Tag: court order
To most, it may seem obvious that an order from the court is not merely a recommendation. The terms of a court order must be followed. Disobeying the terms of an order may result in a finding that a litigant is in contempt. This was a lesson the defendant in Jensen v. Jensen had to learn the hard way.
In Jensen v. Jensen, Sterling Jensen was married to Betty Jensen. It was a second marriage for both of them and they both had children from prior marriages. Sterling passed away in 2014. Prior to his passing, Sterling appointed his son, Randall, as his Attorney for financial and personal care decisions and his other son, Murchie, as his Executor. Following Sterling’s death, Betty commenced an action against Sterling’s estate and his sons, claiming various forms of relief, including ownership of the matrimonial home.
Betty passed away and the trial was adjourned following her death. Betty’s heirs obtained an order to continue the action on behalf of her estate. A motion requesting an order to continue was heard on November 23, 2017. Following the hearing, Justice Petrie issued an order which provided the following, among other terms:
Until judgement is rendered in this action no further assets of the Defendant Estate shall be transferred or disposed of except as necessary to pay the property taxes and other such expenses or as required by law or further order from this Court.
Despite Justice Petrie’s order, in February 2018, Murchie wrote cheques to the beneficiaries of Sterling’s estate amounting to $7,000. In May 2018, land was transferred from Sterling’s estate to one of Sterling’s other sons who was also a beneficiary in the estate. In July 2019, the plaintiffs filed a motion seeking an order to declare the defendant in contempt of court due to his disobedience in following Justice Petrie’s order. The plaintiffs also wanted the defendant to pay back to the estate the amounts that he hastily distributed.
The defendant stated that although Justice Petrie’s order was not respected, he did not believe that he was violating the “spirit of the order”.
In her Judgment, Justice DeWare noted that it was clear that the defendant did not follow Justice Petrie’s order and in not doing so, he was in contempt of court. Justice DeWare went on to state that if the executor felt it was necessary to issue partial payments to the beneficiaries, he should have obtained a further court order which allowed him to do so. Justice DeWare emphasized that court orders are not suggestions and that they must be followed. Pursuant to Rule 76.06 of the New Brunswick Rules of Court, Justice DeWare ordered the defendant to return $35,000 to the estate and pay $1,000 in costs to the plaintiffs.
In summary, Jensen v Jensen provides one simple, yet clear, instruction: always follow court orders. The failure to do so can carry a host of potential detriments. Although Jensen v. Jensen is a New Brunswick case, it can be applied in Ontario as per Rule 60.11(5) of the Rules of Civil Procedure. It states that if the court finds a party in contempt, the judge may order that the litigant be imprisoned, pay a fine, refrain from doing an act, pay costs or comply with any other order that the judge considers necessary. As this provision is similar to the provision in New Brunswick’s Rules of Court, it is likely that had the case been heard in Ontario, the outcome would have been comparable.
Thanks for reading!
Ian Hull and Celine Dookie
A litigant in his late 80’s was recently sentenced to 30 days in jail for contempt of a Court order.
The litigant was found to be a vexatious litigant in 2008. The Vexatious Litigant Order precluded him from commencing or continuing any judicial proceeding or motion without leave of a judge of the Superior Court. Further, the litigant was not permitted to seek leave against certain named parties unless certain outstanding costs awards were paid in full.
The litigant was found to be in contempt of this 2008 Order on October 20, 2017. The penalty phase of the motion was heard on January 4, 2018, and reasons were released on January 5, 2018.
In the penalty phase decision, the motions judge reviewed the court’s power when determining a penalty for contempt. The court may order that the person in contempt:
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if the person fails to comply with the terms off the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary.
The judge went on to set out the principals of sentencing, which are similar to those found in criminal law. The underlying purpose of contempt orders is to “compel obedience and punish disobedience”, and “the contemnor must be deterred from further acts of contempt. Perhaps more importantly, respect for our courts must be maintained and violations punished adequately in order to deter future violations”.
The court went on to consider
- Any mitigating or aggravating factors;
- Whether the sentencing objectives could be accomplished without a period of sentencing, and if so, how; and
- If the answer to 2 was no, what period of jail time was appropriate.
As an aggravating factor, the court noted that since the 2008 Vexatious Litigant Order was made, the litigant has carried on in complete disregard of that Order. The litigant was previously found in contempt of the 2008 Order, but because of his age (he was 81 at the time), he was not jailed. Further, there was no apology or expression of remorse from the litigant.
The court accepted that a fine was not appropriate, as the imposition of a fine would only make it less likely that any costs awards would ever be paid by the litigant. The court also noted that the litigant was previously warned by a judge that if he was subsequently found in contempt, he could well face jail time. Additionally, the litigant had previously been committed to prison overnight for a separate act of contempt.
In light of the nature of the contempt, the court considered a sentence of 6 to 9 months. However, due to the litigant’s age (“either 88 or 89”) and alleged health issues, a sentence of 30 days was determined to be appropriate. Costs were awarded against the litigant on a substantial indemnity basis in the amount of $15,280.50.
(As an aside, the litigant has brought a motion to discharge, set aside, vary or give directions with respect to the finding of contempt, which is scheduled to be heard on January 12, 2018. Accordingly, the sentence is to begin on January 12, 2018 at 4 pm, unless the judge hearing the motion to vary, etc. orders otherwise.)
Have a great weekend.