Superior Court of Justice – Ontario
Family Court
COURT FILE NO.: FC258/21
DATE: 2022/06/13
RE: Timothy Macnamara, Applicant
AND:
Tracy Lorraine Weaver, Respondent
BEFORE: T. PRICE J.
COUNSEL: Brenda Barr - Counsel for the Applicant David Pentz - Counsel for the Respondent
HEARD: April 29, 2022
ENDORSEMENT
[1] The Applicant, Timothy Macnamara (hereinafter, Mr. Macnamara) seeks an order finding the Respondent, Tracy Lorraine Weaver (hereinafter, Ms. Weaver) to be in contempt for failing to comply with an order made by Justice Gomery on February 28, 2022. The order required that Ms. Weaver ensure that the female children of the parties’ marriage, who are aged 16 (now nearly 17) and 14, and who reside with Ms. Weaver, return to school immediately and complete their school year by attending in-person classes. The children did not and have yet to return to school.
[2] Ms. Weaver denies that she is in contempt.
[3] For the reasons that follow, I find that Ms. Weaver has failed to comply with the order of Justice Gomery. As a result, I am making an order against her pursuant to Family Law Rule 1(8). This matter is also being adjourned to September 2, 2022 before me, for a report on Ms. Weaver’s compliance with the terms of my Rule 1(8) order and for further submissions.
Background
[4] The parties cohabited between 2001 and 2014. They never married. Three children were born of their relationship, the two children earlier herein referred to and their brother, who is a twin of the elder female. He resides with Mr. Macnamara.
[5] On separation, the parties entered into two partial agreements which, combined, where intended to settle all matters between them.
[6] The parties agreed upon joint custody and shared parenting time with the children. Until April 2021, the parties followed the agreement without difficulty.
[7] Mr. Macnamara commenced this proceeding when, at the height of the Covid-19 pandemic, the female children refused to see him, stopped attending school, and became involved with the Church of God, a religious organization which gained some notoriety during the pandemic for its opposition to many of the restrictions imposed in an attempt to manage the spread of the coronavirus responsible for Covid-19.
[8] Ms. Weaver became involved with the Church of God during the pandemic. She appears to have adopted many of its views about Covid-19 and government mandated or suggested countermeasures.
[9] The application was first before the court on October 29, 2021. At that time, Mr. Macnamara brought an urgent motion seeking relief pertaining to the children’s primary residence, the female children’s schooling, Covid-19 precautions, counselling and vaccinations. Ms. Weaver, although served with the materials, did not appear on that date. In her absence, only the issues of the female children’s schooling and Covid-19 precautions were addressed.
[10] Having heard the urgent motion on October 29, 2021, I ordered on an interim, without prejudice basis on November 1, 2021, that Ms. Weaver “shall ensure that the child M.J.M…begins immediately and continues to attend in-person schooling at Parkside Collegiate, and the child K.C.M….begins immediately and continues to attend in-person schooling at Southwold Elementary unless and until a further court order relieves her of this obligation.”
[11] The motion was adjourned to December 10, 2021 to be spoken to. Ultimately, on February 11, 2022, the parties appeared before Justice Gomery, when the motion originally brought by Mr. Macnamara proceeded. Mr. Macnamara requested an order that Ms. Weaver comply with my order of November 1, 2021 by ensuring that the female children attend school in person. They had, to that point, not yet attended school in person.
[12] On February 28, 2022, Justice Gomery made an order which largely mirrored my order of November 1, 2021, including with respect to the female children attending school. Justice Gomery’s order also addressed other matters contained in the original notice of motion which had not been the subject of submissions before me on October 29, 2021. In making her order, Justice Gomery found that, “despite the November 2021 order, Ms. Weaver has taken no steps to require [the female children] to attend school in-person.”
[13] Justice Gomery also found it to be in the best interests of the female children that they attend in-person schooling at the respective schools I had identified in my order of November 2021.
[14] When I heard Mr. Macnamara’s contempt motion on April 29, 2022, neither my order of November 1, 2021 nor Justice Gomery’s order of February 28, 2022, as each pertained to the female children’s attendance at school, were being complied with.
