COURT OF APPEAL FOR ONTARIO
DATE: 20211013 DOCKET: C69080
Pardu, Paciocco and Nordheimer JJ.A.
BETWEEN
Leslie Bouchard Applicant (Appellant)
and
Angela Sgovio Respondent (Respondent)
Counsel: John P. Schuman and Katelyn Bell, counsel for the appellant Brian J.R. Hall, counsel for the respondent
Heard: September 1, 2021 by videoconference
On appeal from the order of Justice Jayne E. Hughes of the Superior Court of Justice, dated February 9, 2021 with reasons at 2021 ONSC 1055.
OVERVIEW
1The appellant father, Leslie Bouchard, appeals an enforcement order made by Hughes J. pursuant to the Family Law Rules, O. Reg. 114/99, r. 1(8), granting the respondent mother, Angela Sgovio, a temporary parenting order to facilitate the enrollment of their two children in Family Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships (“Family Bridges”). Family Bridges is an intensive therapeutic program for all family members, designed to heal fractured parent-child relationships resulting from parental alienation.
2The father also appeals a restraining order the motion judge made against him pursuant to the Children’s Law Reform Act, R.S.O 1990, c. C.12, s. 35.
3The parties have two children, T.B., a son, who was born in March 2006, and a daughter, S.B., who was born in September 2009. The enforcement and restraining orders are premised on the father’s alleged misconduct in alienating T.B. from his mother. There were no independent concerns expressed during the underlying litigation for the wellbeing of S.B., who maintains a positive relationship with both parents.
4The father argues that the motion judge erred by: (1) imposing the enforcement order without jurisdiction, (2) making the enforcement order without fully considering the best interests of the children and without sufficient evidence; and (3) imposing a restraining order that was not requested by either party.
5The father has presented fresh evidence in support of his appeal. The fresh evidence purports to show a change in circumstances. There is disagreement over the relevance and cogency of this evidence. However, it is not contested that the fresh evidence demonstrates that the terms of the restraining order interfere with the father’s livelihood. The mother consented to the variation of the restraining order to remedy this but argues that the fresh evidence is not otherwise admissible or useful.
6I would grant leave to admit the fresh evidence, but I would dismiss the appeal relating to the enforcement order for the reasons that follow. Immediately after hearing this appeal, the panel granted the appeal relating to the restraining order and varied that order on consent. I would not otherwise interfere with the restraining order.
THE MATERIAL FACTS
7The parties separated on March 31, 2017. On June 26, 2019, they entered into a Parenting Agreement that provided for shared parenting of T.B. and S.B. That same day, the Parenting Agreement was made into a final order on consent (the “Leef Order”).
8The Leef Order included a detailed regular schedule and an equally detailed holiday schedule. It also provided that the children, both T.B. and S.B., would receive weekly counselling with Ms. Stacey Rennehan, and it forbade the parties from involving the children in adult conversations about legal issues or legal disputes.
9On August 18, 2018, the mother brought a notice of motion seeking relief arising from the father’s alleged noncompliance with the Leef Order, including the shared parenting regime. This motion was argued before Hughes J. on August 22, 2019.
10On October 23, 2019, Hughes J. released her decision (the “Hughes Order”). She found that there was ample support in the father’s own evidence to find that he was breaching the Leef Order by withholding the child T.B. from his mother as a strategy for resolving outstanding property issues. This finding was based on his past-practice and the pattern and timing of the breaches of the Leef Order that she found to have occurred.
11Specifically, the father confirmed in his affidavit evidence that prior to the Leef Order he had withheld T.B. from his mother to secure the shared parenting order. This fact was supported by text messages that had been filed in which he was using contact with T.B. as an ultimatum in exchange for a shared parenting settlement.
12The motion judge found that, consistent with this past practice, the repeated breaches of the shared parenting schedule in the Leef Order began the day after an unsuccessful property settlement conference had been held. Moreover, she found that this same day, the father, in breach of the Leef Order, “manipulated” T.B. by communicating with T.B. about his extreme frustration with the mother arising from their legal dispute. She found that this conduct fueled T.B.’s animosity towards his mother.
13The motion judge also found that the father had failed to take the children to counselling sessions with Ms. Rennehan as directed, and she rejected his explanation that he could not afford the costs of the counselling.
14As the result of her findings, the motion judge ordered the father to pay a global fine of $18,000 to the mother, which she itemized between the several breaches of the Leef Order that she had identified. She also ordered that “[u]ntil the [father] brings himself into compliance with the Leef Order, he shall not be entitled to … (d) [b]ring any further motions without leave of this court”. The Hughes Order has not been appealed.
15When she made the Hughes Order, the motion judge adjourned the matter to November 1, 2019 for a compliance hearing. That adjournment date was subsequently postponed to December 18, 2019.
16Pending the December 18, 2019 adjournment date, the mother’s care of T.B. had not resumed, and on November 8, 2019 Ms. Rennehan withdrew from her counselling role. On December 4, 2019, the mother, who had already moved for additional fines for further alleged non-compliance, brought a Form 14 Amended Notice of Motion seeking, among other things, an order that “Mills Psychology shall conduct reintegration therapy” between the mother and T.B. The Notice of Motion did not identify the source of the court’s authority to make such order.
17The parties settled the mother’s December 4, 2019 motion and on December 18, 2019, McGee J. made a temporary consent order directing that the mother’s care of T.B. was to resume, and that T.B. attend counselling with Mr. Jeff Packer and Ms. Nicole Bolotenko (the “McGee Order”). The motion was further adjourned to April 17, 2020 to permit T.B.’s progress in therapy to be monitored.
18Unfortunately, the April 17, 2020 date was scuttled because of lockdowns during the COVID-19 pandemic. It was rescheduled to be heard on September 28, 2020.
19On August 18, 2020, pending the September 28, 2020 hearing, the mother moved for still further relief in another Form 14 Notice of Motion. As in the case of the Notice of Motion she brought on December 4, 2019, she did not identify the legal authority under which the relief was sought.
20In the affidavit in support of the Notice of Motion the mother claimed that despite the Leef Order, the Hughes Order, and the McGee Order, she had not managed to see her son outside of counselling since December 2019, and she alleged that the father had sabotaged every attempt at therapeutic intervention. Materially, she asked for an order that: (1) she have temporary “custody” [1] of the children; (2) that the children be enrolled in Family Bridges; (3) that “pending further Order of this Court, the children shall have no contact with the [father], his relatives, friends or associates, including his spouse, except as directed by Family Bridges, or the aftercare professional, or any other professional designated by the [mother] or the Court, and none of the abovementioned individuals shall contact the children”; and (4) that the father, who worked in an educational capacity with the Durham District School Board, “be placed at a school at least 20 kilometers away” from the schools the children would be attending.
21On August 25, 2020, the father brought a cross-motion for: (1) an order pursuant to s. 30 of the Children’s Law Reform Act “appointing Marcie Goldhar to complete an expedited focused assessment to determine the reasons for the difficulties in the relationship” between T.B. and his mother; (2) an order that the parties exchange offers to settle temporary parenting issues; and (3) an order setting the school T.B. would be attending as well as setting out the details of any necessary transportation and online learning arrangements. As was the case with the mother’s requests for further relief, the father’s requests were made in a Form 14 Notice of Motion and did not identify the legal authority for the orders sought.
