Walkington v. Caruana

Court File and Parties

Court File No.: 17-15342-00 Date: October 17, 2025 Ontario Court of Justice

Between:

Ian Walkington Applicant/Father

- and -

Felicia Caruana Respondent/Mother

Counsel:

• Brian Ludmer, for the Applicant
• Theresa MacLean, for the Respondent
• Shelley McIntyre, for the Office of the Children's Lawyer, on behalf of the child, L.W.

Heard: October 9, 2025

Before: Justice J. Harris

Reasons for Decision

Part One – Introduction

[1] This is the court's decision on the Father's Notice of Motion, dated September 15, 2025, in which the Father seeks orders that the Mother has not complied with the following court orders:

1. The Order of Justice O'Connell, dated April 28, 2017
2. The Order of Justice Finlayson, dated February 28, 2019
3. The Order of Justice O'Connell, dated April 20, 2021
4. The Order of Justice Harris, dated November 8, 2024
5. The Endorsement of Justice Harris, dated January 7, 2024
6. The Order of Justice Harris, dated February 4, 2025
7. The Endorsement of Justice Harris, dated May 15, 2025

[2] Additionally, the Father seeks compliance orders including strict compliance with the equal shared parenting time schedule, nine specific "family therapy" orders and ten "parental covenants", and costs.

[3] This child at the centre of this dispute recently turned 10 years old.

[4] The issues for the court to determine are:

1. Whether there is non-compliance by the Mother with previous court orders?
2. Specifically, the court must determine:
   • i. If there has been a triggering event that would allow consideration of subrule 1(8) of the Family Law Rules, O. Reg. 114/99 (the "Rules").
   • ii. If so, is it appropriate to exercise discretion in favour of the Mother?
   • iii. If not, what is the appropriate remedy?

[5] The Father relied on the following evidence:

1. Affidavit of Ian Walkington, sworn September 15, 2025
2. Affidavit of Ma Beatriz Villacorta, sworn July 31, 2025
3. Affidavit of Beverly Walkington, sworn July 31, 2025
4. Affidavit of Sarah Walkington, sworn August 1, 2025
5. Reply Affidavit of Ian Walkington, sworn October 6, 2025
6. Applicant's Form 35.1, sworn September 24, 2025
7. Applicant's Form 35.1A, sworn September 24, 2025

[6] The Mother relied on the following evidence:

1. Affidavit of Felicia Caruana, sworn September 30, 2025
2. Affidavit of Jessica Whitmore, sworn September 29, 2025
3. Respondent's Form 35.1, sworn on September 30, 2025
4. Respondent's Form 35.1A, sworn September 30, 2025

[7] The Office of the Children's Lawyer filed the following evidence:

1. Affidavit of Jaclyn Kerr, sworn July 11, 2025
2. Affidavit of Jaclyn Kerr, sworn September 29, 2025

[8] The parties also filed a joint document brief, which contained the following volumes:

1. Volume 1 (Tabs A and B)
2. Volume 2a (Tab C Part 1: Child's Student Record)
3. Volume 2b (Tab C Part 2: Child's Student Record)
4. Volume 2c (Tab C Part 3: Child's Student Record)
5. Volume 2d (Tab C Part 4: Child's Student Record)
6. Volume 2e (Tab C Part 5: Child's Student Record)
7. Volume 3 (Tab D: Report)
8. Volume 4 (Tab E: Danforth Playcare Records)
9. Volume 5a (Tab F: CAST Records)
10. Volume 5b (Tab F: CAST Records)
11. Volume 6 (Tab G: Durham Police Records)
12. Volume 7 (Tab H: Toronto Police Records)
13. Volume 8 (Tabs I-L: Doctors)
14. Volume 9 (Reports)

[9] The parties filed factums, and the parties and the OCL also filed briefs of authorities with extensive case references.

Position of The Parties

[10] The Father's position is set out in his Notice of Motion.

[11] The Mother justifies the failure to follow the court orders, based on the Child's behaviour and the Father's inabilities. She denied that she is wrongfully withholding the Child. She justifies her relocation over the summer stating that she was required to vacate her residence.

[12] However, the Mother indicated that she would agree with five of the nine "family therapy" orders, and, of the ten parenting provisions, the Mother will agree with seven of the "parenting covenants", as well as five out of six sub-paragraphs of a further "parenting covenant."

[13] The OCL took no position on any of the relief sought in the Father's motion.

