Court File and Parties
CITATION: Gayle v. Neil, 2026 ONSC 2292
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROYAN GAYLE, Applicant
AND:
ANNETTA NEIL, Respondent
BEFORE: K. SAH J.
COUNSEL: Lauren Harvey, Agent, for the Applicant
Annetta Neil, Self-Represented
HEARD: April 16, 2026
ENDORSEMENT
Overview
1The child subject to this protracted litigation is six years old. This action commenced in 2023. It is proceeding to a trial management conference in June 2026.
2In the three years this matter has been before the court, several urgent motions, conferences, and to be spoken to courts have been held.
3In fact, there have been five parenting motions, excluding this one, and two compliance motions. There has also been an unsuccessful appeal to the Divisional Court. There is an order in place that neither party is permitted to bring this matter back to court for a motion or “To be Spoken to Court” without leave from one of the two Team Leads.
4With leave of the court, the applicant brings this motion for an order finding the respondent noncompliant with the order of Justice Rhinelander, dated June 4, 2024, (the "parenting order"). The applicant also requested an order for police enforcement, to make up a parenting time, and that for every day of missed parenting time the respondent deposit $1,000 into a trust in the child's name.
5Lastly, the applicant’s Notice of Motion seeks in order that if the respondent fails to comply with in the parenting order, on more than two separate occasions, there shall be a cooling off wherein the applicant shall have primary residence of the child for a 90 day period with no contact between the respondent and the child.
6The parenting order subject to this non-compliance motion provides that the applicant will have regular parenting time with the child, commencing May 31, 2024: every other Friday from pick up at school to drop off Monday at school and every Wednesday from pick up at school to drop off Thursday morning at school.
7The parenting order includes other clauses/ancillary parenting orders. The parties agreed on the terms of parenting order.
8The parenting order was made following protractive litigation between the parties which includes an order made in January 2024, on consent, a compliance motion brought in April 2024, which resulted in a consent order, following which the matter was returned to court in June 4, 2024, wherein the parties signed Minutes of Settlement, and a follow up attendance with the court on June 28, 2024.
9The parties were back in court in August 2024, before school started because the responded unilaterally enrolled the child in private school without the applicant’s consent. The court ordered a term joint decision-making, however, the court also found that it was in the child's best interest to attend private school as the respondent offered to solely cover the cost.
10A total of three costs orders have been made in favour of the applicant, and only partial payment has been made. The respondent owes costs totalling $11,000 at this time.
Motion Proceeded in the Absence of the Respondent
11This motion was originally scheduled to proceed on April 7, 2026. Due to issues with the confirmation filed, it was adjourned to today.
12Before the court is the applicant’s Notice of Motion dated February 24, 2026, his supporting affidavit dated February 24, 2026, the respondent’ s responding affidavit dated March 27, 2026, the applicant’s reply affidavit dated April 2, 2026.
13The respondent served and filed a Supplementary Affidavit dated April 3, 2026. The respondent has a motion before the court and she is not permitted to file an additional affidavit under the Family Law Rules or the Practice Directions. The court will not consider the respondent’s Supplementary Affidavit dated April 3, 2026.
14Despite producing an Affidavit for this motion, the respondent did not attend the motion. Originally this motion was scheduled to proceed in person.
15According to the applicant, the day before the motion the respondent claimed that she was experiencing flu symptoms and advised that she was unable to attend.
16In effort to ensure the motion could proceed today, the applicant requested that the motion proceed virtually.
17The applicant canvassed the motion date with the respondent, but all emails were ignored.
18This motion was originally brought in February 2026, and the applicant did not want to delay the matter being heard. To accommodate the respondent’s alleged illness, the applicant proposed the motion proceeding virtually to avoid delays.
19Permission was granted for the motion to proceed virtually, and the parties were provided with a Zoom link.
20The respondent was not present on zoom when the motion started at 10:00 a.m. The agent acting for the applicant e-mailed the respondent to advise her that court had started and, once again, she was provided with a Zoom link.
21By 10:30 a.m., the respondent was not physically present in a courtroom nor was she on Zoom. At the court's request, the agent acting for the applicant sent the respondent an e-mail to advise that the motion would commence at 11:00 a.m. on Zoom.
22In addition, the assistant trial coordinator sent the respondent an e-mail at 10:38 a.m. to notify her that the motion would commence at 11:00 a.m. and would proceed even if parties were absent. The Zoom link was once again provided to the respondent.
23The respondent did not attend the motion. The respondent was aware of this motion date, and she was made aware that it was converted from an in person attendance to a virtual attendance to accommodate her alleged illness.
24The respondent filed material for this motion. She is aware of how to participate in motions and court attendances as she has been doing so repeatedly throughout the life of this litigation.
25The respondent was provided with the Zoom link at least three times and was provided with the time and opportunity to join the hearing. She did not and the motion proceeded in her absence.
Child’s Statements
26The respondent’s affidavit contains numerous statements and disclosures made by the child, specifically at paragraph 32, 34, 35, 36, 37, 46, 47, 48, 50 and 54.
27On a motion, the Family Law Rules permit a deponent to swear an affidavit that contains information learned from another person, so long as the source of the information is identified and the person signing the affidavit believes it to be true.
28However, admissibility issues concerning a child’s out-of-court statements require careful consideration.
