Law of Contempt
By: Jack Pantalone
As I was about to pen this Newsletter, I came across a recent case that sets out an extensive and excellent analysis and summary of the rules and case law dealing with contempt of court orders.
This difficult area of law most often arises in high conflict cases, frequently involving denial of access allegations. In fact and as the following case points out, the Family Law Rules specifically provide that contempt motions do not apply to payment orders (equalization of property, support arrears and costs).
The following is an excerpt from the decision of Justice Curtis of the Ontario Court of Justice from March 26th, 2012, in the case of Peers v. Poupore, (2012 CarswellOnt 6289, 2012 ONCJ 306, 100 W.C.B. (2d) 888, 215 A.C.W.S. (3d) 626):
The Law regarding Contempt
19 Rule 31 of the Family Law Rules, O. Reg. 114/99, as amended, deals with contempt of court in family law cases. These are the relevant sections for the purposes of this case (those sections of Rule 31 dealing with penalty are set out below in the section dealing with penalty):
WHEN CONTEMPT MOTION AVAILABLE
31. (1) An 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. O. Reg. 114/99, r. 31 (1).
NOTICE OF CONTEMPT MOTION
(2) The notice of contempt motion (Form 31) shall be served together with a supporting affidavit, by special service as provided in clause 6 (3) (a), unless the court orders otherwise. O. Reg. 114/99, r. 31 (2).
AFFIDAVIT FOR CONTEMPT MOTION
(3) The supporting affidavit 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. O. Reg. 114/99, r. 31 (3).
20 The contempt power is to be used with restraint and in exceptional circumstances. It is there to be used in those circumstances where it appears to be the only reasonable means to send a message to a litigant that court orders are not to be flaunted.
21 Contempt orders are serious business. No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court orders at their whim because in their own particular view it is right to do so. A society which countenances such conduct is a society tottering on the precipice of disorder and injustice: Surgeoner v. Surgeoner (1991),  O.J. No. 299, 6 C.P.C. (3d) 318, 31 A.C.W.S. (3d) 1247 (Ont. Gen. Div.); Ricafort v. Ricafort,  O.J. No. 5332, 2006 ONCJ 520, 79 W.C.B. (2d) 621, 35 R.F.L. (6th) 210, 2006 CarswellOnt 8554171 A.C.W.S. (3d) 592 (Ont. C.J.), para. 16.
22 The wilful disobedience of a court order is a serious matter that strikes at the heart of our system of justice: Kassay v. Kassay, 2000 CarswellOnt 3262, 11 R.F.L. (5th) 308,  O.J. No. 3373 (Ont. S.C.J.), para 15.
23 The need for the sanction of contempt proceedings is of significant importance in family law. There is an undertone of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and “self-rightness.” In this environment it is all too easy for a parent to believe that she “knows what is right,” even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination. Those who choose to take this tack must know that it will not be tolerated. It is important for the public and family law litigants, in particular, to appreciate that the orders of their courts must be obeyed: Surgeoner v. Surgeoner, supra.
24 The point of a contempt order is to bring home to a person shown to be in disobedience of a court order the importance of obeying it: Ricafort v. Ricafort,  O.J. No. 5332, 2006 ONCJ 520, 79 W.C.B. (2d) 621, 35 R.F.L. (6th) 210, 2006 CarswellOnt 8554, 171 A.C.W.S. (3d) 592 (Ont. C.J.), para. 18.
Burden of Proof
25 The burden of proof rests on the party alleging the contempt: Brown v. Bezanson (2002), 27 R.F.L. (5th) 1 (Sask. Q.B.); L. (A.G.) v. D. (K.B.),  O.J. No. 1342, 65 R.F.L. (6th) 182, 176 A.C.W.S. (3d) 386, 2009 CarswellOnt 1764 (Ont. S.C.J.), para. 29.
26 Civil contempt, under Rule 31 of the Family Law Rules, is a quasi-criminal matter: Fisher v. Fisher,  O.J. No. 976, 2003 CarswellOnt 1170 (Ont. S.C.J.); L. (A.G.) v. D. (K.B.), supra, para. 29.
Standard of Proof
27 The allegations must be proved beyond a reasonable doubt: Fisher v. Fisher, supra, para 12, 15.
28 The evidence put forth to support a finding of contempt must satisfy the court beyond a reasonable doubt of each of the following:
a) there is a court order to be enforced;
b) the terms of that order are clear and unambiguous;
d) there has been a disobedience of that court order;
e) the fact of the order’s existence was within the knowledge of the party at the time of the alleged breach;
f) the party disobeying the order has done so in a deliberate and wilful fashion. The party intentionally did, or failed to do, anything that was in contravention of the order: Einstoss v. Starkman,  O.J. No. 4889, 2002 CarswellOnt 4435 (Ont. S.C.J.); additional reasons at (2003), 37 R.F.L. (5th) 77 (Ont. S.C.J.); affirmed  O.J. No. 3297, 2003 CarswellOnt 3234 (Ont. C.A.), para. 8;
g) a party to that order has been put on proper notice of an application to find her in breach of that order, with the particulars of the alleged breach clearly laid out so that the alleged contemnor is made aware of the case to which she must respond.