[14] The OCL stated that it sought to assist the court, and highlighted facts and law. The OCL submitted that it was important to understand the context of the Child's views and preferences to understand the dynamics.

[15] The OCL also asked the court to read the Child's suggestions at paragraph 224 of the Affidavit of Jaclyn Kerr, sworn July 11, 2025, in depth, which the court has done.

Part Two – Background, Litigation History and Facts

[16] The Children's Aid Society of Toronto ("CAST"), the police, the Hospital for Sick Children Suspected Child Abuse and Neglect ("SCAN") program have been involved over many years with this family.

[17] The parties separated on December 2, 2016, when the Child was approximately 14 months old. The parties dispute the facts that resulted in their separation but there is agreement that there was a physical altercation, resulting in the Mother being charged, which was ultimately resolved by a 12-month peace bond on March 20, 2018, and the Mother paying for damages done to the Father's company vehicle.

[18] On February 9, 2017, the Application was commenced. The conflict between this Child's parents has been before the Ontario Court of Justice for 8 years and 8 months.

[19] On April 28, 2017, an order was made, on consent, by Justice O'Connell ("April 2017 Consent Parenting Time Order"), which ordered as follows:

1. The Child is to reside with the Mother on Mondays and Tuesdays, with the Father on Wednesdays and Thursdays and the parents alternate weekends, with all pick-ups and returns of the Child from daycare.
2. The OCL was appointed.

[20] On January 22, 2018, when the Child was two and a half, the OCL completed its first s. 112 report. The first OCL report concluded: this investigation was unable to find any evidence to support [the Mother's] concerns regarding [the Father's] parenting skills. The OCL did not consider it in the best interests of the Child to reduce the current 2-2-3 parenting schedule because it would reduce the Child's time with the Father.

[21] On February 28, 2019, an order was made by Justice Finlayson ("February 2019 Parenting Time Order"), which ordered as follows:

1. The Child's parenting schedule shall be pursuant to the existing Consent Order of Justice O'Connell, dated April 28, 2017.
2. Once [the Mother's] criminal undertaking is varied, both parties may contact each other via email for child related purposes.

[22] In Justice Finlayson's endorsement, dated February 28, 2019, his Honour found that the Mother breached the April 2017 Consent Order by not allowing contact between the Father and the Child in January 2019. His Honour also found "there is some suggestion in the evidence that the mother also breached the prior Order of O'Connell J. of August 24, 2017." The parties were ordered to advise each other of all issues related to the Child's health, among other things.

[23] On June 10, 2019, when the Child was three years and nine months old, the OCL completed its second s. 112 report. The second OCL report concluded: [the Father] presented as a competent parent who has been involved in [the Child's] care since birth, and consistently provided for [the Child's] physical and emotional needs. The OCL also recommended that both parents participate in counselling to assist in enhancing communication skills, co-parenting skills, and reducing conflict, and that the Mother participate in counselling to address her personal anxiety and her "experience of abuse".

[24] On April 20, 2021, a direction was made by Justice O'Connell, ("April 2021 Order"), "pending the hearing of these motions, both parties to respect and following the Current Parenting Order."

[25] On January 13, 2024, Dr. Joey Bonifacio, completed a report on the Child's gender identification issue. The report states that the Child told Dr. Bonifacio:

My mom said I will get an award if there are different stuff that she wants me to do [sic] …she tells me to do this stuff… because she took my dad to court…my mom is telling me stuff to do stuff so I could get more points so I can stay with my mom for the rest of my life…." (pages 6-7).

When Dr. Bonafacio asked [the Child], "What is she telling you to do?" [The Child] responded, "today she told me to do stuff… don't act happy around my dad, don't act happy around my dad…she said she will get me this insane amount of [Robux]".

[26] On October 16, 2024, the Mother, through counsel, indicated her intention to seek to relocate the Child to Shelbourne, Ontario.

[27] On November 8, 2024, the court decided a 14B motion in writing where the Mother sought leave to bring an urgent motion to permit her to relocate the Child to Shelbourne, Ontario. Leave was denied and an urgent case conference was scheduled. Within the 14B motion, the court made a temporary order as follows: The Child is not to be relocated to Shelbourne, Ontario and the Child shall continue to attend [the Child's current school] ("November 2024 Non-Removal Order").

[28] On December 16, 2024, the urgent case conference was held, and the parties consented to an order, made by Justice Pawagi, requesting the involvement of the OCL. At that time the Child was presenting as one gender in the Mother's home, and a different gender at the Father's home and at school. At that time, the Mother was requesting to relocate to Shelbourne, Ontario.