22On September 28, 2020 Hughes J. conducted the hearing, which she described as “a proceeding to compel the [father] to comply with the Leef Order and orders made subsequent, and to monitor the [father’s] compliance”. The mother filed affidavit evidence in support of the findings and orders she requested, although she did not file a Form 35.1 sworn parenting affidavit, which is required in r. 15 motions when seeking to change parenting orders. In the supporting affidavit she did file, however, she included a detailed description of Family Bridges, and appended literature from the program as an exhibit.
23Despite having brought his own motion for substantive relief at the hearing, the father objected to the motion judge’s jurisdiction to provide the relief that the mother was seeking, arguing that such relief, including a change of parenting time, cannot be provided as a remedy in a contempt proceeding, or an enforcement proceeding under r. 1 of the Family Law Rules, “if that’s what this is about”. He also argued that he had done everything he could to get T.B. to comply with the court orders, and he argued that the evidence did not support a finding that he has alienated T.B. from his mother. He argued that, in fact, T.B.’s estrangement from his mother is justified based on her conduct. He also argued that the s. 30 assessment he requested is required before the court has jurisdiction to grant relief based on parental alienation. Finally, he argued that the orders sought would not be in T.B.’s best interest.
24With respect to the child S.B., the father argued that there was no suggestion that S.B. was alienated from her mother, inferring that even if such therapy is ordered relating to T.B., the order should not include S.B.
25The father also made submissions about the unsuitability of the Family Bridges program. Specifically, he expressed concern that the parties cannot meet the enrolment criteria, given that enrolment depends on the child’s views about the alienated parent being “unrealistic”, when T.B.’s views about his mother are not unrealistic. He presented affidavit evidence from Durham District Children’s Aid Society case worker, Ms. Cathy Bugden, in which Ms. Bugden expressed concerns that “being sent to a treatment facility could have an extreme impact on [T.B.’s] well-being”. In that affidavit, Ms. Bugden, who conceded that she lacks expertise in the area of determining parental alienation, noted that “if the [professional] assessment supports this, then the professionals will have made the official recommendations based on their findings”.
26Notably, the father suggested no alternative programs or therapies to the Family Bridges program, only the alternative strategy of a s. 30 Children’s Law Reform Act assessment.
27Counsel for the Durham District School Board appeared to oppose the order the mother requested that would have imposed area limits on the father’s employment placement. Counsel for the Board noted that if the Board was forced to comply with such an order it would place the Board in conflict with the collective agreement and create significant staffing challenges during the COVID-19 pandemic.
28The motion judge released her decision on February 9, 2021. In her endorsement, she rejected the father’s challenge to her jurisdiction to make the orders sought, noting that this was a compliance matter, not a contempt matter. She said that “[t]he Family Law Rules provide the court sufficient discretion to consider the relief claimed by both parties”. She held that “where a party to the proceeding has failed to obey an order, [s.] 1(8) of the Family Law Rules provides this court with a very broad discretion to make an order the court considers necessary to compel that party into compliance”. She ruled:
I find that I do have jurisdiction to place [T.B.] on an extended visit with his mother on a temporary basis, and to authorize her to obtain the treatment for herself and the children necessary to reverse the harm that has been caused to [T.B.] as a result of his father’s refusal or inability to comply with the Leef Order.
29With respect to the merits of the application, the motion judge found, based predominantly on evidence that the father had filed, that:
[I]t is clearly in [T.B.’s] best interest to resume the loving, supportive and healthy relationship he had with his mother prior to his parents’ separation, and that his father be provided the therapeutic assistance he needs to be able to support [T.B.’s] relationship with his mother and recognize the importance of [T.B.’s] mother’s role in the child’s life in order that [T.B.] may enjoy fully the 50-50 shared parenting plan set out in the Leef Order, which both parents recognized as being in his best interest.
30However, she found that:
Despite ample time to correct his course, the [father’s] ongoing non-compliant conduct [with the Leef Order] has remained undeterred by both the Hughes Order and the McGee Order, and I find that it is not in [T.B.’s] long-term best interest that his current circumstances continue further.
31The non-compliance the motion judge found consisted of the father’s continued failure to facilitate the resumption of T.B.’s parenting time with his mother, and efforts by him to “sabotage” or “actively undermine” the therapy that had been ordered to support T.B.’s reunification with his mother.
32Specifically, she found that the father’s motion materials were “peppered with examples of [his] ongoing abusive conduct” in speaking to T.B. about legal issues, including telling T.B. that his feelings have no weight or importance and will not be considered. He also acknowledged telling T.B. that Hughes J. said that, “his mother is right and his feelings and memories of his experiences are wrong”. The motion judge found that the father was not only breaching the court order by making those statements to T.B., he also knew he was not truthful, tried to justify his noncompliance, and appeared to be “blind to the damage his non-compliant conduct has caused to [T.B.]”.
33The motion judge also made findings that the father had actively obstructed the therapeutic efforts made by each of the counsellors who had been retained pursuant to the court orders – Ms. Rennehan, Mr. Packer and Ms. Bolotenko. She found that he also undermined the therapeutic efforts made by Mr. Gary Brooks, who had been retained by agreement on the recommendation of Durham Children’s Aid Society case worker, Ms. Bugden, after Mr. Packer and Ms. Bolotenko had resigned.
34The motion judge’s finding that the father had undermined the therapeutic work of Ms. Rennehan was supported by correspondence between the father and Ms. Rennehan. The motion judge found that the father actively undermined Ms. Rennehan’s therapeutic efforts by insisting, despite her recommendation to the contrary, that the only way T.B. would proceed was if he and his new partner attended the sessions; by insisting that she meet with T.B. so that T.B. could explain what he wanted and needed out of the therapy; by suggesting to her that she was not mandated by the court order to set reunification as a goal of the therapy; by accusing Ms. Rennehan of having had private conversations with the mother; and by requesting that he be permitted to record their meeting. These events led Ms. Rennehan to conclude that trust had been broken and that “securing a new counsellor [for T.B.] is ideal”.
