Since, as the late Justice Lax stated in Chiang (Trustee of) v. Chaing,¹ “The courts do not have an army to enforce their orders,” the courts must rely on their power to punish for contempt of court to enforce their orders.
If a litigant has disobeyed a court order, other than for the payment of money, the opposing party may bring a contempt motion to the Superior Court of Justice seeking remedies including the performance of an act, compliance with the breached order, payment of a fine, or even imprisonment. In Ontario, contempt motions are governed by Rule 60.11 of the Rules of Civil Procedure.
Typically, a litigant who has disobeyed a court order – called a “contemnor” – is given an opportunity to purge him or herself of the contempt by complying with the original court order. If the contemnor fails to do so, the judge hearing the contempt motion will convene a contempt hearing where the moving party must prove beyond a reasonable doubt that the contemnor is in contempt of court. The criteria making up civil contempt are as follows:
- The order that was breached must state clearly and unequivocally what should and should not be done;
- The party who disobeys the order must do so deliberately and willfully; and
- The evidence must show contempt beyond a reasonable doubt.
Since one possible penalty for contempt of court is imprisonment, a contemnor has the usual procedural safeguards afforded to an accused person in a criminal trial as well as those protections afforded under section 11 of the Charter.
Contempt of court is typically a motion of last resort for a litigant who is dealing with a disobedient opposing party. However, given the gravity of the offence in the eyes of the court, it is a motion to be taken seriously.
¹(2007), 85 OR (3d) 425, 2007 (ON SC) at para 25.