[15] In her response to the contempt motion, Ms. Weaver filed an affidavit that contained, amongst other evidence, the following statements:
a. “As a result of the Court Order, I was to call and enroll the children in school and discuss course selections with the girls. To date, I have not done so. It does not make sense to me. The school year is too far along, and I don’t want the girls to lose their school year, both in homeschooling and in person learning.” (It had been Ms. Weaver’s position that the children were receiving an adequate education through homeschooling, a submission which Justice Gomery had rejected.)
b. “With the exception of schooling, I have followed the court order.”
c. “At this point the girls have not been enrolled in school.”
d. “The girls simply do not want to go [to] in person school and have refused to go.”
e. “Sadly, with great respect to the Court, I have not complied with the specific provisions about school. The girls refuse.”
f. “I am concerned that, at this point, it would also make no sense to go back to in person schooling. I have not contacted the respective schools for the girls.”
Positions of the Parties
[16] In her factum, Ms. Barr, counsel for Mr. Macnamara, reviewed the law with respect to contempt orders in family proceedings and submitted that the evidence clearly established that Ms. Weaver was in contempt of court for noncompliance with the terms of the order of Justice Gomery.
[17] Ms. Barr also submitted that if the court determined that finding Ms. Weaver to be in contempt was not appropriate, it would be in order for the court to make an order striking Ms. Weaver’s pleadings pursuant to Rule 1(8).
[18] Mr. Pentz, counsel for Ms. Weaver, also reviewed the relevant case law pertaining to contempt. He submitted that Mr. Macnamara had not established the necessary criminal standard of proof that underlies contempt orders, nor had he proven his claim beyond a reasonable doubt.
[19] He further submitted that Ms. Weaver had pleaded some possible defences to the contempt claim, including that Ms. Weaver had acted in good faith, and that she had “a legitimate excuse based on a reasonably held belief that there was good reason to disobey the court order.”
[20] Mr. Pentz suggested that there were a number of other steps that could have been taken by Mr. Macnamara before he proceeded to seek an order finding his client in contempt. He also suggested that there are alternatives to the named schools that Justice Gomery had ordered that the children attend in person. When asked, he referred to both Catholic schools and private schools.
[21] Mr. Pentz further submitted that, “even if the court does find that [Ms. Weaver] deliberately and wilfully disobeyed the court order, the court can make a finding or a declaration that [she] has breached the order, but the court does not have to make a finding of contempt.”
[22] Mr. Pentz lastly submitted that the contempt motion was premature because Ms. Weaver was “doing her best to involve professionals and others to resolve the issue of schooling for” the female children.
Analysis
[23] In Bouchard v. Sgovio, 2021 ONCA 709, [2021] O.J. No. 5216, the Ontario Court of Appeal addressed the relationship between contempt hearings and enforcement hearings under Rule 1(8), and held as follows:
60 First, 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), 2002 CanLII 49352 (ON CA), 219 D.L.R. (4th) 334 (Ont. C.A.).
[24] Accordingly, I find that it is appropriate to fashion a remedial order under Rule 1(8), despite the fact that this is a contempt proceeding and without needing to determine at this time whether or not Ms. Weaver is in contempt of the order of Justice Gomery.
[25] Therefore, Ms. Barr was on the right path when she suggested that, if the court could not make a contempt finding in this case, it could make orders pursuant to Rule 1(8). She simply limited her submission to one of the listed possible orders that a court could make under that Rule.
[26] However, the Court of Appeal also held, in Bouchard v. Sgovio that the list of orders that could be made pursuant to Rule 1(8) extended beyond those listed in the rule, writing:
49 … 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".
[27] Significant to the submissions made by Mr. Pentz that Mr. Macnamara had not established to the degree required the necessary elements for a finding of contempt, in Bouchard v. Sgovio the Court of Appeal held, at paragraph 49, that “[a]s 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), 2007 CanLII 10905 (ON SC), 85 O.R. (3d) 505, at para. 17 (Ont. S.C.J.).”
[28] Accordingly, the test to be met by a moving party seeking an enforcement order under Rule 1(8) is simply that “there has been a failure to obey an order 'in a case or a related case.'” It is a lower test than that required to be met for a finding of contempt.
[29] There is no doubt in this case, and I find, that Ms. Weaver has failed to obey the order of Justice Gomery. She deposed that fact, several times, in her affidavit. Accordingly, I find that I have the necessary foundation to make an order under Rule 1(8).
