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Civil Procedure - Contempt

Godard v Godard (Ont CA, 2015)

In this case the Court of Appeal considers the criteria applied to find someone in contempt of court, here in a family law context:
[11] The motion judge employed the three-part test for contempt as outlined by this court in G. (N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 2006 CanLII 21037 (ON CA), 82 O.R. (3d) 669 (C.A.), at para. 27:
(i) the order that was breached must state clearly and unequivocally what should and should not be done;

(ii) the party who disobeys the order must do so deliberately and wilfully; and

(iii) the evidence must show contempt beyond a reasonable doubt.

[17] The motion judge was aware of the exceptional nature of contempt findings in family law. He cited this court’s decision in Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, and wrote that, “[t]he Courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and as a last resort where conferences to try to resolve access problems or motions for enforcement have failed.”

[18] The appellant submits there were various adequate alternate remedies at the motion judge’s disposal including a settlement conference, the involvement of the Ontario’s Children’s Lawyer, and setting the action down for trial, and that the contempt finding was inappropriate as a result.

[19] We disagree.

[20] In our view, the history of this case belies the adequacy of alternate approaches. The appellant has a history of trying to limit or terminate the respondent’s access to S. The respondent has brought numerous motions asserting his access rights in the face of the appellant’s persistent non-compliance with access orders. Following the first contempt motion brought by the respondent and Cornell J.’s previously noted expression of concern about the appellant’s behaviour, several settlement conferences were held.

[21] In light of the history of this dispute, it was open to the motion judge to conclude that a finding of contempt was the only adequate remedy in the circumstances.

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