Month: May 2025

“An assessment under s. 30 is not to be ordered routinely. If the court is in a position to reasonably decide the issue without the assessment it should not be ordered. The assessment must be reasonably necessary to assist the court in determining the issues before it (Kramer v. Kramer, (2003) RFL (5^th) 381; 2003 CanLII 64318 (ON SC), [2003] CarswellOnt 1228 at para. 36, 41). A “clinical issue” is not required before an assessment order is made (Glick v. Cale, 2013 ONSC 893 at paras. 40-46). The court also must consider whether the intrusive and time-consuming nature of an assessment would outweigh its benefits (Kramer at para. 51)

The burden is on the party seeking the assessment to demonstrate that it is reasonably necessary.

In Glick, Kiteley J. outlined a non-exhaustive list of criteria to consider in determining whether an assessment is reasonably necessary, as follows:

a.   What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

b.   Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

c.   Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

d.   Do the parents have a mutual disregard for the other parent’s ability to parent?

e.   Do the parents blame each other for the dysfunction each describes?

f.   Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

g.   Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

h.   What is the age of the child at separation and at the time of the request for the assessment?

i.   Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

j.   Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

k.   Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

l.   What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

m.   What is the estimated cost? Do the parents have the financial resources to pay that cost?

n.   Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

o.   Is an assessment in the best interests of the child?”

            Rosen v. Rosen, 2023 ONSC 3022 (CanLII) at 6-8

“In Carey v. Laiken, 2015 SCC 17 (S.C.C.), at para. 38, the court described the requisite mental element of contempt as follows:

38      It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, at para. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25; Sharpe, at ¶6.190. The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” (2013 ONCA 530 (Ont. C.A.) (para. 59). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard; and Sharpe, at ¶6.200.

A party seeking a finding of contempt must therefore only prove that the alleged contemnor intentionally did not do what was required under the order. The absence of contumacious intent is a mitigating but not an exculpatory circumstance:  Sheppard, Re, 1976 CanLII 710 (ON CA), [1976] 67 D.L.R. (3d) 592 (Ont. C.A.), at 595-596.

In Moncur v. Plante, 2021 ONCA 462, at para. 10, the Ontario Court of Appeal set out concisely the general principles that govern the use of the court’s power to find a party in contempt for breaching a court order, as follows:

10      The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:

1. 1. 1. 1. 1. 1. 1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
                  2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799 Ont. C.A., 33 R.F.L. (8th) 19, at paras. 9–12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385 Ont. C.A., 25 R.F.L. (8th) 144, at paras. 18–19.
                  3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

At paras. 19 and 20, the court addressed the importance, especially in family law cases, of considering alternatives to contempt as follows:

19      I do, however, agree with the appellant’s argument that the motion judge did not appear to consider whether a declaration of contempt was a remedy of last resort or whether there were alternative enforcement options, such as a declaration that the appellant had breached the order or encouraging professional assistance. Without considering any alternative options, he appears to have proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt. Although the motion judge had earlier properly held the contempt ruling in abeyance to allow the parties to arbitrate their parenting conflicts, and offered to help the parties resolve their issues, his reasons do not suggest that he considered other enforcement options in lieu of ultimately making his declarations of contempt. The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court. In fairness to the motion judge, such other options do not appear to have been raised by the appellant, who was self-represented, or by the respondent. Even so, I conclude that it was an error of law not to have considered such options: Chong, at para. 12.

20      It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.”

            Carey v. Carey, 2024 ONSC 2516 (CanLII) at 48-51