In a family law Action, the Defendant applied to have the Plaintiff declared in Contempt for failure to comply with various Costs awards and for a failure to give effect to a Consent Order between the parties for joint custody of the parties’ child.

Associate Chief Justice Rooke noted that Rule 10.52(3)(a)(i) provides that contempt may be declared for failure to comply with an Order “other than an order to pay money”. As a result, the unpaid Costs awards could not ground a finding of Contempt. With respect to the second ground for contempt, Rooke A.C.J. noted that contempt is a discretionary Order, and, quoting prior leading authority, certain factors must be considered for such an Order:

To find civil contempt, the applicant must provide the following things beyond a reasonable doubt: (1) an existing requirement of the court; (2) notice of the requirement to the person alleged to be in contempt; and (3) an intentional act (or failure to act) that constitutes a breach of the requirement...“without adequate excuse”...

The parties agreed that the first two factors were satisfied. Rooke A.C.J. held that sufficient evidence did not exist to determine who was to blame for the failure to follow the terms of the joint custody Order, noting that an Order must be clear, precise and unambiguous to ground a finding of Contempt. In this case, Rooke A.C.J. found that it was not clear on which days and at what times each parent was to have custody of the child. His Lordship found that while it was clear the Order was not followed, it was not clear why. As a result, Associate Chief Justice Rooke denied the Application for Contempt.