[29] On January 7, 2025, the matter was scheduled for a trial management conference; however, there was no response from the OCL regarding their appointment. The court set parameters for the parties' communication. The court also ordered that "neither parent should denigrate the other parent to the Child, in the presence of the Child, or on social media" ("January 2025 Communication Order").

[30] In January 2025, the Mother's evidence is that the situation between the Father and the Child "continued to deteriorate markedly."

[31] On February 4, 2025, the matter returned to court on an urgent basis as the Child was no longer exercising his parenting time with the Father at all. At that time, the court found that the February 2019 Parenting Time Order was not being following. The court indicated that court orders must be followed, or steps must be taken to vary the court order. The parties reached a temporary without prejudice consent that date that was ordered ("February 2025 Consent Parenting Time and Therapy Order"), summarized as follows:

1. The goal of the order was to ensure the implementation of the February 2019 Parenting Time Order, which terms were not varied or replaced.
2. Pick-ups and drops shall occur at the school.
3. The Mother was to meet with the school administration and the Child to reassure the Child that he will be picked up by the Father and has special plans.
4. The Mother will advise the Child that spending time with the Father is important and that both parents care about him. The communication should emphasize that the upcoming parenting time is special and valued.
5. The Mother shall utilize positive language to reassure the Child about the Father's plans and shall ensure and make every effort so that the Child feels comfortable and excited about the parenting time with the Father.
6. Family therapy will commence.
7. The Parents will sign all necessary forms to ensure it commences without delay and shall participate and cooperate in the process.
8. The parties shall coordinate their extended health benefits to ensure maximum coverage for the family therapy.

[32] On April 11, 2025, the family began meeting with Rebecca Skippen, Clinical Therapist at Toronto Family Therapy & Mediation Inc.

[33] On May 15, 2025, a trial management conference was held. The matter was scheduled peremptory for the November 2025 trial sittings. The parties were ordered to "actively engage with therapy". The Mother was ordered not to relocate from the GTA pending the trial ("May 2025 Therapy and Non-Removal Order"). The Father also agreed to pay the Mother $843 in child support without the section 9 set off, despite the parenting time order, for the Mother to maintain her housing for the Child.

[34] On July 1, 2025, the clinical therapist, Ms. Skippen, engaged for family reunification therapy, wrote to the parents and counsel. Ms. Skippen indicated "it is essential that [the Child] continues to be seen regularly in person" and "it is important that [the Child] has regular in-person contact with [the Father] over the summer months". There was a plan in place where [the Father] planned to pick up the Child at school during the summer break.

[35] The Mother's evidence was that she stayed in Shelburne, Ontario for a "few weeks in July" 2025, and Cambridge for a "few weeks in August" 2025. The Mother states that she was "forced to vacate our previous residence in Toronto in July 2025". This evidence is not consistent with Notice of Vacant Possession from the Landlord and Tenant Board and the decision of the Landlord and Tenant Board motion heard on July 28, 2025.

[36] The Mother states that she returned to Toronto in August 2025 and moved to the Maternal Grandfather's basement in August 2025. The Mother does not explain in her evidence why she is no longer seeking to relocate to Shelborne, Ontario.

[37] The OCL's evidence indicates that the Mother is no longer intending to live in Shelburne, Ontario because "things went completely south while at her brother's house". The Mother reported to the OCL that the Maternal Uncle was arguing and yelling, and there was a lot of drinking occurring in the home. There had been a huge altercation between her two Maternal Uncles and the Maternal Grandmother where police were involved.

[38] The OCL's evidence is that the Mother is currently living with her Father in Scarborough and there are issues there as well. The Maternal Grandfather suffers from "serious mental health issues." The house is cluttered, very moldy smelling, and there is a flea infestation, where the Child is 'being eaten alive". The Mother indicated that the Child has been crying for days that he wants to leave. The Mother is sharing a bed with the Child, which seems to have the most fleas. The Maternal Grandfather is also facing eviction.

[39] The Mother states that she became engaged to Duncan McKenzie in September 2025. Mr. McKenzie resides in Cambridge, Ontario. The Mother now seeks to relocate the Child to Cambridge, Ontario.

[40] On September 12, 2025, Ms. Skippen, wrote to the parents and counsel again. Ms. Skippen noted that therapy with the Child over the summer was less consistent. The Child was seen only once on July 8, 2025, in-person and participated virtually on July 22, and August 8, 2025.

