Court File and Parties

COURT FILE NO.: FC258/21 DATE: 2023/01/09 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Timothy Macnamara, Applicant AND: Tracy Lorraine Weaver, Respondent

BEFORE: T. PRICE J.

COUNSEL: Brenda Barr - Counsel for the Applicant Respondent, self-represented

HEARD: November 22, 2022

Corrected Endorsement

Overview

[1] This is the last step in a series of motions that began in October 2021.

[2] The matter was first before me on October 29, 2021. At that time, I heard an urgent motion brought by the Applicant, Timothy Macnamara (hereinafter referred to as Mr. Macnamara) in which he sought relief arising from the fact that the Respondent, Tracy Weaver (hereinafter referred to as Ms. Weaver) was failing to require the parties’ female children to attend in-person schooling. Ms. Weaver neither appeared on the motion, although served, nor did she file any materials.

[3] On November 1, 2021, having considered the affidavit evidence filed by Mr. Macnamara and the submissions of his counsel, Ms. Barr, I made an interim, without prejudice order that Ms. Weaver would ensure that the parties’ daughters, then aged 16 and 13 “begin immediately and continue to attend in-person schooling” at the schools they had been attending prior to the onset of Covid-19. Certain other orders were made that day which, for the purposes of this motion, are not relevant.

[4] Ms. Weaver was also ordered to pay costs to Mr. Macnamara in the amount of $400.00, limited to counsel fee for the appearance that day. Mr. Macnamara’s other costs for that date were reserved to the Justice hearing the motion, if argued, or the Justice making a final order in the matter.

[5] The matter was adjourned to December 10, 2021 to be spoken to. On that date, I extended the time for Ms. Weaver to file her Answer, with Mr. Macnamara’s motion to be set to a date determined by the Trial Coordinator in consultation with counsel for the parties. Ms. Weaver had, by then, retained Mr. Pentz.

[6] On January 7, 2022, Justice Korpan requested the involvement of the Office of the Children’s Lawyer, which accepted the request and appointed a clinical investigator.

[7] The parties next appeared before Justice S. Gomery on February 11, 2022, at which time Mr. Macnamara’s request for continuation of the urgent interim order made by me on November 1, 2021, and which Ms. Weaver opposed, was argued by counsel. Justice Gomery reserved her decision.

[8] Justice Gomery’s endorsement was released on February 28, 2022. While Justice Gomery addressed a number of issues in her endorsement, most significant to the final relief being sought today by Ms. Barr on behalf of Mr. Macnamara is that Justice Gomery continued the term of my interim, without prejudice order dated November 1, 2021 requiring Ms. Weaver to send the parties’ daughters for in-person schooling.

[9] It is undisputed that at no time between November 1, 2021 and February 28, 2022 did Ms. Weaver make any effort to comply with that term in my order dated November 1, 2021.

[10] As I had done, Justice Gomery also ordered Ms. Weaver to pay costs fixed in the amount of $400.00 to cover only Ms. Barr’s attendance on the motion on February 11, 2022, with the balance of cost to be fixed by the judge making the final order with respect to the issues on the motion.

[11] Notwithstanding Justice Gomery’s order, Ms. Weaver continued to not comply with the orders of November 1, 2021 and February 28, 2022 by requiring that the parties’ daughters attend in-person schooling.

[12] As a result, Ms. Barr brought a contempt motion against Ms. Weaver, returnable April 29, 2022. This is the last step in respect of that motion.

[13] Ms. Weaver’s alleged contempt was said to consist of her failure to comply with the specific terms set out in the order of Justice Gomery which required that she ensure that the parties’ daughters “begin immediately and continue to attend in-person schooling” at the schools that they should have been registered to attend, “unless and until a further court order relieves her of this obligation.”

[14] As relief, Mr. Macnamara requested an order that Ms. Weaver purge her contempt by ensuring that the children attend school immediately and continue to attend in accordance with the order of Justice Gomery, and that she take steps to register the children to attend summer school courses in 2022 “to remediate the harm caused by the children missing the majority of their 2021-2022 school year.”

[15] Mr. Macnamara further requested that, should Ms. Weaver’s non-compliance with the order of Justice Gomery continue, she “be fined $100 per day for each day [that the parties’ daughters] are not in attendance at school, in accordance with Rule 31(5)(c), with payment to be set off against the spousal support and child support owing by” Mr. Macnamara to Ms. Weaver.

[16] That motion was opposed by Ms. Weaver who was, at the time, still represented by Mr. Pentz.

[17] The contempt motion came before me for argument on April 29, 2022. I released an interim endorsement Macnamara v. Weaver, 2022 ONSC 3532 on June 13, 2022.

[18] Rather than finding Ms. Weaver to be in contempt at that time I elected, instead, to fashion an interim remedial order under Rule 1(8) on the basis of her failure to comply with the order of Justice Gomery.

[19] In formulating my order, I focused on the then-upcoming 2022-2023 school year given, in part, that the order was being made late in the 2021-2022 school year.

[20] I required Ms. Weaver to do 13 different things. Some, focused on registering the children for summer school and for return to school in September 2022, were to be done within 72 hours of the release of my decision, with follow-up actions dependent on what occurred within the 72 hours.

