• by Samantha Rich
Originally published in the OFLM 2024-06 edition
Overview
Picture this. You have successfully obtained a court order in your client’s favour, your client is thrilled, and you have moved the matter forward in a positive direction. Then, your client informs you that the opposing party is not complying with the terms of the court order.
What do you do?
Well, you have two options – a contempt motion pursuant to Rule 31 of the Family Law Rules or enforcement pursuant to Rule 1(8).
Justice Pazaratz’s recent decision of K.M. v. J.R. (2024 ONSC 1338) canvasses the enforcement remedy pursuant to Rule 1(8), which gives the court wide discretion in responding to non-compliance with a court order. Additionally, Justice Chozik’s recent decision of Barbara v. Cordeiro (2024 ONSC 2951) canvasses the more discrete remedy of the contempt motion.
The two enforcement options differ significantly in terms of application, requirements, and onus of proof, while sharing the common purpose of being remedial rather than punitive.
This articles reviews both remedial options and discusses the legal tests for both.
Available remedies for breach of a court order
When a party breaches a court order, two independent enforcement options may be available to the aggrieved party:
1. A contempt motion pursuant to Rule 31; or
2. Enforcement pursuant to Rule 1(8) (K.M. v. J.R., 2024 ONSC 1338, at para. 22).
These two enforcement options each have distinct requirements and burdens of proof to meet.
1. Contempt Motion – Rule 31
Remedy of last resort
Rule 31 of the Family Law Rules governs contempt motions based on a party's alleged failure to comply with a court order.
The Court of Appeal in Ontario in Ruffolo v. David (2019 ONCA 385) has held that the civil contempt remedy is a remedy of last resort in family law litigation. Similarly, Justice Chozik stated at paragraph 4 of her decision in Barbara that:
A contempt order should not be granted where other adequate remedies are available to the aggrieved party, such as a variation of an order or enforcement of one. 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 contempt power is used with restraint and only in exceptional circumstances, “where it appears to be the only reasonable means to send a message to the litigant that court orders are not to be flaunted” (Barbara, at para. 5).
General principles of the contempt remedy
Justice Chozik also cited at paragraph 8 the Ontario Court of Appeal decision of Moncur v. Plante (2021 ONCA 462), which set out the general principles governing the use of the contempt remedy:
The following general principles govern the use of the court's power to find a party in civil contempt of court for breaching a court order:
1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (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 had 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…
2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance…
3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children…(emphasis added)
The purpose of the contempt remedy is primarily remedial and aimed at encouraging compliance with court orders (Barbara, at para. 9).
While the contempt remedy has teeth, its purpose in family law proceedings is not punitive. As affirmed by Justice Pazaratz, “The purpose of contempt in most access cases is to fix the problem rather than punish the parent.” (Lippert v. Rodney, 2019 ONSC 3154, at para. 9).
Use of the contempt remedy in family law proceedings
At paragraph 10 of Barbara v. Cordeiro, Justice Chozik cited Justice Chappel’s decision of Jackson v. Jackson (2016 ONSC 3466) which summarized the use of the contempt remedy in family law proceedings:
- it ultimately remains a matter for the Court's discretion;
- because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;
- it cannot be reduced merely to a mechanism for enforcing judgments;
- it should be used sparingly and as a measure of last resort where there are no other adequate remedies available;
- it is typically reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted;
- the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach. (emphasis added)
As the contempt remedy is a quasi-criminal remedy, the court will exercise this power cautiously when wielding this sword of justice as the escalation of conflict should be avoided in family law proceedings. The breaching party’s behaviour will have to be serious and at the end of the spectrum of defiant behaviour in order to meet the high threshold required for this enforcement option.
Proof beyond a reasonable doubt
Furthermore, the onus is on the person alleging contempt to prove it beyond a reasonable doubt. It should be noted that hearsay evidence is not admissible, unless it is not disputed (Barbara, at para. 11).
