Traditionally, contempt proceedings were viewed as strictissimi juris, meaning all proper procedures had to be strictly complied with and case law traditionally reflected adherence to procedural rules. However, 2021 saw a shift in civil contempt in family law proceedings in Alberta courts, where courts have applied a more flexible approach for the remedy of contempt when combined with a relief to vary a parenting order. In Zak v Zak [2021] A.J. No. 624, the plaintiff father made an application for primary care and shared parenting and for a finding that the mother was in contempt of parenting orders. The crux of the court’s analysis focuses on the mother’s breaches of the parenting orders on a balance of probabilities. The court skips over the three-part test for contempt as laid out in Carey v Laiken 2015 SCC 17 and is silent on the standard of proof of beyond a reasonable doubt for contempt. Notwithstanding, the court found that the father had wholly succeeded in his contempt application.
The standard of proof for a parent seeking an order for contempt is beyond a reasonable doubt against a parent not complying with a parenting order. In contempt hearings, hearsay is supposed to be inadmissible except in very limited circumstances. On the flip side, the standard of proof for an application to vary a parenting order is one of a balance of probabilities, and the court can look at all the evidence on the record.
This change in approach could be a result of a certain COVID-19 fatigue of the courts making orders that have not been complied with, or the increased litigation caused by parents resorting to self-help measures due to COVID-19.
The Alberta Court of Appeal in J.M v E.M. [2022] A.J. No. 173 stressed that “[i]n almost all circumstances, courts will look harshly upon self-help measures.” Even so, in that matter, where the mother unilaterally took the child outside of Canada in breach of court order, the Alberta Court of Appeal declared that the mother’s contempt had been purged by the child having been returned to Canada. Therefore, even after contempt has been found, the court can use its discretion to declare that it has been purged by evidence of compliance. Courts in family law matters have been cautious in making declarations of contempt to obtain compliance with court orders. In Carey, the Supreme Court of Canada stated that “contempt of court cannot be reduced to a mere means of enforcing judgments […] Rather, it should be used cautiously and with great restraint […] It is an enforcement power of last rather than first resort.” This approach was followed by the Ontario Superior Court in Dephoure v. Dephoure, 2021 ONSC where even though the court found that the mother intentionally disobeyed the court order, the court chose not to find the mother in contempt because “contempt power is intended to enforce compliance, not to administer punishment.”
Zak v Zak exemplifies a departure of the Alberta courts from the strictissimi juris view that a declaration of contempt in a family law matter should be a last resort. This is evident when the court repeats from SAS v. LMS, 2020 ABQB 287 that “’[n]on-compliant parents can expect no second chances.”
Ultimately, court orders are meant to be followed.
