Case Comment: Contempt Motion
In this case, the father brought a contempt motion against the mother, alleging various breaches of the parenting provisions of a final court order.
His motion claimed the mother had failed to provide documents related to the children, withheld the children from him, made false accusations against him and had spoken negatively about him to the children. He set out several instances when these alleged breaches of the order had taken place.
In denying the father’s motion, Justice Chappel’s decision explains what contempt orders are, when they can be used and what evidence is required for a contempt motion to be successful.
What is contempt?
Contempt of court is intended to address situations where a person does something that interferes with the court’s business or the course of justice or shows disrespect to the court’s authority. As the Supreme Court of Canada has described it, it is a legal remedy that allows the court “to uphold its dignity and process.”
Contempt can be either in facie (in the court itself); for example, someone does or says something in the courtroom that interferes with or is intended to interfere with the administration of justice or ex facie (outside the court); for example, someone does not follow the terms of a court order.
This case falls into the ex facie category.
Contempt can be either criminal or civil. Criminal contempt would include such actions as bribing a witness or member of a jury or attempting to influence a judge. Civil contempt is a response to a private wrong, such as when someone ignores or breaches a court order.
Rule 31 of the Family Court Rules governs contempt motions when someone is alleged to have failed to comply with a family court order and sets out the rules of service and evidence. If someone is found in contempt under Rule 31, the consequences can be significant: imprisonment, a monetary fine or penalty, costs, a requirement to do anything the court decides is appropriate or not do anything the court forbids or obey any other order.
What is the test for finding civil contempt?
Each element of a claim for civil contempt must be proven beyond a reasonable doubt by the party alleging the contempt.
There are two stages to the test. Step one requires the moving party to establish that:
- They gave the alleged “contemnor” (the person alleged to have breached the order) proper notice of the application
- The terms of the order that has allegedly been breached are operative at the time of the contempt hearing
- The order alleged to have been breached states clearly and unequivocally what should and should not be done
- The alleged contemnor had knowledge of the order or was wilfully blind to it
- The alleged contemnor intentionally did something that the order prohibited or failed to do something that it required
If the person alleging the contempt cannot establish each of these elements beyond a reasonable doubt, the contempt motion will be dismissed.
If they do establish the above elements, the case moves to stage two of the test, at which point the court must determine two issues:
- Whether it should exercise its discretion to decline to make a contempt finding, based on the facts and circumstances of the case, and
- If it declines, whether it should exercise its discretion to order a less severe and more appropriate remedy in favour of the person alleging the contempt.
Justice Chappel’s decision provides a detailed analysis of each aspect of the test, which is good reading for those interested in the intricacies of the law. You can find this analysis beginning at paragraph 24 of the decision.
Analysis of this case
Justice Chappel determined that the mother was aware of the terms of the order and that the order was operative. However, she determined that the father did not meet the test for a finding of civil contempt for several reasons:
- He did not give the mother fair notice of several of the contempt claims; rather, his motion set out “a broad, wide-sweeping allegation that the mother was in contempt of court”
- One of the orders he claimed the mother to have breached was ambiguous and not clear and unequivocal enough to support a contempt finding against the mother
- There was a lack of evidence with respect to several of the alleged breaches
- While the mother had failed to provide the children’s documents to the father, thus breaching one provision of the order, she had corrected this breach before the father’s contempt motion was brought. Justice Chappel wrote: “the purpose of civil contempt is to ensure compliance rather than to inflict punishment upon a party for historic breaches,” and did not make an order finding her in contempt.
- Justice Chappel also did not find the mother in contempt for not giving the children to the father on certain occasions, even though this was in breach of the order. She considered the best interests of the children, and determined that the mother had reasonable and serious concerns about their physical and emotional safety in the father’s care, and that there was no pattern of her withholding the children without justification.
Justice Chappel wrote:
“Finally, I find that there were many other adequate, less drastic and much more appropriate remedies and options that the father should have pursued to address his grievances rather than bringing this contempt motion against the mother. . . . [that] would have allowed the parties and the court to address the concerns of both parties . . . in a child-focussed manner.
“Unfortunately, the father chose this contempt motion as a remedy of first resort in the face of numerous other remedies and options open to him which would have been much more supportive of the children’s best interests and avoided the escalation of conflict that this motion has caused. His decision to choose and pursue this adversarial remedy of contempt over other more suitable courses of action to address his complaints is another reason to dismiss this motion.”
