“Motions for contempt are remedial in nature. The object of such motions is to compel obedience with a court order rather than punish the offender: Kopaniak v. MacLellan (2002), 2002 CanLII 44919 (ON CA), 27 R.F.L. (5th) 97, (Ont. C.A.), citing Professors Nigel Lowe and Brenda Sufrin in Borrie and Lowe on the Law of Contempt, 3rd ed. (1996) at pp. 655-56.
In Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.), the Court of Appeal for Ontario described the following principles that apply to the use of contempt in family law cases:
-
-
- The civil contempt remedy is one of last resort.
- The “last resort” refers to circumstances where conferences to try to resolve access problems or motions for enforcement have failed.
- Contempt findings should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party.
- Great caution must be exercised when considering contempt motions in family law proceedings.
-
Motions for contempt in family law matters are governed by r. 31 of the Family Law Rules, O. Reg. 114/99 (“FLR”). Under r. 31(1): “[a]n order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.”
While motions for contempt in family law matters are brought in the context of civil matters, they are quasi-criminal in nature. The burden of proof in contempt motions, as in criminal proceedings, is beyond a reasonable doubt. The party alleging contempt carries the burden of proof: Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.).
The test on a motion for contempt was set out by the Supreme Court of Canada in Carey v. Laiken, cited above. The moving party must prove beyond a reasonable doubt that:
(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 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.
At that point, the court has discretion in dealing with the contempt, particularly if it has been purged.
In Geremia v. Harb, 2007 CanLII 1893 (ON SC), [2007] O.J. No. 305 (S.C.J.), at paras. 23-25, Quinn J. offered some useful definitions. The offence of contempt “consists of the intentional doing of an act which is in fact prohibited by the order. The absence of the contumacious intent is a mitigating but not an exculpatory circumstance” (citing Re Sheppard and Sheppard (1976), 1976 CanLII 710 (ON CA), 12 O.R. (2d) 4 at 8 (Ont. C.A.)). Contempt also includes the intentional refusal to do an act that is required to be done by an order. “Intentional” means “wilful” or “deliberate.”
In two cases released following Carey, the Court of Appeal for Ontario has signalled that courts must be particularly circumspect about making a finding of contempt in family law cases, even if the three-part Carey test is met. That is because the exercise of the court’s discretion as to whether to make a finding of contempt, even when the Carey test is met, is now a fourth, added element of the test.
In Ruffolo v. David, 2019 ONCA 385, at para. 18, the Court of Appeal for Ontario cited the following excerpt from Carey to state that “… contempt orders should not be so readily granted by motion judges”:
The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort.
[Citations omitted.]
The court added at para. 19 that “where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration.” In other words, a court considering a family law contempt motion involving the parenting of children, which often involves access denial, must consider the children’s best interests and how a finding of contempt would affect them.
In Chong v. Donnelly, 2019 ONCA 799, the Court of Appeal for Ontario explicitly stated that meeting the three-part Carey test is not sufficient to make a finding of contempt. The court must consider the added fourth part of the test: whether to exercise its discretion to decline to make a finding of contempt. That fourth part of the test is “the last crucial step” that must be present in the motion court’s analysis.
The court in Chong pointed to the understanding, cited above, that a contempt finding is a last resort. Before making a contempt finding, the court should consider alternatives to such a finding. Although the Court of Appeal did not specifically refer to it, many of those alternatives are found in r. 1(8) of the Family Law Rules. That subrule sets out various remedies short of contempt for a failure to obey a court order
Hearsay regarding a contentious issue is not admissible in a contempt motion. It is true that under r. 31(3), the supporting affidavit in a contempt motion “may contain statements of information that the person signing the affidavit learned from someone else, but only if the requirements of subrule 14 (19) are satisfied”. But under r. 14(19)(b), if the motion is a r. 31 contempt motion, the hearsay information is only admissible if it is “not likely to be disputed”.”