35With respect to the team counselling led by Mr. Packer and Ms. Bolotenko that was ordered under the McGee Order, the motion judge accepted the contents of a report that was written to the Durham Children’s Aid Society by Ms. Bolotenko, but jointly signed by both counsellors, explaining why “ethical and safety reasons” required their resignation. That report included the following information:
Before reunification counselling began, the parents agreed to attend two sessions with Jeff Packer in order to assess and determine parents’ readiness, level of commitment, and ability to engage in reunification counselling and cooperative parenting coaching. During these two sessions (January 17 and 31, 2020) and subsequent correspondence, this writer found that the [father] continued to engage in blame and put downs of his co-parent rather than agreeing and committing to treatment plans set out by the writer for the improvement of the [mother’s] relationship with their son. Facing these enduring high conflict patterns of behaviour, this writer offered alternatives such as individual sessions, parallel parenting or parent co-ordination approaches. The parties were also provided knowledge on how a lack of improvement of engagement in their sessions would undermine and effect [T.B.’s] motivation and faith in his own counselling within the same organization. The [father] put up further barriers to continued treatment with threatening and inappropriate behaviour towards both the [mother] and the writers. On February 8, 2020, the [father] and the [mother] were informed (via email) by the writers that they could not continue to provide service for ethical and safety reasons:
It is our concern and impression, given the several hours of documentation read from court, email correspondence and sessions with the writers that [the father] continues to ignore court orders for shared custody and is unwilling and unmotivated to participate in T.B. having a comfortable, healthy and meaningful connection with his mother. The writers are concerned that [the father] is directly and indirectly contributing to T.B.’s sense of hostility, dislike and aggression towards his mother. It is our assessment at this time. [The father] struggles with his responsibility as a parent to encourage the development of a healthier relationship between T.B. and his mother. Finally, in keeping with a family systems approach, we are concerned with the health and wellness of both children should exposure to such high-level parental/caregiver contact continue.
36The counselling that had been arranged with Mr. Brooks had initially been going well and producing positive results. It is not contested that it ended with a letter from Mr. Brooks to the father in which Mr. Brooks set out the conditions the father had agreed to, which included making sure T.B. attends therapy, not discussing adult or court related issues with T.B. for any reason, and not interrogating, asking questions, discussing, or inquiring how therapy went, even if T.B. initiated such conversation. The letter continued:
Les your email clearly demonstrates that you did everything you agreed you would not do which effectively sabotaged the therapeutic process. Your actions further alienated T.B. from his mom. At this point, given your actions as witnessed by your detailed email, I do no[t] feel reconciliation therapy can be effective while T.B. remains in your care, under your direction and influence. Regretfully, T.B. and his mom will have to seek out the services of yet another therapist.
37The father provided alternative explanations for the breakdown of each therapeutic relationship, but the motion judge rejected each of them. She commented that there is no reason why the four therapists would provide inaccurate information, and that given their professional duties, they probably accurately documented the events.
38Of note, Durham Children’s Aid Society Case Worker, Ms. Bugden, provided affidavit evidence in support of the father’s conduct towards T.B. After reviewing Ms. Bugden’s affidavit and related documentary information, including Ms. Bugden’s own notes, the motion judge found that the father had manipulated Ms. Bugden, who was inexperienced with parental alienation and therefore unsuspecting of manipulative characteristics of parents with alienation tendencies. The motion judge found that the father had provided her with inaccurate and incomplete information, dominated their communications, and was given access to statements made by T.B. to Ms. Bugden that should have been kept private. When the father confronted Ms. Bugden by telling her that T.B. felt she was minimizing his feelings about the years of his mother talking negatively about his father and lying about issues, Ms. Bugden did not interrogate this claim but apologized to T.B.
39Mr. Michael Blugerman, a registered social worker with expertise in child welfare, was retained by the father to assist him with the counselling process. He provided an affidavit that is supportive of the father and critical of the counselling Mr. Packer had provided. The motion judge rejected Mr. Blugerman’s views, noting that Mr. Blugerman did not have expertise in parental alienation or reunification, had not contacted Mr. Packer with questions relating to the reunification method being utilized, had displayed no concern for the fact that the father had shared with him a surreptitiously recorded conversation with Mr. Packer, and that Mr. Blugerman had received manipulative and incomplete information from the father relating to Mr. Packer’s decision to discontinue counselling T.B.
40Based on this evidence, the motion judge found that “[t]ime has become of the essence” and given the father’s pattern of refusing to engage with professional therapists, it was not in in T.B.’s best interest to delay the enforcement of the Leef Order pending a further assessment to determine the cause of T.B.’s resistance. She said, “[i]t is not necessary to wait for a fourth counsellor to advise me that the [father] continues to actively alienate his son [T.B.] from the child’s mother”.
41The motion judge concluded that it was necessary to order that the children be enrolled in the Family Bridges program, that a temporary parenting order relating to T.B. and S.B. be given to the mother for the period of time the children are enrolled in the Family Bridges program, and that steps be taken to “prevent the [father] from sabotaging the program” by controlling “his contact with the children until his involvement is required by the leaders of the [Family Bridges] program”.
42In relevant part, the key provisions of the order under appeal provide:
- The [mother] shall have temporary custody of the children, [T.B.] and [S.B.] … until further order of the court.
- The [mother] shall enroll with the children in Family Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships (Family Bridges), to enable and assist the children in adjusting to living with the [mother], without the consent of the [father].
43In her endorsement, the motion judge also imposed the following restraining order against the father:
Pursuant to s. 35 of the Children’s Law Reform Act, the [father] is restrained from directly or indirectly contacting or communicating with the children …, and from coming within 1000 meters of any location where they are likely to be, including, without limitation, the [mother’s] residence, their schools … the Durham Children’s Aid Society offices [2] , the offices out of which the Family Bridges Program operates, except as directed by the leaders of the Family Bridges Program or the aftercare professional, or any professional designated by the [mother] or the court. Indirect contact shall include from the [father’s] relatives, friends, associates, and includes his spouse. “Contact” includes all forms of communication, including, without limitation, by phone, text, written letters, email, social media, via computer, in person, or via any third parties. For clarity, this restraining order does not impact contact between counsel relating to the ongoing litigation. The restraining order against the [father] shall not be varied until a minimum of 90 days have passed from the commencement of therapy recommended by Family Bridges for the [father] unless the court orders otherwise. This 90-day period is a minimum only. The extension of which will be considered by the court based on the [father’s] progress made in any aftercare therapeutic program recommended by Family Bridges…
44Both the order and the endorsement went on to identify the factors that the court would consider in deciding whether to terminate or extend the restraining order. Those conditions effectively turn on the father’s compliance with the requirements of the Family Bridges program, and his behaviour relating to the promotion of a positive relationship between the children and their mother.
45The motion judge denied the mother’s request to impose an area restriction on the father’s employment because the Durham District School Board had not been served and given a full opportunity to respond, and she lacked jurisdiction to interfere with the contractual terms of the collective agreement. However, the restraining order prevented the father from attending the children’s schools.
ISSUES
46The issues that were argued by the father both orally and in writing can be framed and addressed as follows:
A. Did the motion judge commit jurisdictional error by making the orders that she did? B. Did the motion judge err by failing to consider fully the best interests of the children or by making the orders that she did with insufficient evidence? C. Did the motion judge err in making the restraining order?
47Although the motion judge’s decision is not without its concerns, I would not allow the father’s appeal beyond affirming the variation to the restraining order that the panel ordered at the close of the hearing of this appeal.
ANALYSIS
A. Did the motion judge commit Jurisdictional Error by Making the Orders that She did?
48I would not accept the father’s argument that the motion judge lacked jurisdiction in the proceedings to make a temporary parenting order in favour of the mother and to order the enrollment of the mother and children in the Building Bridges program. The motion judge properly made those orders pursuant to r. 1(8) of the Family Law Rules. Specifically, r. 1(8) provides:
1(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 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.
