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The Ontario Court of Appeal has repeatedly stated that seeking a finding of contempt in family law is to be used sparingly and as a remedy of last resort.
Nevertheless, contempt remains a remedy available to parties under the Family Law Rules where a person fails to obey an order (other than a payment order) . Rule 31 leaves open the possibility that certain orders may be enforced by a contempt motion even if another penalty is available. Pursuant to rule 1(8)(g), and in accordance with rule 31, a specific motion must be delivered seeking a contempt order.
The recent decision in Boutin v Boutin, 2022 ONSC 3229 shows that significant non-disclosure can be the basis for a finding of civil contempt.
In Boutin, the 72-year-old Applicant, Micheline Boutin, delivered a long motion seeking inter alia an order finding the 77-year-old Respondent, Victor Boutin, in contempt of court for his alleged failure to comply with numerous disclosure orders and failure to deliver income and business valuation reports, both of which were required to be delivered under a prior court order.
At the first attendance of the Applicant’s long motion, the court ordered that a contempt liability trial proceed first, based on the affidavits filed by the parties (the Applicant had filed three Affidavits and the Respondent had filed one) and additional viva voce evidence in court, followed by cross-examination in court on that evidence. The court ordered it would then hear the balance of the Applicant’s long motion at the conclusion of the Contempt Trial.
The Trial included four days of viva voce evidence tendered by both parties regarding the extent of the Respondent’s compliance with court orders. It heard evidence from the Applicant and her chartered business valuator, and the Respondent, his chartered business valuator and the parties’ son (who, it was found by the court, is estranged from the Applicant, and aligned with the Respondent in the litigation). Ultimately, Regional Senior Justice Ricchetti found the Respondent in contempt of court.
In making his finding, Ricchetti RSJ cited the leading Court of Appeal case of Prescott-Russell Services for Children and Adults v. G. (N.), 2006 CanLII 81792 (ON CA) for the three-pronged test applicable for a finding on civil contempt:
Ricchetti RSJ also noted that the burden of proof to prove civil contempt is on the moving party (in this case, the Applicant) on a “beyond a reasonable doubt” standard.
With respect to the evidence tendered by the parties, Ricchetti RSJ rejected the evidence of the Respondent and the parties’ son in its entirety. Ricchetti RSJ held that the Respondent’s evidence “constituted bald denials, veiled and clear attempts to blame both of his prior counsel, his evidence was inconsistent and contained unbelievable explanations.” As to the son’s evidence, Ricchetti RSJ called it “self-serving” and wrote that it “makes little sense.”
In making his decision to find the Respondent in contempt of court, Ricchetti RSJ held that the Respondent admitted that complete disclosure in accordance with the disclosure Orders has not been made and that he had not provided the required valuation reports. Ricchetti RSJ then analyzed, pursuant to the test in Prescott-Russell, whether the Respondent’s breach of the orders was “wilful and flagrant” (he found that it was) and whether the wilful and deliberate breach was established beyond a reasonable doubt (he found that it was).
Having found the Respondent in contempt of court, Ricchetti RSJ did not immediately offer a sentence but instead scheduled a date for a sentencing hearing several weeks away. Ricchetti RSJ observed that allowing for several weeks between the finding of contempt and the sentencing hearing will give the Respondent an opportunity to purge his contempt.
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