What is “Contempt of Court” in Family Law, Anyway? – Part IJackson v Jackson, 2016 ONSC 3466 (CanLII)
A recent Ontario family law judgment in Jackson v. Jackson contains a comprehensive look at a narrow topic: Contempt of court in family proceedings.
As part of their child custody dispute, the divorcing parents of two children had been to court several times, and various temporary access orders had been made. One of them required the father, who had custody, to make the children available to the mother for two-hour supervised access visits.
Some of the supervised access visits had gone ahead as scheduled; however, the mother complained about the father’s conduct in relation to three of them, where she felt her access had been thwarted or that he had not fully cooperated. She accused him of engaging in a larger campaign to frustrate her access rights and to alienate the children from her, and asked the court for an order finding him in contempt.
The father rejected the allegations, insisting that he had complied with the spirit of the orders, and denied trying to eliminate the mother from the children’s lives.
In this context, the court reflected on the general nature of contempt of court, observing it can arise whenever a person – whether a party to proceeding or not — does any act which may tend to hinder the course of justice or show disrespect to the court’s authority. It also includes obstructing or attempting to obstruct the administration of justice.
Examples may include:
• a lawyer failing to appear in court when scheduled,
• a witness refusing to be sworn or answer questions,
• insulting the court, and
• interrupting or being aggressive during proceedings.
It also includes:
• wilful breach of a court order,
• interfering with witness, counsel or juror,
• counselling perjury,
• fabricating evidence and
• breaching a court undertaking.
In family law proceedings, contempt motions are governed by the Family Law Rules, which in the right circumstances allows a court to make an order even if another penalty is available. As they relate to custody and access situations specifically, the court must also factor whether the breach of the order resulted not form the parent’s conduct, but rather from the child’s refusal to comply. (This in turns gives rise to complicated issues relating to how far a parent must go to insist or even coerce a child comply with the order so that no breach results, which will be the subject of another Blog.
Overall, the contempt remedy is designed to emphasize that court orders cannot be ignored or disobeyed. It reinforces the point that any wilful disobedience of court orders is a very serious matter that strikes at the very heart of the justice system. With that said – and since the penalty is a serious one – it must be used cautiously and with great restraint, but ultimately it is a matter for the court’s discretion.
In Part II I will examine the specific tests that the mother had to meet in the Jackson v. Jackson case, in obtaining an order holding the father in contempt of court.
For the full text of the decision, see: