K. Committal for Contempt; Receivership

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 465-469

Page 465

The rules and procedures governing contempt applications are complex and counsel must be given a reasonable opportunity to prepare for and respond to a motion involving the liberty of the subject.⁹¹A civil contempt motion is available to enforce compliance with the substance of a court order but is not available as a means of addressing an abuse of the judicial process arising from a material non-disclosure. Where a motions judge has been led to an incorrect conclusion respecting an order for child support because the mother failed to advise the court that the adult child had graduated from university and was, therefore, no longer eligible for child support, the mother cannot be found in contempt of the court order if it included no provision imposing an obligation on her to keep the father or anyone else informed of any change in the child’s status. Relief may be available to the father, however, by means of an application for retroactive variation of the child support order to the appropriate date and an order for costs with respect to any such application necessitated by the mother’s misconduct.⁹²

Page 466

Where there is more than one avenue open to a party to enforce an order, one of them being committal proceedings for contempt, resort to those other avenues should first be pursued.⁹³This does not preclude a court from combining a committal order for default with other remedies available under provincial statute, including the seizure of corporate records and the appointment of the Director of Maintenance Enforcement as receiver and sequestrator of the defaulter’s personal and corporate assets.⁹⁴

In Prescott-Russell Services for Children and Adults v. G.(N.),⁹⁵ Blair J.A., of the Ontario Court of Appeal, set out the following three prerequisites for a finding of contempt of court:

(i) The order that is breached must state clearly and unequivocally what should or should not be done.

(ii) The party who disobeys the order must do so deliberately and willfully.

(iii) The evidence must establish contempt beyond a reasonable doubt.

When the relief sought involves a finding of contempt, the respondent must be put on notice as to the conduct that is alleged to be contemptuous. The better practice is to refer to the alleged misconduct in the notice of motion itself.⁹⁶There is no foundation for contempt proceedings where an order has not been perfected by being drawn and entered and no order was personally served on the party allegedly in contempt. A court should not find a parent in contempt of an access order that is ambiguous. The proper course is to apply for more specific directions to more precisely define the terms of access.⁹⁷An order that fixes the amount of child support arrears but does not order their payment is not enforceable by means of a contempt proceeding.⁹⁸Default in the payment of court-ordered child support is a serious problem in Canada. There is a need that the sentence imposed for contempt serve as an incentive for the obligor to obey the court order and send a strong message to other like minded individuals that disobedience of court orders will not be countenanced.⁹⁹Relevant case law in Ontario points to sentences of incarceration for contempt ranging from a few days to twelve months. In Beattie v. Ladouceur,¹⁰⁰the court imposed a sentence of four months’ imprisonment having regard to the long history of the case, including the respondent’s repeated breaches of numerous court orders, the extent to which his conduct displayed a defiance of court orders, his insincere apology, the fact that the breaches occurred with the respondent’s full knowledge and understanding and the need for specific and general deterrence. Before imposing this sanction, Polowin J. referred to Boucher v. Kennedy,¹⁰¹wherein Ferrier J. identified eight factors to be considered in addressing the appropriate sanction:

(i) whether the contemnor has admitted the breach;

Page 467

(ii) whether the contemnor had demonstrated a full acceptance of the paramountcy of the rule of law, by tendering a formal apology to the court;

(iii) whether the breach was a single act or part of an ongoing pattern of conduct in which there were repeated breaches;

(iv) whether the breach occurred with the full knowledge and understanding of the contemnor that it was a breach rather than as a result of a mistake or misunderstanding;

(v) the extent to which the conduct of the contemnor displayed defiance;

(vi) whether the order was a private one, affecting only the parties to the suit or whether some public benefit lay at the root of the order;

(vii) the need for specific and general deterrence; and

(viii) the ability of the contemnor to pay.

Rule 60.11(1) of the Ontario Rules of Civil...