49“As long as the judge is satisfied that there has been a failure to obey an order ‘in a case or a related case’ subrule 1(8) is triggered” and the relief provided for therein can be ordered: Hughes v. Hughes, (2007), 85 O.R. (3d) 505, at para. 17 (Ont. S.C.J.). Although r. 1(8) provides an itemized list of forms of relief that are available, that list is inclusive, not exclusive: Mullin v. Sherlock, 2018 ONCA 1063, at para. 46; Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, at para. 126. The reach of the remedial orders that can be made is governed not by the itemized list in that rule, but by the general and broad language of the chapeau that precedes it, which provides that “the court may deal with the failure by making any order that it considers necessary for a just determination of the matter”.
50As a result, even though, with the notable exception of r. 1(8)(g), each of the itemized forms of relief in r. 1(8) can be described as purely procedural, r. 1(8) has not been interpreted as being confined to purely procedural remedies. In Freedman v. Freedman, 2020 ONSC 301, at para. 20, for example, the court relied on r. 1(8) to give the applicant access to account information as well as exclusive authority to deal with insurance polices and off-shore accounts in order to prevent the respondent from dissipating these assets in an attempt to avoid compliance with court orders to make payments and asset disclosure. In Shouldice v. Shouldice, 2016 ONSC 1481, at paras. 17-19, pursuant to r. 1(8) a receiver of property was appointed to manage rental property so that support obligations that were being evaded could be enforced. In Sadlier v. Carey, 2015 ONSC 3537, at paras. 64-67, an order was made pursuant to r. 1(8) requiring the respondent to surrender his passport to the court to prevent his flight from the jurisdiction, and he was ordered to post security after he had been evading support orders.
51Such broad and purposeful applications of r. 1(8) are sensible. The relevant substantive right is created by the order that is being enforced, while r. 1(8) serves to provide the means of enforcement so that those substantive rights may be realized. The rule therefore provides broad discretion to courts to make orders it considers necessary to fully address a party’s failure to comply, a flexibility that is of particular importance when the orders address the well-being of children: Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., at para. 127. Stated simply, if the remedy ordered addresses or “[deals] with the failure” to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8).
52I use the term prima facie authorized because I do not mean to suggest that there are no limits to the kinds of enforcement orders that can be made under r. 1(8). For example, it may well be that the remedies that are provided for in r. 31(5), which is reproduced below, cannot be imposed pursuant to r. 1(8), absent a successful contempt motion as contemplated by r. 1(8)(g): see Mantella v. Mantella, 2009 ONCA 194. This proposition seems sensible since contempt orders require proof beyond a reasonable doubt, and although they are remedial in purpose, they are punitive in nature, and are therefore to be used as a last resort: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3; Prescott-Russell Services for Children and Adults v. G. (N.), [2006] 82 O.R. (3d) 686 (Ont. C.A.), at para. 26. I need not resolve this specific question since the ground of appeal before us concerns only the temporary parenting order and the Building Bridges order, neither of which are remedies contemplated by r. 31(5); the father did not appeal the Hughes Order where the motion judge did impose punitive fines without making a finding of contempt against the father, nor did he raise any objections in this appeal to the motion judge’s order that those fines would “remain in full force and effect”. Nevertheless, this illustration demonstrates that there may be other legal limits on the kinds of orders that courts may impose under r. 1(8).
53The father contends that however broad the remedial authority under r. 1(8) may otherwise be, there is another legal limit that applies and was breached. Specifically, he contends that r. 1(8) cannot be used to make parenting orders, and the motion judge erred by purporting to do so. He maintains that parenting orders may only be made or varied under the authority of ss. 16 and 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), or ss. 20 - 29 of the Children’s Law Reform Act. He maintains that since no such proceedings were underway there was “no active parenting case before the [c]ourt” to enable the motion judge to make the orders that she did.
54In my view, the father mischaracterizes the motion judge’s order in making this argument. The motion judge did not purport to vary the parenting terms contained in the Leef Order. Instead, she imposed an order that temporarily reassigned parenting rights to facilitate a therapeutic process that was ordered to enable the enforcement of the parenting terms set out in the Leef Order. Put otherwise, the order made by the motion judge did not vary or replace the Leef Order. Contrarily, it was made to facilitate the Leef Order. I am satisfied that this order fell within the motion judge’s remedial authority under r. 1(8).
55Moreover, the implications of the father’s position are untenable. If he is correct, the proper procedural mechanism for remedying parental alienation that is frustrating a final parenting order is for the injured party to apply to reopen and vary the very order they want to enforce. If that were so, a party could provoke a new hearing on the terms of a final order by simply breaching it.
56Appropriately, where one parent wrongfully withholds a child from the other, in violation of a court order, r. 1(8) provides quick access to a remedy, including for example, make-up time with the child. The parent entitled to court ordered time with the child should not be compelled to bring a motion to change the existing order. The same holds true where parental alienation is frustrating a parenting order. When dealing with the best interests of a child, delay should be avoided as much as possible. Litigation about children is costly and procedural roadblocks should be avoided.
57Nor do I accept the father’s submission that the relief that was ordered was not pled. In fact, it was specifically requested by the mother in her Form 14 Notice of Motion dated August 18, 2020.
58I also reject both arguments the father makes in reliance on r. 31(5), namely, (1) that the motion judge erred in making a r. 1(8) order in a contempt hearing; and (2) that the motion judge erred, contrary to the decision in Chan v. Town, 2013 ONCA 478, by using a parenting order as a punishment for contempt. I will set out r. 31(5) before addressing these submissions. That rule provides:
31(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 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 court order.
59I will make two responses to the father’s submission that the motion judge erred by making a r. 1(8) order in a contempt hearing.
60First, there is no clean division between contempt hearings and enforcement hearings. As r. 1(8)(g) illustrates, a party seeking enforcement under r. 1(8) may, but need not, bring a contempt motion as an enforcement mechanism. More importantly, even where contempt is at issue in a hearing, a judge may make a r. 1(8) order. As I have already indicated, contempt remedies are to be used as a last resort: Hefkey, at para. 3. Indeed, as this Court explained in Hefkey, at para. 3, a contempt remedy should not be granted in family cases if other remedies would suffice. This includes enforcement orders. There is nothing to prevent a court from making an enforcement order in addition to, or in lieu of, a contempt order even if a contempt order is sought in the proceedings: see Murano v. Murano (2002), 219 D.L.R. (4th) 334 (Ont. C.A.).
61Second, contempt was not even in issue at the hearing where the impugned order was made. The motion judge arranged the hearing for the express purpose of monitoring compliance, and none of the general Form 14 Notices of Motion that the parties filed for additional relief in advance of the hearing sought a finding of contempt. Not surprisingly, in her endorsement the motion judge described the hearing as “a proceeding to compel the [father] to comply with the Leef Order and orders made subsequent, and to monitor the [father’s] compliance”. Relief provided for in r. 1(8) was therefore available to the motion judge at the proceedings.
