MacLean Law’s Family Law Contempt Lawyers handle enforcement of family law orders across Canada. Unless family law court orders are obeyed a significant portion of Canadians suffer unnecessarily. In today’s article by Peter Graburn one of our senior Calgary family lawyers, we explain some of our recent record successes in this area and the law of family law contempt in general.
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MacLean Law’s top rated family lawyers hold the record for the longest jail time award of six months and the highest family law fines award in British Columbia. We also won the highest family law special costs award at $1.5 million in Devathasan.
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There are a few basic rules in Alberta family law. Child support is the right of the child. Financial disclosure is required. Court Orders are to be followed. But not everyone follows these rules. So how do you get a resistant ex-spouse to follow the rules and comply with a Court Order? What are the possible consequences if they don’t? And are these consequences appropriate in family law proceedings?
As we have previously indicated in Enforcing Parenting Orders in Calgary Alberta, one of the ways to force non-compliant ex-spouses to abide by Court Orders is to bring an application to have the offending ex-spouse held in civil contempt. The Supreme Court of Canada held in Carey v. Laiken (2015 SCC 17 at para. 38) that:
“It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice…”.
Fines, Contempt and Penalties
In Alberta, Rule 10.52 of the Alberta Rules of Court sets out specific possible punishments for a finding of civil contempt, including court costs, fines, restrictions on continuing with court actions, and ultimately imprisonment (ie. jail). But are Alberta Courts willing to impose these punishments (especially the most serious one of jail time) in family law cases? Our family law contempt lawyers explain the simple answer is yes, but with caution.
Costs & Fines
In Alberta, there are many cases where the Courts have held a party in a family law matter in contempt. In a previous article (see: Calgary Enforcing Family Law Financial Disclosure), we wrote of an Alberta Court of King’s Bench case (Foley v. Leavitt, ABQB 2021 875) where solicitor/client costs (usually reserved for only the most extreme situations involving “reprehensible, scandalous or outrageous conduct”) were awarded against a father who had to be forced to comply with a Court Order to meet his financial disclosure obligations. In another case (Alanen v. Elliot, 2019 ABCA 485), the Alberta Court of Appeal upheld a ACQB decision to impose $10,000 costs against a husband found in contempt for repeatedly failing to abide by Court Orders (including not to contact his wife’s lawyers), stating (at para. 12):
“This court in Demb v. Valhalla Group Ltd. 2016 ABCA 172 at para 55 listed a number of factors to be considered by a court in imposing penalties for civil contempt, including whether there was deliberate defiance of an order (as opposed to inadvertence), and the entire context of the litigation. The husband deliberately breached a clear order in the context of the litigation where he had contacted the wife’s advisor’s in the past. Moreover, the husband has failed to pay a number of costs orders in the past. There is no reviewable error in the chambers judge’s imposition of a $10,000 award of costs as a penalty for civil contempt.”
In regard to imposing imprisonment (ie. jail) for contempt in family law matters, we previously wrote of an Ontario case (Horrocks v. McConville, 2022 ONSC 6885) where a husband was jailed for 30 days (and $6,000 in costs) for violating a Court Order not to dispose of family property (he allegedly burnt over $1M cash in 2 bonfires “out of frustration with the divorce proceedings”).
But are Alberta Courts as willing to impose a jail sentence for contempt in family law matters? Absolutely. In ID v. DB (2022 ABKB 831), a father was sentenced to 6 days in jail for repeatedly disobeying Parenting Orders after having previously been held in contempt and repeatedly warned “that his continued disobedience might one day result in his incarceration” (at para. 98). More recently, in Stokes v. Heck (2023 ABKB 58), a husband was ordered jailed indefinitely until he purged (ie. cleared) his contempt for not following a Court Order to remove a CLP (ie. a lien) on family property (a previous fine of $2,500 / day and warning that he could be jailed having no effect), stating (at para. 30):
“The appropriate question when considering the reasonableness and fitness of a sanction of imprisonment in a case like the present case where compliance is the predominant objective is whether a lesser sanction could reasonably be expected to obtain compliance with the Court’s direction. Mr. Heck’s habitual non-compliance with court orders, which may be characterized as an aggravating factor, and his steadfast objection to the Arbitration Award, Carruthers Order, and Nixon Order indicate that nothing short of imprisonment will secure his compliance. There are no mitigating factors that weigh in favour of a lesser sanction.”
Family Law Contempt Lawyers Explain Courts Exercise Restraint
But have Alberta Courts always viewed imposing a fine or imprisonment (jail) for civil contempt as appropriate in family law matters? No. As our Family Law Contempt Lawyers previously noted, in Saunders vs. Saunders (2017 ABQB 163), Associate Chief Justice Rooke declined to hold a non-compliant parent in civil contempt for refusing to follow a Parenting Order, finding that such a remedy would not improve the relationship between the parents and child. Instead, Justice Rooke ordered a Family Law Practice Note 7 Intervention Assessment to attempt to get at the underlying reasons (ie. potential parental alienation or estrangement) for why the parent refused to comply with the Parenting Order. More recently, the Alberta Court of Appeal (see: JM vs. EM, 2022 ABCA 49), while disapproving of “self-help” measures, refused to hold a mother who had taken her child out of the country contrary to Court Order in civil contempt, finding she had purged her contempt by returning with the child.
But perhaps the best statement of the Court’s caution to use contempt sanctions in family law matters was issued by Justice Veit in Salloum v. Salloum (1994 A.J. No. 304) when she stated (at para. 19 – 20):
“In ordinary civil law, it may be that mere breach of a court order is all that need be proved in order to establish contempt… However, by long tradition, the court exercises restraint in family law cases. In custody cases, the court usually requires an intentional breach of the court order… The reasoning in these cases, which reasoning I adopt, is that restraint is appropriate, given the twin objectives of protecting both the best interests of the children and the administration of justice. As frustrating as it must be for a parent whose court ordered access is sterilized, the court’s focus is on the interests of the children, not on the behaviour of parents. Children are better off if their parents are not in jail or paying fines.”
So, without doubt, Court Orders are to be followed, even in family law matters. As previously indicated, the Ontario Supreme Court stated (see: Ivens v. Ivens, 2020 ONSC 2194 at para 85):
“A parenting order is not a suggestion nor is it a recommendation. It is a command and direction which must be obeyed. Compliance is not optional.”
Contact The Best Family Law Contempt Lawyers Early To Enforce Orders
But family law is a little different than other areas of law. It involves many overlapping aspects of family life, including financial disclosure, financial support, property division and (most importantly) parenting of children. In Carey, the Supreme Court of Canada suggested that contempt sanction should be used cautiously and with great restraint – “it is an enforcement power of last resort rather than first resort” (at para. 36). More recently (see: Vavrek v. Vavrek, 2019 ABCA 325 at para. 10-12), the Alberta Court of Appeal recommended using practical, context-based solutions to address the real (not collateral) issues causing the breach of a family law Order rather than strict (“a guillotine”) contempt sanctions.
So clearly, Court Orders are to be followed. Court Orders are to be enforced. But in Alberta family law, with restraint.