Walker v. Walker, 2013 ABCA 213
| Judge | Côté, O'Ferrall and Veldhuis, JJ.A. |
| Court | Court of Appeal (Alberta) |
| Case Date | June 03, 2013 |
| Citations | 2013 ABCA 213;(2013), 553 A.R. 166 |
Walker v. Walker (2013), 553 A.R. 166; 583 W.A.C. 166 (CA)
MLB headnote and full text
Temp. Cite: [2013] A.R. TBEd. JN.064
Gail Alanna Walker (also known as Gail Alanna Dugas)
(respondent/plaintiff) v. James Albert Walker (appellant/defendant)
(1303-0080-AC; 2013 ABCA 213)
Indexed As: Walker v. Walker
Alberta Court of Appeal
Côté, O'Ferrall and Veldhuis, JJ.A.
June 3, 2013.
Summary:
The husband failed to comply with orders to produce information and documents necessary for the financial aspects of the parties' divorce. After being imprisoned for contempt of court, he was released on conditions designed to secure compliance. The husband failed to comply with the conditions and imprisonment was ordered. The husband appealed.
The Alberta Court of Appeal dismissed the appeal.
Bankruptcy - Topic 8992
Discharge of debtor - Liabilities not released by discharge - Fines, penalties, etc. - [See both Family Law - Topic 773 ].
Contempt - Topic 684
What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - [See both Family Law - Topic 773 ].
Contempt - Topic 3304
Punishment - Purging of contempt - [See second Family Law - Topic 773 ].
Contempt - Topic 3325
Punishment - Imprisonment - When appropriate - The husband failed to comply with orders to produce information and documents necessary for the financial aspects of the parties' divorce - After being imprisoned for contempt of court, he was released on conditions designed to secure compliance - The husband failed to comply with the conditions and imprisonment was ordered - The Alberta Court of Appeal dismissed the husband's appeal - The court rejected the husband's argument that imprisonment was improper because the aim of contempt law was to secure compliance, not to punish - That was not the law - Punishment was one legitimate aim of the penalty for contempt - Coercion was not the only aim - Further, the order here set out compliance conditions on which the husband could seek release - See paragraphs 28 to 31.
Contempt - Topic 3325
Punishment - Imprisonment - When appropriate - The husband failed to comply with orders to produce information and documents necessary for the financial aspects of the parties' divorce - After being imprisoned for contempt of court, he was released on conditions designed to secure compliance - The husband failed to comply with the conditions and imprisonment was ordered - The Alberta Court of Appeal dismissed the husband's appeal - The husband had been in gross contempt of court for many years and had already got out of jail conditionally once with promises - He had not purported to do a single thing since the last order, nor had he been imprisoned - What he needed this time was evidence - Yet, he had offered only procedural arguments, bereft of a shred of evidence - The court rejected the husband's request for "another few weeks' adjournment" - Justice delayed was justice denied - See paragraphs 48 to 50.
Contempt - Topic 5087
Practice - Evidence and proof - Hearsay evidence - The husband failed to comply with orders to produce information and documents necessary for the financial aspects of the parties' divorce - After being imprisoned for contempt of court, he was released on conditions designed to secure compliance - The husband failed to comply with the conditions and imprisonment was ordered - The Alberta Court of Appeal dismissed the husband's appeal - The court rejected the husband's argument that the evidence supporting the order under appeal was hearsay - It was true that the affidavit was from a paralegal, rather than the wife, but the communications previously ordered by the various judges would have gone to the law office, not to the wife directly - The traditional form for such evidence had someone at the most obvious and central place of receipt swear two things: (1) that she had not received or seen the missing information and (2) that, to the best of her knowledge, no one else had either - The judge obviously read the affidavit as stating those two things, which was reasonable - See paragraphs 7 to 10.
Contempt - Topic 5088
Practice - Evidence and proof - Affidavit evidence - [See Contempt - Topic 5087 ].