Justice Chozik summarized the nature of the onus of proof at paragraph 13 of her decision:
Having regard for the quasi-criminal nature of contempt, the alleged contemnor must be afforded the same protection and procedural safeguards as an accused in a criminal proceeding. This includes the right to a hearing, the right not be compellable as a witness at the hearing, and the right to make full answer and defence, including the right to counsel, to call evidence and to cross examine upon the other party's evidence …
This is a high burden of proof for a litigant to meet. Counsel must ensure that their clients have sufficient evidence before pursuing this remedy as they will need to present a compelling case in order for this exceptional remedy to be granted.
Legal Test
Justice Chozik endorsed the test set out in Justice McGee’s decision of Haywood v. Haywood (2010 ONSC 5615), which held that the court must make the following findings:
- That the relevant order was clear and unambiguous;
- The fact of the order's existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
- That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
- That the respondent was given proper notice of the terms of the order.
Justice Chozik noted that despite the aforementioned legal test, “A judge retains an overriding discretion to decline to make a contempt finding even where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order.” (Barbara, at para. 15)
She held that, “The order alleged to have been breached must be expressed in clear, certain and unambiguous language. The person affected by the order should know with complete precision what he or she is required to do or to abstain from doing. Implied terms cannot be read into the order. If the order alleged to be breached is ambiguous, the alleged contemnor is entitled to the most favorable construction…”.
Rule 31 does not prescribe a particular format, however, contempt proceedings are generally bifurcated with the first phase addressing liability for contempt, and if liability is established, the second phase addresses the appropriate penalty.
If a finding of contempt is made, the breaching party is given the opportunity to purge the contempt, i.e. have it removed from their record if they comply with the court order. The matter is usually adjourned for a second hearing to address sentencing or other appropriate remedies. The breaching party’s efforts to purge contempt is a mitigating factor which the court will consider when imposing a remedy (Barbara, at paras. 16 – 18).
Finally, in Barbara v. Cordeiro, the court dismissed the father’s motion for contempt, noting that the motion should not have been brought in the first place. Since the father took no other steps to try to enforce the order, he proceeded against very clear principles that the contempt remedy is a last resort, not a first step (at para. 26).
2. Enforcement pursuant to Rule 1(8)
Wide discretion
In light of the hesitancy of the courts to use the contempt motion option, counsel are encouraged to consider an alternate way of achieving similar results.
Pursuant to Rule 1(8) of the Family Law Rules, the court has wide discretion in dealing with a party's failure to comply with a court order (K.M. v. J.R., 2024 ONSC 1338, at para. 23). Rule 1(8) states:
If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order. O. Reg. 322/13, s. 1.
The court has numerous enforcement options to exercise and has wide discretion to tailor a remedy which is most suitable to the specific set of circumstances giving rise to the non-compliance with the court order.
General principles of Rule 1(8)
Justice Pazaratz in his decision of K.M. v. J.R., affirmed the broad and purposeful application of Rule 1(8). Ultimately, the court has authority to make any order which it considers necessary for the “just determination of the matter”. He summarizes the purpose of Rule 1(8) at paragraphs 25 to 27 of his decision:
The relief set out in Rule 1(8) can be procedural and substantive. The itemized list is inclusive, not exclusive.
…
The broad and purposeful application of Rule 1(8) allows court to deal with a failure to obey by making any order that it considers necessary for a just determination of the matter. Once the court is satisfied that a party is in non-compliance with a court order, the court can fashion a substantive remedy providing it is tied to the breached order such that the remedy will encourage compliance with the breached order. The scope of the court's discretion to fashion a responsive substantive remedy is particularly appropriate where at issue is the wellbeing of children…
…
An order under Rule 1(8) may be made "at any time during a case", and the power to make such an order is in addition to any other power as the Rules may specify and exists unless the Rules expressly provided otherwise… (emphasis added)
The broad scope of the remedy allows the court to tailor a remedy which will encourage compliance with the court order. It is particularly important that remedies are responsive when there are children involved. For example, the remedy of an order postponing the trial or any other step in the case may not be appropriate if it is not in the best interest of the child.
