COURT FILE NO.: FS-15-764
DATE: 2022 01 26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J.M., Applicant
AND:
D.W., Respondent
BEFORE: Conlan J.
COUNSEL: Mr. B. Ludmer, for the Applicant, J.M.
Ms. S. Kalra, for the Respondent, D.W.
HEARD: January 26, 2022
ENDORSEMENT on motion
I. The Father’s Motion
[1] By Notice of Motion dated January 3, 2022, the Applicant father, J.M., moves for 37 substantive heads of relief including (i) an order that the Respondent mother, D.W., is in breach of the consent Final Order of Gibson J. dated February 28, 2017, concerning the child (M.J.M., now 8 years old), and (ii) an order that D.W. shall comply strictly with the said Final Order, and (iii) an order for make-up time between J.M. and the child, and (iv) an order to appoint a family reunification therapist.
II. The Evidence and Filings on the Motion
[2] The motion is supported by evidence from J.M. (his affidavits sworn on January 3 and January 20, 2022), and from J.M.’s brother K.M. (his affidavit sworn on the same date), and from J.M.’s mother A.M. (her affidavit sworn on January 20, 2022), and from J.M.’s sister-in-law E.S. (her affidavit sworn on January 20, 2022). The father has also filed a factum.
[3] The mother’s evidence in opposition to the motion consists of her affidavit sworn on January 14, 2022, and two affidavits from two of D.W.’s friends both sworn on that same date, and an affidavit from D.W.’s partner M.L. (sworn on the same date), and an affidavit from D.W.’s cousin M.S. (sworn on the same date), and an affidavit from D.W.’s sister R.F. (sworn on the same date). The mother has also filed a factum.
III. The Father’s Position on the Motion
[4] The father’s argument is encapsulated at paragraph 2 of his factum – the mother has refused to support the child’s relationship with the father and the paternal family, and she is guilty of rampant non-compliance with the Final Order of Gibson J., and she has denied to the father his court-ordered parenting time, which failures “have created instability and hatred in the child, directed toward the paternal family and his time in his father’s care”; and thus, the father “has been forced to bring this motion to protect [the child’s] best interests”.
[5] In terms of the law, the father states as follows at paragraphs 1 through 7 of his factum (endnotes excluded).
Rule 1(8) of the Family Law Rules (“Rules”) gives the Court a 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 in a case or a related case. An order under R. 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.
The case law establishes a 3-part inquiry in applying R. 1(8): (1) The must ask whether there is a triggering event of non-compliance with a court order that would allow it to consider the wording of sub-rule 1(8). (2) If the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under sub-rule 1(8). (3) In the event the court determines it will not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy under sub-rule 1(8).
The original test was articulated by Justice Spence in Ferguson v. Charlton (2008). However, this case and previous jurisprudence under former R. 1(8) and R. 14(23) continue to apply and contain the essential principles.
Although often not in issue, the breach of a Court order, or “triggering event,” must be established by the moving party on a balance of probabilities. Further, the Order alleged to have been breached should be clear and unequivocal about what should / should not be done.
Once the “triggering event” is established, non-compliance should not be taken lightly. The onus lies with the non-compliant party to show, on a balance of probabilities, why R. 1(8) should not be applied. For example, the non-compliant party might acknowledge their obligation but provides a prima facie explanation for why they are unable to comply (e.g. an inability to pay). On the other hand, there will be no reason to exercise the Court’s discretion in favour of a non-compliant party who has shown chronic, deliberate, wilful, or intentional non-compliance with Court orders, has no credible explanation for the noncompliance, or has the ability to otherwise comply.
Further, the fact that a party does not act when they first learn of non-compliance by the other party is not relevant; a Court should never be left at the mercy of litigants when it comes to defending and preserving the administration of justice.
Rule 1(8) was recently reviewed extensively by the Ontario Court of Appeal in Bouchard v Sgovio. It was confirmed that the provision is remedial and the Court has a very broad latitude to craft remedies that will support future compliance. This can go as far as removal of the children from the offending parent.
IV. The Mother’s Position on the Motion
[6] The mother’s argument is summarized at paragraph 1 of her factum – the “motion is vexatious, inappropriate and not the correct forum”; D.W. “has not breached the Final Order and is in the process of filing a Motion to Change which addresses much of the issues that the Father brings up in his motion”; and “[o]ver the past 8 years the Wife has diligently and always supported [the child’s] relationship with his father and has made every effort to co-parent with the Father”.
