Contempt Motions and Estate Litigation - Part I
This week’s blogs will focus on contempt motions, generally and in the context of estate litigation.
Counsel have long attempted to craft solutions to situations where they are faced with stubborn parties who defy court orders. One solution may be to bring a motion for contempt against a disobedient party; that is, to have the party held in contempt for not abiding by a previous court order. At times, a contempt order can be the only way to make a party accountable for his or her lack of respect for the judicial process. Some have argued, however, that judges should restrain in the use of their contempt powers, arguing that contempt should be used sparingly and only in the most obvious of cases. In Fisher v. Fisher, [2003 Carswell Ont 1170] (Ont. S.C.J.) the Court noted that “to use contempt motions to enforce minor but annoying breaches of conduct takes away and waters down the effectiveness of the contempt procedure. Contempt should be reserved for those serious breaches, which justify serious consequences”.
Rule 60 of the Rules of Civil Procedure addresses the manner in which court orders may be enforced. Specifically, Rules 60.05 and 60.11 deal with contempt orders.
a) there is an unambiguous court order directing the doing of an act or the preventing or enjoining of an act (the order is directive and not simply permissive);
b) the contemnor had notice or knowledge of the existence of the order; and
c) the contemnor acted in contravention of the order and there is clear proof of the same.
In order to constitute a contempt it is not necessary to prove that the party intended to wilfully disobey or flout an order of the court. The offense consists of the contemnor’s intentional doing of the prohibited act with the necessary knowledge of the order.
The Ontario Court of Appeal held in Sheppard (1976), 12 O.R. (2d) 4 (Ont. C.A.) that the absence of contumacious intent is a mitigating but not an exculpatory circumstance.
The wilful disobedience of a court order will, however, be an aggravating factor when determining an appropriate sanction.
The contemnor should have a strong defence to a contempt motion if it were impossible for him or her to purge the contempt or to comply with the order where his or her own conduct had not affected the circumstances involved.
With respect to estate related matters, contempt motions have been used to, amongst other things, mandate certain positive steps, such as the proper preparation of accounts, and to limit/stop parties from engaging in certain acts, such as the dissipation of assets.
As estate matters have the potential to bring out the worst in the parties involved, contempt motions can be used to level the playing field, particularly in situations where there is an inherent power imbalance between the parties. Although contempt orders are considered to be the ‘big stick’ in litigation, they can be very effective against intractable litigants who choose to defy certain court orders.
Have a great day, Craig
Interesting. Washington State is trying to repeal its estate tax in the coming election. Should be interesting to see what happens.