POTTS v MARSCHLIK, 2023 ABKB
10.52: Declaration of civil contempt
This was a two-day Summary Trial regarding the parenting time that each Party should have with their child. One of the Parties sought, inter alia, an Order declaring the other Party in civil Contempt of Court for non-compliance with a Court Order. In particular, the Respondent had denied the Applicant Court-ordered parenting time on five occasions. An explanation was provided by the Respondent for each instance where the parenting time was denied, without substantial challenge from the Applicant.
Justice Poelman considered his summary of the law of civil Contempt provided in Ripley v Ripley, 2022 ABQB 295, at paras 47-53. He reiterated that “the contempt power was discretionary, should be used cautiously and with great restraint, is an enforcement power of last resort, is primarily coercive rather than punitive and thus largely concerned with ensuring compliance with court orders”. Contempt will not be established if it has not been proved beyond a reasonable doubt that failure to comply with a Court Order is without reasonable excuse. Even in such cases, discretion may still militate against a finding of Contempt.
Justice Poelman held that the elements of Contempt had not been proven beyond a reasonable doubt, given that each instance that parenting time was denied had been explained. Further, he stated that even if the elements were established, he would not use his discretion to impose a contempt Order as the missed parenting days were over a year old, and no purpose would be served by a Contempt finding.View CanLII Details