Sons Take $250,000 from Accounts Days Before their Father Dies
Sons Take $250,000 from Accounts Days Before their Father Dies: PART II
In the recent decision of Wade v. Wade, 2021 AQB 865, the Court explained at paragraph 4 how two sons had removed $250,000 from the bank accounts of their father “via a freshly granted power of attorney, days before his death.” The surviving spouse of the decease wished to have the money returned to his estate, and the sons were ordered by the Honourable Justice Macklin to repay the money.
However, they did not comply with the order. The two sons claimed they no longer had the large sum of money and could not possibly comply return the funds.
Thus, the Court considered the civil contempt rules within the Alberta Rules of Court which can be outlined as follows:
Order to appear
10.51 The Court may grant an order in Form 47 that requires a person to appear
before it, or may order a peace officer to take a person into custody and to bring
the person before the Court, to show cause why that person should not be
declared to be in civil contempt of Court.
Declaration of civil contempt
10.52 (1) Except when a person is before the Court as described in subrule (3)(a)(ii) or (v), before an order declaring a person in civil contempt of Court is made, notice of the application in Form 27 for a declaration of civil contempt must be served on the person in the same manner as a commencement document.
(2) If a lawyer accepts service of a notice of an application seeking an order declaring the lawyer’s client to be in civil contempt of Court, the lawyer must notify the client of the notice as soon as practicable after being served.
(3) A judge may declare a person to be in civil contempt of Court if
(a) the person, without reasonable excuse,
(i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge,
(ii) is before the Court and engages in conduct that warrants a declaration of civil contempt of Court,
(iii) does not comply with an order served on the person, or an order of which the person has actual knowledge, to appear before the Court to show cause why the person should not be declared to be in civil contempt of Court,
(iv) does not comply with an order served on the person, or an order of which the person has actual knowledge, to attend for questioning under these rules or to answer questions the person is ordered by the Court to answer,
(v) is a witness in an application or at trial and refuses to be sworn or refuses to answer proper questions, or
(vi) does not perform or observe the terms of an undertaking given to the Court, or (b) an enactment so provides.
Together, these provisions provide that where a duty-imposing order is granted, and same is not complied with, a further order may be granted requiring the non-compliant persons to appear before the court and “show cause why they should not be declared to be in civil contempt of Court."
The Honourable Justice M. J. Lema upon consideration of the civil contempt rules ordered the two sons to appear before the Court and show cause.
This case demonstrates an option available to the Courts where a duty-imposing order is not complied with. If you have questions regarding orders that have not been complied with on an estate matter, contact one of the estate litigation lawyers at Kantor LLP. We are happy to answer questions.
