“Rule 31 of the Family Law Rules governs contempt motions based on a party’s alleged failure to comply with a court order.
The Court of Appeal in Ontario has clearly stated that in family law litigation, the civil contempt remedy is one of last resort. A contempt order should not be granted where other adequate remedies are available to the aggrieved party, such as a variation of an order or enforcement of one. Great caution should be exercised when considering contempt motions in family law cases. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3.
The contempt power is to be used with restraint and in exceptional circumstances – essentially to respond to circumstances where it appears to be the only reasonable means to send a message to the litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules as a whole to enable a court to deal with a case justly, with particular attention to subrule 2(3) and 2 (4) of the Rules: Teal v. Teal, 2020 ONSC 6395, at para. 37; Ricafort v. Ricafort, 2006 ONCJ 520, at para. 17.
In Ruffolo v. David, 2019 ONCA 385, the court stated the following:
[18] We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, 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.]
[19] Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.
In Chong v. Donnelly, 2019 ONCA 799, the court added:
[12] In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.
In Moncur v. Plante, 2021 ONCA 462, Jamal J.A. set out the general principles governing the use of the court’s power to find a party in civil contempt for breaching a court order, at para. 10:
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- For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (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 had 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: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
- Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes dePrescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
- When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo,at para. 19; Chong, at para. 11; and Valoris, at para. 41.
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The contempt remedy is primarily remedial and aimed at encouraging compliance with the court order: Kim v. McIntosh, 2023 ONSC 5121, at para. 23.
In Jackson v. Jackson, 2016 ONSC 3466, at para. 56, Justice Chappel summarized the following principles regarding the use of contempt in family court proceedings:
a) it ultimately remains a matter for the Court’s discretion;
b) because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;
c) it cannot be reduced merely to a mechanism for enforcing judgments;
d) it should be used sparingly and as a measure of last resort where there are no other adequate remedies available;
e) it is typically reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted;
f) the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.
The onus is on the person alleging contempt to prove it beyond a reasonable doubt: Antoine v. Antoine, 2024 ONSC 1397, at para. 20; Kim, at para. 16; Snively v. Gaudette, 2020 ONSC 2895, at para. 19. Hearsay evidence is not admissible: Snively, at para. 19, unless it is not disputed: r.14(19). The criminal standard of proof beyond a reasonable doubt applies: Moncur v. Pante, 2021 ONCA 462 at para. 10(1).
If there is a conflict as to material facts in the affidavits, there should be a viva voce hearing: Fischer v. Milo (2007), 2007 CanLII 40211 (ON SC), 44 R.F.L. (6th) 134 (Ont. S.C.); N.B. v. A.B., 2021 ONSC 3467, at para. 27.
Having regard for the quasi-criminal nature of contempt, the alleged contemnor must be afforded the same protection and procedural safeguards as an accused in a criminal proceeding. This includes the right to a hearing, the right not be compellable as a witness at the hearing, and the right to make full answer and defence, including the right to counsel, to call evidence and to cross examine upon the other party’s evidence: Antoine, at para. 38.
Ultimately, in respect of each of the alleged breaches, the court must make the following findings:
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- That the relevant order was clear and unambiguous;
- The fact of the order’s existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
- That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
- That the respondent was given proper notice of the terms of the order. S.H. v. G.H., 2010 ONSC 5615, at para. 43.
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A judge retains an overriding discretion to decline to make a contempt finding even where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order. See: McKinnon v. McKinnon, 2018 ONCA 596, at para. 36.
The order alleged to have been breached must be expressed in clear, certain and unambiguous language. The person affected by the order should know with complete precision what he or she is required to do or to abstain from doing. Implied terms cannot be read into the order. If the order alleged to be breached is ambiguous, the alleged contemnor is entitled to the most favorable construction: Szyngiel v. Rintoul, 2014 ONSC 3298, at para. 20.
Although r. 31 of the Family Law Rules does not prescribe a particular format, contempt proceedings are generally bifurcated with the first phase addressing liability for contempt, and if liability is established, the second phase addressing the appropriate penalty: Antoine, at para 39; Carey v. Laiken, 2015 SCC 17, at para. 18.
If a finding of contempt is made, the contemnor is given the opportunity to purge the contempt, and the matter is usually adjourned for a second hearing to address sentencing or remedy. The contemnor’s efforts to purge contempt is a mitigating factor in the remedy to be imposed: Kim, at para. 22.”