Proof on a balance of probabilities
Justice Pazaratz cited Justice Conlon’s decision of C.J. v. E.J. (2021 ONSC 4853) affirming that the onus is on the non-complying part to show on a balance of probabilities that either Rule 1(8) is not applicable, or that the court should exercise its discretion in favour of the non-compliant party (K.M. v. J.R., at para. 32).
Legal Test
Justice Pazaratz summarized the legal test for relief under Rule 1(8) at paragraph 31 of his decision. A request for relief under Rule 1(8) entails a three-step analysis:
a. The court must first determine if there is a triggering event.
i. A triggering event exists when there has been non-compliance with a court order…
ii. There is no requirement that the violated order was made on a motion, and it doesn't matter who obtained the order.
iii. As long as the court is satisfied that there has been a failure to obey an order "in the case or a related case" Rule 1(8) is triggered…
b. If there has been a triggering event, the court should then determine whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8).
i. The onus is on the non-complying party to show why it would be appropriate for the Court to exercise its discretion in their favour…
ii. This discretion should only be exercised in the non-compliant party's favour in exceptional circumstances…
iii. The court's decision as to whether or not to exercise its discretion in favour of the non-complying party should take into account all relevant history of the litigation and, more specifically, the conduct of the non-complying party…
c. If the court determines it should not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy under Rule 1(8) ...Relevant considerations include:
i. The proportionality of the sanction to the wrongdoing;
ii. The similarity of sanctions in like circumstances;
iii. The presence of mitigating factors;
iv. The presence of aggravating factors;
v. Deterrence. (emphasis added)
The three-step analysis ensures that the court carefully analyzes whether there has been a breach of a court order, whereafter the court has the option of not sanctioning the non-complying party for the breach. If the court decides not to use its discretion to pardon the non-complying party, the court may then implement the appropriate remedy under Rule 1(8) proportionate to the non-complying party’s conduct considering relevant mitigating and aggravating factors.
Conclusion
It is important that counsel have a clear understanding of the available enforcement mechanisms when advising clients about their enforcement options. Justice Pazaratz’s decision of K.M. v. J.R. (2024 ONSC 1338) and Justice Chozik’s decision of Barbara v. Cordeiro (2024 ONSC 2951) illustrate the two independent enforcement options that may be available to your client, provided they meet the necessary requirements.
The contempt remedy is a remedy of last resort and will only be used in exceptional circumstances where a non-complying party’s behaviour is serious and appears to be the only means to show them that court orders are not to be ignored. This remedy will only be used when there are not other adequate remedies available to address the non-compliance.
The contempt remedy requires proof beyond a reasonable doubt. This is a high threshold for litigants to meet and counsel will have to ensure that clients meet this evidentiary burden before requesting a court to exercise this exceptional remedy.
One of the requirements for the contempt remedy is that the relevant order was clear and unambiguous. This is an important reminder that draft orders need to be drafted in a clear manner. There should be no room left for interpretation.
The seriousness of the contempt remedy reflects its quasi-criminal nature. For this reason, judges will exercise caution when awarding this remedy in family law proceedings.
On the other hand, Rule 1(8) gives the court wide discretion in dealing with a party's failure to comply with a court order. It allows the court to tailor a purposeful and responsive remedy to ensure compliance in a particular set of circumstances.The rule encompasses several possible remedies, ensuring that the remedy is proportionate to the breach, while considering both mitigating and aggravating factors.
The burden of proof required is less onerous than the contempt remedy, as the non-complying party must show on a balance of probabilities that either Rule 1(8) is not applicable, or that the court should exercise its discretion to not sanction them.
Both remedies share the common goal of ensuring compliance with court orders. The nature of both remedies is remedial, rather than punitive. This is especially appropriate in family law proceedings as we should work towards de-escalating conflict and remaining resolution focused.
By understanding these distinct enforcement options, counsel will be able to overcome the hurdle of non-compliance and once again steer the matter towards resolution.