Top court to rule on support enforcement

OTTAWA A plastic surgeon accused of fleeing the country to avoid paying support to his ex-wife and children is raising a thorny problem for the Supreme Court of Canada.

The question is whether divorced dads can be cited for contempt and jailed for ignoring court orders in such disputes. The answer could reach well beyond the immediate case of Kenneth Dickie, his former wife and their three now-grown children.

"It's really about how to deal with every divorced or separated woman's worst nightmare . . . that their husband is going to disappear or default in his support obligations," said Harold Niman, lawyer for Leaka Dickie.

"The broader issue is how can the courts deal with a chronic problem of non-payment of support, and the systemic problem that raises for families across Canada."

Rochelle Cantor, who represents Kenneth Dickie, retorts that her client paid both spousal and child support for a decade after the couple first separated in 1991.

"He continued to pay it until he ran out of money," said Cantor.

The complications started when Leaka Dickie went back to court after the initial support agreement lapsed in 2001. She won an interim judgment never finalized awarding $9,000 a month in payments for the three children and $2,500 a month in spousal support.

A year later, in late 2002, Kenneth Dickie, who had been practising in Sarnia, Ont., moved with his second wife and their two children to the Bahamas. There were no further support payments.

Back in Canada, Leaka Dickie obtained yet another judgment from Ontario Superior Court ordering her ex-husband to issue a letter of credit to her for $150,000 to cover his support obligations. Dr. Dickie was also ordered to put up an additional $100,000 as a security to cover potential court costs.

Canadian court orders can't be legally enforced in the Bahamas. But when Kenneth Dickie returned to Ontario for a hearing in February 2004, he was promptly held in contempt and led away in handcuffs to serve 45 days in jail.

He had argued, in his defence, that he was financially unable to provide the letter of credit and security deposit demanded, but the judge rejected the contention.

Kenneth Dickie went back to Freeport upon his release, where he continues to operate the Bahamas Institute of Plastic Surgery. The clinic's website offers a wide range of services, from breast enhancement and tummy tucks to more complex procedures.

Patients from Canada and the United States are offered packages that include post-operative stays at upscale hotels. The site also notes that financing terms are available, once credit approval has been obtained by filling out a form disclosing income and assets.

Written material filed by Niman at the Supreme Court describes Kenneth Dickie as owning a Porsche, a Mercedes and a luxury house on a waterside estate. Meanwhile, says Niman, Dickie's ex-wife and children, now living in St. Albert, Alta., are struggling to make ends meet.

The main issue before the Supreme Court, however, isn't the extent of Kenneth Dickie's wealth or the precise amount owed in support payments it's the fact that he was held in contempt at his 2004 hearing.

The Ontario Court of Appeal, in a 2-1 split decision last year, ruled that the judge in the case had no power to issue a contempt citation, much less to jail him.

Justice John Laskin, in a scathing dissent, said Kenneth Dickie had shown an "appalling disregard" for his support obligations, concluded that he had fled the country to escape them, and said he shouldn't even have been allowed to challenge the contempt finding.

Cantor is arguing at the Supreme Court that sending people to jail for failing to pay their bills is a "Dickensian concept" reminiscent of debtors' prison.

Cantor also contends that Kenneth Dickie, who wasn't represented by a lawyer at the contempt hearing, didn't get fair treatment and was denied a chance to offer a full defence.

Niman argues that, in some circumstances, the use of contempt citations against those who don't live up to their support obligations is justified.

Oral arguments in the case are set for Wednesday. It usually takes the high court several months to deliver a ruling.