This appeal considered the court’s power to make findings of contempt in high-conflict family law disputes.
The parties were married in 2007 and separation in 2015. They had one child together. In 2018, the parties agreed to a comprehensive Consent Order which governed their joint-decision making responsibility and parenting time regime, communication between them and travel amongst other things. The Consent Order also required that the parties arbitrate any parenting disputes through negotiation or mediation.
In 2019, the father brought a motion to find the mother in contempt of the Consent Order. He alleged that she had breached the Order 10 times between December 2018 and July 2019 by overholding the child, attending the child’s activities during the father’s parenting time, unilaterally changing the date of the child’s First Communion and refusing to provide the father with a copy of the child’s SIN card. After hearing the motion, the judge advised he would hold the matter until the parties completed the arbitration process as stipulated in the Consent Order and would release his ruling on the contempt motion thereafter. The arbitration did not happen and when the parties re-attended before the motion Judge, he agreed to release his decision on the contempt motion. In February 2020, the motion judge found the mother in contempt for modifying the schedule twice by unilaterally changing the date of the child’s First Communion and failing to provide the father with the child’s SIN card. The mother was ordered to pay the father $2,500 as a sanction for her contempt and $10,000 in costs. The motion judge was satisfied that a monetary sanction was appropriate given the extent of the contempt and to reiterate to the mother her obligation to abide by the parenting order.
The mother appealed this decision arguing that the judge erred in finding she had deliberately breached the Consent Order and by failing to consider whether a finding of contempt was the appropriate remedy.
The Court of Appeal began its analysis by relying on SCC decision in Carey v Laiken which explained that contempt motions involving children require the court to consider the following:
- For a party to be found in contempt, three elements must be proved beyond a reasonable doubt:
- The order alleged to have been breached must state clearly and unequivocally what should not be done;
- The party alleged to have breached the order must have had knowledge of it; and
- The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act.
- Exercising contempt power is discretionary and courts discourage the routine use of this power to obtain compliance with orders. A judge should consider other options, such as issuing a declaration that the party breached the order.
- When the issue raised on the contempt motion concerns access to children, the most important consideration is the best interests of the child.
The Court of Appeal determined there was no basis to interfere with the motion judge’s finding that all three elements of contempt had been established. The Consent Order was clear about what the mother was required to do, she had knowledge of the Order and she acted intentionally. The Court did not accept the mother’s justifications as to why she had overheld the child on 3 occasions, why she unilaterally changed the date of the child’s First Communion or why she did not provide the father with the child’s SIN card. The Court of Appeal was also satisfied that the motion judge properly considered the child’s best interests. However, the court found that the motion judge erred by not considering whether contempt was the most appropriate remedy and whether there was another more enforcement mechanism that was more appropriate. Despite other remedies not being suggested by the parties, the court held that the motion judge should have considered these options rather than resorting directly to a finding of contempt. The court held that this was particularly important in high-conflict parenting disputes otherwise there is a risk that the parental conflict will be exacerbated based on the contempt finding.
Once the Court of Appeal decided to allow the appeal on the basis that the motion judge had erred, it had to determine what to do next. The Court set aside the findings of contempt and replaced them with declarations that the mother had intentionally breached the Consent Order. The Court also ordered that the parties be responsible for their own costs of both the motion and the appeal. The Court of Appeal seemed to believe that while the mother’s breaches were inappropriate, they were not serious enough to warrant a quasi-criminal remedy of contempt without giving her another chance to show that she could abide by the Court Order.
This case seems to speak to the fact that it generally is not a good idea to consider bringing a contempt motion to deal with minor breaches of Court Orders before other remedies such as fines and costs have been canvassed and ruled out.
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