In a recent decision, a court reviewed the conditions necessary to have someone found to be in contempt of a court order.

In this case, an ex-wife had asked the court to find her ex-husband in contempt for alleged failure to have her designated as an irrevocable beneficiary to his life insurance policy.

The court found that while the ex-husband had not been able to do so, it was due to the fact that his life insurance provider would not allow for such a designation, rather than non-action on the husband’s part.

What Happened?

In a dispute between two separating spouses, the court ordered the ex-husband to arrange for a life insurance policy on his life valued at $280,000 and naming the ex-wife as the “irrevocable” beneficiary “in trust for the children”. The intention was to secure the ex-husband’s child support obligations towards the former couple’s children.

The ex-husband was to maintain this policy for the duration of time that he has an obligation to contribute to child support. When his obligations to provide child support end, he can then name any other person (or his estate) as the beneficiary of the life insurance policy. He had 30 days in which to comply with the court order.

The husband made a formal written request to RBC (his life insurance provider) to designate the ex-wife as the irrevocable trustee on the policy, per the terms of the court order. RBC advised him that they would not allow such a designation on their policies.

Alleged Contempt

When the ex-husband was unable to designate the ex-wife as irrevocable trustee, she asked the court to find him in contempt for failing to comply with the order.

The ex-wife claimed that he had not acted in good faith to take all reasonable steps to comply with the order, noting that he could have obtained a further court order requiring RBC to make the irrevocable designation, or he could have purchased a new life insurance policy from a different insurer who would have allowed him to make such a designation.

The ex-husband argued that he had taken all steps to comply with the court order. He had asked RBC to designate the ex-wife as the irrevocable trustee and the designation would have been in place but for the fact that RBC had not permitted it.

Establishing Contempt

In order to establish contempt, the person claiming that someone has been in contempt must show, beyond a reasonable doubt, that:

  • The order alleged to have been breached states clearly and unequivocally what should or should not be done;
  • The person alleged to be in contempt had actual knowledge of the terms of the order; and
  • The person alleged to be in contempt intentionally did the act that the order prohibited or intentionally failed to do the act that the order required.

All three of these elements must be met, or the motion for contempt will be dismissed. Even if all three elements of the test are established, the court still retains the discretion to decline to make a contempt finding where it would be unjust to do so (for instance, where the person alleged to be in contempt has acted in good faith and taken reasonable steps to comply with the relevant court order).

The Decision

The court found that the ex-husband in this case had not been in breach of the court order:

  • The order did not clearly and unequivocally require the ex-husband to irrevocably designate the ex-wife as trustee. Rather, the express wording used that made the designation conditional – “if allowed by the insurer”.
  • Since RBC did not allow the designation, the ex-husband was not in breach;
  • The parties’ intention to make the ex-wife the irrevocable trustee cannot be the basis for a contempt finding where there is no clear and unequivocal wording requiring the designation (again, there was no such wording here);
  • There was no evidence that the ex-husband had intentionally purchased a policy that did not allow for the required designation;
  • There was nothing in the court order that imposed a further duty on the ex-husband to take further steps such as asking the court for an order to require RBC to make the designation or securing a different life insurance policy;

Since the three required components of the test were not met, the ex-wife’s application to find the ex-husband in contempt was, therefore, dismissed.

Too often, people going through separation and divorce do not receive the strong legal support and guidance they are seeking. At Jason P. Howie, we understand that by hiring a lawyer, you expect to receive reliable, well-informed recommendations regarding how to proceed toward the most favourable outcome for your unique situation.

With more than 25 years of experience in family law, there are very few problems in which Jason P. Howie has not previously been involved. Our firm takes a calm, rational approach to separation and divorce, and we help our clients do the same. We understand when some matters may require urgency and when others may need a steady, methodical approach.

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