Gao v. Rayner, 2026 ONSC 4027

CITATION: Gao v. Rayner, 2026 ONSC 4027

DIVISIONAL COURT FILE NO.: DC-25-00001692-0000

DATE: 20260720

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Cullin, and Brownstone JJ.

BETWEEN:

YING GAO

Applicant/Appellant

– and –

JAMES RAYNER

Respondent

Dana Cohen, for the Applicant/Appellant

Gary Joseph and Margarit Jo, for the Respondent

HEARD at Oshawa: June 25, 2026

L. BROWNSTONE J.

Introduction

1The appellant mother appeals an enforcement order issued by MacPherson J. dated August 20, 2025. Among other things, that order granted the respondent father decision-making authority over the medical care of the parties’ son on a final basis, and required the mother to pay a fine to the father each time the child missed a court-ordered parenting time visit, or portion of the visit, with the father.

2The appellant submits that MacPherson J. ought not have made the order at all, and certainly not on a final basis. The respondent acknowledges he did not seek a final order from MacPherson J. However, he submits that MacPherson J. made no palpable and overriding error on the facts, or the mixed facts and law, and the order was within his jurisdiction. There is therefore no basis for this court to intervene.

Order under appeal

3The order of MacPherson J. was made after hearing the respondent father’s motion for enforcement of the parties’ earlier consent order, to which I will refer as the Bennett order.

4The parties agreed to the Bennett order more than six years after they separated, after what was, by all accounts, high-conflict litigation. The Bennett order, dated November 23, 2023, resolved the parenting issues in respect of the parties’ son, who was not yet ten years old.

5The Bennett order established a parenting schedule under which the son would reside with the mother eight out of fourteen overnights, and the father six out of fourteen overnights. The father was permitted to pick the son up at school for all his weekday parenting time if his work schedule allowed. If his work schedule did not permit the direct pick-up at school, the son was to return to the mother’s home until the father picked him up after work.

6The Bennett order also provided that the son would remain at his then-current school until June 2027, “unless no longer permitted by the school (for example, if neither parent resides in the school boundaries), otherwise agreed upon by the parties or ordered by the Court.” Major educational decisions were required to be made jointly by the parents, after consultation between them. Further, the father was responsible for the son’s eye health and vision check-ups, and the son was to continue to wear his then-current corrective eye glass lenses. The mother was to be responsible for the son’s routine medical appointments, and all major medical decisions were to be made jointly. Either party was entitled to take the son to the doctor when the son was ill.

7The remaining portions of the Bennett order are not relevant to this appeal.

8The parties agree that, since the time the Bennett order was made, the son has been in crisis, and remained so when the parties appeared before MacPherson J. on August 20, 2025.

9On that date, the father moved under rule 1(8) of the Family Law Rules, O. Reg. 114/99 for an order finding the applicant in breach of the Bennett order’s parenting time, educational, and eye-care provisions set out above. The father sought several enforcement orders, including an order granting him decision-making authority for the son’s medical treatment including medications, therapy, psychological and/or psychiatric assessment, and an order fining the mother each time she restricted or undermined the father’s parenting time.

10MacPherson J. made significant factual findings in his reasons for decision. He found, among other things, that:

a. “Both parties agree that [their son] is in crisis. [Their son] first reported self-harm at age 8.”

b. Their son self-harmed at the mother’s home in 2024.

c. The son had had some behavioural issues at school.

d. In October 2024, the father proposed taking the son to York Hills, a centre for children, youth, and families that treats social, emotional, and behavioural challenges of children, youth, and their families. The mother disagreed, did not sign the consent, proposed an unspecified private counselor, and proposed reducing the father’s parenting time.

e. Upon a request from the father, the son’s family doctor referred the son for assessment at SickKids. An appointment was scheduled but did not occur because the mother did not consent.

f. The father scheduled another appointment at SickKids a few months later. This time, the mother drove the son to SickKids and, when the son walked out and refused to participate, the mother drove him home.

11MacPherson J. found that the mother breached the Bennett order by:

a. allowing the son to dictate whether he attended parenting time with the father, rather than requiring the son to see the father in accordance with the schedule set out in the Bennett order;

b. Filling out an application at a new school without discussion with the father; and

c. Of her own volition, obtaining contact lenses for the son without discussing it with the father.

12MacPherson J. also found that the mother had overly empowered the son. He stated:

26The Applicant, in doing nothing to ensure the court Order is followed, has empowered [the son]. [The son], at 12 years of age, is granted liberal authority to ignore parenting Orders, to be violent and to use offensive language to his father. [The son] would benefit from two parents that are on the same page. Sadly, [the son] has never experienced it. It would appear from the evidence, at least at the Applicant's home, that [the son], at 12, is in charge.

[31]… The Applicant is either sabotaging the Order of Justice Bennett or she has limited parenting skills with no insight. Permitting [the son] to make his own decisions regarding parenting in a high conflict case is a dereliction of her responsibility.

