"Orders are not suggestions" is a common sentiment in family court.
In light of the time, money, and effort that is involved in securing a final Court Order, it is no wonder that someone would become frustrated by the other party's refusal to comply with its terms.
A common question faced by lawyers, is what do I do when one party fails to abide by our order – What options do I have?
One form of legal recourse is to bring a Contempt Motion, asking the Court to find that the other party is in contempt of the Court Order.
Being found in contempt by the Court is a legal consequence for non-compliance of an order. It's goal is to deter individuals who feel that they do not need to comply with some or all of the terms of a Court Order. Parties who fail to comply with a Court Order not only interfere with the Court process, but obstruct the course of justice. The consequences for being found in contempt range from fines to jail time.
In order for the Court to determine whether a party is in contempt, they will consider the following questions:
- Did the order clearly state what should or should not be done?
- Did the party who failed to comply do so in a deliberate/willful way?
- Was the conduct demonstrated beyond a reasonable doubt? If any doubt arises, the result will favour the person who allegedly breached an order.
Contempt can only be found regarding orders that do NOT involve payment orders. When it comes to the enforcement of non-monetary orders, the Court will tend to give warnings to encourage a party to change their behaviour and rectify the contempt.
In a family law context, the Court will be concerned with whether the parties have acted in a way that accords with the children's best interests.
Contempt is a remedy of last resort! The Court found in Hefkey1 that contempt should not be awarded if any other alternative remedy is available. With contempt being a last resort, what avenue does a party have to gain compliance with a court order?
Compliance with orders are serious matters to which the Family Law Rules allow for generous discretion to compel a party into compliance. One of the options available for a judge, is to make an Enforcement Order. While Contempt Orders are typically reserved for more frequent and egregious breaches of orders, Enforcement Orders are often the first step.
An Enforcement Order, which is contemplated by Rule 1(8) of the Family Law Rules, is deemed to be less stringent than Contempt Orders, and allow for an award of costs to be made. The best interests of the children is the main criteria for family court orders. As such, seeking to obtain a more stringent order (contempt) could be seen as not being in the best interests of the children. A party should try to enforce orders with the least rigid means. Even if a party files for a Contempt Order, there is nothing to prevent a Court from making an Enforcement Order in addition to, or in lieu of, a Contempt Order even if a Contempt Order is sought in the proceedings: see Murano2.
To obtain an Enforcement Order, the Court will apply the family law rule r. 1(8). There is no clear division between contempt hearings and enforcement hearings. Rules 1(8)) provides a remedy to seek an Enforcement Order instead of a Contempt Order. A court has significant resources available to them in order to make compliance with orders mandatory. These remedies can range from costs awards, to disallowing the non-compliant party from participating in any further court actions. The Court can also make an order to utilize the courts to monitor compliance, in extreme cases.
Compliance with orders are serious matters to which the Family Law Rules allow for generous discretion to compel a party into compliance.
While true egregious non-compliance does warrant punitive actions (most often in the form of fines), the Family Law Rules restrict fines to a contempt motion and not an enforcement motion. That said, the Court can still order a financial consequence for someone on the receiving end of an Enforcement Order by way of a costs award, which would require the party to pay all or a portion of the enforcing party's costs.
Footnotes
1. Hefkey v. Hefkey, 2013 ONCA 44
2. Murano v. Murano (2002), 2002 CanLII 49352 (ON CA), 219 D.L.R. (4th) 334 (Ont. C.A.).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.