It is beyond dispute that the Court’s contempt powers are meant to be used as a process of last resort, particularly in the area of family law. Nonetheless, warring couples continue to bring contempt applications for the most minor deviations from a court order. Chong v. Donnelly 2019 ONCA 799 is yet another example of a “mole hill turned into a mountain”.
The contempt allegation centred on a provision in a court order that required the parties to transition the children between each parent’s home at the children’s school on school days and if not a school day, at the other parent’s home at 8 am.
On this occasion Mr. Donnelly texted his ex-wife advising her that he would pick up the children after school, feed them dinner, and then return them to the school for their evening activities. Ms. Chong requested that he not do that as it was her evening with the children and she had already arranged after school care and dinner for them. He ignored her and picked up his children.
The motions judge reviewed the legal test for a contempt finding including the necessity of the court order being clear and unequivocal; that the party allegedly in breach had clear notice of the order; and that the conduct in breach of the order was intentional. Finding all three elements of the test to be satisfied, the judge found Mr. Donnelly to be in contempt in picking up the children in breach of the order.
The father appealed the contempt finding and succeeded, persuading the appellate court that because contempt was a discretionary power and one of last resort, the lower court judge erred in law. The appeal panel found that while the chambers judge applied the correct legal test he failed to consider whether there were alternatives to a contempt finding, such as admonishing the father.
The Court also found that the motions judge failed to consider the best interests of the children and by ignoring these discretionary factors erred in law. The Court did remark that the judge’s decision not to impose a contempt penalty was correct but her finding of contempt, in a high conflict case, was not in the interests of justice.
The Court also stated that contempt motions brought by each parent reflected badly on them and were not in the children’s best interests.
Lawdiva aka Georgialee Lang