Any doubt about those elements is to be exercised in favour of the person alleged to be in breach of the order: G. (N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 82 O.R. (3d) 686 (Ont. C.A.), para. 27; Ricafort v. Ricafort, supra, para. 20; Hobbs v. Hobbs, 2008 CarswellOnt 5037, 2008 ONCA 598, 54 R.F.L. (6th) 1, 240 O.A.C. 202 (Ont. C.A.), para. 26; L. (A.G.) v. D. (K.B.), supra, para. 30.
Use of Contempt Power
29 Contempt of court is the big stick of civil litigation. It should be used sparingly and only in the most clear cut of cases. Contempt should be reserved for those serious breaches, which justify serious consequences: Fisher v. Fisher, supra, para 11.
30 The contempt power is 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 a 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 subrule 2(4) of the rules: Ricafort v. Ricafort, supra, para. 17.
31 It is unnecessary to prove that the alleged contemnor intended to put herself in contempt. However, it must be established that she deliberately or wilfully or knowingly did some act which was designed to result in the breach of a court order: Kassay v. Kassay, supra, para 18.
32 Recklessness can provide the necessary intent to disobey a court order and for a finding of contempt to be made. Wilful intent or malice, i.e. a deliberate intent to defy an order, is not necessary to establish a civil contempt, though its existence may be relevant to penalty. It is enough that a party knew of the terms of the order and intended to do those things that constitute the breach: Morrison v. Charney,  M.J. No. 68, 2007 MBQB 47,  6 W.W.R. 663, 211 Man. R. (2d) 285, 36 R.F.L. (6th) 409, 155 A.C.W.S. (3d) 1157, 73 W.C.B. (2d) 468, 2007 CarswellMan 78 (Man. Q.B.)), para 33.
33 A finding of contempt does not require that the defendant intended to disobey or flout an order of the court: “the offence 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”: Sheppard, Re (1976), 67 D.L.R. (3d) 592 (Ont. C.A.), at 595 -596; iTrade Finance Inc. v. Webworx Inc.,  O.J. No. 3492, 255 D.L.R. (4th) 748, 18 C.P.C. (6th) 117, 2005 CarswellOnt 6366 (Ont. S.C.J.), para. 8.
34 The standard of intention is knowledge of the reasons for the order and contravention of the order. Direct intention to disobey the order is not required. Wilful disregard is sufficient. “Wilful” is intended to exclude only casual, accidental or unintentional acts of disobedience: Brooks v. Vander Meulen (1999), 141 Man. R. (2d) 25 (Man. Q.B.); L. (A.G.) v. D. (K.B.),  O.J. No. 1342, 65 R.F.L. (6th) 182, 176 A.C.W.S. (3d) 386, 2009 CarswellOnt 1764 (Ont. S.C.J.), para. 31.
35 An individual need not be found in breach of a specific term in a court order. It is sufficient if the actions are “designed to obstruct the course of justice by thwarting or attempting to thwart a court order”: Brooks v. Vander Meulen, supra; L. (A.G.) v. D. (K.B.), supra, para. 31.
Sanctions for a Finding of Contempt
36 The sanction for contempt must be proportionate to the nature of the contempt and the mitigating and aggravating circumstances; iTrade Finance Inc. v. Webworx Inc., supra, para. 16.
37 Failure to impose a significant consequence for such conduct would bring the administration of justice into disrepute. Others who may be tempted to flout an order of the court and frustrate its processes must appreciate that they cannot benefit from such conduct. The court should enforce its own process and give the other litigant an effective remedy: iTrade Finance Inc. v. Webworx Inc., supra, para. 20.
38 Sentencing in contempt proceedings, particularly in family law proceedings, should be comprised of two components. It should be restorative to the victim of the contempt and punitive to the contemnor. To accomplish the former requires the sentence to correlate to the conduct that produced the contempt, and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances: Geremia v. Harb, 2007 CarswellOnt 446,  W.D.F.L. 4500, 154 A.C.W.S. (3d) 1128, 73 W.C.B. (2d) 395 (Ont. S.C.J.).
Jack Pantalone is a family law lawyer based in Ottawa Ontario. He has been practicing law for over 22 years and has focused on family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.