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
With the recent case law moving in the direction of “loser pays”, costs in estates matters are becoming more and more of a concern to litigants. If only there was insurance against such a risk, you say. Well, now there may be, in certain cases. It is called Opponent’s Costs Indemnity (OCI©) and it is offered by Lexfund Management Inc.
Lexfund is a third-party litigation funding company that offers funding for what it determines to be meritorious commercial litigation lawsuits for monetary damages of $1 Million or more. For litigation that meets Lexfund’s criteria, funding is provided on the basis that the plaintiff owes nothing if the case is lost. Lexfund’s new OCI insurance is a companion product designed to alleviate the plaintiff’s anxiety and apprehension over the possibility of having to pay the defendant’s court costs if the claim is unsuccessful.
Another service you may wish to check out is BridgePoint Financial Services. BridgePoint has a variety of plaintiff lending services. They offer flexible and affordable "bridge loans" to help plaintiffs carry on with their lives without financial stress while providing their lawyers the time needed to negotiate a reasonable settlement of their legal claims. BridgePoint will tailor a financing solution to specific needs while ensuring that every loan offered makes sense, relative to the claim.
Lexfund and BridgePoint offer a variety of options for plaintiffs with strong claims who might otherwise have to abandon their cases due to the financial pressures of litigation.
Sharon Davis – Click here for more information on Sharon Davis.