Ever wonder what will happen to you if you don’t pay your court ordered child and spousal support? Well, some judges may be inclined to find you in contempt of court and you face the threat of spending some time in jail.
In a recent decision H v. G, that was released on January 8, 2016 the British Columbia Court of Appeal re-iterated the test for allegations of contempt of court and fortunately for the appellant, overturned the decision of the lower court that Mr. H, who represented himself, was in contempt of court by failing to pay the court ordered child and spousal support of 35 thousand a month.
On May 15, 2014 the lower court ordered Mr. H, a dentist , to pay 35,000 on the first of each month beginning June 1, 2014 until October 2014, and thereafter $45,000 per month until his arrears were paid in full, failing which the appellant was to be incarcerated for 14 days for every payment not made.
L. G, is the mother of the dentist’s two children born in 2008 and 2010. When the father of your children doesn’t pay his child support, you can register the claim with The Director of Maintenance and Enforcement, which is exactly what she did in this case.
The Director’s involvement began in May 2013 when Ms. G registered her claim for support, then about $370,000 in arrears. The bulk of the arrears resulted from the retroactive aspect of the support award, which, on pronouncement in November 2012, put the appellant more than $300,000 in arrears. The lower court judge found that the appellant was approximately $539,000 in arrears at the time of the contempt hearing.
The judge found the appellant’s income from April 15, 2010 to July 1, 2011 was $279,052 and on that income ordered $2,278 per month in child support and $7,000 per month in spousal support for that period. He ordered child support of $3,730 per month and spousal support of $5,548 per month from July 1, 2010 to October 31, 2011. That is, from April 15, 2010 to October 31, 2011, the combined amount of support was $9,278.
The reason the lower court judge found Mr. H in contempt was his conclusion that the dentist was deliberately arranging his affairs so that he had committed his money for purposes other than child and spousal support. The Court of Appeal found that this conclusion by the judge was in error.
The Court of Appeal was of the opinion that the judge failed to consider that at the time the dentist arranged his affairs to commit his money to other obligations than child and spousal support, the dentist was vigorously advancing a claim for custody of the children, which if successful would have reduced any support obligations.
After a considered analysis, the Court of Appeal reiterated the test for contempt of court:
In short, a court must find that a contemnor “wilfully disobeyed a court order that was clear and precise in its meaning” beyond a reasonable doubt. A court must “ensure that no one is found to have transgressed without a full consideration of all the relevant information, including any explanations for the conduct of persons accused of violating court orders. If an order directs a party to provide an item that is not in that party’s possession, the party cannot be said to have wilfully or deliberately disobeyed an order that was “impossible” to comply with.
And added the following comments:
A measured response to non-compliance with court orders is the standard; a contempt order should be a last resort to obtaining compliance. I consider that the same restraint must be brought to bear on any resulting sanction. In my view, the details of the sanction in the contempt order are intemperate, ergo unreasonable.
Fortunately for Mr. H the Court of Appeal concluded that a finding of contempt of court is a heavy, blunt tool, which was not appropriately used in the dentist’s case.
It was a long and arduous road for Mr. H to get to the Court of Appeal.
It is advisable to seek immediate assistance to vary child and spousal support obligations should you find yourself in a position of being unable to pay. Should you find yourself in a difficult situation like Mr. H did, we at Hart-Legal have experienced family law lawyers located in Victoria, Vancouver, and Calgary, that would be very dedicated to helping you resolve the issues before any allegations of contempt of court arise.