Very recently, the Ontario Court of Appeal had the opportunity to revisit the issue of contempt. The message from the Court is clear. First, litigants ought not to bring forth such a contempt petition. Second, court ought not to entertain such a petition, unless and until it is so clear and even if clear, the Court of Appeal urges Courts not to declare contempt but to instead provide directions to follow court orders. Let us discuss the case in more detail: Chong v. Donnelly, 2019 ONCA 799 Facts: The relevant term of the previous order between the parties directed that the children’s transitions between the parties were to occur on school days and non-school days as follows:
Transitions on a school day shall take place at the school with the parent whose time with the children is ending delivering the children to the school and the parent with whom the children will be with picking up the children. If not a school day, the parent who has the children will deliver the children to the other parent’s residence at 8:00 a.m.
On a school day when the children were to be picked up by the respondent, the appellant (Donnelly) advised the respondent by text message that he would pick up the children after school in order to feed them, because he believed the respondent could not do so, and that he would then return them to school to attend school events that evening. The respondent, Chong, advised the father not to do so because the children would be in after-school care and she had arranged for their dinner.
The father nevertheless picked up the children, fed them dinner, and returned them to school.
The Respondent mother moved the court for contempt saying that he had disobeyed the previous court order (given above).
In the Superior Court, the motion judge, Justice Byrne found the appellant in contempt of the order but dismissed the appellant’s motion that the respondent was also in contempt for other alleged breaches of the order. The latter finding was not appealed.
The appellant mother’s motion for contempt was brought first and then the respondent father responded with his own motion for contempt. SCJ decision:
Justice Byrne referred to two leading cases on civil contempt, Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] 2 S.C.R. 79, at paras. 32-35 and Greenberg v. Nowack, 2016 ONCA 949 (CanLII), 135 O.R. (3d) 525, at paras. 25-26, which set out the three elements that 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 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.
Justice Byrne found that these three elements were established beyond a reasonable doubt: the order was clear, the appellant had actual knowledge of it, and he intentionally did the act that the order prohibited — he picked up the children from school on a day when he was not entitled to do so. The motion judge found the appellant in contempt, but imposed no penalty and awarded no costs. She did, however, encourage the parties to see a family mediator.
In other words, even though the motions Judge found the father in contempt, she did not impose any penalties against him.
At the Court of Appeal: The father appealed to the Court of Appeal against the decision of Justice Bryne. The Court of Appeal said that they had no basis to interfere with the motion judge’s finding that appellant had breached the terms of the order and that the three elements of civil contempt were established.
However, the Court of Appeal said that they took issue with the fact that the motions judge ought to have used her discretion in actually “declining to make the finding of contempt.” The Court specifically said that: “It is this last, crucial step that is missing from the motion judge’s analysis.”
The Court of Appeal quotes the Supreme Court of Canada stated in Carey, at para. 36, “[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders”. This power should be exercised “cautiously and with great restraint” as “an enforcement power of last rather than first resort”. The Court added, at para. 37, that “a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case.”
The Appeals Court found fault with the motions Judge stating that “there is no indication that the motion judge considered whether a finding of contempt was a last resort or whether she considered any alternatives to such a finding.” Instead, the Court of Appeal said that the motions Judge had alternatives which the Judge might have included the court finding that the appellant had breached the order, while admonishing him that, despite his apparently good intentions in ensuring his children were fed, he should respect the respondent’s wishes when the children were with her and comply with the order.
The Court of Appeal made an important observation, linking the issue of the consideration of the best interests of the children with issue of contempt, noting that – “Nor does it appear that the motion judge considered the best interests of the children, which this court has stated is the “paramount consideration” when the issue raised in the contempt motion concerns access to children:” Ruffolo v. David, 2019 ONCA 385 (CanLII), 25 R.F.L. (8th) 144, at para. 19.
The Court quoted its own decision in Ruffolo, that it is in the best interests of the children to encourage professional assistance as an alternative to making a finding of contempt too readily. Indeed, here, the motion judge herself encouraged the parties to continue working with a family mediator.
The Appeal Court noted that 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. The court allowed the appeal. There will be no order as to costs.
The Court of Appeal concluded with the following critical observations: “We would urge both parties to attempt to resolve their parenting arrangements amicably in the future. The contempt motions they each brought reflected poorly on them both and are not in the best interests of their children.”
Analysis: The last paragraph is telling. Litigants ought not to rush in their frustration and anger with their former partner in bringing a contempt motion. It clearly does not look good and bode well. Rather, they ought to take a step back and analyze the situation, and really and truly make an attempt to work out the issues between the parties, in the best interests of the children.
Equally important, Court ought to make the finding of contempt only the last resort and truly after a lot of thought. The alternative, which I will explore in the next blog, would be to enforce such a motion rather than making the finding of contempt.
At SHANKAR LAW, we are committed to ensuring that your best interests are protected. This includes a careful analysis of the law; and equally careful analysis of your particular fact situation, before we have to rush to Court. We look forward to serving you – proudly in and around Port Elgin; Southampton; Goderich; Kincardine; Owen Sound; Meaford; Wiarton; Tobermory; Markdale; Flesherton; Durham; Walkerton; Hanover and other areas. In short, we serve Bruce, Grey and Huron Counties (courts at Goderich; Walkerton and Owen Sound).