Contempt of CourtContempt of Court proceedings are quasi-criminal in nature. They arise when a party fails to abide by a court order, without any lawful excuse. They arise most often after a trial, when the defeated party refuses to abide by a term or otherwise comply with the judgment. Most typically, contempt proceedings arise in family proceedings when there are assertions that one party refuses to comply with an order for full financial disclosure, takes steps to frustrate a court order for the sale of an asset, or refuses to comply with a parenting schedule. They also occur when a judgment debtor refuses to abide by a payment schedule.
Contempt of Court requires prove on the criminal standard, which is proof beyond a reasonable doubt. The usual remedies for a finding of contempt of court are fines and jail time. First time offenders are usually ordered to purge their contempt, failing which, they are subject to be re-sentenced, similar to a suspended sentence for a true criminal offence. Contempt of Court proceedings may look and feel like trials, however there are important limitations that make them more difficult to defend than a regular criminal proceeding. However, the moving party requires strict compliance with the applicable court rules in order to successfully prosecute a claim for contempt of court. Issues surrounding service, knowledge, and prove of not only the acts or omissions complained of, but also prove that the offending party had the capacity to not breach the Court order.
In addition to proceedings for contempt of court, there are other remedies that may be pursued in addition to, or instead of. Notably, for family proceedings, sections 230 and 231 of the Family Law Act provide additional remedies and some relaxed procedures for what may be described as a softer version of contempt. If a contemnor is refusing to provide necessary documents, an order can be obtained to obtain those documents directly from other parties at the contemnors expense.
Repeated or very serious instances of contempt of Court can be punished with a jail sentence of up to 2 years, however indefinite sentences are also possible.
If you are being accused of contempt of court there are important deadlines for you to meet in order to preserve or advance your defence. Contempt of court is a highly technical area and is an intersection between criminal law and civil law. As such, some of your rights and protections under the Charter apply, and others do not. There are likely errors that the other side has made in trying to prosecute you for contempt of court, particularly if this is your first offence. Some notable exceptions exist for contempt applications in respect of orders made by professional bodies. For instance, the College of Physicians and Surgeons of B.C. has very experienced counsel who prosecute breaches of undertakings to not engage in the practice of medicine. The only way to effectively defend against such charges is to retain competent and experienced counsel.
For litigants who wish to prosecute an opposing party for contempt of court, it is perhaps even more important to ensure you have experienced counsel who can effectively close the doors on any defences available and otherwise prevent a contemnor from continuing to flout the court process. Generally successful prosecution of contempt of Court requires: 1) proof of service of a duly endorsed order, or at the very least knowledge about it’s terms; 2) that the Order is crystal clear as to what the other side is supposed to do, or refrain from doing; and 3) that the alleged contemnor had the capacity to abide by the Order. It is not enough to attend Court and simply say the other side failed to abide by a Court order. If you do so, the contempt proceeding will likely be dismissed and the other side may obtain an award of costs against you. Further, there are other specific and non-negotiable rules regarding service and indicting the contemnor that must be strictly complied with.
On the prosecuting side, it is important to get proper affidavit evidence about service of the Order that you believe is being violated. On the Defendant’s side, if you are going to be advancing a defence that you were not able to comply with the Order, it is important to preserve and prepare all documentary evidence to support such a position. Although you are presumed innocent, sometimes it makes sense to put forward exculpatory evidence.
We assist both alleged contemnors in defending contempt proceedings, and any further proceedings that arise, as well as clients that have been frustrated by the other side thumbing their nose at the Court’s process. We take over all aspects of the process from investigation all the way through trial, sentencing, and post-sentencing relief and appeals.
We handle all forms of contempt, from breaches of injunctions, Mareva Orders, Anton Piller Orders, and failure to abide by parenting schedule orders, and payment orders.
We have a network of other professionals that assist us as is necessary to establish contempt, or properly defend it. This includes private investigators and forensic accountants. We also are happy to take referrals from other lawyers just for the contempt portion of a proceeding. We will bill you directly and not solicit your client for any additional work – your client will remain yours.
For unrepresented parties that approach us with a contempt of court issue, if you do not have your own lawyer already, we will advise you as to appropriate tactical steps to take to perhaps resolve the underlying case, as well as the contempt proceedings.
We will develop a strategy to effectively prosecute or defend against any claim of contempt, and to achieve your outcome in the underlying proceedings. We may discover technical deficiencies that would allow the contempt to be dismissed and may even result in an award of costs in favour of the contemnor. This is not a theoretical possibility – we have achieved this when we have acted for alleged contemnors in the past who was not convicted as a result of our help.
Our role as your counsel encompasses the gathering of all relevant evidence, investigation, obtaining witness statements, and cross-examination of witnesses. You, as the client, may be an important witness, but there are likely other key documents or collateral witnesses that should be before the Court to establish your narrative.
Generally contempt proceedings are done quickly. It is not unusual for a court date to be set two weeks to two months down the road. This means that the establishment of your defence, and fixing any deficiencies in the prosecution must be done very promptly. In appropriate circumstances, it may be appropriate to negotiate a more lenient sentence in exchange for an early plea, and perhaps a variation of the underlying order that gave rise to the contempt.
For continuing contraventions of a Court order, multiple prosecutions for contempt are possible and it becomes necessary to develop a strategy that prevents you from being overwhelmed and to achieve a just, speedy, and inexpensive outcome.
Your case may also raises constitutional questions, and in particular whether certain rights under the Charter are available to you to assist in your defence by excluding evidence or statements. Of note, this area of law is not well developed and for cases in which the jeopardy is extremely high, it will be worth exploring challenging the constitutionality of several aspects of the Supreme Court Civil Rules and the Supreme Court Family Rules as they relate to contempt proceedings.
When we act for alleged contemnors we either charge an hourly rate, or a flat rate per day of Court including preliminary applications. Frankly speaking, the defence of contempt of court is not cheap given the jeopardy involved, and our experience and track record. Prosecution of contempt of court is generally cheaper if your case for contempt is strong. We do not offer a contingency basis because of the ethical issues it raises, but we may be interested in assisting you in the underlying court proceeding. If you are considering contempt of court because the other side has not obeyed a payment schedule, then we may offer a contingency option to enforce the judgment after the contempt proceedings have concluded.
It is quite difficult to predict the actual time that a contempt proceeding may involve and so flat fees for the overall work are not offered. What is predicted to be a ½ day hearing on affidavits may easily turn into a 3 day conventional trial with live witnesses. Also if the other side is going to make any preliminary application that is not something we can predict but affects the time and scope of work.
Contact us either at (604) 259-6200 or using the form below for assistance with Contempt of Court
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.