[41] The Mother provided no evidence that she made efforts to coordinate her benefits to help pay for the family therapy, despite the February 2025 Consent Parenting Time and Therapy Order. The Mother states I have no ability, whatsoever, to contribute to the costs of family therapy.

Part Three – Law

[42] Subrule 1(8) of the Rules states:

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 that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(a.1) an order to pay an amount to a party or into court as a penalty or fine;

(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) a contempt order, if sought under rule 31.

[43] Subrule 1(8) recognizes the importance of following court orders.

[44] Subrule 1(8) gives the Court broad authority to make "any order that it considers necessary for a just determination of the matter" where a party fails to obey an order.

[45] Subrule 1(8) should have broad and purposeful application.

[46] The court is to make orders in response to a party's non-compliance: Mullin v. Sherlock, 2018 ONCA 1063; Milks v. Dubois, 2024 ONCJ 503 at paragraph 8.

[47] Rule 1(8) provides broad discretion to the courts to make orders it considers necessary to fully address a party's failure to comply, which is especially important when the orders touch on the well-being of children: Antunes v. Antunes, 2022 ONSC 6450 at paragraph 43.

[48] An order under subrule 1(8) may be made "at any time during a case", and the power to make such an order is in addition to any other power as the Rules may specify and exists unless the Rules expressly provided otherwise.

[49] The order itself creates the substantive right of the parties, while subrule 1(8) provides the means of enforcement to realize those substantive rights: Antunes v. Antunes, 2022 ONSC 6450 at paragraph 43.

[50] Until such time as a court order has been terminated or varied through legal means, the parties must abide by it: Stuyt v. Stuyt at paragraph 62.

The Court's Approach to Non-Compliance Motion

[51] There is a three-step analysis for motions brought under subrule 1(8), as set out in Ferguson v. Charlton, 2008 ONCJ 1 at paragraph 64, as follows:

1. Is there a triggering event that would allow consideration of subrule 1(8)?
2. In the circumstances, is it appropriate to exercise discretion in favour of the non-complying party?
3. If not, what is the appropriate remedy?

1. Triggering Event

[52] As long as the judge is satisfied that there has been a failure to obey an order "in the case or a related case," subrule 1(8) is triggered: Hughes v. Hughes at paragraph 17.

[53] The Father must persuade the court on a balance of probabilities that there has been a triggering event i.e. a failure to obey an order.

[54] In Godard v. Godard, 2015 ONCA 568, the Court of Appeal for Ontario set out what is required of a parent with respect to compliance with a parenting order. At paragraph 28, the Court of Appeal for Ontario held that once the court has determined that parenting time is in the child's best interests a parent cannot leave the decision to comply with the access order up to the child.

[55] Ontario courts have held consistently that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": Godard v. Godard, 2015 ONCA 568 at paragraph 28 citing, Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para. 8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt; and Hatcher v. Hatcher.

[56] Case law has established the serious obligations a parent has to ensure that parenting orders are complied, as summarized below:

1. A parent has a positive obligation to ensure that a child who allegedly resists contact with the access parent complies with the access order. The parent is not entitled, in law, to leave access up to the child: McCarthy v. Murray, 2022 ONSC 855 at paragraph 30, citing Hatcher v. Hatcher at paras. 27-28.

2. Merely "encouraging" or abdicating decisions to the children is a breach of the order: Villeneuve v. Wilson, 2022 ONSC 2886 at paragraph 23, citing Godard v. Godard, 2015 ONCA 568 at paragraph 28.

3. It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means: Cousins v. Healey, 2024 ONSC 688 at paragraph 104, citing Stuyt v. Stuyt at paragraph 62.

4. Abiding by court orders is not just a parent's duty to the court, but also to their children: Cousins v. Healey, 2024 ONSC 688 at paragraph 104.

5. A failure to require the child to attend parenting time is considered contempt: McCarthy v. Murray, 2022 ONSC 855 at paragraph 31, citing Sickinger v. Sickinger at paragraph 30, affirmed in 2009 ONCA 856.

6. Although a child's wishes should be considered by a court prior to making a parenting time order, once the court has determined that parenting time is in the child's best interests, a parent cannot leave the decision to comply with the parenting time order up to the child. A parent has a positive obligation to ensure a child who allegedly resists contact with the other parent complies with the parenting time order: McCarthy v. Murray, 2022 ONSC 855 at paragraph 33.

