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Epstein’s This Week in Family Law | Contempt

Father in contempt of court order in recent British Columbia Supreme Court decision

Epstein’s This Week in Family Law

Philip Epstein

Contempt for Failure to Pay Support, Section 7 Expenses and Failure to Return Children

Harrison v. Harrison, 2016 CarswellBC 1070 (B.C. S.C.) - Justice Madam Gropper. In some provinces in Canada, including British Columbia but not Ontario, failure to pay child support is a basis for a finding of contempt. In this case, the mother moved for a finding of contempt against the father for failing to return the children after a specified parenting time on three occasions and failing to pay child support and section 7 expenses.

Justice Gropper briefly reviews the law of civil contempt and the leading case of G. (L.) v. G. (R.), 2012 CarswellBC 2814 (B.C. S.C.). Justice Gropper also makes reference to the leading decisions on contempt in Larkin v. Glase, 70 R.F.L. (6th) 263 (B.C. C.A.) and Topgro Greenhouses Ltd. v. Houweling, 2003 CarswellBC 1430 (B.C. C.A.).

In Swann v. Swann, 71 R.F.L. (6th) 269 (B.C. C.A.), the Court of Appeal dealt with the issue of non-payment of support as a basis for contempt. The Court made it clear in that case that the test is whether the payor was capable of complying with the order to make payments, and the onus is on the payor to prove beyond a reasonable doubt that he/she was unable to comply with the court order.

Justice Gropper was satisfied that the father was in contempt of a court order by over holding the children and by failing to pay the child support. Justice Gropper, as she did in Friedlander v. Claman, 2015 CarswellBC 4072 (B.C. S.C.) (see Newsletter volume 22), imposes a fine payable to the Vancouver Court Registry. She also orders that the father place $10,000 in trust with counsel for the wife to be applied to the children’s section 7 expenses in the future. That is an order I have not seen before, but given the wide powers that a judge has in sentencing for contempt, this is a possible and far more useful outcome than a fine.

As a result of the contempt finding, this also leads to an application by the mother to change the parenting time which again leads Justice Gropper to review section 47 of the Family Law Act with the same result in Friedlander. She finds there has been a material change of circumstances and changes the parenting time to increase the mother’s time for the children and reducing the father’s time with the children.

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