[21] I also ordered that, within 14 days of the order, Ms. Weaver provide Ms. Barr with evidence in the form of a letter from the appropriate person at the local school board addressing what academic credit, if any, the board was prepared to grant to the children with respect to the homeschooling curriculum that Ms. Weaver claimed she was utilizing to educate the children during the 2021-2022 school year.

[22] I further wrote that “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.”

[23] Lastly, the matter was adjourned to September 2, 2022, before me, to receive a report about the extent, if any, to which Ms. Weaver had complied with the terms of my interim order.

[24] I specifically directed in my order that, if it had not been complied with by Ms. Weaver for reasons not beyond her control, I would hear further submissions about whether Mr. Macnamara’s request for imposition of a fine in the amount of $100.00 per day was permissible under Rule 1(8) or whether a finding of contempt was required before such an order could be made.

[25] Following the release of my endorsement, Mr. Pentz was removed as solicitor of record for Ms. Weaver.

[26] The submissions which were to be made with respect to the issue of the imposition of a fine on September 2, 2022 were, for various reasons, deferred to, first, October 26, 2022 and, ultimately, November 22, 2022.

Result

[27] For the reasons that follow, although I find that Mr. Macnamara has established beyond a reasonable doubt the necessary elements for a finding of contempt against Ms. Weaver as a result of her failure to comply with the order of Justice Gomery as it pertains to the in-school attendance of the children, I neither find Ms. Weaver to be in contempt of Justice Gomery’s order, nor do I order her to pay a monetary penalty to Mr. Macnamara under Rule 1(8).

[28] I do, however, make the following order:

1. This court declares that the Respondent Tracy Lorraine Weaver repeatedly and wilfully failed to comply with the order of Justice S. Gomery dated February 28, 2022 by failing to register her female children for, or requiring them to attend, in-person learning at the schools for which they ought to have been registered for the 2021-2022 school year.
2. The Applicant Timothy Macnamara is hereby granted the irrevocable authority to communicate on behalf of the Respondent, Tracy Lorraine Weaver and his daughter M., with the educational organization responsible for supplying the course information utilized by the Respondent Tracy Lorraine Weaver for the home-based education provided to M. during the 2021-2022 school year: a. as to the extent, if any, to which such course material contains Ontario secondary school curricular materials, and b. to obtain a transcript from such educational organization detailing such information, for presentation to the Thames Valley District School Board in an effort to determine what academic credit, if any, the Thames Valley District School Board is able to grant to the child M. in respect of the homeschooling curriculum that was utilized by the Respondent Tracy Lorraine Weaver during the 2021-2022 school year.
3. In order to facilitate Mr. Macnamara’s ability to effect the communication and obtain the transcript provided for under paragraph 2 hereof, the Respondent Tracy Lorraine Weaver shall, within 14 days, provide Ms. Barr, counsel for the Applicant Timothy Macnamara, with the name and address of the educational organization referred to in paragraph 2 hereof, any registration particulars with such education organization pertaining to the child M. as is available to Ms. Weaver, and full details about all courses said by Ms. Weaver to have been taken by M. through such educational organization.
4. In the event that Tracy Lorraine Weaver did not register the child M. with any educational organization, she shall, within 14 days, supply Ms. Barr, counsel for Timothy Macnamara, with a signed document confirming that she did not register the child M. with any educational organization. She shall also confirm, in writing, whether she has any knowledge about whether the homeschool courses taken by the child M. contain any Ontario curriculum and, if so, by what manner and from whom she gained that knowledge.
5. In the event that Tracy Lorraine Weaver fails to fully comply with her obligations under either Paragraph 3 or Paragraph 4 hereof within the said 14 days, as of February 1, 2023, and as of the first day of each succeeding month during which she has failed to fully comply with her obligations under either Paragraph 3 or Paragraph 4 hereof, Timothy Macnamara’s spousal support obligation for that month shall be set at zero dollars.
6. Upon the Respondent Tracy Lorraine Weaver fully complying with either Paragraph 3 or paragraph 4 hereof, paragraph 5 hereof relating to spousal support is terminated, and the existing arrangements for the payment of spousal support by the Applicant Timothy Macnamara to the Respondent Tracy Lorraine Weaver shall resume, subject to Paragraph 8 hereof.
7. The Respondent Tracy Lorraine Weaver is hereby prohibited from bringing any motion in this proceeding without leave of the court, obtained in advance of any motion sought to be brought by her.
8. The Respondent Tracy Lorraine Weaver is not entitled to any further order from the court in this proceeding unless the court orders otherwise.
9. The Respondent Tracy Lorraine Weaver shall pay costs to the Applicant Timothy Macnamara in the amount of $23,000, all-inclusive, which amount shall be set off against any spousal support owed or to be paid by Mr. Macnamara to Ms. Weaver.

Issues and Analysis

Issue: Can a court impose a monetary penalty or a fine under Rule 1(8)?

[29] In answer to my question about whether the court can impose a monetary penalty or a fine under Rule 1(8) if it finds that a party has failed to comply with a court order, Ms. Barr argued strenuously that it can.

[30] Ms. Barr’s position is supported by some judicial authority, the primary decision being that of Justice J.F. Diamond in Granofsky v. Lambersky, [2019] O.J. No. 2813. That was a case where the party in default repeatedly failed to disclose financial information and documentation, thus thwarting the ability of the other party to advance the litigation. Justice Diamond imposed a penalty of $500.00 per day for each day of non-compliance with the disclosure obligation by the party in default.

