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Appeal Court Dicta

Civil Contempt - Family Law

. Arias v. Barbieri

In Arias v. Barbieri (Div Court, 2023) the Divisional Court notes the court's hesitancy to find contempt in family law matters:
[16] ... The motion judge correctly noted that the Court of Appeal has repeatedly emphasized that in family law proceedings, contempt is a relief of “last resort”: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3.
. Godard v Godard

In Godard v Godard (Ont CA, 2015) the Court of Appeal commented on contempt in family proceedings:
[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.”
. Gagnon v. Martyniuk

In Gagnon v. Martyniuk (Ont CA, 2020) the Court of Appeal canvassed some principles and rules of contempt proceedings in the family law context:
[16] The motion judge carefully instructed herself on the law of contempt and the proof required to make a finding of contempt, as demonstrated by paras. 28-33 of her reasons. She noted that her authority to conduct contempt proceedings derives from r. 31 of the Family Law Rules, O. Reg 114/99. She cited the three-part test required for a contempt finding, set out in this court’s decision in Les Services aux Enfants et Adultes de Prescott-Russell v. N.G. (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 669 (C.A.), at para. 27.


[19] The motion judge specifically recognized, at para. 32, that contempt is a remedy of last resort that must be used sparingly, citing Godard v. Godard, 2015 ONCA 568, 387 D.L.R. (4th) 667, at para. 17; and Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3. ....


[24] We are not persuaded that the penalty imposed was improper. Rule 31(5) of the Family Law Rules provides judges with wide discretion with respect to penalties for contempt. In particular, r. 31(5) permits a motion judge to order the person found in contempt to:
(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.
. Martin v. Watts

In Martin v. Watts (Ont CA, 2020) the Court of Appeal considered the remedies for contempt in a family law case, in part for failure to disclose financial information:
[7] The motion judge correctly referenced and applied the relevant legislative provisions and legal principles. As the motion judge noted, r. 1(8)(c) of the Family Law Rules, O. Reg. 114/99, permits the court to strike out documents filed by a party for failure to comply with a court order. She further acknowledged that the exercise of the court’s discretion to strike pleadings and exclude trial participation is one that should be exercised sparingly, in exceptional cases, and only where no other remedy would suffice: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 15; Kovachis v. Kovachis, 2013 ONCA 663, 367 D.L.R. (4th) 189, at para. 24. Such an order is driven by the particular facts of each case, which the motion judge carefully reviewed in her decision.


[19] The most basic obligation in family law proceedings is the duty to disclose financial information and this obligation is immediate and ongoing: Roberts, at para. 11; Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 13, leave to appeal refused, [2017] S.C.C.A. No. 29. As this court in Manchanda stated, at para. 13, “after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, wilful non-compliance must be considered egregious and exceptional”, with the result that “[t]hose who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”


[24] The appellant must bear the consequences of his continued failure to comply with court orders; a consequence of which he had been repeatedly warned. The appellant’s failure to fully satisfy these outstanding orders, notwithstanding the many clear reminders, directions, and further generous opportunities to do so, can only be interpreted as his wilful disregard and flouting of the authority of the court. His failure to pay them and provide full and accurate financial disclosure caused further needless expense and delay and wasted judicial resources and those of the parties.

[25] This conduct has no place in family law proceedings, which are designed to promote the most expedient and least costly resolution and adjudication of disputes in the very difficult context of matrimonial breakdown. Pointed and continued disregard for legislative and court-ordered obligations undermines the orderly administration of justice and erodes the legitimate expectation of litigants and the public that these obligations will be respected. At a certain point, a party’s non-compliance with his or her most fundamental obligations may result in the imposition of limits on that party’s rights to participate. That is the case here. By his repeated failures to meet his basic responsibilities, the appellant has forfeited his right to participate in these proceedings.


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