A number of issues are addressed in Courtney v. Sambray, 2015 ONSC 5488, released by the Superior Court of Justice on August 27, 2015, but this article focuses on the father’s contempt of court.
This case is important to Ontario family lawyers because it demonstrates how to use motions for contempt of court and costs awards under appropriate circumstances.
Briefly, the father denied access to the mother contrary to an interim order. The mother successfully brought a motion to find him in contempt.
The Court began its analysis by noting that it has extensive remedial power to address contempt under Family Law Rule 31 (15), which provides:
If the court finds a person in contempt of the court, it may order that the person,
(a) be imprisoned for any period and on any conditions that are just;
(b) pay a fine in any amount that is appropriate;
(c) pay an amount to a party as a penalty;
(d) do anything else that the court decides is appropriate;
(e) not do what the court forbids;
(f) pay costs in an amount decided by the court; and
(g) obey any other order. O. Reg. 114/99, r. 31 (5).
The mother did not seek any of these remedies because the father began complying with the order and doing so would almost certainly sour an already strained co-parenting relationship. Instead, the mother asked for her costs on a full recovery basis.
The Court did award her costs on a full recovery basis under Rule 24 (8) because, as a general rule, contempt of a court order will usually amount to bad faith.
Family lawyers face our share of uncooperative litigants. Courtney v. Sambray, in its straightforward analysis of Family Law Rules 31 (5) and 24 (8), teaches us how to use two tools to overcome obstacles in appropriate circumstances.
Jeffrey L. Hartman