“The jurisdiction to make a contempt order is found in r. 31 of the Family Law Rules, O. Reg 114/99.
In the recent decision of Moncur v. Plante, 2021 ONCA 462, at para. 10 the Court of Appeal for Ontario summarized the general principles applicable to civil contempt:
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- 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..
- 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 PreS.-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385Ont. C.A. , 25 R.F.L. (8th) 144, at paras. 18–19.
- 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.
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I agree with Justice Charney in Perna v. Foss 2015 ONSC 5636, when he stated: “notwithstanding the court’s reluctance to exercise its contempt powers, it is important that such power be exercised in appropriate cases to ensure that parties in family law proceedings understand that court orders cannot be ignored or disobeyed, and that compliance with a court order is neither an option nor a bargaining chip.”
Allegations of contempt cannot be “traded.”: see Weber v. Merritt, 2018 ONSC 7590, at paras. 30-39.
Once a court has determined that access is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child. A parent has some positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order: see Godard, at para. 28; Bors v. Bors, 2021 ONCA 513.”
J.I. v. A.A., 2023 ONSC 2942 (CanLII) at 298-302