The main dispute in this appeal is whether or not the Motion Judge erred in finding the Appellant Father in contempt of an order regarding the parties’ parenting arrangement.
There was a court order which directed that on school days, the parent whose time is ending will deliver the children to school, and the parent whose time is beginning will pick up the children from school. On non-school days, the parent concluding their time with the children is ordered to deliver the children to the other parent's residence at 8:00 am.
However, on a school day, when the Respondent Mother was scheduled to pick up the children, the Appellant Father advised her via text message that he would instead pick the children up, feed them, and return them later that night to school for an event. The Respondent Mother responded by advising the Appellant Father not to do so.
The Father disregarded said response and proceeded to pick up the children, feed them, and later return them to school.
The Motion Judge found the Appellant Father in contempt of the Order based on these factors. Although the motion found the Appellant Father to be in contempt, no further action was taken. The parties were encouraged to seek the help of a family mediator. The Appellant Father appealed the Contempt Order on the basis that the Motion Judge made an error of law by failing to consider discretionary factors deciding whether to find him in contempt.
There are three mains criteria needed to prove contempt in family law. Said elements are set out in the case Supreme Court of Canada decision Carey v. Laiken and the Ontario Court of Appeal decision, Greenberg v. Nowack as follows:
- The order alleged to have been breached must clearly state what should and should not have been done.
- The party alleged to have breach said order must know about doing so.
- The party to have allegedly breached the order must have done so intentionally to prohibit or purposely failed to do the act said law compels.
All three factors must be proven beyond a reasonable doubt to show contempt.
At the motion hearing, the Motion Judge found that they were. While the Motion Judge did follow the above test and find the three outlined elements, it failed to use discretion when determining whether she should find the Appellant Father in contempt, which is another required element of the test. The Court of Appeal found that there was no basis to interfere with the finding that the Appellant Father had breached the Court Order.
However, the Motion Judge made an error of law by not using discretionary factors to determine a course of action as there was no indication that they considered any alternatives to a finding of contempt. The Court of Appeal suggested a suitable alternative may include admonishing the Appellant Father because—despite his good intentions in making sure his children were fed—he should respect the Respondent Mother’s wishes and obey the Court Order.
Further, the Motion Judge also failed to consider the best interests of the children, which is the “paramount consideration” when the issue of contempt arises from concerns regarding access to children. As the Supreme Court of Canada stated in Carey, “the contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders.”
The Court’s contempt power should be exercised “cautiously and with great restraint.” Precisely for this case, the Court of Appeal's decision was based on the fact that the Motion Judge failed to exercise discretion, which is essential in a matter of high matrimonial conflict. The appeal was granted, and no order regarding costs was made. The parties were urged to handle parenting disputes more amicably in the future, to ensure everything done is in the best interests of the children.
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