It should come as no surprise to readers of our blog that divorces, particularly those involving disputes over child custody and access, can get quite heated. Occasionally, a party’s conduct might go against a court order. This can lead to that party being found in contempt of court. But is every situation where a parent fails to follow a court order enough to find them in contempt? A recent decision from the Ontario Court of Appeal finds the answer to that question to be “no.”

Father found in contempt

The issue before the court had been previously heard by a motion judge who found the father in contempt of a court order governing the parents’ parenting arrangements following what the court described as a “bitter matrimonial dispute.”

The order in question covered the children’s transition from one parent to another. The order stated,

“Transitions on a school day shall take place at the school with the parent whose time with the children is ending delivering the children to the school and the parent with whom the children will be with picking up the children. If not a school day, the parent who has the children will deliver the children to the other parent’s residence at 8:00 a.m.”

The father contravened this order on a school day when the children were to be picked up by the mother. The father texted the mother, telling her he would pick up the children because he didn’t think the mother had time to feed them in between school and evening activities. He told the mother he planned to return them to the school later that evening for their activities. The mother responded to the father, telling him not to pick up the kids because they were going to after-school care, and she had arranged for them to have dinner. The father ignored this direction and picked up the children from school.

Motion judge’s ruling

The motion judge found the father to be in contempt after proving three elements to have been met. The orders, established in common law, are:

1. the order alleged to have been breached must state clearly and unequivocally what should and should not be done;
2. the party alleged to have breached the order must have actual knowledge of it; and
3. the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

While finding the father in contempt, the motion judge declined to issue a penalty to the father.

The court’s analysis

The court agreed with the motion judge’s finding that the elements to establish contempt had been met. However, the court found the motion judge to have erred in “failing to consider whether she should exercise her discretion to decline to make  finding of contempt. It is this last, crucial step that is missing from the motion judge’s analysis.”

The Supreme Court of Canada explained this discretion in a decision, stating “The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders”. This power should be exercised “cautiously and with great restraint” as “an enforcement power of last rather than first resort”. The Court added, at para. 37, that “a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case.”

The court found the motion judge failed to consider this, adding she also failed to consider the best interest of the children, who’s interests should be paramount. The court wrote,

“In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. 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.”

The court allowed the father’s appeal, and urged the parents to resolve any future conflicts in a more amicable manner.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.