Court File and Parties

Court File No.: CV-21-00674263-00ES Date: 2025-09-12 Superior Court of Justice - Ontario

Re: Kaena Gardner, Kyleigh Gardner, and William Gardner, minors by their litigation guardian, The Children's Lawyer

Applicants

And: Wayne Gardner, in his capacity as Estate Trustee with a Will for the Estate of Tracy Gardner

Respondent

Before: M.D. Faieta J.

Counsel: Alexander N. Procope for The Children's Lawyer Kiran Arora, for the Respondent

Heard: September 11, 2025

Endorsement

Background and Contempt Finding

[1] The Respondent Wayne Gardner appeared on September 11, 2025, for sentencing following a finding of contempt of court. The circumstances of his contempt of court are described in the following unpublished Endorsement that was issued on April 13, 2024:

1. The Respondent Wayne Gardner is the Estate Trustee of the Estate of Tracy Gardner pursuant to a Certificate of Appointment of Estate Trustee with a Will issued March 17, 2017. He is the deceased's son. The deceased's three grandchildren are minors and, under the Will, are each entitled to a 1/3 share of the residue of the Estate. There are no other beneficiaries.

2. On May 2, 2017, counsel for the Respondent provided the OCL with a list of the Estate's assets and debts. The assets include two condominiums (3233 Eglinton Ave East, Toronto and 3420 Eglinton Ave East, Toronto) and investments. He stated that the net value of the Estate was about $583,407.53.

3. The OCL discovered 3233 had been sold on March 31, 2017 and that 3420 was sold on June 1, 2017.

4. The OCL commenced this application in December 2021 to obtain a passing of accounts.

5. On January 7, 2022, an Order to Pass Accounts was granted (the "Order"). The Order requires the Respondent to bring an Application to Pass accounts within 60 days or in other words by March 21, 2022. The Respondent was served with the Order by regular mail and email on January 19, 2022. The Respondent has not served the OCL with an Application to Pass Accounts.

6. The OCL sent letters dated April 4, 2022, June 9, 2022, August 4, 2022, August 4, 2023 and September 7, 2023, demanding compliance with the Order. The September 7, 2023 letter was personally served. The Respondent has failed to meaningfully respond and has failed to file an Application to Pass Accounts.

7. The OCL brings this motion for an order that the Respondent is in contempt of court and for his imprisonment. The Respondent was personally served with the motion record on January 26, 2024.

8. In Moncur v. Plante, 2021 ONCA 462, Jamal J.A., as he then was, stated 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:

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.

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.

9. I am satisfied beyond a reasonable doubt that the three-part test from Moncur, described above, has been satisfied. The Order clearly and unequivocally states what should be done. The Respondent was served with the Order by mail and email on January 19, 2022. He was also personally served with the Order on January 26, 2024, as it is an exhibit to the affidavit found in the motion record that he was personally served. I infer that the Respondent had actual knowledge of the Order. Finally, I infer from the circumstances that his failure to comply with the Order was intentional.

10. With regards to whether a finding of contempt would impose an injustice, there is nothing to suggest that another remedy is appropriate. It appears that the Respondent has misused his fiduciary role and has refused to provide an accounting as required by the Order. The Respondent did not appear today despite being notified of today's date. He could have, been did not, provide the court with an explanation of why this court should not find him in contempt of the Order.

11. I find that the Respondent is in contempt of court for his failure to comply with the Order.

12. The Respondent may purge his contempt by filing the application to pass accounts within 60 days of service of this order upon him by ordinary mail and email.

13. The sentencing hearing shall be held on July 2, 2024, at Noon in person.

14. As provided by Rule 60.11(5) of the Rules of Civil Procedure the following orders could be made:

In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary,

and may grant leave to issue a writ of sequestration under rule 60.09 against the person's property

15. If the Respondent does not attend the sentencing hearing on July 2, 2024 in person, a warrant for arrest may be issued in accordance with Rule 60.11(4) which states:

A judge may issue a warrant (Form 60K) for the arrest of the person against whom a contempt order is sought where the judge is of the opinion that the person's attendance at the hearing is necessary in the interest of justice and it appears that the person is not likely to attend voluntarily.

