The Contempt Remedy in a Family Law Context

father son holding hands

Written on behalf of Long Shariff & Associates

Parties to family law proceedings may find themselves in contempt of a court order when they breach its directions. Another party may bring a contempt motion as a means of enforcing existing orders. Though they are remedial in nature, contempt findings can result in serious consequences. Particular considerations arise in family law cases, especially where parenting arrangements are at issue. It is important to note that a contempt motion will not always be appropriate if other remedies are available. 

Contempt Remedy Used to Ensure Compliance 

Court orders are not simply suggestions, therefore non-compliance can lead to substantial consequences. In Jackson v. Jackson, the Ontario Superior Court of Justice clarified that the contempt remedy is used to emphasize that court orders are not to be ignored or disobeyed. It also reinforces the fact that disobedience is a serious matter. Non-compliance can be a challenge in family proceedings, resulting in delay, expense, and hardship for those involved. 

There is often a concern that one party may use proceedings as a strategic tool against the other party. In Levely v. Levely, Justice Chappel warned that judges must ensure that court processes remain an effective means of stabilizing the family fabric, explaining that the “court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues.” 

The contempt remedy promotes respect for the court’s authority and the administration of justice while also protecting and enforcing private rights. In Kopaniak v. MacLellan, the Ontario Court of Appeal stated that a finding of civil contempt is largely remedial and carries an objective of coercing the offending party into obeying the Court’s order. However, even in civil contempt proceedings, sentencing for contempt can involve punishment for breaching a court order, preventing future breaches and is used to deter others from engaging in comparable conduct. 

Establishing Contempt of Court

Rule 1(8) of the Family Law Rules states that if a person fails to obey an order, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, which includes making a contempt order. 

In Prescott-Russell Services for Children and Adults v. G(N), the Ontario Court of Appeal set out a three-part test to establish contempt of court:

  1. The order that is 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.
  3. The party allegedly in breach must have intentionally acted contrary to the order or disobeyed the order. 

Establishing contempt requires the party bringing the motion to prove contempt beyond a reasonable doubt. However, the responding party may try to provide evidence regarding their attempt to comply with the order. 

Courts are Cautious in Finding Parties in Contempt 

The contempt power is discretionary, therefore courts have discouraged its routine use to enforce compliance with orders. Contempt orders are remedial, however, they also have a punitive nature. Rule 31(5) of the Family Law Rules states that if a person is found in contempt of the court, it may order that the person:

(a) be imprisoned for any period and any conditions that are just; 

(b) pay a fine in any amount that is appropriate; 

(c) pay an amount to a party as a penalty; 

(d) do anything else that the court decides is appropriate; 

(e) not do what the court forbids; 

(f) pay costs in an amount decided by the court, and 

(g) obey any other court order.

Courts have described contempt proceedings as an enforcement power of last resort. In Hefkey v. Hefkey, the Ontario Court of Appeal held that the civil contempt remedy should not be granted in cases where other remedies are available. Further, caution should be exercised in family law proceedings, with contempt findings only to be made where other avenues for enforcement have failed. In the case of Carey v. Laiken, one party acted in good faith and took reasonable steps to comply with an order, therefore, the judge hearing the contempt motion retained the discretion to decline to make a finding of contempt. In litigation, where the issues to be decided deal with parenting and contact with children, the child’s best interests remain the paramount consideration.

Limits on types of sanctions available to judges

There are some limits to the type of sanction a judge can impose after making a finding of contempt. The matter of Chan v. Town involved an appeal from a decision in which the motion judge varied the parenting arrangements and granted decision-making to the father, which purported to punish the mother for contempt. The Court of Appeal determined that the remedy was not available under rule 31(5) and parenting arrangement variations cannot be used as a punishment for contempt as there was no material change in circumstances which warranted the change. The Court ultimately set aside the motion judge’s finding of contempt. 

Courts look at Alternative Remedies 

In Ahmed v. Shaikh, the father alleged that the mother was in breach of a final order. In reviewing the enforcement options, the judge noted that a contempt motion was a commonly used mechanism, however, alternative enforcement through Rule 1(8) may be the preferred route in circumstances where a breach of a parenting order is found. Rule 1(8) does not require the court to determine that a parent has intentionally committed the breach, instead, the court must only find that there has been a breach. Justice McGee explained that “thrusting parents into a stressful, contentious, expensive, two-step quasi criminal contempt proceeding in which incarceration is a potential outcome rarely ends well.” 

In the case of Chong v. Donnelly, the appellant appealed the finding of contempt in relation to an Order which governed the parties’ parenting arrangements. On review, the Court of Appeal found no basis to interfere with the contempt finding. However, the Court held that the motion judge erred by failing to consider whether she should exercise her discretion in declining to make a finding of contempt as there was no indication that the judge considered any alternatives before landing on contempt as a last resort. The judge at first instance also failed to consider the best interests of the children. While the appellant had breached the order, it was not in the interests of justice to make a formal finding of contempt in these circumstances. Instead, the Court encouraged the parties to resolve their parenting arrangements more amicably in the future.

Contact the Family and Divorce Lawyers at Long Shariff & Associates in Markham-Stouffville for Advice on Following Court Orders and Findings of Contempt

The family lawyers at Long Shariff & Associates understand the uncertainties associated with divorce and separation, especially when children are involved. Our lawyers encourage collaboration between parties when arriving at agreements relating to children and ensure that clients understand their obligations to follow court orders. If you have concerns about compliance with court orders, or questions about contempt, please reach out to us online or call our office at 905-591-4545.