In legal dramas and movies, we often see judges telling lawyers or plaintiffs/defendants that they will be held “in contempt”. For those who are not in the legal profession, they may be unsure what qualifies as being in held in contempt. This week, we explore what “contempt of court” is, and what it means in the area of family law.

Contempt: What is It? 

Simply speaking, contempt in the legal world means that a party is acting in such a way that may hinder or obstruct the course of justice, or they are showing disrespect to the court’s authority. In movies and TV shows, we often see lawyers speaking out of turn, ignoring the judge’s request for order in the court or defendants speaking out or being disruptive. These are all examples of being in contempt of the court. However, these are also quite dramatic examples. The courtroom is not necessarily the scene of great drama. Most lawyers are very respectful of court decorum, and of one other. Sometimes, parties can be found to be in contempt of court for something that may not seem serious, but is in fact, impeding justice.

Types of Contempt

Contempt is often divided into two categories: ex facie and in facie, and beyond that into criminal and civil contempt.

Ex Facie Contempt

Ex facie means that the contempt is not “in the face of” (i.e. facie) the court. Examples include:

  • A willful breach of a court order;
  • Interfering with witnesses, counsel, or a juror;
  • Counselling perjury (that is, encouraging or suggesting someone lie to the court, which is perjury and a criminal offence);
  • Fabricating evidence; and
  • Breaching a court undertaking. 

In Facie Contempt

In facie contempt means that the contempt is “in the face of” the court. This means that the contempt takes place in the court, rather than in the outside world. Examples include:

  • Failing to appear in court when scheduled (this applies to both lawyers and parties to a claim);
  • A witness refusing to be sworn;
  • A witness refusing to answer questions;
  • Insulting the court;
  • Being aggressive during court proceedings; and
  • Disregarding court rules or procedures.

There are also two more categories of contempt: criminal and civil contempt.

Criminal Contempt

Criminal contempt involves any conduct, words or writings that will obstruct or discredit the administration of justice. If the conduct, words or writings show an intention to obstruct or discredit the administration of justice, this is also considered criminal contempt. Examples include:

  • Bribing a witness or juror;
  • Attempting to influence a judge; and
  • Falsely accusing a judge of bias;

Criminal contempt is meant to protect society from behaviour that undermines the public’s interest in a strong and effective justice system.

Civil Contempt

Civil contempt is intended to address private wrongs. This is the type of contempt that most often occurs in family law proceedings. The goal of civil contempt is to ensure the offending party obeys the court order or judgment. It is meant to emphasize that court orders cannot be ignored or disobeyed, and if they are disobeyed or ignored, there are serious consequences.

Contempt in Family Law Proceedings

In 2016, the Superior Court of Justice considered, in great detail, what contempt of court is in family law proceedings. In that case, the mother asked for the father to be found in contempt for breaching the terms of their temporary access orders, and made continuous attempts to limit her access in order to push her out of her children’s lives.

The court reviewed the history of contempt. Specifically, the court noted that while there are statutory rules of court that allow and govern the courts’ jurisdiction with regards to contempt, the law evolves through common law (i.e. from decisions made by the courts). Contempt of court in family law is typically the breach or disobeying of a court order. Examples include: failing to provide financial disclosure when ordered to do so, failure to pay child support, failure to follow an order of temporary custody, and so on. It falls under the civil contempt category.

The court then went through the five elements of the test for civil contempt of a court order. These five elements must be proven beyond a reasonable doubt because civil contempt is a quasi-criminal proceeding. The elements are as follows:

  • First, was there a court order to be enforced? Without a court order, then there is nothing to be in contempt of.
  • Second, the person who is alleged to be in contempt must have had actual knowledge of the order that they allegedly breached.
  • Third, the order that is alleged to have been breached must state clearly and unequivocally what should and should not be done.
  • Fourth, the party who is requesting an order for contempt must establish that the other party breached or disobeyed the order. It is not required to prove that a specific term has been breached, but rather that the party engaged in some conduct or action that would have the effect of preventing or impeding the implementation of the order.
  • Finally, it must be established that the party who disobeyed or breached the order did so willfully and deliberately.

In that case, the court found that the necessary elements for contempt had not been made out. To be found in contempt of court, there must be some mental component behind it. There must be contemplation and the willingness to disobey an order. If someone forgot about or did not know the terms of the order, then it cannot be said that they are in contempt.

The authority to find a party in contempt and the consequences for contempt are outlined in by the different rules of court. For example: in Ontario, the consequences for contempt of court are outlined in section 31 of the Family Law Rules.

Sometimes, in family law, parties do not cooperate. In some situations, they may even go as far as to disobey the court. If you want to bring a motion that the other party is in contempt, you will need an experienced family lawyer who knows what to look for and how to prove contempt. At Borden Family Law, we have been advising clients on family law disputes for 17 years and understand how to keep matters moving efficiently so that a timely resolution can be reached. Call us at 905-576-6090 or contact us online for assistance. Ask about our bundled services.