A Case Management Judge in a family law matter had found that a mother was in contempt of an Order directing her to take the children at a specified date and time to facilitate a visit with the father. Having regard to the circumstances leading up to and including the finding of contempt, the Case Management Judge ordered that primary care of both children be changed to the father until the matter could be fully heard. The mother brought forward this Appeal.

The Court of Appeal noted that a finding of contempt involves the application of a legal standard to the facts and is a question of mixed fact and law reviewed for palpable and overriding error. Parenting decisions are exercises of discretion and the Court will only interfere if the Trial Judge erred in law or made a material error in the appreciation of the facts.

The mother submitted that the Case Management Judge erred in failing to adjourn a hearing to permit viva voce evidence and cross-examination of the parties on their Affidavits. Decisions regarding adjournments are highly discretionary and attract considerable appellate deference. The Court found no reviewable error on the decision to refuse to adjourn the hearing. The mother also submitted that the Case Management Judge erred in considering reports from experts that were not cross-examined. The information in these reports were contemplated in various practice notes issued by the Court and central to the Case Management Judge’s task of determining the best interests of the child. As such, the Court of Appeal held that there was no merit to this submission.

Rule 10.52 provides that a Judge may declare a person to be in civil contempt of Court if the person does not have a reasonable excuse for failing to comply with an Order. The Case Management Judge considered the mother’s evidence and her actions and concluded that the mother had no reasonable excuse. This conclusion was entitled to deference absent palpable and overriding error and was supported by the record.

Rule 10.53 sets out the available sanctions for civil contempt of Court. Rule 10.55 specifically provides that nothing in the Rules takes away from the superior Court’s inherent power to find someone in contempt.

The Court noted that the Rules governing civil contempt do not exclude their application to parenting Orders however, Courts generally exercise restraint in such cases. The Court’s discretion to order consequences for contempt must be proportionate and reflect the gravity of the offence and the personal culpability of the contemnor. The Court noted that there is no consensus across Canada, and some Courts have used a change in parenting as consequence/sanction for contempt. However, a change in parenting is viewed as an extreme remedy that should not be lightly ordered. The overriding principle is whether the Order is in the best interests of the child.

The Court found that the Case Management Judge had considered the best interests of the children and did so regarding the Divorce Act, RSC 1985, c 3 and the entire record. This was not the first finding of contempt for the mother, and there was a previous finding that the mother had alienated her children. The Court of Appeal found that a fine or imprisonment was unrealistic in the circumstances and the Case Management Judge did not have other realistic options in this case other than changing the parenting arrangement. The Appeal was dismissed.