Court Cases & Orders

Appeal Court: Formal Contempt Finding Isn’t Always the Only Way

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Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Appeal Court: Formal Contempt Finding Isn’t Always the Only Way

Even if you are technically guilty of contempt of court, that doesn’t mean you will automatically be adjudged and penalized for it. Especially in a bitter matrimonial dispute where a contempt finding could make things worse.

This seems to be the message from the Ontario Court of Appeal in a recent case.  The husband had been found in contempt of court over his non-compliance with a prior order stipulating the manner in which the children were to be transitioned between the parents, who shared custody.

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It seems that – contrary to that order and in blatant contravention of the mother’s express wishes – the father had picked up their children from school, fed them their dinner, and returned them to school in time for an after-hours event there.  This was on a night when it was the mother’s responsibility to pick the children up.

The father explained that he thought the mother was unable to pick up the children after school, and so he wanted to make sure they were fed.  The mother countered to explain that she had scheduled for them to be in after-school care, and had arranged for their dinner.

In the lower court, the motion judge ruled that the father had indeed met the three legal requirements for a contempt finding beyond a reasonable doubt, namely: the previous court order was clear, the father had actual knowledge of it, and he intentionally did the act that the order prohibited — i.e. he picked up the children from school on a day when he was not entitled to do so.

The motion judge felt this left no option but to find the father in contempt … but then declined to impose a penalty on him.  Instead, the judge recommended the parents go for mediation.

The husband appealed the contempt finding, successfully.  One of the Appeal Court’s more interesting conclusions, was that the motion judge had wrongly overlooked the “crucial step” of considering whether to make the contempt finding at all – even where all three tests for contempt had been amply satisfied in the circumstances.

The Appeal Court pointed out that the courts’ power to make an order for contempt is always discretionary. Moreover, it had to be exercised “cautiously and with great restraint” and as a last resort.

Here, the motion judge failed to consider whether the contempt finding against the husband was a last resort, and had not considered the alternatives.  These may have included merely admonishing the husband (especially since he had good intentions in ensuring the children were fed) but still reinforcing that he must respect the court order as well as the mother’s wishes.

The motion also failed to consider the bests interests of the children, and whether a contempt finding against one parent was likely to exacerbate the existing acrimony between them, going forward.  As the court summed it up:

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.

For the full text of the decision, see:

Chong v. Donnelly, 2019 ONCA 799

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.