[30] The breadth of the relief that may be granted under Rule 1(8), while not limitless, as the Court of Appeal held in Bouchard, is extensive. As the Court of Appeal wrote at paragraph 51:
51 …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).
Conclusion
[31] Given my finding that Ms. Weaver has failed to obey the order of Justice Gomery with respect to the parties’ female children attending in-person at school, I make the interim order which follows.
[32] In doing so, I am focusing on the 2022-2023 school year:
a. in part because Ms. Weaver’s failure to have complied with the order of Justice Gomery, and mine before it, appears to mean that the parties’ female children have lost a year of formal education. My order allows Ms. Weaver to provide evidence to the contrary; and
b. in part because, as Ms. Barr noted in submissions, due to Ms. Weaver’s repeated failure to have complied with prior orders requiring that she ensure that the parties’ female children return to school, the chances of her complying with yet another order this late in the school year were likely not high.
[33] Accepting that what Ms. Barr predicted to be more likely than not, I have opted to use the next school year as the base line for the children’s return to school, while preserving the right to later, finally, address Ms. Weaver’s failure to have complied with the order of Justice Gomery.
[34] The degree to which Ms. Weaver complies with this order will be taken into account when the terms of the final enforcement order are set.
Order
- Within 72 hours of the date of release of this order to her counsel, the Respondent, Ms. Weaver, shall:
a. contact the Principal at Parkside Collegiate to arrange for Ms. Weaver and the child M.J.M. to meet with a guidance counsellor at the school at the earliest date offered by the guidance counsellor or, in default, the Principal, for the purpose of discussing M.J.M.’s return to school in September 2022 and the selection of courses for which she is or will be as of the end of the current school year, qualified to be registered;
b. subject to Paragraph 4 hereof, contact the Principal at Southwold Elementary School to arrange for Ms. Weaver and the child K.C.M. to meet with the Principal at the earliest date offered by the Principal, for the purpose of discussing K.C.M.’s return to school in September 2022;
c. contact the person or persons employed by the Thames Valley District School Board responsible for overseeing the Board’s summer school education and, subject to paragraph 1(d) hereof, register the children M.J.M. and K.C.M. to attend the maximum number of summer school courses for which they are eligible and academically qualified to attend in 2022 in order to make up for any deficiencies in their educational qualifications for a return to school in September 2022, based on their absence from school during the 2021-2022 school year;
d. if a meeting is necessary before the parties’ female children or either of them may attend summer school in 2022, the Respondent, Ms. Weaver, and the child whose attendance is necessary at any such meeting, shall attend such meeting at the earliest date offered by the person advising of the need for such a meeting; and
e. notify Mr. Pentz of:
i. the names of all of the persons with whom she speaks at the Thames Valley District School Board, at Parkside Collegiate and at Southwold Elementary School in furtherance of complying with this order, and
ii. the dates and times of all meetings scheduled in furtherance of complying with this order, in order that Mr. Pentz may pass that information along, immediately upon being so informed, to Ms. Barr.
Once she has secured a date and time for her and M.J.M.to meet with the guidance counsellor, the Respondent, Ms. Weaver, shall ensure, without any exception, excuse or reason whatsoever, that she and M.J.M. attend the meeting with the guidance counsellor, and that M.J.M. is registered to return to Parkside Collegiate in September 2022.
Subject to Paragraph 4 hereof, once she has secured a date and time for her and K.C.M. to meet with the Principal, the Respondent, Ms. Weaver, shall ensure, without any exception, excuse or reason whatsoever, that she and K.C.M. attend the meeting with the Principal and that K.C.M. is registered to return to Southwold Elementary School in September 2022.
In the event that the child K.C.M. is eligible in September 2022 to attend Parkside Collegiate because of her age or academic qualifications, the provisions of paragraphs 1 (a) and 2 of this order shall apply with respect to K.C.M. in the same manner as it applies to M.J.M., rather than the provisions of paragraphs 1(b) and 3. In that event, the Respondent, Ms. Weaver, shall comply with the provisions of paragraphs 1(a) and 2 of this order with respect to both of the children M.J.M. and K.C.M.