32This court is of the view that [the son] is overly empowered. This court is of the view that the Applicant undermines any authority or limits the Respondent's attempts.

13Having found the mother in breach of the Bennett order, MacPherson J. made a final order that included the following terms:

1. This is a final order.

2. The Respondent shall, after consultation with the Applicant, have final decision-making authority in determining medical treatment for [the son] and that shall include, but not be limited to medications, therapy, psychological and/or psychiatric assessments absent the Applicant's consent.

3. [The son] shall attend every court ordered parenting time. Every time that [the son] misses a court ordered parenting time visit or a portion of a parenting time visit, the Applicant shall pay a $100 fine to the Respondent. The Applicant's failure to ensure that [the son] attends10 full parenting time visits will be a material change in circumstances permitting the Respondent to advance a Motion to Change.

Analysis

14The mother raises several issues with the manner in which the motion proceeded and the order that resulted.

15I do not accept the mother’s submissions that MacPherson J. proceeded improperly by hearing a motion as important as this on a short motions list on a paper record. Nor do I accept her submission that the order of MacPherson J. fails to consider the primary objective set out in rule 2(2) of the Family Law Rules.

16MacPherson J. determined that he was able to make the necessary factual findings on the record and in the time allocated. He made findings that clearly support his conclusion that the matter required swift intervention by the court. The mother acknowledges that MacPherson J.’s factual findings were open to him on the record. I see no error in this regard.

17However, I reach a different conclusion with respect to two issues raised by the mother.

18The first is whether by making a final change to a final order, MacPherson J. exceeded the bounds of an enforcement order and effectively determined a motion to change without any of the procedural protections built into a motion to change.

19There is no doubt that courts have the jurisdiction to make temporary parenting orders on an enforcement proceeding under rule 1(8). Once a judge finds a failure to comply with an order, a remedial, substantive order under rule 1(8) may be made. A judge has broad discretion to make an order found necessary to address the failure to comply. This discretion is particularly important when an order addresses a child’s well-being: Bouchard v. Sgovio, 2021 ONCA 709 at paras. 48-51.

20However, there is a difference between temporarily altering provisions of a final order and varying or replacing those provisions on a final basis: Bouchard at para. 54; S-L.T. v. M.L., 2023 ONSC 5551 at para. 21.

21As noted above, the father acknowledges he did not seek a final order at the return of his enforcement motion. The purpose of the order was to facilitate immediate, much-needed help for the parties’ son, which MacPherson J. found was being sabotaged by the mother. MacPherson J. had ample reason to make that order. However, making the order a final one was an error. The order’s purpose could and should have been accomplished by a temporary order, pending a motion to change.

22A motion to change will allow the parties to attend a case conference and proceed to a more complete review, on a full record, of the complex issues that are clearly at play in this family. Both parties agree this is appropriate.

23I would therefore vary paragraph 1 of the order to make the order temporary, pending the father’s motion to change, and direct the parties to attend a case conference to establish a process for moving forward. I emphasize that in the interim, the father retains sole decision-making authority over medical decisions, as set out in the order of Justice MacPherson. The only revision is that the order is not a final order.

24In oral argument, counsel for both parties agreed that Bennett J. had been invaluable to the parties in reaching their consent order in 2023, and agreed it would be helpful to them if Bennett J. were to be involved in case managing the father’s motion to change. It is not for this panel to direct such a thing, but if Bennett J. is available we would recommend that the matter be returned to him for case management.

25The second issue raised by the mother that required addressing by this court is whether the fine provision is enforceable.

26The mother submits that the effect of the order is to fine her if the father does not pick up the son, or drops him off early, which she states happens with some frequency. The father submitted that the fines are not his priority. His priority is ensuring that his parenting time is respected and that the mother require the son to attend his parenting time in accordance with the Bennett order.

27Given that I have concluded the order ought to have been temporary, I would cap the fines to date at $1,000 and order that no fines accrue from the date of this decision pending future agreement of the parties or order of the court. I emphasize that this is not to derogate in any way from MacPherson J.’s conclusion that the mother is required to facilitate the father’s parenting time and to cease empowering the child to refuse this parenting time. The issue of future fines will be dealt with by the court below in the course of proceedings related to the father’s motion to change.

Disposition and costs

28I would allow the appeal in part, by amending paragraph one of the order to make the order temporary pending the result of a motion to change, further agreement of the parties, or further order of the court. I would cap the fines to date at $1,000, and stay the accrual of any further findings pending further court order.

29The parties agreed that costs of $9,500 should be awarded to the successful party. As success is divided, I would make no order as to costs.

“L. Brownstone J.”

I agree: “D.L. Corbett J.”

I agree: “Cullin J.”

Released: July 20, 2026

CITATION: Gao v. Rayner, 2026 ONSC 4027

DIVISIONAL COURT FILE NO.: DC-25-00001692-0000