[31] Penalties were also imposed for non-compliance with a previous order by Justice M.E. Vallee in Florovski v. Florovski, [2019] ONSC 3251 (failure to produce disclosure), by Justice A. Pinto in Troiano v. Theriault, 2022 ONSC 331 (non-payment of child support and spousal support arrears) and by Justice S. Shore in Di Poce v. Di Poce, 2022 ONSC 2099 (failure to produce disclosure).

[32] Contrary conclusions were reached by Justice P.J. Monahan in Shapiro v. Feintuch, 2018 ONSC 6746 (non-compliance with ordered requirements before travelling with child; enhanced costs as penalty only obtainable through contempt motion), by Justice J. L. McDermid in Belcourt v. Charlebois, 2020 ONSC 4124 (missed parenting time; motion framed as contempt but procedural requirements not met), by Justice Mitrow in Campbell v. Campbell, 2022 ONSC 2739 (failure to produce disclosure; no claim made in motion for a fine or monetary payment; conflicting jurisprudence) and by Justice M. Faieta in Altman v. Altman, 2022 ONSC 4479 (failure to deliver Income and Business Valuation Reports and other financial information; no jurisdiction under Rule 1(8) to impose a penalty).

[33] As Justice Mitrow wrote in Campbell:

7 The jurisprudence in Ontario is unsettled as to whether noncompliance with a court order can lead to a fine or monetary penalty, in the absence of a motion for contempt, and a finding of contempt, pursuant to r. 31 of the Family Law Rules, O. Reg. 114/99.

[34] In Altman, after reviewing some of the cases listed above, Justice Faieta also discussed the absence of clear appellate authority on the issue of the limits, if any, which might exist in addressing a failure to comply with a previous order under Rule 1(8), writing:

39 Whether a court may make an order requiring a party to pay a penalty to another party, absent a finding of contempt, pursuant to Rule 1(8) remains an open question at the Ontario Court of Appeal.

40 In Mantella v. Mantella, (2008), 61 R.F.L. (6th) 252, the Applicant husband was ordered by D.L. Corbett J. to pay a fine of $2,500.00 per day for every day after April 25, 2008 that certain previously ordered disclosure was not made. On this motion, Van Melle J. found that the Applicant had failed to deliver the required disclosure by April 25, 2008 and ordered that he pay a fine of $185,000.00 to the Applicant. In Mantella v. Mantella, 2009 ONCA 194, the Applicant's appeal of this Order was quashed on the basis that the Order was an interlocutory order and thus the appeal should have been filed with the Ontario Divisional Court rather than the Ontario Court of Appeal. In obiter, the Ontario Court of Appeal, at para. 22, stated:

The central issue raised in this appeal is whether, absent a finding of contempt, a judge has the jurisdiction under the Family Law Rules to impose and order payment of a fine as part of the case management process. In other words, as submitted by the respondent, is the authority conferred by any of Rules 1(8), 14(23) or 19(10) broad enough to allow for the making of such orders? Whether a fine or penalty can be imposed absent a finding of contempt, and to whom the fine is payable, are novel issues and are important. The novelty and importance of the issues do not, however, make the order into a final one for purposes of appeal.

41 More recently, in Bouchard v. Sgovio, 2021 ONCA 709 the Ontario Court of Appeal upheld an order granted pursuant to Rule 1(8) that, amongst other things, granted the Respondent mother a temporary parenting order to facilitate the enrollment of her children in a counselling program. However, the Ontario Court of Appeal went on to question, without deciding, whether a penalty could be imposed under Rule 1(8) in the absence of a finding of contempt. David M. Paciocco J.A. stated, at para. 51,:

51 ... 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).

52 I 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). [Emphasis added]

42 In dissenting reasons, I.V.B. Nordheimer J.A. stated:

101 ... 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)".

102 I 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. [Emphasis added]

43 I adopt this view. While there is a pressing and growing need for the efficient, effective and timely management of family law cases, the need for fairness requires placing limits on the broad authority provided by Rule 1(8) to impose a remedy for non-compliance with a court order.

[35] In the result, Justice Faieta held that, “[r]egardless of the amount of the penalty, I find that there is no jurisdiction to impose a penalty on the Respondent pursuant to Rule 1(8)…”

[36] On December 16, 2022, the Divisional Court denied the party seeking the imposition of a monetary penalty in Altman leave to appeal. (Altman v. Altman, 2022 ONSC 6952)

[37] I find Justice Faieta’s logic in Altman to be compelling, especially since it is supported, directly, by the dissenting opinion of Justice I. Nordheimer in Bouchard v. Sgovio and is also hinted at by the majority.

[38] In my earlier interim decision, I cited the conclusion of the majority of the Court of Appeal in Bouchard v. Sgovio that “[a]lthough r. 1(8) provides an itemized list of forms of relief that are available, that list is inclusive, not exclusive” as a basis for crafting my interim order.

[39] In now addressing Mr. Macnamara’s request for a monetary penalty, however, I cannot disregard the fact that, included amongst the orders that a court can make under Rule 1(8) is “on motion, a contempt order”, which brings into the mix of potential remedies those set out in Rule 31(5).

