ONSC Provides Excellent Reminder of Usefulness of Contempt Remedy
In the recent Superior Court decision, Hoysted v. Abitbol, the Hon. Justice Marc Smith dealt with a contempt motion brought by a Mother against a Father that repeatedly flouted a disclosure order. In this case, the parties had a brief relationship that lasted less than two years and resulted in their two-year-old daughter. The Father had been charged with criminal harassment towards the Mother. In November 2018, the Mother obtained an order (“Disclosure Order”) which provided, among other things, that the Father:
…shall disclose to the [Mother] any and all IP addresses, cellphone numbers and email addresses the [Father] owns, uses, or to which he has access for his own use with respect to communication to or about the [Mother].
Presumably, the Mother wanted to prove that the Father had actually harassed her in her Family proceeding. Around two years later, the Mother brought a motion seeking a contempt order against the Father for failing to comply with the Disclosure Order.
As this case demonstrates, contempt proceedings always occur in two steps: (1) there is a contempt hearing; and (2) the matter returns to court to determine the penalty.
At the first step (which appears as “Schedule A” in the decision)– the Mother argued that despite several attempts of her lawyers to call attention to the requirements of the Disclosure Order, the Father had not provided his IP addresses. The Father responded that the Disclosure Order was vague and open to interpretation. He argued that the Order was nonsensical and could not be complied with.
In summarizing the principles of contempt, Justice Smith cited an entire passage from Callwood v. Callwood, 2020 ONSC 3657 because of the excellent summary that decision provides:
- That the relevant order was clear and unambiguous;
- The fact of the order’s existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
- That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
- That the respondent was given proper notice of the terms of the order. (See: Haywood v. Haywood, 2010 ONSC 5615 (CanLII),  O.J. No. 4317 at paras. 41-43 (S.C.J.))
51 I am mindful of the following principles regarding civil contempt:
- Contempt is a serious remedy and is not to be granted lightly: See Fisher v. Fisher, 2003 CanLII 2119 (ON SC),  O.J. No. 976 (Ont. S.C.J.); See Perna v. Foss, 2015 ONSC 5636 at para. 12.
- Civil contempt is a remedy of last resort, one which should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order. (See G.(N.) c. Services aux enfants & adultes de Presott-Russell, (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.), Hefkey v. Hekfey, 2013 ONCA 44 (Ont. C.A.), and Children’s Aid Society of Ottawa-Carleton v. S.(D.), 2001 CanLII 28152 (ON SC),  O.J. No. 4585 (Ont. S.C.J.): See Perna v. Foss, supra, at para. 12.
- Great caution should be exercised when considering contempt motions in family law cases: Hefkey v. Hefkey, supra.
52 The Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17 (CanLII),  2 S.C.R. 79 addressed the law of civil contempt and held that proof beyond a reasonable doubt of an intentional act or omission that was in breach of a clear order of which the alleged contemnor had notice was required to establish civil contempt.
53 In Ruffolo v. David, 2019 ONCA 385, the Ontario Court of Appeal articulated the following:
The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]
Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.
In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.
55 In Jackson v. Jackson O.J. No. 2870 (SCJ, Justice Chappel provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:
- It ultimately remains a matter for the Court’s discretion;
- because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;
- it cannot be reduced merely to a mechanism for enforcing judgments;
- it should be used sparingly and as a measure of last resort where there are no other adequate remedies available;
- it is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted; and
- the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.
The Father was found in contempt for failing to abide by the Disclosure Order. Justice Smith stated:
 Providing his IP addresses is a simple process and I find that based upon the email correspondences and submissions, the Father has the skill and knowledge to obtain the IP addresses and provide them to the Mother. In one of the email correspondences from the Mother, she provided instructions to the Father as to how one goes about to obtain the cellular phone’s IP address. Yet, he has continuously refused to provide it to the Mother. I find that the evidence sufficiently establishes that the Father’s refusal to comply with the Order (i.e. disclosing the IP addresses) is intentional.
The Hon. Justice Smith then gave the Father one last chance to purge his contempt by abiding by the Disclosure Order with a new deadline – a common feature of contempt proceedings. Yet notwithstanding his second chance, the Father still did not comply with the Order. The Mother then brought the motion back to Court for the second step – to address the consequence and cost resulting from the Father’s contempt of court.
At the second step, two issues before the Court were:
- What is an appropriate penalty?
- What costs should the Father pay?
The Mother sought:
- Imprisonment for a period of three (3) days;
- a $5,000.00 fine;
- an Order that the Father shall not denigrate the Mother, or harass her online anymore; and
- an Order permitting Mother to deal directly with or obtain disclosure from any third-party record holder with respect to any online postings or commentary about the Mother or the child.
- imprisonment for any period and on any conditions that are just;
- pay a fine in any amount that is appropriate;
- pay an amount to a party as a penalty;
- do anything else that the Court decides is appropriate;
- not do what the Court forbids;
- pay costs in an amount decided by the Court; and
- obey any other order.
Justice Smith made it very clear that an Order is not a suggestion and there must be consequences for non-compliance. In determining the appropriate consequence, a sanction must be proportionate to the nature of the contempt and the mitigating and aggravating circumstances. The sanction must also be in accordance with those imposed in other similar circumstances. Although any breach of a Court Order is serious – some are more serious than others.
Here, the refusal to provide IP addresses was at the lower end of the spectrum of seriousness. As such, the sentence had to be proportionate to the gravity of the wrongdoing. Incarceration was not justified here as that is only used when less restrictive sanctions are not appropriate.
The Court decided that the right penalty was for the Father to pay a fine in the amount of $2,500.00. It also granted all the other remedies sought by the Mother but for incarceration. It ordered costs against the Father of $5,500.00 for the motion.
This case is useful because it demonstrates a solid use of the contempt remedy. (It also incidentally provides a path by which spouses that have been disparaged online can seek recourse – by seeking IP addresses!). Under Rule 1(8) of the Family Law Rules, a Court can order several remedies – including striking pleadings, costs, postponing trial etc.. Some of the other remedies are less cumbersome, but each remedy offers its own strategic advantages depending on the circumstances of the case. Here, the Mother clearly thought more would be gained by proving that the Father was the source of the disparaging comments rather than just moving to strike his pleadings. She also got a fine that would go towards her legal fees. Ultimately, she got what she wanted and a good amount in return to cover her legal fees.