“There is a large body of caselaw on civil contempt in family proceedings. From that body of caselaw, I distill the following legal principles:
a. The purpose of a contempt order in Family Law is to force compliance by the defaulting parent with an order, not punishment for non-compliance. The contempt order acts as a deterrent to the specific offender and others of a similar disposition from defying court orders and from undermining the administration of justice (Starzycka v. Wronski, 2005 ONCJ 329 (CanLII), [2005] O.J. No. 5569 (C.J.), at para. 16).
b. Court orders are not suggestions, guidelines, or invitations open to acceptance or rejection by the parties. Disobedience must have consequences (Purcaru v. Purcaru,2010 ONSC 4031 (CanLII), at para. 37, aff’d 2010 ONCA 92 (CanLII)). The court makes decisions when the parties cannot do so, or where supervision of the decision is required to protect the children. Whether an order is on consent or results from a contested hearing is of no moment. The orders are of equal force and must be obeyed.
c. Contempt is a remedy open to either party under FLR 31. It is also a remedy that the court can impose on its own initiative where the court is required to uphold the integrity of the legal system. (Zalman v. Zalman, [2002] O.J. No. 1818 (S.C.)).
d. Civil contempt is the “big stick” of civil litigation, a remedy of last resort imposed sparingly and with great caution in family proceedings, and only where other means to resolve the matter have failed (Hefkey v. Hefkey, 2013 ONCA 44 (CanLII), at para. 3, Fisher v Fisher, 2003 CanLII 2119 (ON SC), [2003] O.J. No. 976 (Ont. S.C.), at para. 11, Woronowicz v. Conti, 2015 ONSC 5247 (CanLII), at para. 17, Godard v. Godard, 2015 ONCA 568 (CanLII), at para. 17, Carey v. Laiken, 2015 SCC 17 (CanLII), at para. 36, and most recently in Ruffolo v. David, 2019 ONCA 385 (CanLII), at para. 18).
e. The paramount consideration in access cases is the best interests of children, and the courts ought to encourage the parents to involve professionals to speak and work with the children to address their relationship with their parents (Ruffolo, supra, at para. 19).
f. Contempt proceedings arise frequently in family cases because of lack of compliance with orders (Gordon v. Starr, 2007 CanLII 35527 (ON SC), [2007] O.J. No. 3264 (S.C.), at para. 23).
g. In order for the court to find contempt, the court must find a) that there was an order, b) the order was brought to the notice of the alleged contemnor, c) the order is clear as to what should or should not be done, d) the alleged contemnor did not obey the order, and e) that the failure to obey the order was willful and intentional. The burden of proof is on the moving party to prove these elements beyond a reasonable doubt (Van de Mierden v. Van de Mierden, [2009] W.D.F.L. 4947 (Ont. S.C.)at para. 29, Prescott-Russell Services for Children and Adults v. G.N. (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27, Hobbs v. Hobbs, 2008 ONCA 598 (CanLII) at para. 26, Sickinger v. Sickinger, 2009 CanLII 28203 (ON SC), [2009] O.J. No. 2306 (S.C.) aff’d 2009 ONCA 856 (CanLII), Woronowicz, supra, at paras. 33-25, and Godard, supra, at para. 11).
h. The “willfulness” that is required is that the failure to obey the order must be deliberate and not accidental or unintentional. The willfulness requirement may be met by intentional, willful or reckless disregard, or indifference to the authority of the order or the court (R. v. M.R., [2002] O.J. No. 1519 (S.C.)at paras. 219-221).
i. The absence of contumacious intent or a justification for the breach of the order is a mitigating, not exculpatory factor, relevant to punishment, not liability. This is especially so in family proceedings where feelings run high, a party often believes that only s/he is right and the other is wrong, there are feelings of bitterness and betrayal and self-righteousness, and that these feelings persist even after the court has made its determination such that a party feels justified in defying an order (S.R., supra, S.V. v. C.T.I., [2009] O.J. No. 816 (S.C.)at para. 6, Coletta v. Coletta, 2003 CanLII 2412 (ON SC), [2003] O.J. No. 81 (S.C.), Starzycka, supra, at para. 16 and Zadegan v. Zadegan, 2003 CanLII 49378 (ON SC), [2003] O.J. No. 5282 (S.C.), at para. 23).