[40] If the contempt remedies fell under the rubric of “inclusive, not exclusive,” I see no reason for having specifically included in the list of remedial orders that the court can make under Rule 1(8) the ability to order that a contempt motion be brought. That it is specifically included must mean something. I take its inclusion to mean that, for the court to be able to impose, under Rule 1(8), as punishment for non-compliance with a court order, a remedy available on a finding of contempt, there must first be a finding of contempt arising from a contempt motion.

[41] I arrive at this conclusion with some reluctance because I cannot deny the appeal of the following, written by Justice Diamond in Granofsky v. Lambersky:

25 …The Court has jurisdiction to monitor and police its own case management process. In the circumstances of the case before me, it cannot lie in the respondent's mouth to interpret Rule 1(8) so strictly, while at the same time choosing to consistently not play by the rules (including the Family Law Rules). Rule 1(8) permits the Court to make "any order that it considers necessary for a just determination of the matter". The list of options available to the Court under Rule 1(8) is not exhaustive in nature, but inclusive. A just determination of any family proceeding is rooted in the protection of the administration of justice as a whole, and when a party chooses to consistently disobey a court order, the administration of justice itself is called into question.

27 Where, as in the case before me, a party commits an ongoing abuse of a central facet of the Family Law Rules, a resulting fine or monetary payment does not punish that party as an affront to the Court. Rather, the Court is enforcing its own process by ordering a stake in or cost of the proceeding due to that party's own conduct. Potential incarceration following a finding of contempt may not necessarily result in compliance with disclosure obligations and as discussed below in my treatment of Issue # 3, would typically not contribute much if anything to the advancement or resolution of support or equalization issues.

28 In my view, the Court has jurisdiction under the Family Law Rules to order a fine or monetary payment as part of its role to control and enforce its own process. Such a remedy places a price on non-compliance with court orders and disclosure obligations commensurate with that process. While a remedy of a fine or monetary payment should be reserved to exceptional and/or egregious circumstances, the respondent has been given opportunity after opportunity to comply with his duty to disclose financial information and documentation and I find the case before me to be a fitting example. (underlining added)

[42] While Justice Diamond’s conclusions are appealing, what cannot be ignored, in my view, is that they were reached in respect of a claim for a monetary penalty being requested by a party who was unable to move their litigation forward because of the failure of the other party to comply with an order that they comply with the Rules. The person seeking the order for a monetary penalty was, in that respect, the aggrieved party, and the non-compliance thwarted the ability of the innocent party to advance the litigation.

[43] In this case, those most aggrieved by Ms. Weaver’s failure to comply with Justice Gomery’s order were the children and the court. While there is no doubt that Mr. Macnamara was distressed that the children were not attending school, the children’s failure to do so did not prevent him from moving forward with the litigation.

[44] As I see it, that Mr. Macnamara is not the primary aggrieved party or, as Justice Starr phrased it in Price v. Putman, 2018 ONCJ 86 at para. 44, “the victim of the breach,” makes the requirement that Mr. Macnamara establish that Ms. Weaver’s failure to comply with Justice Gomery’s order regarding the children’s education constituted contempt all the more compelling, since Mr. Macnamara seeks to gain a monetary advantage over Ms. Weaver from that failure.

[45] In the result, I agree with Justice Faieta on this issue and find that a monetary penalty is not available as a primary remedy under Rule 1(8), particularly in circumstances where the person seeking the remedy is not the victim of the other party’s failure to comply with the order.

Issue: Has Mr. Macnamara established the necessary elements for a finding of contempt?

[46] In her alternative submission, Ms. Barr urges me to find Ms. Weaver in contempt for failing to comply with the order of Justice Gomery with respect to the children’s attendance at school.

[47] As the Court of Appeal wrote in Moncur v. Plante, 2021 ONCA 462 at para. 10:

The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:

1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.

2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.

3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

[48] As to the three elements required to be established for the finding of contempt, I find that Ms. Barr has proven beyond a reasonable doubt that:

a. the order of Justice Gomery stated clearly and unequivocally what Ms. Weaver was to do: i. ensure that the child M. begins immediately and continues to attend in-person schooling at Parkside Collegiate, and the child K. begins immediately and continues to attend in-person schooling at Southwold Elementary unless and until a further court order relieves her of this obligation. b. Ms. Weaver had actual knowledge of the order. She was present, virtually, before Justice Gomery when the motion resulting in Justice Gomery’s order was argued on February 11, 2022, so she knew what was being sought of her. In an affidavit sworn by Ms. Weaver on April 13, 2022, she deposed that she received a copy of Justice Gomery’s endorsement from her then counsel, who sent it to her by email. She further deposed that she spoke with her then counsel about the order, and that he provided her with a copy of the issued order on April 8, 2022. She further specifically deposed that she was “aware… of the order of Justice Gomery dated February 28, 2022 and the various provisions.” c. Ms. Weaver intentionally failed to do the act that the order compels. In her affidavit sworn April 13, 2022, Ms. Weaver deposed in several locations that she was not complying with the order. As I wrote in my earlier endorsement, at paragraph 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.” (underlining added)

[49] Ms. Weaver premised her primary defence to the contempt motion on two points:

a. that she was homeschooling the children, and b. that they did not wish to attend school and she could not make them.

