2012 CarswellOnt 17442, Ontario Superior Court of Justice, 2012

The Applicant sought a contempt order against the Respondent for failing to comply with temporary orders. The Respondent allegedly did not provide the password for online access to banking records, did not direct the company bookkeeper to respond to the Applicant’s requests for back-up documents, and did not allow her access to the business premises to inspect financial documents within 48 hours of demand.

A finding of contempt is serious and resorting to a contempt order should occur sparingly. A finding of contempt will require that certain essential elements be proved beyond a reasonable doubt. The following are the elements applied to the circumstances of this case:

1. There must be a court order: there were two court orders by which the Respondent was bound.
2. The terms of the order must be clear and unambiguous: The terms of order were not ambiguous; the Respondent acquiesced and agreed to the terms and acknowledged during cross-examination that he understood the terms.
3. The person alleged to be in contempt must be given proper notice of the terms of the order: the Respondent acknowledged he was given proper notice of the order’s terms.
4. There must be disobedience of the court order: the Respondent acknowledged the orders were not complied with until recently.
5. The fact of the order’s existence must be within the knowledge of the party at the time of the alleged breach: the Respondent was aware of the orders when the non-compliance was alleged.
6. The breach of the court order must be deliberate or wilful: the Respondent’s failure to provide the passwords and documentation on time was considered without a reasonable doubt to be deliberate and wilful.

In addition to these elements, it is necessary for the person alleged to be in contempt to be given proper notice of the alleged contempt and the particulars supporting this allegation such that the person is aware of the case against them. This is where Justice Gordon applied a correct, however unusual, application of the Family Law Rules.

The Respondent was not served personally with the motion for contempt, the incorrect form of motion was used, and the motion form did not contain the warnings contained in the prescribed form as required by the Family Law Rules. However, Rule 1(8) provides the court with discretion to handle a failure to follow the Rules by making any order it considers necessary for a just determination of the matter. Rule 2(2) further provides that the primary objective of the Rules is to enable the court to deal with cases justly, and Rule 2(3) provides that dealing with a case justly includes: (a) ensuring the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

Based on these principles, Justice Gordon found it appropriate to allow the motion even though it did not strictly adhere to the Rules because the allegations and particulars were brought to the Respondent’s attention, the Respondent was represented by competent counsel, he knew the consequences of a contempt finding, and there would not be procedural unfairness. Further, if Justice Gordon were to dismiss the motion for the above-noted reasons, the Applicant could renew her motion using proper form and service and would thereafter have the matter heard. Justice Gordon explained, “This would be an inappropriate re-allocation of court resources and would do nothing but increase costs for everyone”.

As a remedy, Justice Gordon imposed a conditional fine of $20,000.00 payable immediately if the Respondent is found to be in contempt of this proceeding in the future. This remedy is arguably more effective that an unconditional fine, because rather than simply punishing the Respondent, it will deter him from future contempt.