7. Court-ordered parenting time cannot be left up to the Child: Villeneuve v. Wilson, 2022 ONSC 2886 at paragraphs 25 and 28, citing Karar v. Abo-El Ella, 2016 ONSC 7926 at paragraph 17, Geremia v. Harb at paragraph 63, Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.) at paragraph 8, B.K. v. A.P., [2005] O.J. No. 3334 (S.C.) at paragraphs 22-25, Godard v. Godard, 2015 ONCA 568 at paragraph 29.

8. What steps a parent must take to have the child attend parenting time with the other parent depends on the circumstances and age of the child. Usually, passive "reasoning with the child" is insufficient and is in breach of the access order. There is a positive obligation to ensure that a child complies with the order: Villeneuve v. Wilson, 2022 ONSC 2886 at paragraph 28.

9. A parent's positive obligations "goes beyond simply accommodating [parenting time], making the child available for parenting time and encouraging the child to comply. Rather, the parent must require that parenting time occur and actively facilitate it": Villeneuve v. Wilson, 2022 ONSC 2886 at paragraph 27 citing Jackson v. Jackson, 2016 ONSC 3466.

10. Actively promoting and facilitating compliance with parenting time orders requires the parent to take concrete measures to apply normal parental authority to have the child comply, including addressing the following: (i) Did they engage in a discussion with the child to determine why the child is refusing to go? (ii) Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them? (iii) Did they offer the child an incentive to comply with the order? (iv) Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?: McCarthy v. Murray, 2022 ONSC 855 at paragraph 34, citing Smart v. Belland, 2021 ONSC 1124 at paragraph 10.

[57] Additionally, in Villeneuve v. Wilson, 2022 ONSC 2886, Justice Abrams held, with respect to compliance with court orders, at paragraphs 21 and 22:

[21] It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means. It is also the role of parents to instill in their children a respect of the law and legal institutions. A parent who does not do so does a huge disservice to his or her child - a disservice that can have long lasting ramifications throughout a child's life": Stuyt v. Stuyt, Aitken J., at para. 62.

[22] Misconduct by one parent toward another, "when it impairs the ability of a parent to exercise access to the children, cannot help but be injurious to the long-term interests of the children." A major source of security for children in separated families derives from strong and healthy relationships with each parent. "Children's positive self-image, crucial to their ability to adjust successfully to the changes in their family, depends in large measure on the positive regard they have toward each of their parents. If their respect for either parent is diminished, their regard for themselves may also suffer": Hosein v. Dhamoon, 2017 ONSC 2482 at paras. 60, 79, & 101.

[58] A parent does not have the option of disobeying court orders that he or she does not like: Stuyt v. Stuyt at paragraph 62.

2. Exercise of Discretion

[59] If a triggering event has occurred, the court must consider whether it is appropriate to exercise its discretion to not sanction a non-complying party.

[60] The onus is on the non-compliant party to show, on a balance of probabilities, why the court should exercise its discretion: Gordon v. Starr at paragraph 16, referring to the now revoked subrule 14(23), and applied in Price v. Putman, 2018 ONCJ 86 at paragraph 6, Antunes v. Antunes, 2022 ONSC 6450 at paragraph 35, citing Pearce v. Kisoon, 2019 ONSC 4389 at paragraph 16, and more recently in Altman v. Altman, 2025 ONSC 4802 at paragraph 24.

[61] The court is permitted to take into account all the relevant history in the course of the litigation, and more specifically, the conduct of the non-complying party: Ferguson v. Charlton, 2008 ONCJ 1 at paragraph 64; Troiano v. Theriault, 2022 ONSC 331 at paragraph 13.

[62] Court orders are not suggestions, guidelines, or invitations open to acceptance or rejection by the parties. Court orders must be followed: McCarthy v. Murray, 2022 ONSC 855 at paragraph 43, citing Janowski v. Zebrowski, 2019 ONSC 4046 at paragraph 24.

[63] As cited in C.J. v. E.J., 2021 ONSC 4853 at paragraph 6, Justice Starr wrote in Price v. Putman, 2018 ONCJ 86 at paragraphs 36 and 37 that:

[36] … discretion in favour of the noncompliant party will only be granted in exceptional circumstances. Put another way, it would take an extraordinary event to cause a court to exercise its discretion not to apply the rule in favour of the complainant.

[37] [Additionally,] in deciding whether or not to exercise its discretion in favour of a non-complying party the court ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.

3. Appropriate Remedy

[64] The caselaw has established that the appropriate remedy should be comprised of two components: It should be restorative to the victim of the breach and punitive to the noncompliant party: Price v. Putman, 2018 ONCJ 86 at paragraph 44. Additionally, it should be proportionate to the conduct that produced the failure to follow the court order: Mills v. Hachey, 2018 ONCJ 779 at paragraph 15.