16. Order to go as follows:

1. The Respondent is in contempt of the Order.

2. The Respondent shall purge his contempt by complying with the Order by June 8, 2024.

3. This hearing is adjourned to July 2, 2024 at Noon in person.

4. Costs of today are reserved to the judge hearing this matter on July 2, 2024.

5. The Applicant shall serve this Order on the Respondent by regular mail and by email.

Sentencing Proceedings

[2] On July 2, 2024, the Respondent appeared on his own behalf. He indicated that he wished to retain counsel. The Respondent was ordered to make certain financial productions regarding the Estate and make best efforts to produce the legal files regarding the properties that belonged to the Estate. The sentencing hearing was adjourned.

[3] The sentencing hearing returned on March 24, 2025, before another Judge of this Court. It was adjourned to be heard by me. On July 16, 2025, and with the consent of the Office of the Children's Lawyer (the "OCL"), Mr. Gardner was granted a two-week adjournment to provide the Court with additional evidence.

[4] The OCL takes no position on whether the Respondent should be incarcerated. However, the OCL notes that it has not received an accounting of the Estate nor is there any evidence that the Applicants, being the Respondent's children, have received anything from the Estate nor has their interest in the Estate been preserved.

Respondent's Evidence and Submissions

[5] The Respondent states that most of the proceeds of sale of 3233 and 3420 were used, in 2017, to purchase a house in Barrie that was registered in the name of the Respondent and his then wife, Erika Weavers. In 2018, they signed a separation agreement whereby the Respondent relinquished title to Ms. Weavers. After being almost fully encumbered by a mortgage and other charges, the house in Barrie was sold in January 2023 for $807,000 and the whereabouts of the equity in 3233, 3420 and the house are unknown. The Respondent states that the funds in the Estate (including a $100,000 bequest that he was given) were spent on the Barrie house, repairs to the house, new furniture, tools, and two trips to Europe taken by Ms. Weavers. The Respondent believes that there are no Estate funds left.

[6] The Respondent states that after their separation, he spiralled into alcoholism to cope with the loss of his family. He states that between 2019 and 2021 he was drinking heavily and depended on friends to stay afloat. In 2021, the Respondent started his recovery and moved into a basement apartment in Toronto. He has been sober for 3 ½ years and is working as a building manager and is on call most evenings and weekends. The Respondent acknowledges that he is in contempt of court as he did not provide an accounting of the Estate pursuant to the Order to Pass Accounts dated January 7, 2022.

[7] The Respondent states that he was unaware of the Order to Pass Accounts as he had moved from the address to which the Order was sent and the correspondence from the OCL was not sent to him. Whether it came to his attention by mail, he was personally served with the contempt motion, which included the Order to Pass Accounts, in January 2024 and about four months prior to the finding of contempt. The Respondent asks that he not be incarcerated as he fears that he will lose his job if incarcerated. The Respondent submits that he was unsophisticated and unaware of the obligations of an Estate Trustee.

[8] The OCL and the Respondent have agreed on a draft Order whereby the Respondent is to immediately take reasonable steps to administer the Estate and pay the sum of $583,407.53 into Court over time with a minimum payment of $3,000 every six months commencing November 1, 2025. As will be seen below, I have adopted those terms.

Sentencing Framework

[9] The factors that a Court may consider in determining the appropriate sentence for contempt of court were described by Greer J. in Langston v. Landen, 2010 ONSC 6993, aff'd 2011 ONCA 242, at para. 34 as follows:

Society expects its laws to be upheld, whether in the civil or criminal context of a breach. Egregious conduct in society cannot be overlooked and cannot be swept "under the carpet", as if the conduct had not occurred. In determining the appropriate sanctions, the Court may consider the factors as noted in Law Society (British Columbia) v. Hanson, 2004 BCSC 825 (B.C. S.C.) at para. 108, (2004), 132 A.C.W.S. (3d) 43 (B.C. S.C.):

(a) the gravity of the offence;

(b) the need to deter the contemnor;

(c) the past record and character of the respondents; in particular whether the alleged contemnor has committed previous contempts;

(d) the protection of the public;

(e) the successful party's ability to realize on the judgment; and

(f) the extent to which the breach was intended.

[10] General and specific deterrence are the most important objectives. In Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para. 205, Gloria Epstein J.A adopted the following statement made by J.W. Quinn J. in Niagara Regional Police Services Board v. Curran, [2002] 57 O.R (3d) 631, at para. 35:

The primary purpose of sentencing in contempt proceedings is deterrence: both general and specific. The punishment for contempt should serve as a disincentive to those who might be inclined to breach court orders. Our legal system is wounded when court orders are ignored. The sentence must be one that will repair the wound and denounce the conduct.

