“Civil contempt is a quasi-criminal proceeding. To find a party in contempt of court, the leading cases advise that three elements must be found:
(1) The order that was breached must state clearly and unequivocally what should and should not have been done;
(2) The party who disobeys the order must do so deliberately and willfully;
(3) The breach of the order must be proven beyond a reasonable doubt; Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79, at paras. 32-35.
An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language, or if external circumstances have obscured its meaning: Ruffolo v. David, 2019 ONCA 385 (CanLII), [2019] O.J. No. 2427 (Ont. C.A.).
The contempt remedy is one of last resort. It should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Contempt findings should only be made sparingly where conferences to try to resolve access problems or motions for enforcement have failed. The remedy is not available where clear routes were available to the moving party to seek to vary or enforce terms of the order: Hefkey v. Hefkey, 2013 ONCA 44 (CanLII), [2013] O.J. No. 1697 (Ont. C.A.).
Within the context of a family law dispute, the court should also take into account and exercise its discretion based on the best interests of the child. Any ambiguity in the text of the order should be resolved in favour of the person accused of contempt. A failure to comply with an order of the court will not be contempt if there are genuine, unresolved issued between the parties with respect to the manner in which it is to be carried into operation. Ruffolo v. David, 2019 ONCA 385 (CanLII), [2019] O.J. No. 2427 (Ont. C.A.).
After the three criteria from Carey v. Laiken are established beyond a reasonable doubt, the judge must then consider whether she should exercise her discretion to decline to make a finding of contempt. A judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case. It is especially important for course to consider the discretion to impose a contempt finding in high-conflict matrimonial cases: Chong v. Donnelly, [2019] O.J. No. 5048, 2019 ONCA 799 (Ont. C.A.)”.