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CONTEMPT IN THE FAMILY LAW SETTING

Anyone who has been involved in a family law proceeding knows that it can sometimes feel like an exercise in futility.  As a party to an action, a client often feels that the matter couldn’t be any more black and white, and is frustrated when the courts don’t share their opinion.  Too frequently, the evidence boils down to “he said, she said”, with each party infuriating the other with their allegations.  As it is sometimes put, “there are always three sides to every story, his side, her side, and the truth”.  To add fuel to an already explosive situation, there are those cases, where despite the existence of a court order, one of the parties chooses to “do their own thing”.  It is these situations that lead to applications for contempt.

The Alberta Rules of Court includes the following definition of civil contempt:

“Every person is in civil contempt who fails, without adequate excuse, to obey any order of the court, other than the payment of money”.  A contempt application may be brought under the Maintenance Enforcement Act against a debtor for the non-payment of maintenance, but otherwise, if the issue is money, contempt is not available, and an alternate remedy must be sought.

Sanctions for contempt are numerous, and may include the following:

• Imprisonment
• Fines
• The striking of pleadings
• The dismissal of an action
• Costs

These sanctions are severe and an application for contempt should not be taken lightly by the party alleged to be in contempt.  Imprisonment can be for up to two years in length, and there is no ceiling on the fine that may be imposed.  In addition, conviction for contempt commonly leads to heavy costs as well as any penalty.  Given the severity of the possible sanctions, especially the possibility of a person’s loss of freedom, there are various principles of fundamental justice that must be adhered to by the party bringing the application for contempt.

The test for contempt is whether it is beyond a reasonable doubt that the court order was breached.  This is a high standard of proof, but rightfully so when you’re dealing with the possibility of imprisonment.  In addition to this, there is also the issue of “intention”.  Technically in ordinary civil law, a mere breach of a court order is all that needs to be proved in order to establish contempt.  In family law situations however, the court tends to exercise “restraint” by requiring that a breach be intentional before finding a party in contempt.  The courts discretion in these matters is basically preserved in the Alberta Rules of Court by the use of the expression “adequate excuse”.

Any party charged with contempt must be given the right to make full answer and defense.  This means that a contempt application can only be heard upon notice to the party facing a charge of contempt.  In addition to this, it is important that the order alleged to have been breached is not vague in any way.  For example, an application for contempt on the basis that an order granting “reasonable and generous access” has been breached, will be unsuccessful, as the wording of the order is not specific enough.

One must remember that contempt is not the only way to enforce a court order.  All in all, contempt applications are not that common in family law proceedings, which is ultimately a good thing.  Given all the requirements of a contempt application, most situations are better suited for an alternate method of enforcement.  Having said that however, it can be an excellent tool in the right circumstances.

By Danielle M. Elder
August 4, 2004