Motion for contempt pursuant to Ding v Chen, 2023 ONSC 3733
The purpose of this proceeding was to analyze the penalty to be imposed for the finding of contempt. Contempt of court is a serious offence that occurs when a party willfully disobeys or disregards a court order. In family law proceedings, contempt motions play a crucial role in upholding the rule of law and ensuring that court orders are respected and enforced. The recent contempt motion sheds light on the nature of such motions and the potential penalties involved.
The Respondent was found in contempt of court for his non-compliance with previous court orders, including the failure to pay support, provide necessary financial disclosure, and meet his obligations.
The primary issue before the court was to determine the appropriate penalty for the Respondent’s contempt. Rule 31 of the Family Law Rules provides several potential penalties, including imprisonment, fines, payment of a penalty to the aggrieved party, compliance with specific orders, and payment of costs. In this case, the wife sought a penalty of $10,000 and reimbursement of her costs for the proceeding amounting to $10,324.75. Should the Applicant be awarded her requested penalty for contempt of court?
The court says that the purpose of a penalty for contempt is to be restorative to the victim of contempt and punitive to the contemner. The court says, “[t]o accomplish the former requires the sentence to correlate to the conduct that produced the contempt and to accomplish the latter requires the sentence not to reflect a marked departure from those imposed in like circumstances.”
Cassidy v. Cassidy, 2010 CarswellOnt 2707, Price J. summarizes the applicable sentencing principles in contempt motions:
 In determining an appropriate sentence in the present case, my considerations have included the following:
(a) the available sentences;
(b) the proportionality of the sentence to the wrongdoing;
(c) the similarity of sentences in like circumstances;
(d) the presence of mitigating factors;
(e) the presence of aggravating factors;
(g) the reasonableness of a fine;
(h) the reasonableness of incarceration.
In Ding v Chen,, the court analyzed previous cases involving contempt in family law proceedings. The court examined factors such as the gravity of the wrongdoing, the similarity of sentences in similar circumstances, mitigating and aggravating factors, the need for deterrence, and the ability of the contemner to pay. In this case, the Respondent's deliberate and continuous willingness to breach court orders, the accumulation of support arrears and costs, and his failure to provide financial disclosure were considered aggravating factors.
For the sentence to be appropriate it must be proportionate to the gravity of the wrongdoing. In this case, the Respondent brought the Motion to Change. He did not provide the appropriate financial disclosure when he initiated the Motion and despite agreeing to do so at the DRO conference, he failed to do so. This resulted in the Applicant having to make four court attendances. The Respondent never paid the Applicant the equalization payment of close to $130,000. His support arrears are more than $150,000 and he is in costs arrears of close to $20,000. Having initiated the Motion to Change, he then withdrew from the process, thereby causing the Applicant significant legal fees due to his failure to meet his onus or provide basic financial disclosure. The court says there are many aggravating factors. The Respondent’s conduct was flagrant since the 2017 order for said reasons.
Considering the circumstances and the need for deterrence, the court considered the $10,000 fine on the Respondent as an appropriate penalty for his contempt. Additionally, the court awarded the Applicant her full indemnity costs associated with the contempt motion, amounting to $10,324.75. The costs were deemed reasonable and proportionate, considering the Respondent’s bad faith conduct, the financial harm caused to the Applicant, and the need to discourage such behaviour.
In conclusion, contempt motions in family law proceedings serve as a vital tool in maintaining the integrity of the legal system. They aim to ensure that court orders are respected and enforced, protecting the rights and interests of the parties involved. The recent contempt motion discussed above exemplifies the court's commitment to upholding the rule of law and imposing appropriate penalties to deter future non-compliance with court orders.