[50] Throughout this proceeding there has been an issue about whether the alleged homeschooling being provided by Ms. Weaver to the children constituted an adequate substitute for in-school learning. In fact, as part of my interim order made on the contempt motion, I specifically directed Ms. Weaver to provide evidence from the local school board addressing that very issue. She failed to do so. Additionally, to date she has provided no evidence that the program she was utilizing to homeschool the children was an adequate or appropriate substitute for the curriculum offered by the school board.

[51] In this case, there is evidence about the views of Ms. Weaver concerning compulsory attendance at school. As Justice Gomery wrote in her endorsement dated February 28, 2022:

[The children] have also dropped out of the public school system. According to Ms. Weaver, this has less to do with a masking requirement and more with their disenchantment with the content of instruction within public schools, which she has characterized as left-wing indoctrination…

First, despite the November 2021 order, Ms. Weaver has taken no steps to require M. and K. to attend school in-person. Her excuse is that they do not wish to go. Based on Ms. Weaver’s affidavit and the other material before me, however, it is obvious that she has done nothing to encourage them to go. On the contrary, she believes that they should not attend, because she disagrees with the public-school curriculum and thinks that they would receive a better education at home… [underlining added]

[52] Given her expressed views, have no doubt that Ms. Weaver took no steps to convince her daughters to attend school, thereby establishing her willful non-compliance with the order of Justice Gomery.

Issue: Can a fine levied as a result of a finding of contempt be paid to the other party?

[53] In Altman, Justice Faieta clarified the distinction between a “fine,” which can be imposed after a finding of contempt, under Rule 31(5)(b) and a “penalty” which, under Rule 31.5(c), can be ordered to be paid to “a party” after a finding of contempt, writing:

[54] 34 In her Factum, the Applicant characterizes the payment of $3,500 per day as a penalty rather than a fine. This characterization is appropriate given that a fine for civil contempt is to be paid to the Treasurer of Ontario rather than to a party in the proceeding: SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, paras. 13-17. (underlining added)

[55] Thus, I find that, in seeking the payment of a “fine” in the amount of $100.00 per day, payable to Mr. Macnamara upon a finding of contempt, Ms. Barr has sought relief that is simply not available.

Issue: Should Ms. Weaver be found in Contempt of the Order of Justice Gomery?

[56] In the factum which he filed in opposition to the motion seeking to have Ms. Weaver found to be in contempt, her former counsel, Mr. Pentz, submitted that, even if the court did find Ms. Weaver to have deliberately and wilfully disobeyed the court order, the court can make a declaration that she did so without making a finding of contempt.

[57] In making that submission, Mr. Pentz relied upon the decision of the Ontario Court of Appeal in Hefkey v. Hefkey, 2013 ONCA 44 where, at paragraph 3, the Court wrote:

The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed” ”: see K.L. v. G.T., [2006] W.D.F.L. 2571 (Ont. S.C.), at para. 58. See also Fisher v. Fisher, [2003] O.J. No. 976 (S.C.); and Martinez v. Martinez, [1984] O.J. No. 721 (Ont. Prov. Ct. (Fam. Div.)).

[58] Mr. Pentz further relied upon the Court of Appeal decision in Chong v. Donnelly, 2019 ONCA 799, in which the Court of Appeal declined to interfere with the motion judge’s finding that the Appellant had breached the terms of an order and that the three elements of civil contempt had been established, but held that the motions judge had erred in law by failing to consider whether she should exercise her discretion to decline to make a finding of contempt, which the Court of Appeal referred to as the “last, crucial step” to be undertaken in the court’s analysis of whether to find a person in contempt. The Court of Appeal wrote:

[9] As the Supreme Court of Canada stated in Carey, at para. 36, “[t]he contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders”. This power should be exercised “cautiously and with great restraint” as “an enforcement power of last rather than first resort.” The Court added, at para. 37, that “a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case.”

[10] There is no indication that the motion judge considered whether a finding of contempt was a last resort or whether she considered any alternatives to such a finding. Such alternatives might have included the court finding that the appellant had breached the order, while admonishing him that, despite his apparently good intentions in ensuring his children were fed, he should respect the respondent’s wishes when the children were with her and comply with the order.

[11] Nor does it appear that the motion judge considered the best interests of the children, which this court has stated is the “paramount consideration” when the issue raised in the contempt motion concerns access to children: Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at para. 19. As this court stated in Ruffolo, it is in the best interests of the children to encourage professional assistance as an alternative to making a finding of contempt too readily. Indeed, here, the motion judge herself encouraged the parties to continue working with a family mediator.

[12] In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.

[59] More recently, in Moncur v. Plante, the Court of Appeal reiterated the principles it set out in Chong v. Donnelly, writing:

[17] The appellant asserts that the motion judge failed to consider relevant discretionary factors before making findings of contempt of court, namely, the best interests of the child and whether a contempt finding was a remedy of last resort.

