“The Ontario Court of Appeal set out the test to be met in determining contempt in G.(N.) et al v. Prescott-Russell Services for Children and Adults, 2006 CanLII 21037; 2006 CanLII 81792 (ON CA), [2006] O.J. No. 2488 (C.A.) at paragraph 27:
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- The order that was breached must state clearly and unequivocally what should and should not be done.
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- The party who disobeys the order must do so deliberately and wilfully.
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- The evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
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In the context of family proceedings, the legal principles applicable have been set out in Janowski v. Zebrowski, 2019 ONSC 4046 to include that the purpose of a contempt order is to force compliance by the defaulting parent, disobedience of court orders must have consequences, civil contempt is a remedy of last resort imposed sparingly and cautiously in family proceedings, the “wilfulness” to disobey must be purposeful and not accidental, the absence of “contumacious intent” for the breach is a mitigating but not exculpatory factor, a parent is not entitled to ignore an order and a parent must take all reasonable steps to ensure compliance with the order: Janowski v. Zebrowski, 2019 ONSC 4046 at paragraph 24, subparagraphs a, b, d, h, i, j and o. Significantly, at paragraph 24, subparagraph k. of Janowski, Justice Trimble stated:
k. There must be clear and compelling reasons to legally justify violation of an order. In order to 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 [sic] 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, at para. 19; and Houben v. Maxwell, 2016 ONSC 2846, at p. 12 and 23, Jackson v. Jackson, 2016 ONSC 3466, at para. 59 and 61). (emphasis added)
The Ontario Court of Appeal has additionally recently held in Chong v. Donnelly, 2019 ONCA 799 (CanLII) that even when the three elements as set out in G.(N.), supra are made out, the court should consider whether it should exercise its discretion to decline to make a finding of contempt.”