62I also reject the father’s related submission that, contrary to the decision in Chan, the motion judge used a parenting order as punishment for contempt. The motion judge in Chan purported to assign “custody” to the father as punishment for a finding of contempt that was made on contested evidence that could not support a finding of contempt beyond a reasonable doubt. In contrast, the motion judge in this case made a temporary order that effectively suspended parenting rights conferred in the final order and she did so to facilitate therapy, not to punish the father. The motion judge’s order was based predominantly on the father’s own evidence and was made in order to fulfil the terms of the Leef Order. Moreover, as I explain below, the motion judge made this order because of her assessment of the best interests of the children. The cases are not comparable, and the principles articulated in Chan are not offended by the r. 1(8) order.
63Accordingly, the motion judge had the jurisdiction to make the orders that she did. I would therefore reject this ground of appeal.
B. Did the Motion Judge Err by Failing to Consider Fully the Best Interests of the Children, Or by making the orders that she did with insufficient evidence?
64I do not accept the father’s submission that the motion judge erred by failing to fully consider the best interests of the children or that she acted on insufficient evidence in making the orders that she did. In explaining my conclusions, I will address several discrete objections that the father raised to the motion judge’s decision, including: (1) his contention that she should not have made a finding of alienation without expert evidence or the s. 30 Children’s Law Reform Act assessment that he had requested; (2) his submission that she should not have made the findings or imposed the orders that she did without a voice of the child report from T.B.; and (3) that she misapprehended or ignored the evidence that the father had relied upon.
(1) T.B.
Did the Motion Judge turn her mind to T.B.’s best interest?
65It is patent that the motion judge fully considered whether the orders she was making were in T.B.’s best interest. She noted explicitly that although it was an enforcement order that she was considering, given the relief that was requested by the mother, the test remained “what disposition is in T.B.’s best interest”. She then listed the best interest factors enumerated in s. 24(2) of the Children’s Law Reform Act that a judge “shall” consider, and she ultimately concluded that the temporary order was required because time was of the essence, a consideration that was clearly focused on T.B.’s best interest.
66It is true that the motion judge did not overtly address each of the factors enumerated in s. 24(2). However, the failure to mention listed factors is not an error per se; it is an error only if there is an indication that the judge failed to consider them: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 14-16. In my view, there is no basis for concluding that the motion judge failed to consider the material factors in this case. The best interests issue relating to T.B. was decidedly narrow. The parties agreed before the motion judge that it was in T.B.’s best interest to have a healthy relationship with his mother, a concession the motion judge readily and reasonably accepted. There was therefore no need for her to canvass all of the s. 24(2) factors seriatum.
67The remaining piece is whether the motion judge considered T.B.’s best interests in attending the Building Bridges program. Once again, her reasons make it clear that she did. She concluded that given the father’s ongoing alienating behaviour, this more invasive approach was necessary to restore T.B.’s relationship with his mother, an outcome that was in his best interest.
Did the Motion Judge have sufficient evidence?
68I do not accept the father’s contention that the motion judge lacked the evidence required to decide that the orders she made were in T.B.’s best interest.
69Unless an error of law has occurred, or a decision is plainly wrong, appellate courts must defer to a motion judge’s appreciation of the facts, even if the appellate judge may have come to a different decision, particularly where the orders at issue affect the welfare of children: A.M. v C.H., 2019 ONCA 764, at para. 4; Slaughter v. Slaughter, 2013 ONCA 432, at para. 6; A.P. v. L.K., 2021 ONSC 150, at para. 66; Van de Perre, at para. 13. Accordingly, the motion judge’s decision that it was in T.B.’s best interest to make the orders that she did is entitled to deference.
70There was evidence before the motion judge supporting each of her findings about the failure of the father to comply with the Leef Order. When she made the Hughes Order, the motion judge had a foundation from the father’s own documentation that he had communicated with T.B. about legal issues he was having with T.B.’s mother and that the father did so destructively, damaging T.B.’s relationship with his mother. The evidence suggested that these conversations were the onset of T.B.’s estrangement from his mother and that they occurred after a failed settlement conference. The motion judge was entitled to draw the inference that the father promoted the breach in T.B.’s relationship with his mother for the purpose of pressuring the mother to settle their legal claim to his satisfaction. Of note, that finding was never appealed.
71The additional findings the motion judge made about the father’s misconduct after the September 28, 2020 hearing were also grounded in the evidence, with most of it again from the father’s own materials. Most importantly, she had an ample evidentiary basis for finding that he was actively and systematically sabotaging the therapeutic programs that had been ordered and that he lacked insight into how damaging his behaviour was to T.B.
72This evidence, coupled with the simultaneous change in T.B.’s behaviour towards his mother, adequately supports the motion judge’s conclusion that the father was alienating T.B. from his mother, even without evidence from an expert in parental alienation. As this court made clear in A.M. v. C.H., at para. 31, alienation is not a psychiatric diagnosis that invariably requires expert evidence, but a factual finding about what happened in the family. In this case, the factual evidence of alienation was adequate without expert evidence.
73Nor do I see any error in the motion judge’s decision to deny the father’s request for an assessment by an expert in parental alienation under s. 30 of the Children’s Law Reform Act. As I have explained, expert evidence was not required to make this determination. More importantly, based on the motion judge’s findings, the father had systematically scuttled every previous effort that had been made to provide the required therapeutic intervention. To be sure, it was in his interest to do so, since during the delay that ensued, T.B. was exclusively with him and not with his mother. The motion judge also found that the father had manipulated other professionals, including the Durham Children’s Aid Society worker, Ms. Bugden. In light of the father’s past behaviour, she could have no confidence that if she ordered an assessment it would be productive, and the point had been reached where delay was not an option.
74Simply put, I see no error in her decision to proceed without expert evidence or a s. 30 assessment. The absence of expert evidence did not undermine her finding that the father was alienating T.B. from his mother.
75A factual finding that alienation is occurring, such as the reasonable finding of alienation made by the motion judge in this case, can have implications for the need for a voice of the child report, even for older children such as T.B., who was 14 years of age at the time of the hearing. As this court recognised in A.M. v. C.H., at para. 27, where a child has been poisoned against a parent and their wishes are not independent because they have been manipulated, a judge is entitled to give a child’s views no weight. It is evident that, in the motion judge’s assessment, T.B.’s views would not be independent and could carry little if any weight.
76Moreover, T.B.’s views were well known at the time of the hearing. It was patent on the evidence, including the email exchanges between T.B. and his mother that had been filed, that T.B. resisted spending time with his mother, did not believe he was being alienated from her, and believed that she bore responsibility for the rift between them. It was not an error in principle in these circumstances for the motion judge to proceed without a voice of the child report, particularly given that the father brought no motion to secure one. Nor did the absence of such a report create a gap in the evidence that undermines the best interest findings that the motion judge made.
77There is no basis for concluding that the motion judge misapprehended the evidence or failed to consider the evidence the father was relying upon to dispute the alienation claim. The motion judge gave cogent explanations for why she did not credit that evidence.
