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Are courts cracking down on contempt?

|Written By Shannon Kari

A couple from Gravenhurst, Ont., is spending alternate weekends in jail this summer after a Superior Court judge imposed a 90-day sentence for civil contempt.

Steven Barnes and his wife Maria Barnes were found to have breached repeated court orders since 2007 in ongoing litigation with a Toronto aviation company over an agreement to purchase an $11.7-million private jet.

Justice Lois Roberts rejected the couple’s request for a conditional or suspended sentence and ruled that a custodial term was necessary because of their “utter disregard and contempt” for the court’s authority.

“It is necessary in the circumstances of this case to bring home to the Barnes the gravity of their misconduct,” Roberts wrote in her recent sentencing decision in Uyj Air Inc. v. Barnes; Ogilvy Renault v. Barnes.

Karen Jolley, who represents Uyj Air, says there was no choice but to seek a finding of civil contempt against the couple.

“There may not be an economic incentive for the client to pursue beyond a certain stage. As an officer of the court, it is my position we are obligated to follow it through,” says Jolley, a founding partner of Wires Jolley LLP in Toronto.

The 90-day intermittent sentence, which the Barneses have been permitted to serve on alternate weekends so someone is always home to take care of their children, is the latest example of what appears to be an increased willingness of Ontario courts to impose jail terms for civil contempt.

This spring, the Ontario Court of Appeal upheld a 14-month sentence against Barry Landen in Langston v. Landen for not complying with numerous court orders in an alleged multimillion-dollar estates fraud.

The appeal court also concluded in the high-profile contempt case of Chiang (Re) in 2009 that sentences of eight and 12 months for a couple that breached numerous orders requiring them to disclose assets weren’t excessive.

In Chiang, one of several cases cited by Roberts, the Court of Appeal described civil contempt as a necessary “coercive” power to try to obtain compliance with court orders.

The conduct of the Barneses, which included “dozens of ultimately broken promises” to pay consent judgments, refusals to provide undertakings, and an admission of forging a false document, caused “four years of unnecessary proceedings and expense,” Roberts noted.

The court heard that Maria Barnes initially contacted Uyj Air in 2005 and described herself as an heiress interested in purchasing a multimillion-dollar private jet. After a jet was flown from the United States and following a demonstration flight, a contract was signed to purchase the aircraft.

Maria later told the company she had no money to pay for the plane, which was sold at a slightly lower price to a customer in the United States. A consent order issued by a Superior Court judge in 2007 required Maria to pay $215,000 to Uyj Air.

Since that order, the couple hasn’t paid the money or any costs orders and has been found in contempt by three other Superior Court judges for failure to attend cross-examinations and answer undertakings.

During the ongoing litigation, Maria has claimed that she expects to receive a multimillion-dollar     inheritance from her grandfather’s estate, although there was no documentation to substantiate the assertion.

Maria also admitted to forging documents purportedly from CIBC to back up her claim that she wasn’t allowed to provide details about her inheritance and a trust account.

“It is clear from the evidence before me that the Barnes have used the inheritance and trust story to string along and delay the moving parties from trying to enforce their judgments,” said Roberts.

The couple began serving their intermittent sentences last month. The couple was ordered to appear again before Roberts on July 29 to determine if they had complied with the court order. There was no evidence presented to the court at that time to mitigate the contempt sentences, says Jolley.

The Court of Appeal has also ruled that people serving sentences for contempt aren’t eligible for parole and that the release date is within the jurisdiction of the court, not corrections officials.

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