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A party can respond to a breach of a family law order by asking the court to make a finding of contempt against the breaching party. However, family law has a remedial objective: to motion for contempt to bring parties into compliance. Courts have also emphasized that contempt findings should be made when other remedies fail. One recent case demonstrates that despite a clear breach, a finding of contempt may not be appropriate where a history of family conflict has had a detrimental impact on children’s relationships.
Contempt Motions Have a Remedial Purpose
In M.R.M. v. A.R.M., the applicant brought a contempt motion alleging that the respondent failed to comply with an earlier court order—the order in question provided for visits between the parties’ children and the paternal grandparents. However, the respondent denied that she breached the order and alleged that the children had reasons for reluctance to see the grandparents. The children were present for one “strained” visit, after which the respondent informed the grandparents that subsequent visits would depend on the children’s comfort. A short time later, the respondent informed the grandparents that the children did not want to visit. The applicant acknowledged that some of his behaviour throughout the separation was inappropriate, though he requested an order requiring visits between the children and the paternal grandparents.
Motions for contempt are governed by rule 31 of the Family Law Rules. In Kopaniak v. MacLellan, the court explained that in family law matters, a finding of contempt has a remedial purpose of trying to coerce the offender to obey a court order. Three elements must be present to establish contempt:
- the order must state clearly and unequivocally what should or should not have been done.
- the party alleged to be in contempt must have actual knowledge of the order that they are alleged to have breached, and
- the evidence must show that the party who disobeyed the order did so deliberately and willfully.
Also, each element needs to be proven beyond a reasonable doubt.
The Test for Contempt has Three Elements
Looking at the first part of the test for contempt, the judge was satisfied that the order terms were clear and unambiguous. Visits with the grandparents were to take place once every month. Although the exact time and location were left to be determined, mandatory language was used, highlighting the importance of the relationship between the children and the paternal family. The parties also incorporated a procedure for access to a counsellor to assist if there were difficulties in implementing the terms. There was also no doubt about the second part of the test. The respondent was aware of the order since the terms were reached on consent, and the respondent had “input into negotiating the terms.”
The third step required assessing whether the respondent deliberately and willfully disobeyed the order. The respondent did encourage the initial visit with the grandparents. However, the judge was not convinced she promoted or facilitated further visits. There was no evidence indicating that she told the children that she supported their relationship with their grandparents or that she thought it was an important relationship to foster. There was also nothing to indicate that the respondent tried to alleviate the children’s concerns about the applicant attending the grandparent visits. The respondent’s evidence was that she imposed sanctions on the children for their refusal to attend the visits. The judge accepted that nothing spoke to the incentives offered to the children for their compliance. The respondent provided few “details of encouragement, either through words or conduct.”
The judge explained that there could have been opportunities for the respondent to show the children that visits with the grandparents were welcome and to reassure them that continuing their relationship would be a positive development. The terms of the order even considered engaging a counsellor if necessary. But instead, none of the possible solutions were considered. Justice Standryk acknowledged that the respondent was attentive to the children’s views and preferences. And the court order required that they be considered. However, the respondent also had to “actively engage in a solution-based approach,” given the importance of the relationship between the children and the grandparents. The judge could not conclude that the respondent genuinely supported the children’s visits with the grandparents. Instead, she left the decision to the children and insisted that any visit occur in her presence. This was inconsistent with the agreed terms that the grandparents would have unsupervised visits. The applicant did not need to prove that the respondent intended to disobey the order. Based on the evidence, the judge was satisfied beyond a reasonable doubt that the respondent breached the court order.
Judges Have Discretion to Decline Making a Contempt Finding
The judge concluded that all necessary elements to find contempt were present. However, in Chong v. Donnelly, the Ontario Court of Appeal was clear that even when all elements are established, the judge still needs to consider whether they should exercise their discretion to decline to find contempt. Justice Standryk reiterated that a finding of contempt is made as a last resort in a family law proceeding and should be used cautiously. Other steps to address a party’s non-compliance should be pursued before undertaking a motion for contempt. In this case, there was no evidence the applicant took alternate steps, such as requesting a case conference or engaging a counsellor to support the children with the visits. There was also a prolonged level of conflict within this particular family. The applicant’s own behaviour toward the respondent throughout the separation had a detrimental effect on the children’s relationships. For the judge, a finding of contempt against the respondent might simply have aggravated the children’s negative feelings towards the applicant’s family, which would not aid the objective of re-establishing relationships.
The question was about the appropriate remedy, considering the children’s best interests. Rule 1(8) of the Family Law Rules enables courts to deal with a party’s non-compliance with a court order by “making any order that it considers necessary for a just determination of the matter.” Additionally, section 24(2) of the Children’s Law Reform Act requires courts to consider the children’s best interests in determining a remedy. The applicant’s requested relief was aimed at weekend overnight visits for the children at the paternal grandparents. However, the children had a clear fear of attending grandparent visits. The judge found that significant healing had to occur before the family would be ready for overnight visits or involvement with the applicant.
The original order required unsupervised visits. But Justice Standryk acknowledged that given the period of estrangement the children had from the grandparents, a transition period with a third party was appropriate to provide additional comfort to the children during the visits. The judge ordered the parties to immediately participate in mediation to discuss how to arrange ongoing monthly visits with the grandparents. The parties were also ordered not to discuss their legal proceedings with the children. The respondent was to inform the children that she supported the grandparents’ visits and that they were in their best interests.
Judge Determines Contempt Finding Could Harm Family Relationships
In family law, findings of contempt should be made sparingly and only when other means to resolve issues and bring parties into compliance have been unsuccessful. Even when the test for contempt has been met, judges have the discretion to decline to make a contempt finding if it would be unjust in the circumstances.
Windsor Family Lawyers Navigating Complex Family Law Matters
While a contempt motion may seem straightforward, courts carefully weigh the potential benefits and harms before finding contempt. The experienced family lawyers at Johnson Miller Family Lawyers in Windsor understand complex family law matters that require a nuanced and child-centred approach. Contact us today at 519.973.1500 or visit us online to schedule a confidential consultation.
