When I was a young boy, my friends and I loved playing the board game “Monopoly.” We would play for hours on end. We developed our own strategies to beat our opponents, to try and make money, acquire property and to win the game. Sometimes we had a lucky roll of the dice, and other times we did not. We were always worried that one of us would get the card that sent us to jail, where we would not pass GO, nor would we collect $200. (I hated getting that card).
Family law litigation sometimes feels like the same rules of the popular boardgame apply. Parties try to acquire money, maintain or gain property and “win the game.” But every once and awhile, family law participants run afoul of the rules of the game in family court, and are then subject to punishment. This blog will deal with the concept of “contempt of court” – when can some be found in contempt of court, when can they not, how to prove it, and how to defend//resolve the allegation of contempt, to avoid punishment. This will not be a comprehensive paper on the subject, but rather, a simple “what to do” and “what not to do,” so you do not end up in jail!
In family law, contempt of court is governed by Rule 31 of the Family Law Rules. To be in contempt, the offended person must prove that the other party has willfully “disrespected” a court order. This is what “contempt” actually means. Rule 31 sets out that an offended party can bring a motion for contempt if the offending party has disobeyed a court order, other than a payment order, even if another penalty other than a finding of contempt is available to the offended party.
I want to highlight 3 important parts of the rule:
- There must be a current court order in place – this means you cannot be “in contempt of court” if there is a breach of a term of a separation agreement, cohabitation agreement or any other agreement between the parties;
- The order that is being disobeyed is not a payment order – this means you cannot be in contempt of court under this rule for not paying child support, spousal support, or both. Over the years, I have seen many support recipients in court try to bring a motion for contempt because the other side has not paid their support, only to be told (and left completely disappointed) that Rule 31 does not apply to support orders. There is an entirely separate process for the enforcement of support orders. Please see my earlier blog on the Family Responsibility Office.
- The motion for contempt can proceed even if there is another option to enforce the order other than bringing this motion. This is a strong statement from the legislators who wrote this rule – they are telling us that the court will not take it lightly when a person is accused of disobeying a court order. To allow the same would be to allow anarchy.
When bringing a motion for contempt, the offended party must use the designated “contempt of court” forms – the Notice of Motion and supporting Affidavit – that are provided for in the Rules. Once again, a motion for contempt may get dismissed before it gets started if the offended party uses the wrong form. Please seek legal advice in regards to completing the forms properly.
The most common use of the motion for contempt is when one of the parties does not comply with the custody/access/time-sharing terms of a court order. The offending party is alleged to have made the child unavailable for access, has refused to return the child after an access visit, or is not complying with some other term relating to the time-sharing provisions of the order. The Notice of Contempt Motion must clearly set out what part of a specifically referenced court order is being violated. If the offended party does not do this, their claim will likely fail. The supporting Affidavit must set out clearly what was ordered, when, provide a copy of the order in question, and state clearly what happened or did not happen, in violation of the order, to constitute the claim for contempt.
Generally, the offended party will want the presiding judge to order the offending party to stop doing what they are not supposed to do or to start doing what they are not doing. Contempt motions must have a provision where the offended party must ask the court for specific relief. However, if the actions or inactions of the offending party are both persistent and serious, the offended party may also seek an order that, upon the finding of guilt of a contempt motion, that the offending party is placed in jail for a period of time. For this reason, all motions for contempt, and the supporting affidavit that sets out the evidence to find the person in contempt, must be personally served on the offending party. It cannot be emailed or left with anyone else.
Once the offended party completes the motion materials for contempt, they will select an appropriate return date for the motion to be heard by the court. Again, given the seriousness of the allegations, a quick date may be preferable, but may also result in the offending party seeking a long adjournment to prepare a proper defense. When the matter is first in court, if the claims made by the offended party are credible and accepted by the court on its face, most judges will give the offending party a chance to “purge their contempt” before conducting a fulsome contempt hearing. This means that, for example, if weekend access has been unjustly denied to the offended party, the offending party will be given the opportunity to give a make-up date to the offended party within a reasonable amount of time, and thus, they can “right the wrong.”
However, if the offending party denies the contempt has taken place, or if they have a valid defense to the actions taken (or inactions not taken), the judge will give them an opportunity to prepare a defense and set a date for the contempt trial/hearing. Such hearing will be conducted with the live (or virtually live) and in-court testimony of witnesses. In essence, it is a “quasi-criminal trial” (i.e. it is kind of like a criminal trial) of a specific issue, where the offended party takes the role of the prosecutor, and the offending party is the defendant. As with criminal trial, the burden of proof rests with the prospecting party who must establish the elements of the contempt beyond a reasonable doubt. Serious stuff.
At the end of the contempt trial, after witnesses are called and submissions are made, the presiding judge will either finding the offending party in contempt of court, or the charge of contempt will be dismissed.
If the judge finds that the contempt was proven, the judge has a range of penalties to enforce the contempt, as set out in Rue 31(5):
- Order the offending person to do what they were supposed to do
- Order the offending person not to do what they were not supposed to do
- Order the offending person to pay a fine to the court
- Order the offending person to pay a monetary amount to the offended party
- Order the offending person to pay the offended part’s costs in bringing the motion
- Order the offending person to obey any other order made by the court
- Order the offending person to do something else the court thinks is proper, AND (not “OR”)
- Order the offending person to a term of imprisonment for a period of time and on conditions that are just
I make the emphasis on the fact that the options are not either/or, but can be a combination of possible terms the court considers proper in the circumstances.
In conclusion, you can see that if someone “plays games” with court orders, the court will not think this is “child’s play” and will not just give the offending party a scolding. The more serious the offense, the more serious the penalty. As such, I highly recommend that if you are accused of being in contempt, speak to an experienced family lawyer about defending yourself to these charges; otherwise, you just might find yourself in more trouble than simply “not going past GO, and not collecting $200,” and it will certainly not be much fun.