Estate Planning

Contempt of Court Sentencing

By Hull & Hull LLP

The recent decision of Brown J. in Re Willis Estate, 2009 CanLII 30681 (Ont. S.C.J.) addresses the issue of an appropriate sentence to impose on an attorney for property who has been found in contempt of a court order requiring him to account for his dealings with his mother's property.

In that proceeding, the court ordered in January 2008 that a son produce an inventory of assets held by his mother either alone or jointly with him, and to provide a full accounting of all dealings with the joint assets.

The son failed to do so. Various further orders were made, and ultimately, a motion was brought to punish the contempt. 

In making a ruling, Brown J. reviewed the court's contempt power. 'A court exercises its contempt power to uphold the dignity and process of the court, thereby sustaining the rule of law and maintaining the orderly, fair and impartial administration of justice.'

Brown J. then considered whether the son had, in fact, complied with the orders, and found that the contempt had not been purged. 

Turning to sentencing, Brown J. noted the difference between criminal and civil contempt. The purpose of criminal contempt sentencing is to punish, whereas the purpose of civil contempt sentencing is coercive and persuasive, designed to enforce the rights of a private party and to secure compliance. As such, custodial sentences are rare, and lengthy custodial sentences even rarer. Incarceration, although not unheard of, is a sanction of last resort. 

The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

After considering the nature of the contempt, and various mitigating and aggravating factors, the court ordered that the son pay a fine of $7,000, failing which, he was to be jailed for 7 days. He was also to retain professionals to assist him in preparing the accounting and inventories. Costs were to be spoken to.

Full post as published by Toronto Estate Law Blog on July 16, 2009 (boomark / email).