Overview
Can an Ontario family court judge order for the imprisonment of a party? The short answer is found in section 31(5) of the Family Law Rules: the court may order the person be imprisoned for any period and on any condition that are just, if they are found in contempt of court. However, an order for imprisonment happens extremely infrequently.
Section 31(5), as outlined above, is qualified by section 31(7) of the Rules, which states that the period of imprisonment and the amount of a fine may not be greater than the relevant Act allow. All relevant Acts, including the Family Law Act and Children’s Law Reform Act, have a term not exceeding ninety days.
Further, imprisonment is normally conditional upon default in the performance of a condition. In other words, the party is usually given the opportunity to absolve themselves by fulfilling some order of the court.
Rationale and operation of the law
As Brown v Walowski, 2013 ONCJ 473 puts it, [w]hereas the purpose of the sanction for criminal contempt is primarily to penalize the offender, the sanction for civil contempt is primarily remedial to attempt to gain compliance with orders of the Court. In other words, punishments such as imprisonment are used to compel a party to follow the rules. An example of this is found in Heath v Heath, [2006] OJ No. 2337.
In Heath, the court ordered, the applicant shall return to the respondent the items set out in accordance with the list of contents marked Schedule A and attached hereto which she removed from the matrimonial home on Sunday, February 19, 2006, no later than 5:00 p.m. on May 2, 2006 in the same condition as she removed them, at her own expense, failing which she will be arrested and imprisoned without notice. Needless to say, this creates strong motivation for a party to follow the court’s orders. As stated, parties are generally given the opportunity to absolve themselves, such as the case in Dephoure v Dephoure, 2011 ONSC 4645.
In Dephoure, the court stated: Having found an individual in contempt of court, the court should give the individual an opportunity to purge that contempt. This supports the contention that imprisonment is generally for the purpose of compelling the party to follow court orders. But as Carr-Carey v Carey, 2014 ONSC 5441 reaffirms, imprisonment should be an absolute last resort.
There have been several cases where imprisonment would have been appropriate according to the court, but that it would not have been in the best interests of the child to order such punishment (Starzycka v Wronski, 2005 ONCJ 329). And the court in Amid v Houdi, 2016 ONSC 2849 highlights an important consideration:
Both sections 31(1) and 26(4) of the Family Law Rules confirm that a payment order cannot be enforced by a contempt order…In Dickie v. Dickie, the Court of Appeal explained that the purpose of section 31(1) of the Family Law Rules, like rule 60.11 of the Rules of Civil Procedure, is "to ensure that people are not imprisoned because they have not satisfied monetary obligations" per Juriansz J.A. at paragraph 53. "We no longer imprison people for their failure to pay a civil debt" per Laskin J.A. at paragraph 103.
This consideration is written directly in section 31(1) of the Family Law Act. You are not going to prison for a debt. After all, there are other mechanisms to obtain relief. And it would seem rather barbaric if the court was imprisoning people who simply could not afford to pay off the debt in question.
The Standard
Brown also provides insight into the standard of proof required to find contempt of court: [t]he form of contempt addressed by Rule 31 is civil rather than criminal, notwithstanding that imprisonment is one of the possible remedies…In order to make a finding that a party is in contempt, the court must be satisfied of the following 3 factors:
1. The order in question is clear and unequivocal.
2. The breach of the order must be done wilfully and deliberately.
3. The evidence must establish the contempt on the criminal standard beyond a reasonable doubt.
While factor 1 and 3 are self-explanatory—look at the previous court order and prove beyond a reasonable doubt they have failed to comply in accordance with factor 2—“wilful” and “deliberate” require further analysis. Rea v Rea, 2019 ONSC 551, states as follows:
1. Recklessness can provide the necessary intent to disobey a court order and for a finding of contempt to be made. Wilful intent or malice, i.e. a deliberate intent to defy an order, is not necessary to establish a civil contempt, though its existence may be relevant to penalty. It is enough that a party knew of the terms of the order and intended to do those things that constitute the breach...
2 A finding of contempt does not require that the defendant intended to disobey or flout an order of the court: "the offence consists of the intentional doing of an act which is in fact prohibited by the order. The absence of the contumacious intent is a mitigating but not an exculpatory circumstance"...
3. The standard of intention is knowledge of the reasons for the order and contravention of the order. Direct intention to disobey the order is not required. Wilful disregard is sufficient. "Wilful" is intended to exclude only casual, accidental or unintentional acts of disobedience...
4. An individual need not be found in breach of a specific term in a court order. It is sufficient if the actions are "designed to obstruct the course of justice by thwarting or attempting to thwart a court order...”
The most important takeaway is that if a party is found to have knowledge of the reasoning in the order, it will be extremely difficult for them to get out of an order for contempt of court provided they failed to follow an order and absent a very strong reason for doing so.
Cases where imprisonment was warranted
In Snively v Gaudette, 2020 ONSC 3042, the father failed to return the children to the mother after an access visit. The court stated:
Although the applicant father's blatant disregard for the best interests of the children may in other circumstances warrant imprisonment, I do not find it appropriate at this point in time. That is because of the unusual risks posed by the COVID-19 virus.
In Carter v Carter, 2020 ONSC 1095, the father was found in contempt of six court orders related to the delivering of financial disclosure of assets, including statements from offshore bank accounts. The court stated:
The husband shall be imprisoned for a period of 30 days to be served on weekends starting March 13, 2020 in accordance with a Warrant of Committal dated February 26, 2020, a copy of which will be sent to the husband along with this Ruling.
In Rea v Rea, 2019 ONSC 551, the father failed to implement reunification therapy, pursuant to court order, and he failed to pay the therapists’ retainer as ordered. The court ordered his imprisonment for a period of 30 days. In Skalitzky v Skalitzky, 2014 ONSC 950, the mother was found in contempt by failing to return the child to the father’s care. The court warned that if she did not return the child, she would be ordered to six days of incarceration. In Coletta v Coletta, 2003 CarswellOnt 55, the mother sold her farm and depleted over $20,000 and failed to account for either, in contravention of the court order. She was ordered to 30 days in jail.
Obvious takeaways? The court does not like to imprison parties. However, the particular punishment can become necessary when parties fail to comply with a court order. When courts do consider imprisonment, the party in question is typically given the opportunity to comply with the court order in order to absolve themselves of the sentence. Finally, even when imprisonment is ordered, it is for a short period of time.