[11] I agree with the following view expressed by Greer J. in Langston, at para. 43:

Proper penalties make the public sit up and take notice. The word goes out into the community that the Court will not tolerate disobedience of its Orders. In this case, the "community" is specific as well as general in nature. The specific community is that of estate trustees and other trustees, as well as persons in positions as fiduciaries, persons acting under powers of attorney or other positions of trust. When money held in trust disappears, the person who controls it has a legal obligation to account for its administration, if ordered to do so. Failure to so account is egregious conduct, since executors/trustees/guardians/attorneys all are obliged to keep proper accounts.

Aggravating Factors

[12] There are many aggravating factors that support the imposition of incarceration. The Respondent was acting in a fiduciary capacity as Estate Trustee. The Applicants, the Respondent's children, are minors and are vulnerable persons whose interest must be protected by the Court. Despite having been personally served with the Order to Pass Accounts in January 2024, the Respondent has failed to do so. In asking that no period of imprisonment be imposed, the Respondent relies on Ross v. Ross, 2019 ONCA 724, 378 C.C.C. (3d) 403, however the circumstances appear far more serious in this case.

Sentencing Decision

[13] I find that a period of imprisonment of six days is appropriate having regard to the circumstances, the sentencing factors described above and the need for general and specific deterrence. The imprisonment shall be served in two day blocks every other weekend commencing on October 18, 2025, until the six-day term of imprisonment is complete.

Costs

[14] The parties were unable to agree on costs. The OCL seeks its costs of $16,106.24, inclusive of disbursements. The Respondent earns about $65,000, plus bonuses, in his current position. He submits that he cannot afford to pay these costs. Given his contempt of court, an award of full indemnity costs is appropriate. I find that it is fair and reasonable to order that the Respondent pay costs of $14,000.00 to the OCL, from his own funds and not from the Estate, within 90 days.

Final Order

[15] Order to go as follows:

1. THIS COURT ORDERS that Wayne Gardner shall pay $583,407.53 to the Accountant of the Superior Court of Justice to an account held to the credit of the Estate of Tracy Gardner ("Estate") to be paid with accumulated interest and investment gain upon further order of this Court.

2. THIS COURT ORDERS that Wayne Gardner shall pay the funds referred to in the preceding paragraph in not less than instalments of $3,000.00 payable on November 1 and May 1 of each year commencing November 1, 2025, subject to a further order of this Court.

3. THIS COURT ORDERS that any motion by Wayne Gardner respecting the Estate or funds held by the Accountant of the Superior Court of Justice to the credit of the Estate shall be made on notice to the Children's Lawyer and, if any beneficiaries of the Estate of Tracy Gardner have reached the age of majority, on the adult beneficiaries.

4. THIS COURT ORDERS that Wayne Gardner shall immediately take reasonable steps to administer the Estate and that he shall purge his contempt of the January 7, 2022, Order of Justice Dietrich in this proceeding by September 11, 2026.

5. THIS COURT ORDERS that if Wayne Gardner does not comply with paragraphs 3 or 4, above, the Children's Lawyer or any adult beneficiary of the Estate may bring this contempt motion before any judge of this Court for further sentencing on 30-days' notice to Wayne Gardner and the Court may consider additional evidence filed.

6. THIS COURT ORDERS the costs of the Children's Lawyer be fixed at $14,000.00, inclusive of HST and disbursements, and paid within 90 days to the solicitors for The Children's Lawyer, Perez Procope Leinveer LLP or, upon the written direction of the Children's Lawyer or her agent, paid to the Ministry of Finance, from Wayne Gardner personally and not from estate funds.

7. THIS COURT ORDERS that paragraph 3 of the April 8, 2024, order in this proceeding is varied to permit the payment of costs by Wayne Gardner, upon the written direction of the Children's Lawyer or her agent, to be paid to the Ministry of Finance.

8. THIS COURT ORDERS that the Respondent shall be imprisoned for a period of six days to be served in two day blocks every other weekend commencing on October 18, 2025, until the six-day term of imprisonment is complete.

[16] A signed arrest warrant will be delivered to the parties separately. The Toronto Police Service are to enforce the warrant in accordance with the above terms and are asked to make best efforts to communicate with the Respondent's counsel for the purpose of making arrangements for the enforcement of the warrant.

[17] I may be contacted through my Judicial Assistant if any clarification regarding the above Order or its implementation is required.

M.D. Faieta J.

Released: September 12, 2025