“Rule 31(5) of the Family Law Rules sets out the parameters for the consequences of a contempt finding. They are very broad, and include imprisonment, payment of a fine, paying an amount to a party as a penalty, payment of costs, and doing “anything else the court decides is appropriate”. Consequently, it is helpful to consider what sanctions have been imposed by other courts in similar circumstances.
Geremia v. Harb, 2007 CanLII 30750 (ON SC), [2007] O.J. No. 3019 (S.C.J.) outlines some of the factors to be considered, including the primary purpose of preserving the integrity of the administration of justice; denunciation of the conduct; deterrence; proportionality of the sentence to the wrongdoing; similarity of sentences in like circumstances; aggravating and mitigating factors; appropriateness of a fine; and appropriateness of incarceration.
The case of N.H. v. J.H., 2017 ONSC 4867, further outlines these considerations, including that a custodial sentence is not generally imposed for a first finding of contempt: at para. 610.
N.H. also has many similarities factually with this case. It too involved a first finding of contempt. However, as is the case here, the breaching behaviour had gone on for some time. It was described as “serious and long standing” and had resulted in serious disruption to the relationship with the father (at para. 612). Mackinnon J. described the mother at para. 3 in ways that are similar to Ms. Smart – “[h]er mind is closed as far as the father is concerned. She sees him as a major risk to the children to the point that she has unilaterally breached the court access order multiple times, each time for significant durations”. One of the children also suffered from a significant anxiety disorder, and as in this case, the mother arranged for counselling for the child without involving the father or seeking his consent, contrary to an order for joint decision making (paras. 577-581). As in this case, the mother relied on the defence of justification and of having made good faith reasonable efforts to have the children see their father, which defence was rejected. The mother was found to be “not remorseful, rather appeared to be feel [sic] fully justified.” The experienced judge held: “She gave me no confidence that in future she would comply with an order she disagrees with”. One significant difference from this case is that the mother was a person of greater financial means.
In these circumstances, the sentence included a penalty component and a component for make-up time, in addition to costs on a full recovery basis. The penalty required the mother to contribute a total of $15, 000 to the RESP the father had set up for the two children. The make-up time extended the father’s time with the children on various occasions. While it was not part of the contempt sentencing order, an order was also made in that case requiring the mother to retain a behavioural therapist “with a view to changing her reactive behaviour”.
In Gagnon v. Martyniuk, [2020] ONCA 708, also a case with similarities to this one, the orders following the penalty hearing included an order that the mother comply with the order in respect of the father’s parenting time and that she enroll in a session for co-operative parenting. A fine was ordered to be paid to the father for each occasion that the mother missed one of the parenting program sessions or was late. The motion judge further indicated that the breach of those orders that lead to a second finding of contempt “shall result in further fines, or a period of incarceration, or both”.
The Court of Appeal held that this penalty was not improper and said the motion judge “demonstrated great restraint in penalizing the appellant’s flagrant contempt”: at paras. 23-26. It found nothing in the fine aspect of the order could be considered contrary to the best interests of the children: at para. 25. The court further held that the order that the mother comply with the order regarding the father’s parenting time was in the children’s best interests since it sought to prevent future disputes over parenting time.”