j. A parent is not entitled to ignore an order, even one made on consent. Where a parent is concerned about harm during the other parent’s access time, the solution is to obtain an order varying access. She or he cannot unilaterally ignore an order unless there is serious, imminent harm (R.K. v. K.T.M.K., [2007] O.J. No. 600 (S.C.)at para. 29, L.M.K. v. E.P.R., [2005] O.J. No. 5782 (S.C.), at paras. 19-20).
k. There must be clear and compelling reasons to legally justify violation of an order. In order to do this, the parent must show, by admissible evidence, that he or she has a reasonably held belief that there is a good reason to defy the order, such as imminent harm to the children. Putting it another way, the defaulting parent’s belief must be sincerely held. A sincere belief of immanent harm or danger, alone, is not sufficient. There must be a validly objective justification for the breach based on the child’s needs and interests, based in evidence (Kassay v. Kassay, 2000 CanLII 22444 (ON SC), [2000] O.J. No. 3373 (S.C.), at para. 25; Docherty v. Catherwood, 2015 ONSC 5240 (CanLII), at para. 19; and Houben v. Maxwell, 2016 ONSC 2846 (CanLII), at p. 12 and 23, Jackson v. Jackson, 2016 ONSC 3466 (CanLII), at para. 59 to 61).
l. Whether there is a need to protect the children is a question for the Court to determine, not the parent. The parent must abide by the order and move promptly to modify the order being disobeyed (Salloum v Salloun, [1994] A.J. No. 304 (Alta. Q.B.), at para. 20; Houben, supra, at para. 23; Chatur v. De Los Reyes, [2012] O.J. No. 2690 (C.J.), at para. 31, Prescott, supra, at paras. 47-50, Ralston v. Schultz, 2005 ONCJ 44 (CanLII), [2005] O.J. No. 635 (S.C.), Docherty v. Catherwood, 2015 ONSC 5240 (CanLII)(S.C.) paras. 18-21).
m. The children’s wishes are to be considered, depending on the children’s ages (V., supra, at para. 20).
n. The burden of proving any defence or mitigating factor is on the responding party. I was referred to no authority as to the nature of the burden. As with defences and justifications in criminal law, the burden on the responding party should be on the civil standard.
o. A parent must take all reasonable steps to ensure compliance with the order. A parent cannot justify his or her failure to follow an access order because the child did not want to go. This makes the child responsible for the parent’s breach of the order. Often, the parent abdicates to the child the decision the parent ought to make because the parent knows that the decision the child will make will be the decision that the parent would have madeand which is one which violates the order. The parent abdicates his or his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences. A parent’s obligation is to do what is reasonable and necessary, and actively require the child to comply with the order by explanation, exhortation, and the threat and execution of discipline (V., supra, at para. 46, Haywood v. Haywood, 2010 ONSC 5615 (CanLII), [2010] O.J. No. 4317 (S.C.), at paras. 29, 41-43, Stuyt v. Stuyt, [2009] O.J. No. 2475 (S.C.), at para. 54, Geremia, supra, at para. 63, and Godard, supra, at para 29).
p. What steps a parent must take to have the child attend access with the other parent depends on the circumstances and age of the child. Usually, passive “reasoning with the child” is insufficient and is in breach of the access order. There is a positive obligation to ensure that a child complies with the order. The parent is not entitled to leave access decisions to the child (Geremia, supra, at para. 63, Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.), at para. 8, B.K. v. A.P., [2005] O.J. No. 3334 (S.C.)at paras. 22-25, Godard, supra, at para. 29).”