Few phrases in family law sound as alarming as “contempt of court,” and few are threatened as freely. It appears in angry emails after a missed parenting exchange, and it shows up in a lawyer’s letter about a financial document that has not been delivered. Sometimes the threat is justified. Often it is not, because contempt is one of the hardest orders to obtain, and it does not fit every broken promise.
If you have an order that the other parent or spouse keeps ignoring, it helps to know when contempt is the right tool and when something else would be faster and more effective. If someone has accused you, you need to know how seriously to take it. In either case, the answer is that the consequences can be serious and the process demands care.
This article provides general information, not legal advice. If you have been served with a contempt motion, please speak with a lawyer right away, because your liberty could be at stake.
What contempt means in a family case
Contempt is the court’s power to deal with someone who disobeys its order. In family law, it is mostly a form of civil contempt, meaning a party has failed to comply with an order made for another party’s benefit. Even so, the Supreme Court of Canada has said that the point is partly to protect the authority of the courts, so it can carry quasi-criminal consequences.
Rule 31 of Ontario’s Family Law Rules sets out the procedure. Its opening subrule contains an important limit: an order, other than a payment order, may be enforced by a contempt motion in the case in which it was made, even if another penalty is available.
So contempt is typically used for non-money obligations, such as:
- following a parenting schedule or returning a child on time
- not removing a child from Ontario
- staying away under a restraining term
- delivering specific documents or property
- not selling, transferring or depleting an asset
If the problem is unpaid child or spousal support, you usually need to look elsewhere. Enforcement generally runs through the Family Responsibility Office and tools such as a support deduction order, licence suspension or garnishment. The Family Responsibility and Support Arrears Enforcement Act, 1996, also provides for a default hearing, where a payor may be ordered to pay and, in some cases, may face imprisonment of up to 180 days. Rule 30 of the Family Law Rules deals with default hearings too. It is a different procedure from contempt, even though people often use the same word for both.
The three-part test
In Carey v. Laiken, 2015 SCC 17, the Supreme Court of Canada confirmed that civil contempt has three elements, and all three must be proved beyond a reasonable doubt. That is the criminal standard, which is much higher than the balance of probabilities used elsewhere in family law.
1. The order must state clearly and unequivocally what must or must not be done. An order saying “the father will have reasonable parenting time” gives very little to enforce. An order saying “the child will be with the father from Friday at 6 p.m. to Sunday at 6 p.m. every second weekend, starting March 7” is another matter. If the wording is ambiguous, courts will generally not find contempt.
2. The person must have actual knowledge of the order. In some cases, a court may infer knowledge, or find that the person deliberately avoided learning about it. If someone truly had no idea, this element is not met.
3. The person must have intentionally done the act the order prohibits, or intentionally failed to do what it requires. This is about intending the act, not intending to defy the court. Carey makes it clear that a person does not need to mean to disobey. So “I knew about the order, but I thought I had a good reason” is generally not a complete answer to this element, though a court may take the reason into account in other ways, including in deciding what to do.
A last resort, even when the test is met
Meeting the test does not guarantee a contempt finding. Carey describes contempt as a power of last resort, to be used with restraint. A judge has discretion to decline to make a finding, particularly where the person acted in good faith to comply, or where other remedies would be appropriate.
Family cases raise particular concerns. Sending a parent to jail, or fining a parent with limited money, can harm the very child the order is meant to protect. Courts therefore often ask what other options were tried. A party who has not made a reasonable effort to solve the issue through less drastic means might find a judge unreceptive to a contempt motion.
Other enforcement options to consider first
Rule 1(8) of the Family Law Rules is often a more practical starting point. If a person fails to obey an order, a court may make any order it considers necessary for a just determination of the matter, including:
- an order for costs
- an order to pay a penalty or fine to a party or into court
- dismissing a claim, or striking out a document filed by the person who disobeyed
- preventing that person from using a document they failed to provide
- a contempt order, on motion
Depending on the problem, other tools may be available too. A parenting dispute might be addressed by asking the court to clarify the order, add make-up time, adjust the schedule, order counselling or supervised exchanges, or review who should have decision-making responsibility. Where a child is being unlawfully withheld, section 36 of the Children’s Law Reform Act lets a court, in appropriate cases, authorize someone to apprehend the child, or direct police to locate and deliver the child to the person named in the order. These are serious orders, and they are not made routinely. Police often treat a parenting disagreement as a matter for the family court unless an order specifically directs them to act, so it is worth getting clear wording in advance if this is a real risk.
