay money pursuant to a judgment or vacate a matrimonial home on an exclusive possession order and in many other cases where a court order has been made and a party chooses to ignore it.
The penalties for contempt can involve amongst other things imposition of a fine, the posting of security to ensure the order is obeyed moving forward, other creative penalties such as for example in the case of denial of access providing makeup access which for example was twice as much as the denied access. We have used this last approach in access denial cases because to merely obtain makeup access equal to the denied access can give the access denial parent an incentive to try to deny access knowing that they might get away with it but in the worst case makeup access equal to what they denied would be given. It is important for lawyers to be creative with respect to the type of penalties and remedies they seek in cases of contempt.
Contempt is one of the most serious applications that can be brought in a family law application and because the alleged offending parties liberty is at stake because one of the remedies can be jail time to test for proving contempt is on the higher criminal law standard. The law has recently been summarized by our Supreme Court again in the recent Gassman case by Mme. Justice Brown as follows:
To establish contempt, there must be proof that: (a) the alleged contemnor, with knowledge of the order in question, (b) wilfully breached (c) the precise, clear, and unequivocal terms of the order: Hama v. Werbes, 2000 BCCA 367.
Conversely, there are many cases where contempt is sought where there is no basis for it and we steadfastly defend persons facing contempt applications when they have not defied the order deliberately or willfully and there is a reason for an order not being followed. These circumstances are too numerous to list in this article but we ask that you contact us so that we may deal specifically with your situation.
Family law cases are stressful and emotions often run high it is critical that any alleged breach of a court order be dealt with immediately rather than letting the problem faster so the situation ends up getting out of control. Call any of our family law lawyers at any of our 4 offices in Vancouver, Surrey, Kelowna, and Fort St. John.
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