The Applicant, CJD, sought a Declaration of civil contempt as against the Respondent, RIJ for failing to comply with an Order of the Court in a high conflict family dispute. RIJ resisted the Application for contempt, and submitted that he had not received notice of the prior Application or the Order as he no longer had access to the email address which was being used for service. Graesser J. considered Rules 10.52(3)(a)(iii) and (iv) which provide that a Court may declare a party to be in civil contempt if the party, without reasonable excuse, does not comply with an Order which the party had actual knowledge of. Graesser J. observed that obtaining a declaration for civil contempt had become more challenging following the Supreme Court’s Decision in Carey v Laiken, 2015 SCC 17 (CanLII). His Lordship found that, while it was tempting to impute wilful blindness of the Order on the Respondent, he did not have actual knowledge of the Order. Graesser J. concluded that the “Order” was really a Case Management direction and was not a formal Order within the meaning of Rule 10.52.

Graesser J. referred to Rule 1.2(2)(e) which sets out the purposes of the Rules, including that they are meant to be used as a credible system of remedies and sanctions to enforce Rules, Orders, and Judgments. Justice Graesser noted that it was highly likely that the Respondent was still checking the email account in question, and that he knew what was required from him following the procedural direction that came from Case Management.

Graesser J. considered Rule 10.49(1) which provides that a Court may order a party to pay a penalty to the Court if the party contravenes or fails to comply with the Rules, a practice note, or a direction of the Court without adequate excuse and stated that the Rule must be read in conjunction with the foundational Rules. Justice Graesser noted that RIJ’s Affidavit in response to the Application made reference to several emails to and from the Court. Graesser J. held that the Respondent had evaded service by choosing to disregard an email account he had provided for Court purposes, and as a result, RIJ had failed to comply with the Court’s direction. Justice Graesser ordered that RIJ pay a penalty to the Court of $1,000, as well as Costs in the amount of $1,500 to CJD.