78Finally, although the father did not raise this objection or make it a ground of appeal, for the sake of completeness I will address the fact that the motion judge made the order that she did even though mother did not file a Form 35.1 sworn parenting affidavit. Form 35.1 sworn parenting affidavits are required where parenting rights are sought in r. 8 applications, as the result of r. 11 amendments to applications, or in r. 15 motions-to-change. Form 35.1 affidavits include designated information that is valuable for judges when considering parenting orders, including a parenting plan, and the disclosure of any criminal charges or convictions of the party seeking the parenting order. I need not decide whether a Form 35.1 sworn parenting affidavit was technically required to secure an enforcement order that touches on parenting rights, but the mother would have been well advised to include such an affidavit given the nature of the relief she was requesting. Nevertheless, the motion judge had a clear indication of the parenting plan during the period covered by the order, and as I have indicated, the inquiry into the best interests of the children in this case was narrow. In the absence of any objection, it was not unreasonable for the motion judge to proceed in the absence of a Form 35.1 sworn parenting affidavit.
79I would therefore defer to the motion judge’s clearly grounded decision that it was in T.B.’s best interest to take immediate steps to address the parental alienation that she found to be occurring. The father’s conduct was profoundly contrary to T.B.’s best interests.
80The remaining issue is whether there was a proper evidentiary basis for the motion judge’s decision that it was in T.B.’s best interest to attend the Building Bridges program, and be removed from his father for a temporary period of time as required by the program, so that this therapeutic intervention could be undertaken. Although a better evidentiary foundation can easily be imagined, I do not agree that the motion judge lacked sufficient evidence about the program to conclude that it was in T.B.’s best interest to attend the Building Bridges program and to be separated from his father, as required by the program.
81As indicated, less invasive forms of therapeutic intervention had failed, suggesting that more invasive steps were needed. The Building Bridges program was described in some detail in the mother’s affidavit, to which material from their website had been appended. Other courts had ordered treatment at the Building Bridges program and similar therapeutic programs in other cases, for example in X. v. Y., 2016 ONSC 4333; J.C.W. v. J.K.R.W., 2014 BCSC 488, [2014] B.C.J. No. 503; E.T. v. L.D., 2018 ONSC 5132; and M.L.S. v. N.E.D., 2017 SKQB 183. Further, the father presented no evidence about alternative programs, or about any problems with the Building Bridges program itself. The motion judge acted on the evidence before her, and in my view, although the evidence was not ideal, it was sufficient. I would defer to her factual findings and her determination of the appropriate remedy for T.B.
(2) S.B.
82I am of the same views with respect to S.B., although I agree that the motion judge should have been much more explicit than she was in addressing S.B.’s best interests when including her in the impugned orders. It is important to remember, however, that this litigation was focused on T.B. The father affirmed in his submission that it was not about S.B. It is not entirely surprising, therefore, that the motion judge did not focus her attention on S.B. when explaining her decision.
83Moreover, it is clear from her comments relating to T.B. that the motion judge had a full understanding of the best interest principle. It is also evident that it was not in S.B.’s best interest to be excluded from the orders. In these circumstances, it is not appropriate to infer that the motion judge failed to consider S.B.’s best interest.
84Specifically, the motion judge arrived at the reasonable findings that the father had used the mother’s relationship with T.B. as a strategy for achieving his goals, had manipulated T.B. to achieve this, and lacked awareness of the damage that this had done to T.B. Although there was no evidence of similar behaviour relating to S.B., it was obviously in S.B.’s best interest for the court to attempt to ameliorate this kind of behaviour by the father to reduce the risk that she could be similarly manipulated going forward.
85In addition, there was evidence before the motion judge that S.B. had a loving and secure relationship with both parents. There is therefore merit in the father’s objection that it was not in S.B.’s interest to interrupt the positive relationship with him, even for the temporary period provided for by the motion judge’s order. At the same time, however, the motion judge was persuaded that it was in T.B.’s best interest to place him and his mother in the Building Bridges program and to segregate them from his father. If S.B. was not included in the program, she would therefore be separated from her mother and her brother, which was not in her best interest. Moreover, the loving and secure relationship that S.B. has with her father gives comfort that their relationship would not suffer long-term damage by the temporary order the motion judge was making.
86Finally, there was also evidence before the motion judge that the Building Bridges program is designed for all family members and required S.B.’s participation. The mother expressed her understanding with the motion judge that S.B. would need to participate in the program and would be attending the sessions, an understanding that finds support in case law: see X v. Y., at para. 22. S.B.’s participation was therefore important to T.B.’s best interest, as determined by the motion judge. In making this observation, I am not supplanting S.B.’s best interest with what is best for T.B. To a significant degree, what is best for T.B. is best for S.B. They are siblings, and members of the same family. It is not in S.B.’s best interest if her brother T.B.’s relationship with their mother is broken and hostile.
87Although it would have been much preferred had the motion judge addressed these considerations overtly in her reasons, I am not prepared to find that she failed to consider them or that there was inadequate evidence of S.B.’s best interest to warrant her inclusion in the orders made. Nor am I prepared to undermine a last resort and long-delayed order that the motion judge made in T.B.’s best interest, because the motion judge did not articulate adequately why she came to the only decision she could have relating to S.B.’s inclusion in the impugned orders.
88I would therefore reject the father’s claim that the motion judge erred by failing to fully consider the best interests of the children or acted without sufficient evidence. I have reviewed the fresh evidence filed by the father and see nothing in it to alter any of the above conclusions.
C. Did the Motion Judge err in making the Restraining order?
89The appellant argues that the motion judge erred in making a restraining order that neither party asked for in their pleadings. He also objects that the restraining order that the motion judge imposed included a prohibition on contact with his daughter S.B., non-attendance at his place of employment that would result in the termination of his employment, and at the Durham Children’s Aid Society, “without rationale at all”.
90Based on the fresh evidence we admitted and on the mother’s consent, we ordered that the order “restraining the father from attending at the children’s school or within 1000 meters of specific locations is varied to provide that the appellant may attend at the school that is his workplace and may communicate there with a child of the marriage who attends that school”. Based on evidence that the boundary order relating to the Durham Children’s Aid Society Offices frustrates the father’s travel to work, we further varied the order “to provide that he may pass within 1000 meters of the Durham Children’s Aid Society offices when travelling from one location to another”.
91Beyond the variations we have already ordered, I would not otherwise interfere with the restraining order. I do not accept the father’s contention that the mother had not sought a restraining order in her pleadings. Although the mother did not use the language of s. 35 of the Children’s Law Reform Act, she asked for a temporary order that the father have no direct or indirect contact, including by communication, with the mother and children. She also asked for an order relating to his employment that would place him at least 20 kilometres away from the high school the children were expected to attend. In my view, the restraining order that the motion judge made pursuant to s. 35 of the Children’s Law Reform Act was contemplated by the pleadings.
92For the reasons I have already provided, I do not accept the father’s submission that the restraining order related to S.B. was imposed without reason. The motion judge was attempting to segregate T.B. from all communication with his father, direct or indirect. There is a heavy risk of indirect communication with T.B. if the father is free to contact or communicate with S.B. when she is in T.B.’s company. I would not interfere with the motion judge’s order.
