Does a court have jurisdiction to impose a monetary penalty or fine pursuant to Rule 1(8) of the Family Law Rules in the absence of a finding of contempt? There is a conflicting line of family law cases with respect to this emerging issue.

Rule 1(8) of the Family Law Rules provides broad discretion and authority to courts to make orders it considers necessary to fully address a litigant’s failure to comply with court orders. Rule 1(8) states as follows:

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;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

Notably, courts can make “an order for costs” under Rule 1(8)(a). The language of this provision differs from that of the contempt provisions under Rule 31(5), which expressly provide courts with the authority to impose a penalty or fine against a party who has been found in contempt of the court:

Contempt orders

(5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

Prior to being repealed in 2014, Rule 1(8) was formerly Rule 14(23) which was also relied on by the courts to impose a daily monetary penalty or fine on parties who were noncompliant with court orders. In Mantella v. Mantella, 2008 CanLII 48648 (ONSC), the husband was previously ordered to produce various disclosure by a specified date, failing which he would have to pay the wife a daily fine of $2,500 until he complied. The husband eventually complied but did so 74 days after the court-ordered deadline, and the wife brought a motion to enforce the total payment of $185,000 ($2,500 x 74 days) owed by the husband. Justice Francine Van Melle granted the wife’s motion.

The husband appealed Justice Van Melle’s order to the Court of Appeal, arguing that the lower court lacked jurisdiction to impose a monetary fine or penalty without a finding of contempt. The Court of Appeal in Mantella v. Mantella, 2009 ONCA 194 did not clarify the issue, although it acknowledged that the question was important (para. 23). The husband’s appeal was ultimately quashed because the order was interlocutory.

Judicial treatment of this issue has varied since Mantella to date. More recently, Justice Sharon Shore granted an order imposing a daily monetary fine/penalty pursuant to Rule 1(8) in DiPoce v. DiPoce,

2022 ONSC 2099. On the other hand, Justice Mario Faieta in Altman v. Altman, 2022 ONSC 4479 and Justice Melanie Kraft in Monga v. Monga, 2024 ONSC 761 both found they did not have jurisdiction to do so.

In DiPoce, the wife asked the court to order a financial penalty for each day that the husband remained in breach of court ordered disclosure. Justice Shore found that the husband had not complied and agreed with the wife, finding that Rule 1(8) gave her the authority to make such an order for a daily financial penalty of $2,500, citing a number of cases, including Mantella (paras. 15 and 16).

In Altman, among other things, the wife asked the court to order a daily sum of $3,500 to be paid to her for each day the husband remained in non-compliance. Although he found that the husband failed to comply with numerous disclosure obligations, Justice Faieta did not agree that he had jurisdiction to make an order imposing a daily penalty under Rule 1(8).

Justice Faieta relied on the Ontario Court of Appeal’s decision of Bouchard v. Sgovio, 2021 ONCA 709. For the majority, Justice David Paciocco questioned whether remedies provided for under Rule 31(5) can be imposed by a court under Rule 1(8) absent a successful contempt motion as contemplated by Rule 1(8)(g).

In dissenting reasons, Justice Ian Nordheimer commented that there are necessary limits on the kind of orders a court may impose under Rule 1(8) because certain types of orders require procedural safeguards to the person who is subjected to any such order. He stated, “[I]n cases where penal sanctions are sought, those safeguards are provided for by r. 31 of the Family Law Rules. Procedural safeguards are not to be avoided simply because it is more convenient or more expedient to do so.”

(Paras. 101 and 102)

Justice Faieta agreed with the dissenting reasons, stating at paras. 43 and 44:

“I adopt this view. While there is a pressing and growing need for the efficient, effective and timely management of family law cases, the need for fairness requires placing limits on the broad authority provided by Rule 1(8) to impose a remedy for non-compliance with a court order.

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. A finding of civil contempt requires proof of the following elements beyond a reasonable doubt […] 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.”

Justice Kraft in Monga cited Justice Faieta’s reasons in Altman when dismissing the husband’s request to impose a penalty of $250 per day on the wife until she cured her breaches of previously ordered disclosure.

The reach of remedies under Rule 1(8) is an important consideration when addressing non-compliance with a court order, particularly where contempt is a remedy of last resort. While there is conflicting jurisprudence specifically with respect to whether courts have jurisdiction to order a litigant to pay a fine or penalty to address non-compliance with disclosure orders absent a formal finding of contempt, our position is that courts do have the discretion to make these orders and should make these orders to address the vexing issue of non-compliance with court orders. Further, contempt motions are far more onerous and expensive for family law litigants to seek relief in the event of the other party’s noncompliance.

 
Michael Stangarone is a partner and Tiffany Guo is an associate at MacDonald & Partners LLP, where they practise exclusively family law.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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