[7] In terms of the law, the mother states as follows at paragraphs 21 through 24 of her factum.
It is the Mother’s position that she has not breached the Final Order of Justice Gibson and as such, there is no reason to make an order for compliance.
The Family Law Rules provide clear sanctions for breaching court orders. Rule 1(8) provides that a Court may deal with a failure to follow the Rules or obey an order in a case…by making any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including an order for costs; and an order dismissing a claim made by a party who has wilfully failed to follow the rules or obey the order. Rule 14(23) provides that a party who does not obey an order that was made on motion is not entitled to any further order from the court…and the court may on motion, in addition to any other remedy allowed under these Rules:
(a) dismiss the party’s case or strike out the party’s answer or any other document filed by the party;
(b) postpone the trial or any other step in the case;
(c) make any other order that is appropriate, including an order for costs.
- The Court in Ferguson v. Charlton sets out a three-step process for considering the application of Rules 1(8) and 14(23). At paragraph 64 the court states:
First, the court must ask whether there a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order "in the case or a related case" [subrule 1(8)] or an order "made on motion" [subrule 14(23)].
Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14(23) does not apply. My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view, the court's decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.
Third, in the event that the court determines that it will not exercise its discretion in favour of the noncomplying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).
- It is the Mother’s position that there has been no “triggering event” as contemplated in Ferguson. The Father has created a laundry list of breaches of the Final Order, ignoring the context of the parties’ co-parenting relationship for years. As the court in Ferguson states, all relevant history must be considered.
V. Analysis
The Burden and the Standard of Proof
[8] It is not the mother’s duty to prove that she has not breached the Final Order in question, or that the therapy requested is not appropriate; the burden of proof rests with the moving party father, and the standard of proof is on a balance of probabilities.
Has There Been a Breach of the Final Order?
[9] With respect, I disagree with the mother that there has no breach of the Final Order of Justice Gibson. The clearest incident of non-compliance, and the only one that I am prepared to find on the conflicting, untested affidavit evidence before me, took place in September 2021. The father claims that the child ought to have been with him between September 3 and September 6, an allegation disputed by the mother (see paragraph 32 of the father’s first affidavit and paragraph 43 of the mother’s affidavit).
[10] The mother disputes the allegation on the sole basis that the Final Order had always been interpreted by the parties as providing that those dates in September were part of the “summer care schedule” and not part of the “regular care schedule”, and thus the child was properly withheld from the father in early September 2021.
[11] That makes no sense, on a plain reading of the Final Order. First, parties cannot agree to interpret a court order in an unreasonable way and then argue down the road that the said unreasonable interpretation forecloses any finding that the order, on a plain reading of it, has not been followed. This is not a motion for contempt. Second, I reject the mother’s evidence that the father ever acceded to her interpretation of the Final Order, referred to above. It may have been her interpretation, but it was not a jointly held one. Third and finally, the Final Order clearly and plainly refers to the summer as being July and August – see the multiple references to those two months at clauses 7 and 8 of the Final Order, under the heading “holiday and summer care schedule”. There is no basis, whether contained in the Final Order or on common sense, to suggest that the summer schedule encroached into the month of September.
[12] The child should have been with the father on those dates in early September 2021; that he was not was in violation of the Final Order. I make that finding.
Has the Mother Been Reasonable in Supporting a Healthy Relationship Between Father and Child?
[13] With respect, I disagree with the mother that she has done everything that can reasonably be expected of her to support the relationship between the child and the father.
[14] At paragraphs 18 and 19 of her affidavit, the mother tries to explain but does not deny the statements and conduct attributed to her at paragraphs 7 and 8 of the father’s first affidavit. There is no way to explain those statements/conduct, however; they are wrong. Her responsibility to promote healthy relationships between the child and the father’s family ended when she separated from the father? That is what the mother wrote to the father. I disagree. That responsibility survived the breakdown of the union. She should not be expected to force the child out the door for every scheduled visit with the father? That is also what the mother communicated to the father. Again, I disagree. The boy is 8 years old. Contact with his father is not his choice.
[15] These statements from the mother cause me concern. They may be aberrations, and I hope that they are, but they cannot be condoned.
Is it Premature to Consider the Relief Sought by the Father on its Merits?
[16] With respect, I disagree with the mother that the father’s motion is premature. I accept that the mother is about to have issued a Motion to Change the Final Order of Gibson J., but this is a compliance motion. It is not a contempt motion. Whether the Final Order is varied or not, and for what reason(s), are irrelevant to whether the relief sought by the father for prior non-compliance with the Final Order is appropriate.
[17] Nevertheless, I appreciate Ms. Kalra’s sensible offer to have the mother comply with a strict deadline for the issuance of her anticipated Motion to Change, and I agree that such a deadline should be imposed. Thus, this Court orders that the mother shall submit her Motion to Change to the court office for issuance by February 4, 2022.
[18] This Court orders further that, unless and until the Final Order of Gibson J. is varied, both parties shall strictly comply with all of its provisions.
What Further Relief Should be Ordered, on Account of the Prior Non-Compliance with the Final Order?
[19] I agree with Ms. Kalra that, aside from the days in early September 2021 discussed above, the evidence filed (not the chart that was filed in aid of Mr. Ludmer’s submissions) does not substantiate on balance that the father has missed court-ordered time with the child.
[20] I agree with Mr. Ludmer, however, that there has to be some remedy for the missed time in early September 2021. Hence, this Court orders that the father shall have the child in his care for four (4) extra days. When those days occur shall be worked out between the parties, failing which this Court will make an imposition.
[21] Regarding therapy, whether we label it family reconciliation therapy (the expression used in the father’s Notice of Motion), or reunification therapy (the term used in the mother’s factum), or just family therapy, I decline to order that relief sought by the father. I agree with Ms. Kalra that this case is similar to what confronted Justice D.C. Shaw in Barrett v. Huver, 2018 ONSC 2322, where it was observed at paragraph 17 that it was impossible to determine, on competing and conflicting and untested affidavit evidence and the absence of any expert evidence, the reason or reasons for the relationship difficulties between the contact parent and the child. I make the same observation here, notwithstanding the evidence stressed by Mr. Ludmer (the affidavit of the child’s paternal uncle, which evidence I have reviewed). I agree further with Ms. Kalra that the commentary of Justice Jarvis in Testani and Haughton, 2016 ONSC 5827, at paragraph 18, which I agree with, setting out the factors that should apply to an assessment of whether this type of therapy ought to be court-ordered, runs against the father’s request in our case. Most particularly, there is a lack of compelling evidence that the proposed therapy will be beneficial. I would suggest that the father revisit this issue in the context of the anticipated Motion to Change, and I would suggest that the father file something from the proposed expert therapist which sets out the plan of action and why it is thought that it will be beneficial to the child and his relationship with his father.
[22] As for the mother’s suggestion that the Court consider making an order for individual therapy for the child, I agree with Mr. Ludmer that such an order is not appropriate. First, there is no motion before the Court for that relief. Second, there is nothing filed that gives me much information about the proposed therapist or the plan of action. And third, the suggestion is completely contrary to the mother’s overall position, which position is that this child is perfectly fine (my expression, but that is the essence of the mother’s position). Why would I order such a child into therapy? I would not.
Summary
[23] Contrary to the mother’s contention, applying the three-step process identified by Justice Spence in Ferguson v. Charlton, 2008 ONCJ 1, first, there has been a “triggering event” – non-compliance with the Final Order, as discussed above. The non-compliance has not been found to the extent suggested by the father, but it is important non-compliance nonetheless. Second, I find that it would not be appropriate for this Court to simply ignore the non-compliance and exercise its discretion in favour of the mother by not sanctioning her under subrule 1(8). Third, the limited orders made above are the extent of which this Court is prepared to do in the exercise of its very broad discretion to remedy the non-compliance.
VI. Conclusion
[24] This Court is grateful for the helpful submissions made by both lawyers, Mr. Ludmer and Ms. Kalra. The matter was extremely well argued by counsel. The facta were instructive, and the oral submissions were focused (we completed the hearing in less than one-half day) and nicely delivered.
[25] For the foregoing reasons, the father’s motion is granted in part. Items 1 and 2 in the prayer for relief as contained in the Notice of Motion dated January 3, 2022 are granted. Item 3, an amended version of that requested relief, is also granted. Items 4 through 37 are dismissed, without prejudice to the father’s right to revisit his request for family reconciliation therapy in the context of the upcoming Motion to Change. Item 38, costs, is dealt with below. Item 39 is not applicable.
[26] On costs, if not resolved between the parties, the Court will accept written submissions. Each submission shall be limited to two (2) pages in length, excluding attachments. Either side seeking costs shall file within thirty (30) calendar days of today. The other side shall respond within fifteen (15) calendar days thereafter. No reply is permitted by either side.
C.J. Conlan
Electronic signature of Conlan J.
Date: January 26, 2022