Contempt - Topic 5101
Practice - Hearing - General - The husband failed to comply with orders to produce information and documents necessary for the financial aspects of the parties' divorce - After being imprisoned for contempt of court, he was released on conditions designed to secure compliance - The husband failed to comply with the conditions and imprisonment was ordered - The Alberta Court of Appeal dismissed the husband's appeal - The court rejected the husband's argument that there was a breach of natural justice because he was not permitted to address the Court of Queen's Bench nor to lead evidence - The husband had not come to court, himself, but had sent a just-retained lawyer who knew little about the matter - The husband had opportunities after the hearing before the chambers judge to adduce evidence - The husband's counsel argued orally before the Court of Appeal with no time limit imposed - More importantly, on the day that the order was made, few facts were in issue - There was uncontradicted evidence before the chambers judge that the husband still had not complied with the past orders - See paragraphs 32 to 44.
Contempt - Topic 5105
Practice - Hearing - Who should act as judge - The husband failed to comply with orders to produce information and documents necessary for the financial aspects of the parties' divorce - After being imprisoned for contempt of court, he was released on conditions designed to secure compliance - The husband failed to comply with the conditions and imprisonment was ordered - The Alberta Court of Appeal dismissed the husband's appeal - The court rejected the husband's argument that a judge could not hear a motion for contempt if the topic was a breach of the same judge's earlier order - This was a "startling proposition" as judges did that all the time - Even if it sometimes looked better for a different judge to hear the contempt motion where that was practical, it was not practical here - Further, the husband was in breach of a number of orders, at least three of which were made by judges other than the judge under appeal - See paragraphs 3 to 6.
Contempt - Topic 5108
Practice - Hearing - Adjournments - [See second Contempt - Topic 3325 ].
Courts - Topic 689
Judges - Disqualification - Bias - Arising out of participation in prior proceedings - [See Contempt - Topic 5105 ].
Equity - Topic 64
Maxims - Justice delayed is justice denied - [See second Contempt - Topic 3325 ].
Family Law - Topic 773
Husband and wife - Actions between husband and wife - Property - Where spouse declares bankruptcy - The husband failed to comply with orders to produce information and documents necessary for the financial aspects of the parties' divorce - After being imprisoned for contempt of court, he was released on conditions designed to secure compliance - The husband failed to comply with the conditions and imprisonment was ordered - The Alberta Court of Appeal dismissed the husband's appeal - The court rejected the husband's argument that his assignment into bankruptcy on the eve of the hearing had "erased the duty to reveal information" and any penalty or coercion for his past disobedience - If a court ordered a person to take certain steps and the person knew that, but did not take those steps, that was contempt of court - That four months later, the husband invoked the bankruptcy laws did not bar the contempt proceedings, even if the order disobeyed was largely about property and even if the husband was insolvent at the time of his disobedience - This argument was a collateral attack on the order disobeyed - See paragraph 21.
Family Law - Topic 773
Husband and wife - Actions between husband and wife - Property - Where spouse declares bankruptcy - The husband failed to comply with orders to produce information and documents necessary for the financial aspects of the parties' divorce - After being imprisoned for contempt of court, he was released on conditions designed to secure compliance - The husband failed to comply with the conditions and imprisonment was ordered - The Alberta Court of Appeal dismissed the husband's appeal - The court rejected the husband's argument that his assignment into bankruptcy on the eve of the hearing had "erased the duty to reveal information" and any penalty or coercion for his past disobedience - The assignment into bankruptcy could not make the husband's contempt, or any penalty for it, evaporate for a number of reasons - The breaches of court orders were old - Some dated six years before the bankruptcy - Bankruptcy was about property and was not a dispensation from all general duties and liabilities - Not all rights and duties passed to the trustee in bankruptcy - Further, the wife's claim would not end, as the husband argued, with his discharge - Finally, removing the matrimonial property claim would not remove the contempt finding, nor purge the contempt, nor alter the sentence - The chambers judge was correct in finding that the bankruptcy was irrelevant - See paragraphs 18 to 27.
Practice - Topic 5408.1
Judgments and orders - General - Collateral attack - [See first Family Law - Topic 773 ].
Cases Noticed:
Schitthelm v. Kelemen (2013), 557 A.R. 151; 2013 ABQB 42, refd to. [para. 4].
Andreachuk, Re (1984), 120 A.R. 156; 8 W.A.C. 156 (C.A.), refd to. [para. 4].
