What is a Contempt Motion?

Brief Introduction

What do you do if one party is in breach of a court order? People ask us this question too often. It is unfortunate to see that there are parties who do not take court orders seriously. Judges often say that court orders are not suggestions. This means parties must follow them regardless of whether they like them or not.

If you ended up in a situation where the opposing party has breached a court order or continues the breach, one recourse is to file a contempt motion. This procedure would allow the court to penalize the breaching party if that party has been found in contempt of court (i.e. the court has determined that one or more breaches had taken place).

Notice of Contempt Motion – Requirements

The requesting party must allege the factual basis for the breach on the notice of contempt motion form itself. The requesting party must take great care to ensure that it contains all the relevant details of the alleged breach.

Ontario Bar Association discussed it at pages 3-4 in the article titled, “Is an Order a Suggestion?: Contempt/Striking Pleadings as Remedies in Family Law and Post-Purcaru Update”.

In Ayotte v. Bishop, a father brought a motion for contempt. He alleged that his ex-spouse was in breach of an access order. In deciding that the proceeding must fail on “narrow technical grounds”, Justice Aston stated:

“[…] The two notices of motion in the Dare Foods case were found to be deficient because, in the notices themselves, there was no particular allegation as to the date or place of the alleged breach of the court’s prior order… a charge must be specific and “concrete facts of a nature to identify the particular act which is charged” are necessary ingredients of the grounds upon which the motion is based. […] I do the same in this case.”

Principles of Fundamental Justice/Right to Call Witnesses and Receive All Evidence To Provide Full Defence, Viva Voce Evidence is Mandatory

The Ontario Superior Court stated in Fisher v Milo:

“Contempt motions for breach of a civil order possess a quasi-criminal aspect, entitling the respondent to service of a notice of motion particularizing the allegations of contempt, a hearing, the right to be presumed innocent until proven guilty beyond a reasonable doubt, and the right to make full answer and defence, including the right to counsel, the right to cross-examine witnesses against him, and the right to call evidence.”

In the same decision Justice Brown refers to the Court of Appeal decision of R v B.E.S.T. Plating Shoppe LTs. And Sapias:

“Section 7 of the Canadian Charter of Rights and Freedoms provides that a person shall not be deprived of his liberty except in accordance with the principles of fundamental justice. It is settled law that resort may be had to summary proceedings in contempt proceedings. But it is also settled law that in the conduct of those proceedings it is incumbent on the court to ensure that the offender has a fair trial in accordance with the principles of fundamental justice. Those principles include, amongst other rights, the right to be presumed innocent until proven guilty beyond a reasonable doubt and to have a reasonable time to prepare a defence and to call witnesses. In so far as the right to have a reasonable time to prepare a defence is concerned it may be somewhat circumscribed in exceptional cases where there is a compelling or urgent need for immediate action.”

Viva Voce Evidence

Viva Voce evidence is a process where witnesses testify orally. Usually, motions do not contemplate that procedure. However, considering a quasi-criminal nature of contempt motions, the courts must allow the defendant to call viva voce evidence.

Where facts material to the issue are in dispute a hearing on a written record is not available. In other words, courts must hold a viva voce hearing in such circumstances.

The Contempt Motion Legal Test

The requesting party must prove three elements beyond a reasonable doubt in order to find another party in contempt. The three elements 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;
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.

Below are cases and their legal citations confirming the legal test:

• Chong v. Donnelly,2019 ONCA 799 (CanLII)
• Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at pars 32-35
• Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26

Courts to Consider Alternatives Before Contempt Finding

The court should consider if there are any alternatives to finding the defendant in contempt. The Supreme Court of Canada stated in Carey v. Laiken:

“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.”

Best Interests of The Children

Courts must consider the best interests of the children analysis during a contempt motion hearing. The best interests of the children is the paramount consideration when the issue raised in the contempt motion concerns access to children. Below are cases and their legal citations standing for this proposition.

• Chong v. Donnelly,2019 ONCA 799 (CanLII) at para 11
• Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144 (Ont. C.A.)

Concluding Remarks

Based on the above high-level overview of a contempt motion proceeding, it is important to understand that the threshold of contempt is very high due to the quasi-criminal nature of the consequences a party may face if the court notes them in contempt. For these reasons, this type of motion hearings have additional strict procedural fairness considerations that the court will take into account.

These motions can cost a lot of money to either party. As such, it is imperative for you to have a knowledgeable divorce lawyer. Such lawyer will explain to you proper steps to take prior to brining such a motion. An experienced lawyer will ensure you do not waste the money on a meritless contempt motion. Also the lawyer will ensure that your motion has complied with all procedural requirements.

If you are defending against such a motion, an experienced lawyer will help you find weaknesses in the requesting party’s materials. Usually they do not comply with all applicable procedural fairness requirements.

Our tam of lawyers has lots of experience dealing with contempt motions including successfully defending a contempt decision in the Court of Appeal for Ontario.

Family Lawyers at Progressive Legal Solutions WILL HELP!