What Is a Contempt Application in BC Family Court?

When someone ignores a family court order, contempt of court is often the first word that comes to mind. It sounds powerful, but it is a serious step that is not always the right one.

This article explains what contempt is in British Columbia family cases, the penalties that exist and the other options the Family Law Act provides.

This article covers the law of British Columbia.

What contempt means

Contempt is one way a court responds when its orders are not followed. In plain terms, it is the court's way of protecting its own authority. What must be shown, and to what standard, depends on the facts and on case law, so it is worth confirming with a lawyer.

In the Supreme Court, contempt is dealt with under Supreme Court Family Rules Rule 21-7. The court may punish by committal order, a fine, or both, may issue a warrant to apprehend, and may decide guilt or innocence summarily. It may find contempt even if the order was not served, where the person had actual notice of its terms.

Why it is often a last resort

A government consultation paper says contempt is generally a measure of last resort and that Family Law Act tools suffice in most cases. What must be proven, and to what standard, comes from case law, so a lawyer should confirm how it applies to your facts.

That does not mean contempt is never used. It means it is worth asking whether a less drastic tool would get the order followed, and which one fits depends on what the order says and how it was broken.

Family Law Act options to consider first

For enforcement under these provisions, it is not necessary to prove that the person was served with the order. If someone breaches a communication restriction, the court must consider a Part 9 protection order.

Imprisonment under section 231 is available only if the court is satisfied no other order under the Act will secure compliance, and the person must first be given a reasonable chance to explain.

Parenting time and contact problems

When the problem is about time with a child, the Family Law Act has specific tools that are separate from contempt.

• A person who is wrongfully denied parenting time or contact may apply within 12 months after the denial. Remedies include compensatory time, reimbursement of expenses, supervision, or a payment or fine of up to $5,000.
• A denial is not wrongful in certain situations, such as where the guardian reasonably believed the child might suffer family violence, the child was ill with supporting medical documentation, or the applicant was impaired. The court may also find other sufficient justification.
• If a person repeatedly fails to exercise parenting time or contact, the court may order remedies such as dispute resolution, counselling, expense reimbursement, and security or reporting requirements.
• If someone proposes to remove a child from British Columbia and is unlikely to return the child, the court may order security, surrender of travel documents or transfer of property to a trustee.

Section 231 also allows police apprehension of a child in cases of wrongful denial of parenting time or withholding.

Support orders work differently

Unpaid support has its own enforcement tools under the Family Maintenance Enforcement Act, including attachment notices, licence cancellation and court hearings. The director may serve a notice of attachment, and the person served must deduct the amount and remit it within 5 days. An employer may not dismiss, discipline or otherwise penalize an employee because of a notice of attachment.

When arrears reach $3,000 or more, after 30 days' notice the director can have ICBC cancel a driver's licence. At a default hearing the court may order reporting, immediate payment or imprisonment of up to 30 days, and at a committal hearing imprisonment cannot be for consecutive periods totalling more than 90 days. Federally, a debtor in persistent arrears may face suspension or refusal of a federal licence, including a passport.

If a payor's situation changes, they cannot end support by their own decision. Support under an order continues until a court changes, suspends or terminates it. A payor who applies promptly to change support may get a retroactive reduction of arrears, while one who waits risks arrears and interest continuing to accumulate.

What to do next

• Get a copy of the order and confirm it is clear and was made by a court.
• Document each breach with dates and evidence.
• Ask a lawyer whether an Act remedy, a contempt application or both fits your situation.
• If the order no longer suits your circumstances, ask about applying to change it rather than ignoring it.
• If the order also places duties on you, ask a lawyer how they apply to you while the matter proceeds, since this depends on your situation.

Frequently asked questions