Broda v. Broda et al. (2004), 346 A.R. 376; 320 W.A.C. 376; 2004 CarswellAlta 181; 2004 ABCA 73, refd to. [para. 10].
L.M.B. v. I.J.B. - see Broda v. Broda et al.
Manis v. Manis (2001), 149 O.A.C. 384 (C.A.), refd to. [para. 21].
Turkawski et al. v. 738675 Alberta Ltd. et al. (2005), 388 A.R. 187; 2005 ABQB 339, refd to. [para. 22].
Metropolitan Life Insurance Co. v. Hover (1999), 237 A.R. 30; 197 W.A.C. 30; 1999 ABCA 123, refd to. [para. 28].
B. v. United Kingdom (Secretary of State for the Home Department), [2013] N.R. Uned. 29; [2013] 1 W.L.R. 435; [2013] UKSC 4, refd to. [para. 28].
Director of Child, Youth and Family Enhancement (Alta.) v. B.M. (2009), 460 A.R. 188; 462 W.A.C. 188; 2009 ABCA 258, affd. (2010), 482 A.R. 273; 490 W.A.C. 273; 2010 ABCA 240, refd to. [para. 38].
Counsel:
B.M. King, for the respondent/plaintiff;
S.E. Oviatt, for the appellant/defendant.
This appeal was heard and determined orally on June 3, 2013, by Côté, O'Ferrall and Veldhuis, JJ.A., of the Alberta Court of Appeal. On June 13, 2013, the court delivered the following memorandum of judgment.
To continue reading
Request your trial
-
Lymer (Re), 2018 ABQB 859
...of the Courts: United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901 at 931, 89 DLR (4th) 609. In Walker v Walker, 2013 ABCA 213 at para 28, 553 AR 166, the Court of Appeal discussed these dual The appellant’s counsel argues in his factum that imprisonment was improper her......
-
Recycling Worx Solutions Inc v Hunter, 2018 ABQB 395
...an alleged contemnor can escape liability for contempt by entering bankruptcy. [119] The Plaintiff relies heavily on Walker v Walker, 2013 ABCA 213. In that case, the alleged contemnor refused to produce financial records in his matrimonial dispute and entered bankruptcy on the eve of a fur......
-
Contempt And Bankruptcy: Striking The Right Balance
...does not address the question of whether non-compliance with an order after bankruptcy can be punishable by contempt. Walker v Walker, 2013 ABCA 213 Finally, the Alberta Court of Appeal came to the same conclusion in Walker where, again, the appellant disobeyed court orders and then declare......
-
Envacon Inc v 829693 Alberta Ltd, 2018 ABCA 313
...can be both coercive and punitive even as to an issue involving production of documents required by court order: see Walker v Walker, 2013 ABCA 213 at para 28, 553 AR 166. Wilful misconduct in disobedience of court orders more than once can justify a punitive response: Mella v 336239 Albert......
-
Lymer (Re), 2018 ABQB 859
...of the Courts: United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901 at 931, 89 DLR (4th) 609. In Walker v Walker, 2013 ABCA 213 at para 28, 553 AR 166, the Court of Appeal discussed these dual The appellant’s counsel argues in his factum that imprisonment was improper her......
-
Recycling Worx Solutions Inc v Hunter, 2018 ABQB 395
...an alleged contemnor can escape liability for contempt by entering bankruptcy. [119] The Plaintiff relies heavily on Walker v Walker, 2013 ABCA 213. In that case, the alleged contemnor refused to produce financial records in his matrimonial dispute and entered bankruptcy on the eve of a fur......
-
Envacon Inc v 829693 Alberta Ltd, 2018 ABCA 313
...can be both coercive and punitive even as to an issue involving production of documents required by court order: see Walker v Walker, 2013 ABCA 213 at para 28, 553 AR 166. Wilful misconduct in disobedience of court orders more than once can justify a punitive response: Mella v 336239 Albert......
-
Contempt And Bankruptcy: Striking The Right Balance
...does not address the question of whether non-compliance with an order after bankruptcy can be punishable by contempt. Walker v Walker, 2013 ABCA 213 Finally, the Alberta Court of Appeal came to the same conclusion in Walker where, again, the appellant disobeyed court orders and then declare......