The Applicant applied for an Order of civil Contempt against the Respondent relating to various Orders for conduct related to the children of their relationship.

The Court set out that three elements must be established beyond a reasonable doubt in order to find civil Contempt: (1) the Order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the Order must have had actual knowledge of it; and (3) the party alleged to be in breach must have intentionally done what is prohibited or intentionally failed to do what was compelled. The Court noted that Rule 10.52(3) codifies the requirement for Contempt but explicitly adds the requirement that failure to comply was “without a reasonable excuse”. 

Among other issues, the Court considered whether one of the alleged breaches underlying the Application was the Respondent’s continued contact with and assumption of care of the children between August 25-30, 2022, contrary to an August 15, 2022 arbitration award which directed that the Respondent and his partner “shall have no contact with the children” (the “Arbitration Award”). The Court noted that Rule 10.52 speaks of not complying with an Order and that the definition of an Order means an Order of the Court. The Court further set out that the leading cases speaking of Orders in the Contempt context referred to Court Orders. The Court additionally noted that civil Contempt proceedings are quasi-criminal in nature with potentially severe consequences, as such the requirements must be strictly construed. The Court did however note that an arbitration award could become an Order pursuant to section 49 of the Arbitration Act, RSA 2000, c A-43 and in the circumstances the Arbitration Award became an Order pursuant to an Order pronounced on August 30, 2022 as opposed to a consent Order pronounced June 15, 2022, which set out that any decision or award would “be deemed an Order of this Court, unless otherwise stated in a subsequent order” (the “Consent Order”), noting that that for Contempt purposes, the Consent Order could not give advance Court Order status to anything the arbitrator might decide. The Court accordingly found that the Respondent had engaged in activities between August 25-30, 2022 that breached the Arbitration Award, but which could not ground a finding that the Respondent was in Contempt of Court.

Separately, the Court did find that the Respondent was in Contempt of Court by determining that the Respondent had beyond a reasonable doubt acted contrary to Order(s); by using a Practice Note 8 report, communicating with the children about the Applicant’s care, and communicating with the one of the children in relation one of their letters.