CONCLUSION
93I would therefore dismiss the appeal. I would order the costs in this appeal to be payable to the mother in the agreed upon amount of $10,000, inclusive of disbursements and applicable taxes.
“David M. Paciocco J.A.”
“I agree. G. Pardu J.A.”
94I have read the reasons of my colleague. He has set out, with his usual clarity, the questions raised in this case. He has also provided a sound analysis and rationale for the ultimate order made – one that was not provided by the motion judge. Nevertheless, while I understand my colleague’s justification for the order that was made, I am unable to agree that it was properly granted. In my view, there were fundamental procedural errors that occurred in reaching the conclusion in this case. Consequently, the order cannot stand and must be set aside.
95In my view, the motion judge lacked the jurisdiction to make the “enforcement order” that she did through the process that was before her. What the motion judge did, in essence, was to vary a final order without requiring the respondent mother to follow the detailed procedures for seeking such a variation, thus denying the appellant father, and the children, the procedural safeguards to which they were entitled before such a serious variation was made.
96Even without this fundamental problem, I would find that the motion judge erred in including certain terms in her order.
97My colleague has set out the background facts succinctly. It is unnecessary for me to repeat them.
A. JURISDICTION
98The fundamental error committed by the motion judge is that she failed to consider and address her jurisdiction to make the ultimate order that she did. The motion judge relied on r. 1(8) of the Family Law Rules, O. Reg. 114/99, to make the order. While I appreciate the analysis that my colleague has undertaken, which ultimately finds that r. 1(8) can be relied upon in this case, I do not agree that r. 1(8) authorized the order that was made. In that respect, I agree with, and reinforce, my colleague’s point that r. 1(8) is not a provision by which any form of relief, necessary to enforce an order, can be granted.
99I concede the general and broad nature of the introductory language in r. 1(8), which grants the court authority to make “any order that it considers necessary for a just determination of the matter” in the face of non-compliance with a previous court order. However, in my view, that broad language does not provide the court with a carte blanche to make any order that it wishes. Rather, the itemized list of suggested orders in r. 1(8), while non-exhaustive, does indicate the kind of orders that are appropriately made, the vast majority of which are procedural in nature. Of more immediate relevance for this case is that those suggested orders do not include varying a final order.
100Instead, it is r. 15 that is dedicated to changing a final order or agreement. Importantly, where the claim relates to parenting orders, r. 15(5.1) requires the parties to file up-to-date Form 35.1 affidavits. These affidavits include information relevant to the safety of the subject children, such as whether either parent has been charged with or found guilty of a criminal offence, as well as the parents’ plan for the care of the children and any support network available to them. In this case, the court did not have the benefit of this potentially relevant information before it proceeded to alter the parenting order by relying on r. 1(8).
101I accept my colleague’s distinction between taking steps to enforce orders short of a contempt finding and enforcement that involves the contempt power. I accept that distinction because this court has already said that “the civil contempt remedy is one of last resort”: Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3. However, as I have already said, and as my colleague points out, the broad language of the introductory portion of r. 1(8) cannot provide jurisdiction to make whatever order the court wishes. It does not bestow unlimited authority on a judge to do whatever they choose. My colleague implicitly acknowledges that there are constraints on the authority granted by r. 1(8), when he says, at para. 52, “there may be other legal limits on the kinds of orders that courts may impose under r. 1(8)”.
102I would go farther and make it clear that there are such limits. They are necessary because, before certain types of orders are made against a party, it is necessary to follow certain procedures, including applying the proper burden of proof. These procedures must be followed because they provide necessary procedural safeguards to the person who is to be subjected to any such order. For example, in cases where penal sanctions are sought, those safeguards are provided 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.
103The problem with distinguishing between those orders for which jurisdiction can be found in r. 1(8), and those orders for which jurisdiction can only be found in other rules, such as r. 31, is made more difficult in this case for two reasons. One is the language used by the motion judge in her reasons and the other is because of an order that she made in this case in October 2019. [3] The language to which I refer is the motion judge’s use of the word “penalties” in her reasons (see paras. 92, 101). Penalties are generally only available after a finding of contempt has been made. This is clear from the provisions of r. 31, namely r. 31(5)(c), and from the existing authorities: see, e.g., Belcourt v. Charlebois, 2020 ONSC 4124 at paras. 28-32.
104Furthermore, as this court held in Chan v. Town, 2013 ONCA 478, 34 R.F.L. (7th) 11, at para. 6, parenting orders should never be used as punishment:
Custodial arrangements of children cannot be used as a punishment for contempt. That is not to say that there may not be a circumstance where a change in custodial arrangements would be in the best interest interests of the child, but this is not that case. There was no motion to vary the final order for custody based on a material change in circumstances. The motion judge’s rationale was that he hoped that this would bring peace to warring parents, although he said he recognized that it could make matters worse. [Emphasis added.]
105In fairness, the motion judge did begin her analysis by reciting the factors relevant to the child(ren)’s best interests. She specified that any order she might make under r. 1(8) “must be determined to be in [the child’s] best interests”: at para. 86. However, at para. 90, she concluded that “[t]ime has become of the essence”. She also found that the evidence before the court was sufficient to conclude that the father was unwilling or unable to comply with the shared parenting time arrangement under the Leef Order. Two problems arise from the motion judge’s analysis, though.
106First, it is difficult to discern the factual foundation for the motion judge’s conclusion that time was of the essence. The issues that were before the motion judge dated back at least two years. Indeed, as earlier noted, the same motion judge made an order in October 2019 addressing some of the same concerns with which she was faced in making the order that is now under appeal. It is hard to see, therefore, how this matter had suddenly become so urgent that proper processes could not be followed or that proper evidence could not be required.
107Second, when the motion judge made the order that she did, there was no evidence before the court that the proposed intensive intervention through the Family Bridges program, including zero contact between the father and the children for a minimum of 90 days, was suitable for these particular children at this particular time. Indeed, there was very little evidence before the court generally regarding the Family Bridges program.
108In my view, before a judge decides to order the type of serious intervention that was made in this case, and that is inherent in imposing attendance at a program such as Family Bridges, there must be comprehensive and cogent evidence regarding the program placed before the court. This evidence should include specific and detailed information regarding the program itself and, more importantly, specific and detailed information regarding the success rate of the program generally, and the likelihood of success in the individual case that is before the court, including with relation to the ages of the children involved, and the other specific circumstances. The required evidence should be of a nature similar to what a court would expect to receive from an expert, who is recommending a certain course of remedial action or treatment. No such evidence was before the court in this case. It follows that, among other concerns, there was no opportunity for the appellant to challenge any such evidence. In my view, the motion judge erred in making such an intrusive order in the absence of a proper evidentiary foundation.
109I would add one further observation regarding these rules. It seems curious that r. 1(8) would become the principal rule dealing with the enforcement of orders when, in addition to the contempt route provided for in r. 31, the Family Law Rules also include r. 26 that expressly addresses the subject of the enforcement of orders. The result is that there are at least two different rules (or three, if my colleague is correct to include r. 1(8)) that purport to deal with the topic of enforcing orders. It is perhaps time for the Family Rules Committee to look at this issue and rationalize these various provisions.