The provisions of Paragraph 1(c), 1(d) and 1(e) of this order apply to both M.J.M. and K.C.M., regardless of which school they are or will be eligible to attend in September 2022.
The Respondent, Ms. Weaver, shall not utilize the absence of any person employed by Thames Valley District School Board with whom she is required, by the terms of this order, to communicate, or with whom she is to meet, as an excuse or explanation for not complying with the order.
If any person or persons employed by Thames Valley District School Board with whom the Respondent, Ms. Weaver, is required, by the terms of this order, to communicate, or with whom she is to meet, is or will not be available to speak to or meet with her at any time prior to September 2, 2022, the Respondent, Ms. Weaver shall make all reasonable efforts to ascertain the name and position of the person or persons employed by Thames Valley District School Board to whom she can speak, or with whom she can meet, in the alternative to any person identified by the terms of this order. Ms. Weaver shall thereupon communicate with or, accompanied by the child whose presence is required by the terms of this order, meet the alternate person for the purposes of complying with the terms of this order.
The Respondent, Ms. Weaver shall document all of her efforts to ascertain the name of the person or persons employed by Thames Valley District School Board with whom she is to communicate or with whom she is to meet as an alternative to the persons employed by Thames Valley District School Board initially identified by the terms of this order. She shall provide that information to Mr. Pentz in order that it can be passed along, forthwith upon receipt, by Mr. Pentz to Ms. Barr.
The Applicant, Mr. Macnamara, is hereby entitled to attend all such meetings as are scheduled in accordance with this order.
The Respondent, Ms. Weaver shall ensure that the children also attend all such meetings as are scheduled in accordance with this order, despite the attendance or possible attendance of the Applicant, Mr. Macnamara.
The Respondent, Ms. Weaver shall provide a copy of this endorsement and a copy of any issued and entered order based upon this endorsement, to each representative or employee of the Thames Valley District School Board with whom she meets in furtherance of complying with this order.
The Respondent, Ms. Weaver, shall at all times, through her counsel, keep counsel for the Applicant, Mr. Macnamara, apprised of steps that she is taking to comply with the provisions of this order.
The Respondent, Ms. Weaver, shall, within 14 days of the date of release of this order, provide to counsel for the Applicant, Mr. Macnamara, written evidence in the form of a letter signed by a person responsible for the assessment of curriculum at the Thames Valley District School Board, in which that person indicates what academic credit, if any, the Thames Valley District School Board is prepared to grant, or will be granting, to the parties’ female children in respect of the homeschooling curriculum that was utilized for them by the Respondent, Ms. Weaver, during the 2021 – 2022 school year.
This matter is adjourned to Friday, September 2, 2022 at 3:00 p.m. or such other date and time when Justice Price shall be sitting in St. Thomas as counsel, in consultation with the Trial Coordinator at St. Thomas, may agree, for the court to receive a report about the extent, if any, to which the Respondent, Ms. Weaver, has complied with the terms of this order.
In the event that the order has not been complied with by the Respondent Ms. Weaver, meaning that, for reasons not beyond the control of the Respondent, Ms. Weaver, the children, M.J.M. and K.C.M., or either of them, have not attended summer school or are not registered to commence school in September 2022 at the school operated by the Thames Valley District School Board for which they are otherwise academically qualified to attend, the court will hear further submissions with respect to:
a. whether Mr. Macnamara’s request for the imposition of a fine for each day that the children have not attended school after February 28, 2022 can be imposed pursuant to Rule 1(8) or whether a finding of contempt must be made before such a remedy may be imposed; and
b. any other terms that may be included in an order against the Respondent, Ms. Weaver, as a result of her failure to have complied with the order of Justice Gomery including whether, in the circumstances of this case, an order should be made placing the children M.J.M. and K.C.M., or either of them, the primary care of the Applicant, Mr. Macnamara, in order that he can take the steps necessary to ensure that the children M.J.M. and K.C.M., or either of them, resume their attendance, in person, at school.
Justice Price remains seized of this matter with respect to the contempt motion brought by the Applicant, Mr. Macnamara, and with respect to the follow-up to this order.
The costs of the motion heard on April 29, 2022 are adjourned to September 2, 2022.
Justice T. Price
Date: June 13, 2022