[18] I see no basis for the suggestion that the motion judge failed to consider the best interests of the child. The motion judge expressed concern for the child’s best interests throughout the proceedings…

[19] I do, however, agree with the appellant’s argument that the motion judge did not appear to consider whether a declaration of contempt was a remedy of last resort or whether there were alternative enforcement options, such as a declaration that the appellant had breached the order or encouraging professional assistance. Without considering any alternative options, he appears to have proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt. Although the motion judge had earlier properly held the contempt ruling in abeyance to allow the parties to arbitrate their parenting conflicts, and offered to help the parties resolve their issues, his reasons do not suggest that he considered other enforcement options in lieu of ultimately making his declarations of contempt. The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court. In fairness to the motion judge, such other options do not appear to have been raised by the appellant, who was self‑represented, or by the respondent. Even so, I conclude that it was an error of law not to have considered such options: Chong, at para. 12.

[20] It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.

[60] As I have already noted, the relief sought by Mr. Macnamara on the contempt motion is an order penalizing Ms. Weaver by requiring her to pay $100.00 per day to him for each day that the children did not attend school.

[61] Ms. Barr did not provide me with the nexus between the children not attending school and Mr. Macnamara’s request that they be deprived of the child support to which they are entitled by law. They are the subjects of the order but they are not bound by it, although they could have assisted their mother to avoid being found in breach of it by attending school.

[62] What has appeared to motivate Mr. Macnamara’s actions from the outset, beginning with the interim, without prejudice motion he brought in October 2021, is a concern that his daughters attend school in person, as he believed that doing so would be in their best interests. He noted, particularly, that his elder daughter, M., fared poorly with online learning during the 2020-2021 school year. He was concerned that, were she to continue receiving her education other than by in-person attendance at school, her grades would continue to fall and she might not be accepted into any post-secondary educational programs.

[63] What Mr. Macnamara wanted, simply put, was that his daughters go to school, every day.

[64] In his affidavit sworn in support of the contempt motion, Mr. Macnamara deposed that it was “crucial that the children return to school to avoid any further hindrance to their education.” He cited a belief that the elder daughter “may have to go to grade 11 next year when she should be in grade 12,” indicating that he wished to work with the school and his elder daughter “to figure out if there is a way to avoid this.”

[65] In support of his concern, he appended an unsworn email said to be from the Principal of the secondary school previously attended by his elder daughter in which the writer made an “assumption” about the elder daughter having to return to grade 11 if the home schooling courses she was taking did not contain Ontario curriculum.

[66] Justice Gomery had cited similar concerns in making her order of February 28, 2022, writing:

I find that it is in M.’s best interests to attend in-person schooling at Parkside Collegiate and that it is in K.’s best interests to attend in-person schooling at Southwold Elementary School, as set out in the November 2021 order. Their marks plummeted during the 2020-21 school year, when they attended classes virtually. In-person schooling is generally in a child’s best interests: A.C. v. L.L., 2021 ONSC 6530, at para. 13.

[67] With the passage of time, I can now see if some of the concerns about the girls not attending for in-person education have been borne out.

[68] At the time of the initial interim motion, the parties’ younger daughter would have been attending Southwold Public School in grade 8. In his affidavit sworn October 18, 2022, Mr. Macnamara deposed that both daughters were enrolled at St. John’s Catholic High School. He further deposed that the younger daughter had told him in September 2022 that she is enjoying school.

[69] In his factum filed in support of the position adopted by Ms. Weaver in opposition to the finding of contempt, Mr. Pentz referred to the Education Act, R.S.O. 1990, c. E.2, s. 41(2), which provides:

(2) A person who has not been promoted from elementary school shall be admitted to a secondary school if the principal of the secondary school is satisfied that the applicant is competent to undertake the work of the school.

[70] Given that the parties’ younger daughter has entered secondary school, I can only conclude that either she either achieved the educational goals required of a student completing grade 8 or the principal of the secondary school she is attending elected to admit her because he or she was satisfied that the younger daughter is competent to undertake secondary school work.

[71] It is, therefore, reasonable to conclude that the year being homeschooled by the Respondent did not negatively affect the parties’ younger daughter’s educational progression.

[72] Unfortunately, based upon the information provided by Mr. Macnamara in the same affidavit, I must conclude that the educational outcome for the parties’ elder daughter has not been as positive.

[73] It appears, based upon her attendance record, that she is taking a mixture of courses, some at the grade 11 level and some at the grade 12 level. It also appears that she has missed a number of classes, the majority of which have been in a grade 12 co-op course.

[74] This negative educational progression is somewhat consistent with the elder daughter’s circumstances during the 2020-2021 school year, when she participated in online learning. According to the affidavit of Mr. Macnamara sworn October 7, 2021, this child saw her grades drop during that school year from an average of 80% in 2019-2020, to an average of 70% in 2020-2021. According to Mr. Macnamara, neither the elder daughter nor her brother, who resides with Mr. Macnamara and who is not the subject of this motion, adapted well to online schooling.

[75] Some insight into the elder daughter’s view of education is set out in the May 31, 2022 report of the clinician engaged by the Office of the Children’s Lawyer, which has been filed with the court. She expressed negative views about having interactions with persons not sharing her and her mother’s beliefs about Covid-19, immunization and masking, as she would be required to do while attending for in-person education, commenting that she “only [has] one year left so it doesn’t matter what I do.”

[76] While it is difficult to draw any conclusions based on the limited record available to me, it appears that the break in regular attendance for in-person learning that began during the 2020-2021 school year for the parties’ elder daughter began a negative trajectory in her educational outcomes which continues to this day. It appears, at the very least, that homeschooling has not improved her educational outcomes.