110In any event, my colleague’s efforts to surmount the jurisdiction concerns raised by the order made, and the motion judge’s reliance on r. 1(8), does not fully answer the jurisdiction question. In that regard, it is important to remember the effect of the motion judge’s order. It changed the shared parenting regime that had been provided for by agreement of the parties and formalized in the Leef Order. It also imposed a drastic therapeutic order on these teenaged children, as well as removing them from all contact with the father for a considerable period of time.
111Perhaps in anticipation of this jurisdiction issue, my colleague appears to draw a distinction, for jurisdiction purposes, between a temporary order (which he finds this order to be) and a final order. In drawing this distinction, he appears to accept that reliance on r. 1(8) to justify interference with a final order would be problematic. However, he does not accept that the same concern arises if the motion judge’s order is temporary.
112In my view, whether the motion judge’s order changes the parenting regime permanently or temporarily, matters not. And, of course, we do not know at this stage whether the change that the motion judge made will be permanent or temporary. [4] In any event, the therapeutic intervention that has been ordered will significantly affect the children and is, in my view, final in its effect on them.
113I appreciate that some might say that dwelling on such procedural issues interferes with the need to address matters arising out of a party’s non-compliance with a court order quickly. However, there are reasons why we require certain steps to be taken before relief, of this nature, is obtained. Principal among those reasons is to ensure that there are safeguards in place such that an order that may have profound effects on the parties or their children, or indeed third parties, is not made hastily, or without a sufficient evidentiary foundation. With respect, these are not “procedural roadblocks” as my colleague characterizes them. It is simply a question of requiring a party to comply with the Rules in order to obtain the relief that they seek.
114I would add, on this point, that it is not solely a question of picking between r. 15 and r. 1(8). There are statutory provisions that address changes to parenting orders. For example, the Children's Law Reform Act, R.S.O. 1990, c. C.12, provides in s. 29(1):
A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.
115Similarly, the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), provides in s. 17(5):
Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).
116Neither of these provisions is referred to by the motion judge nor, for that matter, is there any reference to r. 15 in her reasons. Once again, the relief granted is justified by reliance on r. 1(8). Regardless of the debate over the extent to which enforcement relief can be granted under r. 1(8), there is no suggestion that the enforcement powers provided by this rule can also be relied upon to vary final orders. I note, on that point, that the respondent has not provided this court with any case in which a final order was varied through reliance on r. 1(8).
117There are established procedures that are required to be followed to obtain specific relief, such as the variation of a final order. Taking shortcuts to those procedures simply to benefit the alleged aggrieved party, by attempting to expedite some form of relief, must not be permitted. As I have already said, procedural safeguards are important. They are not to be avoided simply based on expediency or on a manufactured sense of urgency. If a party seeks a variation, or a motion judge wishes to grant a variation, then the proper procedure must be followed. It was not in this case.
B. TERMS OF THE ORDER
118Even if one could overcome the jurisdiction issues that impact on the order as a whole, there are problems with some of the individual terms of the order that was made. First, in para. 14 of her order, the motion judge ordered that “the Durham Regional Police Service, the Ontario Provincial Police, the RCMP, or any other Canadian police service, are directed to enter into any dwelling at any time to locate, apprehend, and return” the children. In making that order, the motion judge relies on s. 36(2) of the Children's Law Reform Act, although she does not refer to its terms. Section 36(2) reads:
Where a court is satisfied upon application that there are reasonable and probable grounds for believing,
(a) that any person is unlawfully withholding a child from a person entitled to decision-making responsibility, parenting time or contact with respect to the child; (b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or (c) that a person who is entitled to parenting time or contact with respect to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,
the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order.
119I first note that this type of order ought to be granted rarely and only in extraordinary circumstances. It should only be granted in very serious cases where there is solid evidence that such interference by the police is necessary. I note on that point the requirement in the section that there be “reasonable and probable grounds”. The evidence in this case does not rise to that level nor was there any evidence to satisfy any of the other statutory requirements. Indeed, the motion judge does not point to any such evidence. This term of the order ought not to have been included. The fact that it was included tends to show the overreach of the order that was made.
120Second, this overreach is also demonstrated by para. 1 of the motion judge’s order that purports to both continue the “penalties” that were imposed in her earlier order, including fines in the amount of $3,000 for each and every instance of non-compliance, while also raising the possibility that the penalties might be “extinguished”. It is unclear to me what penalties were to be extinguished under the order, or how. While there was no appeal of the earlier order, I am satisfied, for the reasons that I have set out above, that there was no jurisdiction to impose penalties on the appellant, absent a motion for contempt being brought. An order made without jurisdiction is a nullity. It cannot gain jurisdiction simply because it was not appealed.
121Third is the restraining order that is set out in para. 101 of the motion judge’s reasons, at item 9. [5] No one asked the motion judge to make a restraining order. I do not agree with my colleague that the relief language used in the respondent’s motion can be equated to a request for a restraining order. Certainly, it does not appear that the motion judge treated it as such when she recited the relief being sought by the respondent in her reasons.
122Further, the fact that both parties had to consent to variations to the restraining order to, in essence, eliminate a significant aspect of it would suggest that they had neither sought nor contemplated the specific relief that the motion judge granted.
123However, the fact that the motion judge did grant that relief, with its resulting potential impact on the appellant’s employment, amply demonstrates the problem in dealing with these difficult issues in a summary and procedurally deficient manner. It also serves to reinforce my concerns about the breadth of the order, or its overreach as I referred to it above.
124Consequently, even if the jurisdictional issues that apply to the order, as a whole, could be overcome, paras. 1 (purporting to both continue and potentially extinguish “penalties” imposed in the previous order) and 14 of the order (directing the police to “enter into any dwelling at any time to locate, apprehend and return” the children to the respondent’s care) cannot stand and must be set aside. I would be inclined to do the same with the restraining order, but since the parties have consented to significant changes to that term of the motion judge’s order, the issues, as they relate to that single term by itself, are now largely moot.
C. CONCLUSION
125I would allow the appeal, set aside the order of the motion judge, and dismiss the respondent’s motion, without prejudice to the respondent bringing a motion to vary the Leef Order on proper material and in conformance with r. 15 of the Family Law Rules, if she is so advised. I would make no order as to costs.
Released: October 13, 2021 “G.P.”
“I.V.B. Nordheimer J.A.”
1The term “custody” is no longer used. Instead, the orders that confer the parenting rights once described as “custody” are more properly referred to as “decision-making orders” and “parenting time”: Divorce Act, R.S.C., 1985. c. 3 (2nd Supp), s. 35.4; Children’s Law Reform Act, R.S.O. 1990, c. C-12, s. 76(2)-(3).
2The Durham Children’s Aid Society was included in the restraining order because it was the designated location for the transfer of TB to the Family Bridges program
3Bouchard v. Sgovio, 2019 ONSC 6158, 34 R.F.L. (8th) 483.
4I would note that the formal order refers to it being both temporary and final.
5I note that, for reasons that are unexplained, this term does not appear in the formal order.
