In Lalli v. Grewal, 2017 BCSC 983 the Plaintiff was found in contempt of court for failing to comply with an Order made Nov 10, 2015 wherein the Honourable Mr. Justice Harvey directed both parties to attend before Dr. Michael Elterman for the purpose of attempting a reconciliation between the Respondent and his son.
The Plaintiff was found to “wilfully, and without lawful excuse” failed to comply with the Order.
The Court stated:
Before the considering the appropriate penalty, I allowed 120 days for the claimant to purge her contempt by making arrangements for Amar to visit his father under the direction of Dr. Elterman, or if Dr. Elterman was unavailable or unwilling to assist, another child psychologist, satisfactory to the respondent, so as to further efforts at reunification.
[6] In the intervening period, pursuant to my direction, the claimant filed her Form 8 property and financial statement.
[7] However, I am unable to find, despite the claimant’s protestations to the contrary, that she has genuinely attempted to move forward the engagement of a professional for the purpose of reconciling Amar with the respondent.
The Legal Considerations
The power to punish for contempt of court order in the family proceeding is set out in Rule 21-7(1) of the Supreme Court Family Rules, B.C. Reg. 169/2009, which provides:
The power of the court to punish contempt of court must be exercised by an order of committal or by imposition of a fine or both.
[18] The court also has inherent jurisdiction to punish a party for contempt of a court order: L.G. v. R.G., 2012 BCSC 1365, at para. 281.
[19] While punishment is a consideration in the imposition of a penalty, the primary goal is to secure compliance with court orders: Larkin v. Glass, 2009 BCCA 321, at para. 49.
[20] In determining the appropriate penalty for civil contempt. I am to consider (1) the gravity of the offence; (2) the need to deter the contemnor; (3) the past record and character of the contemnor, in particular whether she has committed previous contempts; (4) the protection of the public; and (5) the extent to which the contempt was intended: Gee Nam John et al v. Byung Kyu Lee, 2009 BCSC 1157, at para. 17.
[21] General and specific deterrence is also a legitimate goal (Transportation Lease Systems Inc. v. Virdi, 2009 BCSC 695, at para. 17).
The Court’s Decision
Contempt is an offence against the authority of the court in the administration of justice; not a civil action, allowing me to award damages, as distinct from costs, to the aggrieved party: Langford (City) v. dos Reis, 2016 BCCA 460, at para. 25.
[43] The imposition of a significant fine will do nothing to ameliorate the financial impact of the claimant’s actions upon the respondent.
[44] It is a long-standing practice to award special costs to the successful applicant in a civil contempt proceeding: Everywoman’s Health Centre Society v. Bridges (1991), 54 B.C.L.R. (2d) 294 (C.A.).
[45] Solicitor-client or special costs, however, cannot be assessed summarily.
[46] In my view, the appropriate sanction to reflect the court’s condemnation of the claimant’s behaviour is to ameliorate the financial burden suffered by the respondent.
[47] Given Dr. Elterman’s decision that he cannot continue, there is little, if any, residual value in the fees paid to him for the services provided.
[48] The claimant’s conduct has been egregious throughout such that I order she pay to the respondent $17,500 representing costs of the motions before me and a portion of the disbursement associated with the engagement of Dr. Elterman.
[49] I have assessed the penalty globally so as to avoid the need of a taxation which will only further add to the delay and expense.
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