Refusing to Follow Orders In Family Court: Rule 1(8)
By Mason Morningstar, Toronto Family Lawyer - 5 Minute Read
Some family law litigants simply refuse to follow court orders. As a result, the term “contempt” often gets thrown around – both from clients and lawyers – despite the clear and constant warnings from the courts that a finding of “contempt” should be a remedy of last resort. So what strategy should we take when the other side is not following orders? The answer of course depends on the situation, but we should now be taking full advantage of a recent amendment to the Family Law Rules where appropriate:
Rule 1:
Failure to obey order
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(a.1) an order to pay an amount to a party or into court as a penalty or fine;
…
The threat of a monetary penalty or fine is a strong motivator to follow a court order: people simply do not want to pay their ex-partner more money than necessary.
Before the addition of (a.1) above to the Rules, the case law under Rule 1(8) was divided into two camps: (1) the camp of judges who agreed that the term “costs” gave them jurisdiction to order monetary penalties or fines in response to breaches of court orders; and (2) the camp who found that they lacked jurisdiction to make such orders, because penalties or fines were more akin to contempt remedies that must first be subject to the quasi-criminal test for a contempt finding.
This conflicting case law made it challenging to advise clients as to how to deal with opposing parties who refused to follow court orders. For example, as far back as 2008 in Mantella v. Mantella 2008 CanLII 48648 (ON SC), the court ordered the husband to produce financial disclosure, failing which he would owe the wife a fine of $2,500 per day until he complied. The husband took 74 days to comply with the order (74 * $2,500 = $185,000); the wife then brought a motion to collect on the $185,000 owed. The wife’s motion was granted, and the husband appealed to the Court of Appeal, arguing that the motions judge lacked jurisdiction to make this order under Rule 1(8). While the Court of Appeal acknowledged that the issue was novel and important, it quashed the husband’s appeal on the basis that he appealed to wrong court, and should have brought his appeal to the Divisional Court.
Subsequent decisions unsurprisingly led to conflicting law. For example, in DiPoce v. DiPoce 2022 ONSC 2099 (CanLII), the husband was in chronic default of previous disclosure orders. Justice Shore followed the earlier case of Granofsky v. Lambersky, 2019 ONSC 3251:
“In my view, the Court has jurisdiction under the Family Law Rules to order a fine or monetary payment as part of its role to control and enforce its own process . . . [While it] should be reserved to exceptional and/or egregious circumstances, the respondent has been given opportunity after opportunity to comply with his duty to disclose financial information and documentation and I find the case before me to be a fitting example.”
The court then imposed a fine of $2,500 for each day his disclosure obligations remained outstanding under the previous orders. Just a few months later, Justice Faieta in Altman v. Altman, 2022 ONSC 4479 (CanLII) found that he did not have jurisdiction to impose a monetary fine/penalty for the husband’s refusal to comply with disclosure orders:
“There is express authority to order a person to pay fine or penalty under Rule 31(5) of the Family Law Rules if that person is found in contempt of the court for failing to comply with an Order… These heightened requirements and the procedural safeguards provided by Rule 31 are avoided if Rule 1(8), which has no such requirements or procedural safeguards, is used to impose a penalty upon a party for non-compliance with an order.”
The husband sought leave to appeal Justice Faieta’s decision to the Divisional Court. The Divisional Court refused leave without reasons, despite the Court of Appeal in Mantella v. Mantella previously acknowledging the novelty and importance of the issue, and despite Justice Faieta’s own suggestion that the issue required appellate guidance.
Family law litigants and their lawyers were again left in limbo: when bringing Rule 1(8) motions, litigants continued to risk drawing a judge in the camp opposite to them. The Rules were then amended in the summer of 2024 to explicitly reference “penalties” and “fines” as appropriate remedies under Rule 1(8).
Test Under Rule 1(8)
The test under Rule 1(8) is uncontentious and should not change following the recent amendment:
1. The court must ask whether there is a triggering event, such as non-compliance with a court order in the case or a related case.
2. If the triggering event has occurred, the court should ask whether it is appropriate to exercise its discretion in favour of the non-complying litigant by not sanctioning the litigant. The court’s decision as to whether or not to exercise its discretion in favour of the non-complying party ought to take into account all relevant history of the litigation and, more specifically, the conduct of the non-complying party.
3. If the court determines that it will not exercise its discretion in favour of the non-complying party, it will then exercise its broad discretion as to the appropriate remedy under subrule 1(8).
While the basic test is likely to continue, courts will probably structure the quantum of fines/penalties upon principles of proportionality and fairness, similar to the way costs are dealt with generally. For example, imposing a fine of $2,500/day (like in Mantella above) on a litigant who earns $50,000/year would be unjustifiable from a purely practical perspective; it would take less than a month for this litigant to accrue fines in excess of their gross yearly income. At the same time, impecuniosity should not be used a complete bar to fines/penalties being imposed, as this would simply defeat the purpose of Rule 1(8)(a.1).
Moreover, Rule 1(8) remedies are not limited to disclosure issues. This could be an equally effective tool for ensuring compliance with parenting orders. For example, where a parent overholds a child contrary to an order without justification, lawyers/litigants should consider bringing Rule 1(8)(a.1) motions to seek penalties for each day a child is overheld. Again, the threat of paying an ex-spouse more money than necessary is often the reality check needed to bring litigants into compliance with court orders.
Where appropriate, Rule 1(8)(a.1) could even be used to enforce “swear jar clauses”. This can be particularly effective in high conflict cases where one or both parties are unable to communicate respectfully with one another. A swear jar clause can force one party to pay the other a fine for each time they send a disrespectful or non-child-focussed message to the other. Once a party gets slapped with this type of fine, guess who usually stops sending inappropriate messages…
As always, none of the above is legal advice; it is information only. If you have questions about your situation, speak to a knowledgeable family lawyer for assistance.
Written by Mason Morningstar, Toronto Family Lawyer