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Epstein’s This Week in Family Law | Contempt

Epstein’s This Week in Family Law | Contempt

Appropriate punishment for contempt was the refusal to hear a mother’s motions until she was in compliance in recent case

Epstein’s This Week in Family Law

Philip Epstein

Contempt - Appropriate Punishment

Perna v. Foss, 2015 CarswellOnt 13749 (Ont. S.C.J.) - Ontario Family Court - R.E. Charney J. The paternal grandmother brings a motion for contempt against the child’s mother for refusing access in accordance with the previous court order.

The motion was heard on affidavit evidence. In setting out the specific dates in which access was denied, the applicant included some text messages in which the mother made it clear that she was not going to comply with the court order. It reminds me that hearings these days of just about any sort that involve affidavit evidence are not generally based on “he said, she said”, but rather “he wrote, she wrote”, whether it be by email or text. Clients need to be reminded, particularly in high-conflict cases, that what they put in any form of social media may well appear in subsequent court proceedings.

Justice Charney recognizes that contempt is not to be found lightly and reviews some of the leading cases about contempt proceedings in family law cases. He finds that there is no doubt at all in this case that the mother was in contempt of the court order. Justice Charney is aware of the wide variety of remedies available under Rule 31(5) of the Family Law Rules and recognizes that having found the mother guilty of contempt, he needs to move to the second stage approach in order to award the appropriate remedy.

However, the usual approach in family law cases is to adjourn the matter after the finding of contempt and give the contemptor the opportunity to purge the contempt or indicate that the behaviour will change. Justice Charney does not follow that path for very good reasons in this particular case.

In my opinion, it is an abuse of process to assert a right to be heard by the court and at the same time refuse to undertake to obey the order of the court so long as it remains in force . . . It is a general rule that a party in contempt will not be heard in the proceedings until the contempt is purged: Hadkinson v. Hadkinson, [1952] 2 All E.R. 567, [1952] 2 T.L.R. 416 (C.A.), at p. 569 All E.R.; Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees (1986), 1986 CanLII 2399 (NL CA), 59 Nfld. & P.E.I.R. 93 (Nfld, C.A.), at p. 95.

The mother has an outstanding motion seeking an order that she be permitted to travel with the child and remain in the Dominican Republic for half the year. Obviously, this is a motion of very significant importance to the mother.

Justice Charney determines that the appropriate penalty in this case is to refuse to hear the mother’s outstanding motion to change or any other motion brought by her until she brings herself into compliance with the access provisions of the previous court order. It would be hard to fashion a more appropriate penalty or send a clearer message to the mother about the importance of respecting court orders.

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