[77] Consequently, based on the available evidence, I cannot necessarily conclude that the parties’ elder daughter’s current less-than-desirable educational record is based entirely on her not having attended for in-person learning during the 2021-2022 school year.

[78] That noted, it is equally clear from the report of the clinician that both girls spoke of a desire to move on to post-secondary education, with both also being aware that they need some type of secondary school equivalency in order to achieve that goal.

[79] Recognizing that her report was written before the elder daughter resumed in-person learning, I also note that the clinician concluded that it appeared the girls were taking their school work seriously. For instance, the elder daughter is reported to have informed the clinician that she was studying four subjects per day while homeschooling, two of which - Spanish and oceanography - she would not have been able to study had she attended school.

[80] The clinician recommended that Ms. Weaver communicate with the public school system in order to have the girls’ homeschooling studies formally approved, but the clinician was skeptical that would occur because it did not appear to the clinician that “Ms. Weaver has any respect for the school system.” This led the clinician to conclude that, should Ms. Weaver not have the girls’ homeschooling studies formally approved, it “may mean the girls may not be able to pursue further studies at a post-secondary level.”

[81] I cannot necessarily endorse that conclusion with respect to the parties’ younger daughter, who is now only in grade 9, but it does paint a dire picture for the parties’ elder daughter’s desire to move to post-secondary education.

[82] Another factor underlying my decision not to impose a monetary penalty on Ms. Weaver, despite the elements of contempt having been established by Ms. Barr beyond a reasonable doubt, pertains to the effect that the imposition of such a penalty might have on the already fragile relationship between Mr. Macnamara and his daughters.

[83] As the clinician retained by the Office of the Children’s Lawyer noted in her report, the events of the past three years have taken Mr. Macnamara and his daughters from having a close, loving relationship to one of estrangement.

[84] Mr. Macnamara also reported to the clinician that he uses anti-anxiety medication to help him deal with the stress and trauma of this litigation.

[85] The parties’ three children also told the clinician that they experience stress dealing with the conflict between their parents as well as from the loss of contact with each other, this loss of contact being rooted in the fact that the parties’ son resides with Mr. Macnamara while the daughter’s reside with Ms. Weaver.

[86] The clinician noted that this family’s relationships need to be rebuilt and that “ideally” the family should participate in formal re-integration therapy. However, both girls told the clinician they did not want to see their father until court is “done.”

[87] Given these facts, I find that to impose a monetary penalty against Ms. Weaver because of her failure to comply with the order of Justice Gomery, payable to Mr. Macnamara, at the very least, out of the children’ support, will only worsen the divide in this family.

[88] The clinician further noted that Ms. Weaver has made negative comments about the court process to the girls which, in the view of the clinician, have also fuelled their negative feelings about their father.

[89] Ms. Barr submitted that Ms. Weaver’s failure to attempt to encourage her daughters to attend school also gave them the message that they neither need to comply with a court order nor assist Ms. Weaver to do so, and that persons in authority, or at least, judges, can be ignored at will.

[90] In support of her position, Ms. Barr relied upon the following comment made by Justice Aitken at paragraph 62 in Stuyt v. Stuyt, 71 R.F.L. (6th) 441:

“No one is above the law. A parent does not have the option of disobeying court orders that he or she does not like. 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 instil in their children a respect of the law and of legal institutions. A parent who does not do so does a huge disservice to his or her child – a disservice that can have lasting, negative, ramifications throughout the child’s life.”

[91] In that case, Justice Aitken found the Respondent to be in contempt but did not incarcerate him, as was the Applicant had requested, expressing the view that, were incarceration to occur, the children would interpret such a move as being evidence that their mother had thrown their father in jail. Justice Aitken further expressed the view that the father would likely paint the picture of that having occurred when he spoke with the children.

[92] The clinician noted that Ms. Weaver quite openly reported that she shared details about the court proceedings with both daughters, so I have no doubt that they will quickly learn the outcome of this contempt motion. The imposition of a monetary penalty against Ms. Weaver may irretrievably break any prospect of reconciliation between the girls and their father.

[93] As I have already noted, it is my view that Mr. Macnamara is not the primary victim of Ms. Weaver’s failure to adhere to Justice Gomery’s order, or mine before it, except to the extent that he has had to repeatedly bring this matter back before the court in an effort to obtain an outcome which would have the girls returned to school. He incurred legal costs each time he did so. That issue can be addressed by an order under Rule 1(8).

[94] In all of the circumstances, therefore, I am satisfied that I should, and do, exercise my discretion against finding Ms. Weaver to be in contempt of the order of Justice Gomery.

Alternate Consequences

[95] That does not mean, however, that there will not be some consequence for Ms. Weaver arising from her defiance of the order of Justice Gomery.

[96] I begin with my ability to issue a declaration that she has repeatedly violated the February 28, 2022 order of Justice Gomery, it being “inherent in the wording of Rule 1(8) that it include[s] jurisdiction to issue a declaration confirming the court's finding that a person has failed to obey a court order.” (Shapiro v. Feintuch, at para. 32)

[97] Further, in my view, there should be some consequence for the justice system as a result of Ms. Weaver having wilfully and repeatedly failed to comply with a court order.

