At the National Family Law Conference last month, the Honourable Madame Justice Elizabeth Jollimore of the Supreme Court of Nova Scotia and Sharon Kravetsky gave an excellent presentation entitled: “Contempt: Substantive Law and Strategic Considerations.” This presentation got me thinking about contempt of court in a family law context – people have asked me if they can have their spouse (or former spouse) found in contempt of court – without knowing exactly what it involves.
What is civil contempt of court?
Black’s Law Dictionary defines civil contempt as: “The failure to obey a court order that was issued for another party’s benefit. A civil contempt proceeding is coercive or remidial in nature. The usual sancation is to confirm the contemner until he or she complies with the court order.”
The Saskatchewan family law case of Brown v. Bezanson explains what contempt of court is used for and what needs to be met to make a finding of contempt:
A proceeding for civil contempt is available to redress a private wrong by forcing compliance with an order for the benefit of the party in whose favor the order was made. Sanctions for civil contempt are thus mainly coercive in nature. Their aim is to force complaince with the order. They may also be punative where the circumstances warrant it.
The burden of proof in contempt applicaitons is beyond a reasonable doubt and rests with a party alleging the contempt.
In civil contempt proceedings the following evidence must be proven beyond a reasonable doubt:
- The terms of the order must be clear and unambiguous;
- The contemner must have knowledge of the terms of the order;
- The breach of the terms of the order;
- The appropriate mens rea must be present.
JP Boyd’s BC Family Law Resource provides a description of the procedural process to make an application to seek a finding that someone is in contempt of court in a family law proceeding.
What are the penalties for being found in civil contempt?
In terms of penalties for contempt, Sharon Kravetsky states in her paper “Contempt: Compliance, Restoration and Punishment” at page 21:
Traditional responses to contempt are fines or imprisionment. These responses may be the reason contempt is such an unsatisfactory remedy in family law. Stretching already strained finances or incarcerating a care-giver or access parent does little to serve the best interest of a child. In contempt cases which involve children, there is always concern about the best interests. More imaginative responses may be necessary.
Penalties for contempt of court in family law cases have included (but are not limited to): incarceration, terms of incarceration, fines, court ordered costs, suspension of child support payments, make up access visits, change in primary care of a child, and changes in decision making authority for a child.
How can I avoid being found in contempt of court?
Generally being in contempt of court is something you bring upon yourself by account of your own behaviour (by doing or failing to do something). Some common sense tips for not being found in contempt include:
1) Do not act like my Cousin Vinnie:
2) Follow court orders;
3) If you are unclear about a court order, seek clarification as soon as possible;
4) If you are unable to comply with a court order, seek to have the court order changed by the court so you can comply with the terms of the order; and
5) Consult a lawyer with any quesitons you have about a court order.