Halloween Special: Top 5 Tricks in Family Law Will Not Get You Treats
In the “spirit” of Halloween (pun intended) I thought I would do a little round-up of some of the most common “tricks” that Family Law litigants tend to play – and quickly find themselves in trouble with the court because of them:
• Failing to adhere to custody/access schedule. Courts naturally have the power to ensure that orders for custody and for scheduled access (including pick-up and drop-off times, and various scheduling aspects) are rigorously adhered to, and a parent can come back to court in situations where the other parent is not complying with them. With that said, the court will also be reasonable in assessing the realities: In the recent decision in Chatur v. De Los Reyes, for example, the mother had failed to bring the child to scheduled access visits with the father on three occasions, contrary to an earlier order. However, the evidence showed that the access visits had been rescheduled due to legitimate illness, due to conflicting nap times for the child, and because the father had been out of the country on one of the scheduled days. All of this was found to be reasonable as between the parties.
• Failing to pay child or spousal support ordered. Needless to say, courts also expect that orders in connection with payment of child or spousal support will be scrupulously followed by the paying party. The repercussions for failure to pay as ordered can come in many forms, including enforcement procedures and mechanisms implemented through the province’s Family Responsibility Office.
• Failing to attend family-relating hearings or comply with orders. Disregarding orders never goes over well with a court, and there are many, many examples of this in the decided Ontario cases. To use just one: in Peers v. Poupore, the mother was denied contact with the child except during scheduled visits at a Supervised Access Centre. Nonetheless, she showed up at the child’s school on numerous occasions, all part of her long history of being intransigent and disobeying the court. (She defiantly stated that “no mother would obey this court order.”) The court had no trouble finding her in contempt, and sentenced her to 30 days’ incarceration.
• Failing to disclose a material change in circumstances. By virtue of various express provisions in the Family Law statues, parties to a matrimonial dispute are required to proactively disclose (and on an ongoing basis to keep each other informed of) any material change in circumstances. For example, spouses have a continuing obligation to keep each other advised of any changes that may affect their respective ability to pay child or spousal support, or (if on the receiving side of support) to become financially self-sufficient. The court has various remedies for failure to do so.
• Hiding income for support purposes. Hiding income is a big No-No. The court’s remedies in the face of a paying spouse or parent who tries to hide his or her actual level of income include the ability to impute income at the level that is found to be appropriate, and to order that spousal or child support be paid on that higher, more accurate level.
Naturally, when faced with such misconduct by a Family Law litigant, the court has an arsenal of sanctions at its disposal. Amongst the more serious is a finding of contempt against the party committing the breach, which finding involve satisfaction of a three-part test, namely that: 1) the disobedient party was both wilful and deliberate; 2) the evidence shows contempt beyond a reasonable doubt; and 3) the order that was breached was both clear and unequivocal.
(And note that while technically under the Family Law Rules a failure to pay child or spousal support alone cannot be made the subject of a contempt of court order, the court will often find contempt based on related non-compliance, such as the party’s failure to satisfy his or her related disclosure obligations. See for example, the recent decision in Luckman v. Luckman, where the paying parent had a whole raft of related and contemptuous conduct relating to child support payments, including misleading the court and failing to provide relevant documents as promised).
Contempt orders have been called the “big stick of litigation”, and courts are not shy to impose them when warranted. Indeed, the availability of such measures is viewed as one of the cornerstones of the Canadian justice system, a sentiment that is reflected in this quote:
Contempt orders are serious business. No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court orders at their whim because in their own particular view it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice. – Mr. Justice Curtis in Peers v. Poupore (2012)
For the full text of the cited cases, see:
Chatur v. De Los Reyes, 2012 ONCJ 367 (CanLII) http://canlii.ca/t/frqcd
Peers v. Poupore, 2012 ONCJ 306 (CanLII) http://canlii.ca/t/frdwf
Luckman v. Luckman, 2012 ONSC 1153 (CanLII) http://canlii.ca/t/fqhvk