In July, the new Family Law Rules will have been in play for 2 years. Lawyers are still discovering differences between old and new and evolving problems
A case in point is "Contempt of Court". Under the old Rules, the Court could not enforce a payment. Under the new Rule 31(5), the Court can order one person to pay a 'penalty' to another party. In Taylor v. Taylor, the Husband flouted an Order to provide security for monies owing, by pledging his RRSP portfolio. The Court found that he deliberately refused and intended to cause economic harm to his Wife. Contempt is about "preserving the integrity of the legal system" and willful disobedience "strikes at the heart of the administration of Justice"; thus taken seriously. Here, the Court ordered the Husband to pay his Wife $25,000.00 "as a penalty" for his contempt. This is the first case to use that provision. A harbinger of things to come?
Denial of access is a troubling area of matrimonial law. Previously, Courts threaten jail, but only rarely followed through. Courts traditionally refused to tie access to support payments. A Court could use the monetary penalty power to reduce a support payment, to show disapproval of the custodial parent's non-compliance in an unreasonable denial of access situation.
Failure to pay support is commonly breeched Family Law Order. Under both old and new rules, Courts cannot use contempt to enforce payment. In Dickie, the Court of Appeal held that requiring the Husband to provide a letter of credit (to secure support) cannot be enforced by contempt. This was a 'split decision'. The dissenting Justice took serious issue with the majority; and held contempt did apply. We have not heard the end of the story. Many well reasoned dissenting opinions, form the basis for future changed in the law.
The entire area of how to secure support, property and cost payments requires careful analysis, to adequately protect recipients from their unscrupulous spouse's payment avoidance schemes (ie. Bankruptcy). You can not get rid of spousal support via Bankruptcy situation, but may beat property payments unless appropriately secured. The new Rules do not fully addressed these short falls.
Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice.