A Family Law Leave Application and the Limits of Contempt

The Dispute

The client had already been through a family law trial that set parenting time and support. The other parent, restricted by an earlier court order from filing further applications without permission, wanted the case reopened on several fronts at once: revisiting the client’s income for support purposes, seeking compensation for a missed parenting exchange, and pursuing contempt over it. The client wanted the litigation to stay within its existing limits rather than expand into a fresh round of applications.

The Parties’ Positions

The other parent argued that circumstances had moved on since the trial and that the court should let her raise several outstanding issues together rather than in a piecemeal fashion. She relied on new evidence, arising only after the trial decision, to argue that the client’s income should be reassessed for child support purposes under the Federal Child Support Guidelines. She also maintained that the client had failed to honour the parenting time the earlier order gave him, and that she should be permitted to seek both compensation for the missed time and a finding of contempt over it, together with terms for how funds already paid into court would eventually be released to secure future child support and special expenses.

The client opposed the request. He characterized the additional applications as a continuation of a pattern of repeated, meritless motions that the earlier restriction on filing was meant to contain, and argued that granting leave to expand them further would only prolong litigation that had already gone through trial. He asked, in the alternative, that if any part of the leave was granted, the court order costs against the other parent regardless of how the underlying applications were eventually decided.

The Court’s Decision

In a 2021 decision, the Supreme Court of British Columbia granted leave in part. It allowed the other parent to pursue the income reassessment, finding a live issue given the new post-trial evidence and the Federal Child Support Guidelines’ provision for support to be revisited when circumstances change. It also allowed her to seek compensation for the missed parenting time and to advance terms for releasing the funds held in court to secure future support and special expenses. Leave to pursue contempt was refused. The court held that section 63 of the Family Law Act already supplies the remedy for a failure to exercise parenting time, and that using contempt for the same conduct would be an end run around that provision rather than a genuine advance of the child’s interests. The client did not obtain the costs order he sought; that question was left to whichever judge later hears the applications on the merits.

Key Lessons for Parents Opposing Repeat Applications and Parents Seeking Leave to Litigate

• A restriction on filing further applications without leave does not close the door on every new issue. New evidence that arises after a trial decision, particularly evidence bearing on income for support purposes, can still justify a fresh application under an existing leave requirement.
• Contempt is not the default remedy for a missed parenting time exchange. Where the Family Law Act sets out its own procedure for that specific failure, courts treat an attempt to use contempt for the same conduct as an improper substitute for the remedy the legislature already provided.
• Funds paid into court during a dispute do not resolve automatically once the underlying issues are addressed elsewhere. The terms on which those funds are eventually released, including what they are meant to secure, can themselves become the subject of a separate application.
• Seeking costs in advance of a decision on the merits is rarely successful. A court asked to grant or refuse leave will often leave costs to be decided by whichever judge later resolves the applications being advanced, rather than pre-empting that judge’s assessment.

This outcome turned on the history between these parties, the terms of the earlier order restricting further applications, and the evidence available at the time. A similarly framed request may be assessed differently on a different record.

ATAC LAW represents parents in family law disputes involving parenting arrangements, child support and the enforcement of court orders.

This matter was conducted by James Un, a senior associate lawyer at ATAC LAW, who acted for the client opposing the additional applications.