We’ve all heard of contempt of court, a common fixture in many courtroom dramas and law-related TV shows. In reality, civil contempt of court is quite uncommon, arising only on occasion during contentious litigation. In the estates context, contempt of court is most often linked to a party’s refusal to account for, release or transfer funds as directed by the court. For a litigant, it can be very disheartening to spend many months and thousands of dollars litigating a matter, and upon winning in court, to see the opposing side simply refuse to accept the result and ignore the court’s decision. If the refusal to follow the court order persists, one option is to commence a contempt motion. If successful, this can result in serious sanctions being levied against the party found to be in contempt of court (referred to as a ‘contemnor’), in order to force him or her to abide by the court’s orders.
The procedure for bringing a contempt motion is codified in Rule 60.11 of the Rules of Civil Procedure, and clarified in a well-known SCC case, Carey v. Laiken, 2015 SCC 17. This case explains in detail the elements of contempt of court and provides guidance on the ways that courts should use their discretion in contempt cases.
Sanctions for contempt
A recent case, Dankiewicz v. Sullivan, 2022 ONSC 4324, provides a clear explanation of what the consequences of a contempt finding can be for a contemnor: a fine, a suspended sentence or, in the most severe cases, incarceration. The threat of incarceration is genuine: as recently as November 2023, a contemnor was sentenced to 60 days of house arrest for contempt of court (Canada Mortgage and Housing Corporation v. Hart et al, 2023 ONSC 6523). The possibility of incarceration is one of the reasons that contempt must be proven beyond a reasonable doubt, the standard of proof that is usually reserved for criminal matters, rather than proving it on the balance of probabilities. The aim of these sanctions is to force the contemnor to comply with the court order in question, and not merely to punish him or her. In cases where the contemnor does comply with the order before a sanction is applied, the court will often decline to apply it.
Purging one’s contempt: a last chance
In some cases, the court will give a contemnor a final opportunity to follow the court order in question before applying sanctions to the contemnor, referred to as ‘purging’ one’s contempt. Although choosing to purge one’s contempt at this late stage often may allow the contemnor to avoid the fine or jail sentence that would otherwise be handed down, there can still be a significant costs award levied against the contemnor as a consequence for having created the problem. Had the contemnor followed the court order as required, the contempt motion would not have been required in the first place
Does a finding of contempt continue past death?
The case Sullivan v. Sullivan, 2023 ONSC 7171, heard by Justice Myers on December 19, 2023, raises this question. In this case, the contemnor had refused to follow a court order to pass his accounts as estate trustee, and was found to be in contempt of court. The court provided the contemnor 28 days to purge his contempt, following which a sentencing hearing was to be held. The contemnor died before the sentencing hearing was held, without ever having made an effort to purge his contempt or pay an outstanding costs award. This raised the question of whether the contempt ruling would continue on past the death of the contemnor, and what it would mean for the contemnor’s estate. Due to the narrow scope of the facts of the case, the presiding judge declined to rule on the question, and instead, left it as an open question for a future case in which it will be raised explicitly by the parties.
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