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  • Writer's pictureJared Davies, Lawyer

Reviewing some of the legal principles in contempt cases pursuant to Kim v. McIntosh, 2023 ONSC 512

Introduction


What happens when one party fails to comply with a court order? This is where the concept of contempt may come into play. Contempt proceedings can be a powerful tool to enforce family court orders, but they are not to be taken lightly. In this blog post, the recent case of Kim v McIntosh is reviewed and the principles on contempt analyzed.


Legal Analysis


1. The Standard of Proof: Beyond a Reasonable Doubt


The starting point in a contempt motion in family law is to establish that a family court order has been breached. The burden of proof rests on the moving party, usually the party seeking enforcement (in this case, the father). Notably, the standard of proof required in contempt proceedings is the criminal standard of proof beyond a reasonable doubt. This is a high bar and reflects the seriousness of contempt allegations.


2. Elements of Civil Contempt


To find civil contempt, the court must be satisfied of three essential elements:


a. Clarity of the Court Order: The court order alleged to have been breached must clearly and unequivocally state what should or should not be done.


b. Actual Knowledge: The person alleged to be in contempt must have actual knowledge of the terms of the court order.


c. Intentional Breach: The person alleged to be in contempt must have intentionally committed an act that the order prohibits or intentionally failed to do an act that the order requires.


Unless all three criteria are met, the contempt motion must be dismissed.


3. Discretionary Power


Even if all three criteria for contempt are met, judges in family law cases retain discretion. They may choose not to make a finding of contempt if it would result in an injustice or if other alternatives exist. Contempt is considered a remedy of last resort, and its powers should be exercised sparingly.


4. Best Interests of the Children


In cases involving access to children, the paramount consideration for judges is the best interests of the children. This principle underlines the importance of ensuring that the children's well-being is not compromised by contempt proceedings.


5. Factors to Consider


Before finding contempt, judges may consider several factors, including:


a. Whether the contemnor took reasonable steps in good faith to comply with the order.


b. Whether imposing contempt would work an injustice in the circumstances of the case.


c. The presence of exigent or extenuating circumstances.


d. The availability of alternatives, such as finding a breach of the order and imposing other remedial options.


e. The severity or significance of the defiant conduct.


6. Opportunity to Purge Contempt


If a finding of contempt is made, the person alleged to be in contempt may be given an opportunity to "purge" the contempt, which involves taking actions to rectify the breach. This can be a mitigating factor when determining the remedy or sentencing.


7. Remedies for Contempt


Family law provides various remedies for contempt, as outlined in Rule 31(5) of the Family Law Rules. These remedies can include fines, imprisonment, or other actions aimed at compelling compliance with the court order.


8. Remedial Focus


Unlike criminal contempt, where the court's jurisdiction is primarily penal, civil contempt in family law is primarily remedial. It is designed to encourage compliance with court orders and protect the rights and interests of family members.


Conclusion


Contempt proceedings in family law are a critical tool for enforcing court orders. However, they should only be pursued when all three elements of contempt are met, and alternatives have been considered. Judges exercise discretion and prioritize the well-being of children when evaluating contempt cases. Contempt is a remedy of last resort, aimed at remedying breaches of court orders rather than punishing individuals. Understanding these legal principles is crucial for navigating the complex terrain of family law and ensuring that justice is served while preserving family relationships.

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This site cannot provide, or be a supplement to, legal advice. This blog post does not account for the unique facts of your individual case. There is no guarantee the information in the enclosed blog post is accurate or up to date. Information which appears on this website is general legal information only and does not create a solicitor-client relationship. If you need advice based upon your own particular situation, please speak to a lawyer.

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