Introduction

In Antoine v. Antoine, Justice Chappel examined whether a mother was potentially in contempt of the court. This remedy is very onerous and viewed as one of last resort. As such, Justice Chappel was critical in her examination when she decided to dismiss the father’s contempt motion and declined to find the mother in contempt of the court.

Background

In this case, the Applicant father and Respondent mother, who were both self-representing, had three children. The mother also had a child from another relationship. The parties were required to follow a 2021 final Order from Justice Gordon regarding parenting time and decision-making. This Order included provisions that the parents will share equal parenting time of their shared three children and must attempt to make major decisions about the three jointly. The Order also granted the father parenting time with the mother’s child from another relationship on a gradually progressing basis.

However, in early 2024 the Applicant father accused the Respondent mother of contempt of the court for breaching the previous Order. The father described in an affidavit that the mother failed to communicate with him about the children, withheld the children from his care, failed to provide him with notarized copies of the children’s documents, and spoke ill of him to the children.

Analysis

Contempt of court is a remedy founded in common law, described as occurring when a person does any act which may tend to hinder the course of justice. This remedy is left to the discretion of the court. Case law has developed a two-stage test used to determine whether a party should be found in civil contempt of the court for breaching a court order.

The first step requires the moving party, here the Applicant father, to establish several elements. The second stage requires the court to use its discretion in deciding whether to make a contempt finding based on the facts or to find a less severe and more appropriate remedy.

The first element is whether the father gave the mother proper notice of the application for a contempt finding. The second element is that the father must show that the terms of the Order he is relying on are still operative at the time of the hearing. This element was met because the terms were from a live and active final Order. The third element is that the Order the father is relying on states what should and should not be done by the parties. This element was also met as the Order described the steps to be taken by each party regarding parenting time and decision making for their shared three children.

The fourth element is that the father must show that the mother had knowledge of the Order. Justice Chappel found that the mother was aware of all the terms from the 2021 final Order. Lastly, the father must show that the mother intentionally did an act that was against the Order.

The main issue arising came from the first element of stage one, notice. In this case, Justice Chappel found that the notice of the contempt allegations was deficient. The father’s Notice of Motion did not provide specifics of each alleged breach such as what the breach was under the Order or when it occurred.

Another issue arose in the third element, regarding the mother’s child from another relationship. Here, Justice Chappel found that the Order was ambiguous regarding the father’s parenting time with this child.

Justice Chappel also found that the father’s contempt claim lacked evidence respecting the alleged breaches of the Order. For example, the father did not specify which paragraphs of the Order he was relying on. Likewise, his accusations that the mother spoke ill of him to the children were denied by the mother and not supported with additional evidence to support his claim. Likewise, Justice Chappel found that the mother had reasonable grounds to withhold parenting time because of her concerns regarding the safety and well-being of the children, who had described being spanked while in their father’s care.

Lastly, the father sought contempt of the court because the mother had not provided him with notarized copies of the children’s documents, such as their health cards. Justice Chappel was clear that a finding of contempt of the court is to ensure compliance, and not inflict punishment. At the time of the hearing, the mother had already provided the notarized documents to the father and thus had nothing to comply with.

The second stage of the test was not addressed because the father could not satisfy stage one. Instead, Justice Chappel recommended other, less drastic measures the father could have taken instead of contempt of the court. For example, requesting an urgent Case Conference or an urgent motion.

As a result, Justice Chappel declined to make a finding of contempt of the court.

Conclusion

The case of Antoine v. Antoine represents an example of a self-represented party requesting a finding of contempt of the court without knowing how onerous such a claim is. In response, the court was clear that a finding of contempt of the court is a remedy of last resort, and that the court must be harsh in its analysis of the claim.