[98] As Justice Blair said while delivering an oral judgment in Surgeoner v. Surgeoner, [1992] O.J. No. 299:

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

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 which 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.

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

[99] While I have not found Ms. Weaver to be in contempt, I am of the view that Justice Blair’s comments equally provide a basis for imposing a penalty under Rule 1(8) for Ms. Weaver’s wilful, continued disobedience of a court order.

[100] One such consequence is the setting-off of spousal support against an award of costs. (Serra v. Serra, 2009 ONCA 395)

Costs

[101] Ms. Barr seeks full indemnity costs on behalf of Mr. Macnamara for all attendances and preparation in connection with the various motions related to the children’s non-attendance at school for in-person learning. An order for costs is one of the orders that can be made under Rule 1(8).

[102] In determining the appropriate amount of costs, I have considered the provisions of Rule 24 and find:

a. that, as the successful party, Mr. Macnamara is entitled to costs, and b. that Mr. Macnamara did not behave unreasonably or in bad faith in proceeding with his motions.

[103] As required by Rule 24(12)(a), I have also concluded that the issues on the motion were particularly important to both parties and of above average complexity.

[104] Additionally, I have considered the behaviour of Ms. Weaver throughout this proceeding. The many motions and court appearances related to Mr. Macnamara’s attempts to have the children attend school were born entirely of Ms. Weaver’s intransigence, obstinance and misguided thinking about formal education. These are overlaid on the observations made by Justice Gomery about Ms. Weaver’s views about other matters which also motivated her actions in withholding the children from school.

[105] Accordingly, I find that Ms. Weaver has behaved unreasonably throughout these proceedings thus far.

[106] I have also considered the Bill of Costs presented by Ms. Barr which, I note, did not include time expended in the preparation of materials for the urgent, without prejudice motion heard by me in October 2021 or time expended in preparing materials for the appearance before Justice Gomery in February 2021. In both instances, the endorsement reserved costs (not including counsel fee for the day of the appearance) to the Justice finally deciding these issues. I intend to address those costs in this endorsement.

[107] As for the Bill of Costs which Ms. Barr did present:

a. I have reviewed the time expended by the various persons involved with the file, and conclude that no person spent more time on an activity which was disproportionate to the importance of the matters or their complexity; and b. I have considered Ms. Barr’s hourly rate, which I find to be in order for a lawyer with her experience.

[108] I also bear in mind the direction of the Court of Appeal in Beaver v. Hill, 2018 ONCA 840, 2018 O.J. No. 5412 that “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs,” as I do the direction of the Court of Appeal in Davies v. Clarington (2009), 2009 ONCA 722, 100 O.R. (3d) 66, that “[r]ather than engag[ing] in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.”

[109] I am also mindful of the following comments made by Justice D. Chappel in Arthur v. Arthur, supra:

37 As I have indicated, the financial means of the parties is a relevant factor in the quantification of an award. Costs awards must take into consideration the reasonable prospects of a party being able to pay and the impact of an award on the ability of the party to meet their basic needs and those of any children in their care. This factor is properly considered at the end of the costs analysis. The court may in the exercise of its overriding discretion reduce the quantum of costs that a party would otherwise have to pay on the basis of their financial condition (Beaver at para. 18)...

38 A litigant's limited financial means will be given less weight in the costs analysis than the court's determination regarding overall success in the litigation (Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.); Gobin v. Gobin, 2009 ONCJ 240). Furthermore, ability to pay alone cannot override the other factors set out in Rule 24(11) (Peers v. Poupore, 2008 ONCJ 615). A party's constrained financial means will also be accorded less weight in quantifying costs if the court finds that the party acted unreasonably. As Curtis J. stated in Mooney, "[i]t must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court." (underlining added)

[110] I have also weighed against these directions the fact that I am making an award of costs as a component of an order against a person who repeatedly and wilfully chose to disobey a court order. In considering this issue, I advert, particularly, to the number of court appearances occasioned by Ms. Weaver’s refusal to comply with the order of Justice Gomery, and the fact that, while she claims to be able to earn only minimum wage at this time, she is trained and capable of doing more than her current employment allows but refuses to do so for ideological reasons tied to her views about Covid-19 and vaccinations against it.

[111] Bearing all of the aforementioned in mind, I conclude that Ms. Barr is entitled to costs from April 2022 onward in the amount of $19,500.00, all inclusive.

[112] To this amount, I have added to the claim for costs advanced by Ms. Barr for events beginning in April 2022, the sum of $1,000.00, all inclusive, for the preparation of materials for the appearance before me on October 29, 2021, and the sum of $2,500.00, all inclusive, for the preparation of materials for the appearance before Justice Gomery on February 11, 2022.

[113] This results in a total award of costs against Ms. Weaver in the amount of $23,000.00, all inclusive which I have determined that Mr. Macnamara may set off against any spousal support that he owes or will owe to Ms. Weaver, until the costs are paid in full.

Justice T. Price

Date: January 9, 2023

Correction Notice: The original decision has been corrected by:

1. Replacing the full name of the parties’ daughters with the initial of their first name; and
2. Amending the order by requiring Ms. Weaver to provide the information about M.’s homeschooling program to Mr. Macnamara’s counsel, Ms. Barr, rather than to Mr. Macnamara.

These changes have been incorporated into the text of this Corrected Endorsement.