Compliance and Contempt Orders
In this article, the third in a series dealing with parental access and non-compliance, we will discuss “contempt” proceedings, which is a special type of enforcement procedure. If the behavior of the uncooperative party is sufficiently egregious or frequent, the other party may request that the court “find” the breaching party to be in “contempt” of the court’s order, in which case the court may impose harsh sanctions including fines, penalties, imprisonment or anything else it deems appropriate.[1] As we will see, contempt is generally viewed as a remedy of last resort, and therefore of limited use in many cases. Nevertheless, contempt may in some circumstances be the only effective remedy.
Legal Test for a Contempt Finding
To make a finding of contempt, the following three elements must be demonstrated:
It must be proven beyond a reasonable doubt that the party actually did interfere with/refuse the scheduled parenting time;
The parenting time/access order must have been clearly and unequivocally worded (i.e., there cannot be any ambiguity in the details of the order in light of which the party’s actions may not have been a violation); and
The party must have done so intentionally or in willful blindness to its consequence (i.e., not due to a misunderstanding or an uncontrollable event, etc.).
Moreover, especially in the family law context, the courts have enormous discretion to decline to make a finding of contempt, even if the accused “technically” satisfies the contempt criteria.
The Court of Appeal in Chong went so far as to require judges to consider the discretionary factors against making a contempt order, and held that the failure to do so is an error of law.[2] While the Court of Appeal’s decision in Chong falls short of prohibiting the courts from making findings of contempt prior to other remedies, it certainly puts them on notice to thoroughly canvass every alternate option and the reason for its rejection in their written decisions.
Notwithstanding the strong position taken by Ontario courts regarding parental access obligations (as seen from Godard), only a minority of court decisions expressly endorse the use of contempt orders against custodial parents with a history of belligerence (see, for example, Perna v Foss, 2015 ONSC 5636[3]).
For the most part, however, contempt in the family law context is seen as a remedy of “last resort”, to be used only for the most serious breaches, and only after all other reasonable attempts at resolution have failed.[4]
While this judicial discretion enables a flexible and scaled approach to family conflicts, it arguably does so at the expense of predictability and protection against ungovernable parties. Parties can expect to initiate or attend several case conferences, motions and trial scheduling conferences prior to considering a contempt order. The courts may also require other processes such as the involvement of the Ontario’s Children’s Lawyer's.
Abuse of Process
To raise the bar further, even if a claim otherwise satisfies the criteria for a contempt finding, the courts will be unlikely to make an order for relief that seems to be well beyond what would be necessary to ensure future compliance. This is especially so if the court perceives a contempt or non-compliance claim to be a disguise for an old claim or attempt to circumvent previous, unfavorable orders. The Court in Dostie dismissed the father's contempt motion, noted his "litigious approach to resolving parenting issues", and his "relentless accusations, suspicions, threats and paranoia".[5]
In short, courts do not seem to be impressed by overly litigious, heavily scrutinizing and disproportionately critical parties, even if the substance of their claims involving the other's violations are technically legitimate.
Sensitive Political Contexts
Neshkiwe is a puzzling but fascinating glimpse of contempt of an access order within a highly politicized context.[4] The case is complex and involves a constitutional challenge raised by M’Chigeeng First Nation's lawyers regarding the courts' authority to make contempt findings about its members. The mother, a member of the M’Chigeeng First Nation, breached an access order by failing to return the children to the father in Toronto. It seems there was also repeated obstruction of the father's enforcement attempts by the M’Chigeeng.
The Court, while attempting simultaneously to assert its authority to make a contempt order and bending over backwards not to make a contempt order, ultimately gave the mother one final chance to comply. By all accounts, this case seems like an appropriate instance for a contempt order. Access was withheld for four months, enforcement efforts were systemically thwarted, and the prior court attempts to elicit compliance by admonishment and a costs order were insufficient. Reading the decision, one gets the impression that the court was more focused on avoiding a real-world minefield than providing clear guidance on the subject of contempt in these circumstances.
……………………………………………………
Because courts are so cautious about the suitability of contempt orders, parties may be confused and uncertain as to what they need to demonstrate, how long to wait and what to request to obtain an effective remedy and elicit the desired level of compliance. They face the dread and disappointment of marching uphill in the hope of a sagely solution only to have their request deferred, replaced with an ineffectual interim remedy.
Moreover, the tasks of strategizing and executing these successive processes requires an investment of time, money and energy which may be too costly for parties who are already burdened by the stress of litigation and adjustment to their new family realities. The high threshold for contempt orders therefore makes it more difficult to address access problems and sometimes produces outcomes contrary to the sentiments expressed in Perna, which endorses the careful but reasonable use of contempt orders to remedy breaches of access.
The lesson here is that contempt really is meant to be a weapon of LAST resort.
[1] Family Law Rules, r. 31 (5)
[2] Chong v. Donnelly, 2019 ONCA 799 (CanLII)
[3] Perna v Foss, 2015 ONSC 5636 (CanLII)
[4] Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65
[5] Dostie v. Poapst, 2020 ONSC 139 (CanLII) at paras 16-17
[6] Neshkiwe v. Hare, 2020 ONCJ 149 (CanLII)