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When a party deliberately defies a family court order, whether for parenting time, support, disclosure, or property, a contempt motion is the most powerful enforcement tool available. Lexaltico LLP brings and defends contempt motions in Ontario’s family courts.
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Contempt of court must be proven beyond a reasonable doubt, the same standard as in criminal proceedings. This is a higher threshold than the balance of probabilities standard used in most family law matters. The moving party must prove three elements: a clear order, knowledge of the order, and deliberate breach.
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Contempt of court in family law is a finding that a party has deliberately and willfully failed to comply with a court order. It is governed by Rule 31 of the Family Law Rules, O. Reg. 114/99, and by section 143 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Civil contempt, as opposed to criminal contempt, is the mechanism used in family law to enforce compliance with orders for parenting time, support, disclosure, property transfer, and other obligations.
Because contempt is quasi-criminal in nature, the moving party must prove three elements beyond a reasonable doubt: (1) the order alleged to have been breached is clear and unambiguous; (2) the person alleged to be in contempt had knowledge of the order; and (3) the person deliberately and willfully breached the order. The heightened standard of proof reflects the seriousness of a contempt finding, which can result in fines, costs, and even imprisonment.
At Lexaltico LLP, we bring contempt motions when other enforcement mechanisms have failed or when the non-compliance is so flagrant that only a contempt finding will secure future compliance. We also defend parents who have been served with contempt motions, particularly where the alleged breach is ambiguous or the non-compliance was not willful.
Contempt motions in family law follow the procedure set out in Rule 31 of the Family Law Rules. The motion must be brought before a judge (not a master or registrar). The moving party must serve the respondent with a notice of motion, supporting affidavit, and a copy of the order alleged to have been breached. The motion material must specify the exact terms of the order that have been breached and the acts or omissions constituting the breach.
The respondent has the right to cross-examine the moving party on their affidavit and to file responding evidence. The respondent also has the right to present evidence on the penalty phase if a finding of contempt is made. The proceeding involves two stages: first, the court determines whether contempt has been proven beyond a reasonable doubt; second, if contempt is found, the court determines the appropriate penalty.
Our lawyers prepare contempt motions with the rigor that the beyond-a-reasonable-doubt standard demands. We ensure the order is clear on its face, that we can prove knowledge (through proof of service and, ideally, evidence of the respondent’s acknowledgment of the order), and that the breach is documented with specific, contemporaneous evidence that eliminates any reasonable doubt about willfulness.
A finding of contempt carries serious consequences. Under section 143(1) of the Courts of Justice Act, penalties include imprisonment for a period of up to 90 days, a fine, and an order requiring the contemnor to comply with the original order within a specified time. The court may also suspend the sentence on conditions, for example, requiring the contemnor to comply with the parenting order going forward and imposing a period of probation.
In practice, imprisonment is reserved for the most egregious cases. Courts more commonly impose suspended sentences, costs orders, and compliance deadlines. However, the possibility of incarceration gives contempt its coercive force, the purpose of civil contempt is not to punish, but to compel compliance. A contemnor who "purges" the contempt by complying with the order can seek to have the sentence vacated.
Costs are invariably awarded against a party found in contempt. The costs award typically covers the full cost of bringing the contempt motion, often on a substantial indemnity basis. This reflects the court’s view that a party who forces the other to bring a contempt motion should bear the financial consequences. Our lawyers seek full costs recovery for our clients when we succeed on a contempt motion, and we vigorously defend against costs when our client is the respondent.
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55 University Ave, Suite 1100
Toronto, ON M5J 2H7
2 Sheppard Ave East, Suite 303, Toronto, ON M2N 5Y7
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Lexaltico LLP
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