Contempt Motions and Estate Litigation – Part II

Burden of Proof

Although the procedure for a contempt motion is civil in nature, the actual determination is criminal in nature. Thus, the burden of proof in civil contempt proceedings is proof beyond a reasonable doubt, as apposed to the balance of probabilities. Any doubt must be exercised in favour of the person alleged to be in breach of the order. The burden of proof is the same for both civil or criminal contempt motions, as the sanctions which flow from both forms are criminal/quasi-criminal in nature.

Under Rule 60.11(5) of the Rules of Civil Procedure, a judge, in disposing of a contempt motion, may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt:

a) be imprisoned for such period and on such terms as are just;
b) be imprisoned if the person fails to comply with the term of the Order;
c) pay a fine;
d) do or refrain from doing an act;
e) pay such costs as are just; and
f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under Rule 60.09 against a person’s property.

The imposition of a sanction, however, is permissive not obligatory. The actual sanction will be dependent on the circumstances of the case and the mitigating/aggravating factors involved. It is clear, however, that judges have a broad discretion to fashion their sanctions.

Although Orders for contempt may be procedurally encumbering, courts will not shy away from the appropriate sanction. For example, in Sussex v. Sylvester, (2002), 62 O.R. (3d) 123 (Ont. S.C.J.), the Court noted that imprisonment was deemed to be an appropriate sanction because in the particular circumstances of the case, paying a fine would have been ineffectual.

Also, pursuant to Rule 60.11(9), where a person fails to comply with an order requiring the doing of an act, other than the payment of money, a judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge.

One example in the estate context of how Rule 60.11(9) might be used would be where a person refuses or fails to pass his or her accounts as ordered. In such a case the court may, if requested, order that a person other than the disobedient person prepare the accounts or assist with the preparation, at the disobedient person’s expense. The court might also order that all documents, vouchers, receipts and information in the disobedient person’s possession, or any person who might have such documentation/information relating to the accounts, be produced/provided to the person (substitute) preparing the accounts.


As with any motion, an award of costs arising from a contempt motion will depend on, amongst other things, whether the relief sought is granted and the particular circumstances of the matter.

Courts have awarded costs on a substantial indemnity basis to the party who successfully brings a contempt motion. In a commercial case, the deliberate and wilful nature, or lack thereof, of the contempt has been held to be a factor in determining the cost award.

In an estate context, the costs of the party who successfully brings the contempt motion might be paid by the estate. However, depending on the circumstances of the case, the costs might well be ordered to be paid by the offending party rather than the estate, especially in circumstances where the estate’s assets are limited.
Have a great day, Craig.