“This motion alleges civil contempt. There are three essential requirements for a finding of civil contempt as set out by Blair J.A., in Prescott-Russell Services for Children and Adults v. G. (N.) et al. (2007), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.):
[27] The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, 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.
Courts should only invoke its contempt powers in the clearest of cases and with the greatest of caution. See R. v. Cohn (1984), 1984 CanLII 43 (ON CA), 48 O.R. (2d) 65 at 76 (C.A.). It is to be used sparingly and as a remedy of last resort where another adequate remedy is not available to seek to enforce this court’s order.
Contempt findings in family law cases should be made only sparingly and as a last resort: Hefky v. Hefky, 2014 CarswellOnt 2986 (OCA).
In Sweda Farms Ltd. (c.o.b. Best Choice Eggs) v. Ontario Egg
Producers, 2011 ONSC 3650 (CanLII), [2011] O.J. No. 3482, Justice Lauwers (as he then was) summarized the applicable principles and purpose of contempt proceedings:
18 In a civilized society governed by the rule of law, such as ours, people are expected to and do comply with court orders. But in the rare cases that they do not, the court must take action. As Pepall J. stated: “Once an order has been obtained, it is imperative that it be obeyed, that the public understand that it must be obeyed, and that judges have the will and ability to ensure compliance.” There are many other similar expressions of judicial resolve. See, for example, the following statement of Blair J.: “No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its courts, orders at their whim because in their own particular view it is right to do so.”
19 The nature of the contempt may vary with the context, with slightly different considerations taken into account. Cumming J. noted that the court’s authority over court orders includes orders relating to commercial matters:
The deliberate failure to obey a court order strikes at the very heart of the administration of justice. This includes court orders relating to commercial matters as seen in the case at hand. If someone can simply ignore or finesse his way around a court order it will tend to add uncertainties and risks, with consequential inefficiencies and additional costs, as well as causing unfairness, with consequential inequities and additional costs, to the commercial marketplace. Just as white collar crime is crime, white collar contempt is contempt.
20 I summarize briefly the relevant aspects of the law of civil contempt for failing to comply with a court order. Given the gravity of a finding that a person is in contempt and the exposure to penalties, the court should always exercise prudence and restraint before making such a finding.
21 The order “must state clearly and unequivocally what should and should not be done.” It must be directive and not simply permissive. In terms of compliance, the alleged contemnor must have knowledge of the nature of the terms of the order, and, once having knowledge, must obey the order in letter and spirit with every diligence. A person who is subject to an order should not be permitted to “finesse” it or to “hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and of the administration of justice.“
22 The alleged contemnor’s conduct must objectively breach the order. There is also a mental or subjective element, often expressed in the formula that the disobedience must be deliberate and wilful, or wilfully blind, indifferent or reckless. Actionable disobedience includes the deliberate failure of a person to make inquiries in circumstances where suspicion is or should be aroused. Further, “[i]f a party feels that the injunction is over-broad, its recourse is to apply to have the terms narrowed or made more explicit, not to resort to self-help by ignoring some or all of the terms.”
23 There is some subtlety here. An element of the classical formulation is that “any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court.” McIntyre J.A. noted, however, “The word ‘calculated’ as used here is not synonymous with the word ‘intended’. The meaning it bears in this context is found in the Shorter Oxford English Dictionary as ‘fitted, suited, apt’.” Accordingly, the moving party does not need to prove that the alleged contemnor intended specifically to disobey the order: “The offence consists of the intentional doing of an act which is in fact prohibited by the order.” The alleged contemnor need not be shown to exhibit “any particular aversion, abhorrence or disdain of the judicial system” despite the ordinary meaning of the word “contempt.”
24 The moving party must prove contempt at the highest threshold — that is, beyond a reasonable doubt. The quasi-criminal nature of the accusation engages principles and concepts more familiar in a criminal law context. For example, the onus of proof remains on the moving party throughout; it never shifts. Further, the alleged contemnor is not compelled to testify; but, if he chooses to testify, his evidence is subject to full scrutiny, and the court may draw adverse inferences from his evidence.
…
26 Any reasonable doubt must be resolved in favour of the alleged contemnor. A reasonable doubt is not to be an imaginary or frivolous doubt, nor may it be based on sympathy or prejudice. It must be based on reason and common sense, logically derived from the evidence or absence of evidence. But the court recognizes that it is virtually impossible to prove anything to an absolute certainty and the moving party is not required to do so.
(Emphasis added).
As stated above, it is unnecessary to prove that the alleged contemnor intended to put himself or herself in contempt. However, it must be established that he or she deliberately or wilfully or knowingly did some act which was designed to breach of a court order. See R. v. Perkins (1980), 1980 CanLII 311 (BC CA), 51 C.C.C. (2d) 369 (B.C.C.A.); R. v. Barker, 1980 ABCA 75 (CanLII), [1980] 4 W.W.R. 202 (Alta. C.A.); and Rivard v. Proc. Gen. du Quebec, 1984 CanLII 2851 (QC CA), [1984] R.D.J. 571 (Que. C.A.). Simply put, one does not need to have the intention to disobey, one must only have the intention to commit an act which is designed to result in the breach of the order. See Carey v. Laiken, 2015 SCC 17.
A court’s contempt powers cannot be used to enforce payment terms of an order. See Rule 26(4) of the Family Law Rules. While the court cannot find a person in contempt of the non-payment of a monetary order, all the circumstances, including repeated disregard for compliance with orders, monetary and otherwise, may lead to an inference being drawn that the alleged contemnor simply disregards the importance of compliance with court orders.
Once having knowledge of the order, the party must obey the order in letter and spirit with every diligence. See Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (No. 2) (1974), 1974 CanLII 835 (ON SC), 4 O.R. (2d) 585 (H.C.) at p. 603, aff’d (1975), 1975 CanLII 544 (ON CA), 11 O.R. (2d) 167 (C.A.) and iTrade Finance Inc. v Webworx Inc. (2005), 13 C.P.C. (6th) 103, [2005] O.J. No. 1200 at para. 12 (Sup.Ct.).
A person who is subject to an order should not be permitted to “finesse” it (see Sussex Group v. 3933938 Canada Inc., [2003] O.J. No 2906 (Sup. Ct.) or “hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and of the administration of justice.” See Zhang v. Chau, (2003), 2003 CanLII 75292 (QC CA), 229 D.L.R. (4th) 298 at para. 32 (Qc. C.A.), leave to appeal dismissed [2003] S.C.C.A. No. 419.”