“Section 31(1) FLR prescribes that a family court order may be enforced by a contempt motion even if another penalty is available. The onus is on the moving party to establish contempt which in this case is the father. The standard of proof is the criminal standard of proof beyond a reasonable doubt: Moncur v Plante, 2021 ONCA 462 at para 10(1); Smith v Reynolds, 2018 ONSC 7706 at para 21.
To find civil contempt, the court must be satisfied that (1) the court order alleged to have been breached states clearly and unequivocally what should or should not be done; (2) that the person alleged to be in contempt had actual knowledge of the terms of the order; and (3) that the person alleged to be in contempt intentionally committed an act that the order prohibits or intentionally failed to do an act that the order requires: Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79 at paras 32 to 35; Moncur v Plante at para 10(1). Unless the contempt motion satisfies all three criteria, the motion must be dismissed: Smith v Reynolds at para 22.
The contempt power is discretionary. Even after the three criteria are met, judges retain the discretion to decline to make a finding of contempt if to do so would work an injustice or if other alternatives exist: Moncur v Plante at para 10(2); Smith v Reynolds at para 23.
In exercising their discretion, judges must keep in mind that contempt is a remedy of last resort and contempt powers should be exercised sparingly: Carey v Laiken at paras 36-37. In family proceedings, judges should consider alternatives to finding contempt unless access problems or motions for enforcement have failed: Chong v Donnelly, 2019 ONCA 799 at paras 9-12; Hefkey v Hefkey, 2013 ONCA 44 at para 3; Moncur v Plante at para 10(2); Ruffolo v David, 2019 ONCA 385, 25 R.F.L. (8th) 144 at paras 18-19.
When the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Moncur v Plante at para 10(3); Ruffolo v David at para 19; Dunn v Shaw, 2021 ONSC 8286 at para 47.
Factors a court may consider in exercising its discretion before finding contempt include:
a. whether the contemnor took reasonable steps in good faith to comply with the order: Carey v Laiken at para 37; Smith v Reynoldsat para 23;
b. whether imposing contempt would work an injustice in the circumstances of the case: Carey v Laiken at para 37; Moncur v Plante at para 10(2);
c. the presence of exigent or extenuating circumstances: Newstead v Hacey, 2019 ONSC 5213 at paras 12 and 30;
d. whether alternatives exist such as finding a breach of the order and imposing other remedial options: Moncurat para 10(3) and 19; Dunn v Shaw at paras 33-34, 46; Jean v O’Callaghan, 2017 ONSC 4027 at paras 25 and 31; Hassan v Khalil, 2022 ONSC 3316 at paras 36 and 38; Ruffalo v David at para 19; and
e. whether the defiant conduct is severe or significant: Jackson v Jackson2016 ONSC 3466 at para 56.
If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy. The contemnor’s efforts to purge contempt is a mitigating factor in the remedy to be imposed: Ironside v Roskam, 2018 ONSC 247 at para 49. Rule 31(5) FLRs sets out the various remedies available for contempt: r. 31(5); see also Stone v. Stone, 2019 ONSC 3214.
Finally, unlike criminal contempt where the court’s jurisdiction may be penal, a court’s jurisdiction in finding civil contempt is primarily remedial and aimed at encouraging compliance with the court order: Kopaniak v MacLellan, 2002 CanLII 44919 at para 28.”