We often hear the term “contempt” in films and dramas involving courtrooms, but what does the term mean for real-life parties in family law court proceedings? What should I do to avoid such a finding in court?
Contempt, in general, means that a party is behaving in a way that may interfere or obstruct the course of justice, or in a way that undermines or shows disrespect to the court’s authority. It is being disobedient or disrespectful toward a court of law.
Rarely in our courtrooms do we see outbursts by lawyers or parties, disrupting the judge’s directions; however, this is the kind of dramatic behaviour that lends itself to a finding of contempt of court in movies and legal dramas. In an actual courtroom, a party may be found in contempt for something that may not be as theatrical, but it is actually having the effect of inhibiting justice or disrespecting the court’s authority.
The key point for family law is to obey court orders at all times. Be careful and conscientious about what is in a court order. Refer to the court orders made in your family law proceeding, and take them seriously.
What are the types of contempt?
Contempt is generally divided into two categories: ex facie (indirect) and in facie (direct), which is then further divided into criminal contempt and civil contempt.
Ex Facie Contempt
Ex facie contempt is contempt that is not “in the face of” the court. It is indirect and generally refers to the failure to follow court orders, which is something that happens outside the court.
In Facie Contempt
In facie contempt is contempt “in the face of” the court, meaning that the contempt takes place in the court, not in the outside world. It is direct in that it is an unacceptable act in the presence of a judge. Generally there is a judicial warning before the finding of contempt. Some examples are:
- insulting the court
- not appearing in court when scheduled to be there (applies to both lawyers and parties)
- a witness refusing to be sworn
- disregarding court rules and procedures
Contempt is then further divided into:
Criminal contempt is any words, conduct or writings that will obstruct or discredit the administration of justice. Intention to discredit or obstruct the administration of justice must be present for a finding of criminal contempt. The purpose of criminal contempt is to protect society from behaviour that interferes with the public’s interest in having an effective and fair justice system.
Some examples are:
- falsely accusing a judge of bias
- trying to influence a judge
- bribing a witness
The goal of civil contempt is to address private wrongs, and to ensure that the offending party obeys the court order. There is a strong emphasis that court orders cannot be disobeyed or ignored, and if they are, there will be serious consequences.
Civil contempt is the type of contempt most often seen in family law proceedings.
When is contempt to be used in Family Law cases?
The Ontario Court of Appeal set out the following principles regarding the use of contempt in family law cases:
- The civil contempt remedy is one of last resort;
- A contempt order should not be granted where other adequate remedies are available to the aggrieved party;
- Great caution should be exercised when considering contempt motions in family law cases;
- Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.
The objective of a prosecution for civil contempt is always compliance and not punishment.
Three-pronged test to determine if a party is in contempt of court
Case law makes the following clear:
- Firstly, the order breached must state clearly and unequivocally what should and should not be done;
- Secondly, the party who disobeys the order must do so deliberately and willfully;
- Thirdly, the burden of proof is evidence of contempt beyond a reasonable doubt. Any doubt must be clearly resolved in favour of the person alleged to have breached the order.
Willfulness is required in the sense that the conduct is deliberate and not accidental or unintentional. The finding of civil contempt must be made on evidence to which the criminal burden of proof prevails.
What type of breached of court orders will result in contempt in Family Law cases?
Rule 31 of the Family Law Rules governs the use and procedures of contempt motions in family law disputes. Payment orders are not to be the subject of contempt motions in accordance with subrule 31(1). Any other order may be enforced by a contempt motion.
Most courts are reluctant to hold a parent in contempt for the first breach of an access order with a child or children. The court prefers to deliver a warning and give the offending party an opportunity to purge his/her contempt with the goal of the offending party changing his or her behaviour.
Evidence of contempt in family law matters must be clear and unequivocal. If a custodial parent demonstrates that she or he acted at all times in the best interests of the child or children, and not with the intention of disobeying the court order out of self interest, the courts have been reluctant to make a contempt finding, even in the presence of spite or hostility between the parents.
A parent who withholds a child or children while a Children’s Aid Society investigation is underway will likely not be found to be in contempt.
The current state of the law is that custodial parents must take reasonable steps to promote and encourage access with the other parent. Reasonable steps include taking all steps to promote compliance with the order, no matter the age of the child. Access is to be actively facilitated, including offering incentives or clear disciplinary measures if the child or children refuse to comply. A custodial parent may be found in contempt for not taking all reasonable steps to ensure that access takes place.
What are the possible penalties for contempt in Family Law?
Subrule 31(5) of the Family Law Rules sets out the available penalties if the party is found in contempt:
(a) imprisonment for any period and on any conditions that are just;
(b) pay a fine in any amount that is appropriate;
(c) pay an amount to a party as a penalty;
(d) do anything else that the court decides is appropriate;
(e) not do what the court forbids;
(f) pay costs in an amount decided by the court;
(g) obey another order.
The court is to consider available sentences; conditional sentences; proportionality of the sentence to the wrongdoing; similar sentences in like circumstances; aggravating factors; mitigating factors; deterrence, denunciation and integrity of the legal system; appropriateness of a fine; and, appropriateness of incarceration.
Other remedies should be considered prior to bringing a contempt motion, such as scheduling a case or settlement conference, bringing a motion for enforcement of the order and costs, bringing a motion for directions or to change or clarify the terms of the order, attempting to mediate and conducting meetings between counsel and parties. A motion for make-up access would be appropriate when an access order is breached.
Other remedies set out in subrule 1(8) of the Family Law Rules for “Failure to Obey Order” should be considered prior to bringing a contempt motion.
What should I do if faced with a contempt motion in a Family Law matter?
The first step to take is to determine if the circumstances that led to the contempt motion may be mitigated, meaning addressed or corrected as much as possible If at all possible, the contempt should be purged, meaning the circumstances should be changed to eliminate any breach of the order. If this is possible, the court may only find contempt and order costs, or alternatively, only order costs, rather than the possible penalties available to the court.
If it is not possible to mitigate or purge the contempt, provide to the court your reasons for not following the court order. Convey to the court that your current actions are in the best interests of the child or children at all times. The court will not have sympathy for duelling parents who put their own needs before their children’s needs.
Is contempt in a Family Law matter serious?
Yes. To quote a judge presiding over family law matters, “orders are not suggestions” and they are not guidelines or recommendations. Orders are to be taken seriously and followed at all times. Orders made on consent are to be obeyed, in the same way that orders made after contested hearings are to be obeyed.
Repeated and egregious breaches of orders may result in a finding of contempt, with the associated penalty being at the discretion of the court. This is not the path you should take in your family law matter. Every judge who looks at your file will see a contempt finding against you, and will know that you have disobeyed and disrespected the court. This is to be avoided at all times. Follow orders of the court - they are not suggestions.