Date: 06 Jan, 2015| Author: Fred Streiman

The courts are generally very unhappy when its orders are being ignored.  However, in the face of an intransigent spouse, it requires a persistent and a skilled hand to force a difficult party to reach a judicially imposed finish line.  The court has many tools, not all of them completely effective in motivating a reluctant target of a court order.  As an example, if specific access is being frustrated, the court as an alternate remedy can change custody.

Or the court can impose a penalty, such as a fine.

One remedy is to seek an order finding a party in breach of a court order and thus in contempt.  Family law lawyers out of a sense of eagerness, will often make such threats, but the Ontario Court of Appeal has stated that a contempt order should not be granted where there are other alternatives and a great caution should be exercised.  Justice Quigley a Superior Court judge in Brampton in the recent decision of Szyngiel vs. Rintoul set out the appropriate principles.

  1. The relevant order must be completely clear and unambiguous.
  2. The breaching party knew of the court’s order.
  3. The breaching party intentionally did or failed to do anything that was in contravention of the order.
  4. The breaching party was given proper notice to the terms of the order.
  5. The order must be extremely expressed and clear, certain and unambiguous language.

If you are alleging contempt against your spouse, the onus to meet all of the points lies with you.

The person effecting the order should know with complete precision of what he or she is required to do or not do.  Implied terms do not count.

The contempt power is used with great restraint and only in exceptional circumstances.  The contempt order must be the only reasonable means by which to send a message to the breaching party that the court orders are not be flaunted.  A contempt order should only be use for serious breaches which justify serious consequences.

The court has the power after a finding of contempt to impose many strong penalties, including fines, jail and dismissing the breaching party’s case in its entirety.  After this learned and lengthy analysis of the law of contempt as it applies in family law cases, Justice Quigley applied a relatively light sentence to simply finding the breaching party being in contempt with no further penalty because by the date of the motion, the contempt had been purged i.e. whatever was ordered, he had provided.

While it may seem that the judicial process is a potentially ineffective one with a toothless bite that is not always the case.  However what it is, is at times extremely cumbersome and I liken it to a moving an ocean liner.  It can take a huge and sustained effort, with repeated attempts to actually accomplish your stated goal.  There are clearly extensive legal fee consequences arising from that.

This is why if at all suitable, Dale Streiman Law LLP encourages the parties to look alternate means resolution, including four way settlement meeting and matters being referred onto mediation/arbitration if appropriate.