[65] If the remedy ordered addresses 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 subrule 1(8): Antunes v. Antunes, 2022 ONSC 6450 at paragraph 43, citing Bouchard v. Sgovio, 2021 ONCA 709 at paragraphs 50-51.

[66] Judicial response to a party's failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the non-compliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible: Levely v. Levely, 2013 ONSC 1026 at paragraph 13.

[67] In Price v. Putman, 2018 ONCJ 86 at paragraph 82, Justice Starr relied on the following observations from Surgeoner v. Surgeoner, [1992] O.J. No. 299 (OCJ) by Justice Blair:

5. … No society that believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court's orders at their whim because in their own particular view, it is right to do so. A society that countenances such conduct is a society tottering on the precipice of disorder and injustice.

6. The need for the sanction of contempt proceedings is of significant importance in the field of family law. There is an undertow of bitterness and sense of betrayal that often threatens to drown the process and the parties themselves in a sea of anger and "self-rightness". In this environment it is all too easy for a spouse to believe that he or she "knows what is right", even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination.

7. Those who choose to take this tack must know that it will not be tolerated.

[68] It is important for the public and family law litigants, in particular, to appreciate that the orders of their courts must be obeyed: Surgeoner v. Surgeoner, [1992] O.J. No. 299 (OCJ) at paragraph 18.

Part Four – Analysis

[69] Fully complying with court orders is not optional. Respect and obedience for family court orders are critical to the functioning of our family justice system. The rule of law is weakened when court orders are breached by litigants.

[70] One of the important virtues of the rule of law is that it provides a stable framework for litigants to depend on. It creates certainty, predictability, and stability.

Is There a Triggering Event that Would Allow the Court to Consider the Application of Subrule 1(8)?

[71] Detailed factual findings are better left to the trial judge on a complete record with the benefit of cross-examination.

[72] However, the evidence, at this motion, clearly supports that there are repeated and ongoing breaches, by the Mother, of the April 2017 Consent Parenting Order, the February 2019 Parenting Order, the 2021 Parenting Order, the November 2024 Non-Removal Order, the January 2025 Communication Order, the February 2025 Consent Parenting Time and Therapy Order, and the May 2025 Therapy and Non-Removal Order.

Is it Appropriate for the Court to Exercise its Discretion in Favour of the Mother (the Non-Complying Party) by Not Sanctioning Her Under Subrule 1(8)?

The Mother's Justifications

[73] The onus is on the Mother to persuade the court that it should exercise its discretion in not applying subrule 1(8).

[74] Based on the evidence filed at this motion, the court is not satisfied that it should exercise its discretion to not sanction her.

[75] The court declines to exercise its discretion in favour of the Mother.

What remedy should the court impose?

[76] Pending the outcome at trial, the court is granting the majority of the Father's motion, the majority of which the Mother consents to:

1. Paragraphs 1 – 7 are ordered. Paragraph 8 is not ordered because the court has already made these orders and court orders must be followed without an order re-iterating them.
2. Paragraph 9 is ordered.
3. Paragraph 10 is not ordered without prejudice to the parties' position at trial. The court orders instead that the costs of family therapy shall be paid through the parties' benefits, the Father shall pay for additional costs, subject to reapportionment.
4. Paragraphs 11 – 22 are ordered.
5. Paragraph 23 a), b), c) with the word "fully" removed, and with the exception of emergency events, d), e), f) are ordered.
6. Paragraphs 24-27 are ordered.

[77] Once court orders are made, the Mother is expected to comply. If the Mother does not agree with court orders she should bring a motion to vary.

Part Five – Conclusion

[78] In summary:

1. There were multiple triggering events of non-compliance with court orders that allows the court to consider the application of subrule 1(8).
2. The court is not inclined to exercise its discretion in favour of the Mother by not sanctioning the Mother under subrule 1(8).
3. The court has ordered an appropriate remedy under subrule 1(8), pending further orders at trial.

[79] The parties should resolve the issue of costs. If the parties are unable to agree on costs, written submissions shall be filed with the Court within 30 days limited to five pages, double spaced, one side of the page, 12-point font or larger, together with any Offers to Settle and a Bill of Costs.

[80] The court thanks counsel for the professional presentation of this very difficult case.

Released: October 17, 2025

Justice J. Harris