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Rare ruling sends family law litigant to jail for contempt

|Written By Marg. Bruineman

Family law litigant Robert Ross Picken spent 20 days of a 30-day sentence in a maximum-security jail sharing a pod with six accused killers after a judge found him in contempt of court.

‘Imprisonment is a rare outcome of contempt,’ says Audrey Shecter, who represented the wife.

“I was sent to jail over a divorce,” he tells Law Times a week after his release.

“I’ve never been to jail before and I haven’t even had a ticket in 40 years.”

The spectre of going back to jail looms as the 57-year-old man faces another order in the coming weeks. He says he has since been terminated from his job as a service manager at a car dealership, a position he held for seven years, and is now unable to pay spousal support.

The contempt ruling arose from his actions in not preserving funds in relation to the sale of a commercial property. The Pickens purchased the property in Collingwood, Ont., just months before their marriage of 33 years came to an end.

“Imprisonment is a rare outcome of contempt,” says Audrey Shecter of Basman Smith LLP, who was representing the wife, Brenda Anne Picken.

“When we were in court on Oct. 10 to resolve the related issue of the amount of funds owing to the wife, Justice [Clifford] Nelson made a comment that he thought a financial penalty would be appropriate for the contempt of his order.”

What happened in the seven days leading to the judge’s final determination on Oct. 17 appears to have made a difference in the finding against the husband.

After their breakup, the Pickens weren’t able to resolve all of their issues and sought family mediation that resulted in a settlement in 2009. The deal laid out the process for selling the property and the timing for it and determined that the parties would split the net proceeds of the sale.

In his endorsement dealing with the contempt charge last month, Nelson wrote that the ex-wife appeared in his court complaining that the husband had sold the property and dealt with the proceeds unilaterally in breach of a memorandum of understanding set out by the mediator.

It was on Jan. 24, 2011, that the court ordered him to retain the total net proceeds from the sale of the property.

The following April, Shecter moved for an order enabling her client to receive her cut of the proceeds. But the husband delayed the proceedings in order to give himself time to sort out capital gains issues and paid her $100,000 out of the net proceeds. He was to preserve another $310,000 pursuant to the Jan. 24 order.

This past April, a court set out the scenario for the capital gains tax calculation and ordered payment to the ex-wife by Sept. 1. The day before that deadline, the husband produced a statement indicating that all that remained in the account was $76,997. Shecter then brought a motion to find the husband in contempt of the order.

Shecter brought another motion on Oct. 10 complaining that the husband never did the capital gains calculation.

The husband entered into a consent order on Oct. 10 agreeing to pay his ex-wife $154,000 that day. But the husband told the court he didn’t reserve the funds. He never paid the amount.

The original motion for contempt came about on Oct. 15. It was accompanied by a second motion, this one in connection to the consent order. Two days later, Nelson ordered the husband to go to jail for 30 days.

“In dealing with remedy, it must be pointed out to the respondent that this motion is not between him and his wife,” wrote Nelson. “He, by breaching the order, is showing contempt and disdain for the court. That is very serious and will not be tolerated.”

In his decision, Nelson noted the husband “has done absolutely nothing to purge his contempt by making partial payment.”

“He was led out of the courtroom in handcuffs,” says Shecter.

The husband still has to face the second motion for breach of the consent order and non-payment and expects to return to court in November or December.

Determinations of contempt in such cases are fairly rare. Seeing a family law litigant taken to jail is even more unusual.

Family law practitioner Kristy Maurina says contempt is a “big stick” in litigation used sparingly for the most obvious cases.

In addition, judges will often impose less severe sanctions when they make findings of contempt.

“Some judges will deal with the sentencing portion of contempt immediately when the finding is made while others will adjourn the sentencing hearing to a date in the future to allow the person an opportunity to purge their contempt,” says Maurina.

“Only in the most egregious cases where complete disdain for the court has been shown will a judge order a term of imprisonment.”

Lawyer Murray Maltz describes the jail term as a hefty one but notes he understands the decision. In order to maintain the rules of the court, judges have to occasionally show their teeth and make it clear that they mean business, he says.

“When the court makes an order, the only way they can maintain the integrity of a court order is to enforce it,” says Maltz.

“You have to enforce your own orders; otherwise, they have no meaning. The judge says, ‘You’re not listening buddy. Well, I’m going to make you listen.’”

The husband, meanwhile, says he has come out of the experience jobless and diagnosed with a heart ailment even as the issues remain unresolved. He maintains he wasn’t able to preserve the assets from the sale of the building.

He figures he has spent $80,000 on lawyers and other costs and now has limited prospects for work. He plans to go back to court representing himself.

“I still have another court date. The opposing counsel is asking for more incarceration. If I have to go back, I have to go back.”

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