A letter from a lawyer can also solve many problems before a motion is needed. It sets out what the order requires, what has happened and what will follow. That letter may also become useful evidence if the breach continues.
How a contempt motion works
The motion is brought in the same case in which the order was made, which for Brampton parties usually means the Superior Court of Justice or the Ontario Court of Justice at 7755 Hurontario Street.
The moving party serves a notice of contempt motion (Form 31) with a supporting affidavit. Because the person may face jail, service rules are stricter than usual. Rule 6(4) generally requires the documents to be left with the person directly, and Rule 6(4.1) says that a party cannot personally serve them, unless the court orders otherwise. This is one document that should not be left with a family member.
The supporting affidavit can include information that the person learned from others if the conditions in Rule 14(19) are met, but contempt turns on strong proof, so first-hand evidence and documents are preferred. Think dated messages, school pick-up records and a copy of the order, along with proof that the other party knew about it. Vague allegations about a pattern of behaviour will not do the job.
If the person is not likely to attend voluntarily, and their attendance is necessary in the interest of justice, Rule 31(4) lets the court issue a warrant for their arrest to bring them to court.
Hearings are often in two stages. First, the court decides whether the person is in contempt. Second, if so, it decides on the consequence, frequently after giving the person a chance to fix the breach. Courts often prefer to give someone a final opportunity to comply, and many motions resolve at that point.
What the court can order
Under Rule 31(5), a person found in contempt may be ordered to:
- be imprisoned for any period and on any conditions that are just
- pay a fine in an appropriate amount
- pay an amount to a party as a penalty
- do anything else the court decides is appropriate
- not do what the court forbids
- pay costs in an amount decided by the court
- obey any other order
The court can also give permission for a writ of temporary seizure of property. A sentence or fine can be suspended on conditions under Rule 31(8), which gives the person a strong incentive to comply. If they then fail to meet those conditions, the court may issue a warrant of committal on a further motion.
Some statutes set limits. For example, where the Ontario Court of Justice is using its own contempt powers under section 38 of the Children’s Law Reform Act or section 49 of the Family Law Act, the fine may not exceed $5,000 and imprisonment may not exceed 90 days. Under section 53 of the Family Responsibility and Support Arrears Enforcement Act, 1996, the limits are a $10,000 fine and 90 days.
Jail is uncommon in family matters, but no one should treat it as an empty threat. A costs order alone can be substantial, and a finding can seriously damage your credibility in the rest of your case.
If you have been accused
Take the motion seriously from the moment you receive it. Do not ignore the date, and do not assume that it will go away because the other side has a history of making threats.
There are several things to do at once:
- Read the order line by line. Is the term you allegedly broke clear? Does it say what the other side claims?
- Comply now, if you can. Fixing the problem early does not automatically end the motion, but it can greatly influence what the court does. Return the document, follow the schedule and keep proof.
- Gather your own records. These include texts, emails, travel records and anything that shows your efforts to comply.
- Talk to a lawyer before filing an affidavit. Because of the possible consequences, what you say and how you say it matters.
Possible responses depend on the facts. They may include an unclear order, no knowledge of the term, compliance that was impossible, or genuine efforts to comply. Safety often arises in parenting disputes. If you withheld a child because of a real and immediate concern, explain that with evidence, and seek an urgent court order as quickly as you can. Do not rely on your own judgment to suspend an order for weeks. Courts expect parents to return to the court rather than taking matters into their own hands.
A child’s refusal is another common issue. A parent who has made real efforts to encourage a child to attend is in a different position from one who has quietly allowed or encouraged the refusal. A court may look at what you did to ensure the child went, particularly with younger children. “They didn’t want to go” is seldom enough on its own.
If you are thinking of bringing a motion
Ask yourself a few plain questions first. Is the term clear enough? Can you prove knowledge and the breach to the criminal standard? What outcome do you actually want: compliance, make-up time or a change to the order? Would a judge believe you tried something less drastic? Is the breach serious and repeated, or was it a late arrival on a snowy night?
Because the standard is high, a motion that fails may lead to a costs order against you and increase the conflict. On the other hand, where an order is clear and a person has flouted it, for example by hiding the proceeds of a sale or repeatedly keeping a child from the other parent, a well-prepared motion may be fully justified.
If the real issue is that your order is too vague, the best fix may be to get a clearer one. Precise wording prevents disputes and makes enforcement possible later. Our family law page discusses how these cases are handled, and our custody and parenting page has more on orders concerning children. If you have been served or are considering a motion, you can contact our office promptly so that your position can be reviewed before the court date.