29The out-of-court statements of a child can be admitted as evidence through certain exceptions to hearsay evidence if relevance and materiality are met.
30Under the principled approach to hearsay established by the Supreme Court of Canada in R. v. Khan, 1990 77 (SCC), [1990] 2 SCR 531, hearsay statements may be admitted for the truth of their contents when they satisfy two core requirements: necessity and reliability.
31When dealing with children’s out-of-court statements at trial, a voir dire is held before the statements by the child are admitted.
32On a motion, the court must at minimum hear submissions addressing the reliability of any hearsay evidence, particularly where the statements are attributed to a six year old and an interested party. The respondent was not present today to speak to, explain, or provide context for the numerous statements contained in her affidavit.
33To accept those statements as evidence, in these circumstances, would be inconsistent with the rules of evidence and the principled approach to hearsay.
34Accordingly, the disclosures and statements allegedly made by the six year old child, as set out in the respondent’s affidavit, will not be given any weight by this court for the purposes of this motion.
Issues
35This issues to be determines are:
Has there been a triggering event that would allow the court to consider the wording of subrule 1(8)?
If the triggering event exists, should the court consider whether it is appropriate to exercise its discretion in favour of the respondent?
If the court will not exercise its discretion in favour of the respondent, what is the appropriate remedy among the very broad discretion provided in r. 1 (8).
Legal Principles
36Rule 1 (8) of the Family Law Rules, provides that:
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) An order for costs;
(a.1) an order to pay an amount to a party or into court as a penalty or fine;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) a contempt order, if sought under rule 31.
37In Ferguson v. Charlton, 2008 ONCJ 1, the court outlined the approach to rule 1(8) as involving a three-part test, as follows (at para. 64):
(1) has there been a triggering event that would allow the court to consider the wording of subrule 1 (8)?
(2) if the triggering event exists, the court should consider whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under r. 1
(3) if the court will not exercise its discretion in favour of the non-complying party, what is the appropriate remedy among the very broad discretion provided in r. 1 (8).
38Spence J. in Ferguson stated that discretion should only be granted in exceptional circumstances and ought to take into account all relevant history in the course of the litigation, and specifically, the conduct of the non-complying party.
39Subrule 1 (8) has been broadly applied. As noted by the Court of Appeal in Bouchard v. Sgovio, 2021 ONCA 709, at paras. 49-52, the list of remedies is inclusive not exhaustive. “The reach of the remedial orders that can be made is governed not by the itemized list in that rule, but by the general and broad language of the chapeau that precedes it, which provides that ‘the court may deal with the failure by making any order that it considers necessary for a just determination of the matter’”.
40Further, in Bouchard, the Court noted at para. 50, that the rule is not confined to purely procedural remedies and said: “[s]tated simply, if 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).
Analysis
41On February 18, 2026, the respondent unilaterally suspended the applicant’s parenting time with his six year old daughter. The applicant discovered this upon attending the child’s school to pick her up for the court ordered parenting time. He was informed that the child did not attend school.
42The applicant sent the respondent an email. The respondent replied stating that she reported the applicant to the Children’s Aid Society (CAS) claiming he had left the child unsupervised during his parenting time for three hours on February 5, 2026.
43She also alleged that he inappropriately touched the child's private parts.
44It is the applicant’s evidence that the respondent misrepresented the fact that the child was left alone and claims the child was searching for him in his apartment but did not see him in his office. The applicant denies the allegations of inappropriate touching.
45In this case, there is no dispute that a triggering event has occurred. The denial of the applicant’s parenting time as court ordered did occur.
46The court will now turn to a determination of whether discretion should be afforded to the respondent.
47The respondent claims she acted on reasonable grounds due to concerns identified for the child’s safety by herself and other professionals involved in this matter.
48It is the respondent’s position that it was not her intention to undermine or cause disruption but to protect the child. She claims that once safety measures are in place and once there was communication from CAS and Toronto Police Services, she will commit to fully complying with all court orders to provide a stable and consistent routine for the child.
49The respondent claims that the child was left unattended and was neglected by her father and that she experienced emotional distress, fear, and anxiety.
50The respondent’s material recount historic concerns regarding overnight visitation, all of which predate the consent parenting order.
51The basis of her current concerns is that the applicant has engaged in supervisory neglect, failed to act in the child’s best interest, failed to provide age-appropriate care, failed to ensure a safe and stable environment for the child, and inadequately provided parental oversight.
52The respondent’s own material contains correspondence from Toronto Police Services that confirms the child was interviewed on two occasions with CAS as well as a Detective Constable. On each occasion, the child made no disclosure beyond there being some occasions wherein she was bathed without a washcloth. Toronto Police Services confirmed that the behaviour, given the entire constellation of facts, does not meet the threshold of a criminal offence that would result in an arrest and/or charges
53Toronto Police Services created a safety plan which the applicant claims to be following. The respondent alleges that there has been several repeated breaches of the safety plan but much of her evidence is hearsay evidence from the child.
54In determining whether to exercise my discretion and favour of the respondent, I am required to consider the history over the course of litigation.
55While both parties are responsible for returning this matter to court on numerous occasions, the applicant as been the more successful, resulting in significant cost awards most of which remain outstanding.
56Based on her material filed for this motion, it appears that the respondent is trying to relitigate matters that were before Justice Stevenson in February when he heard, and then dismissed, the respondent’s motion to suspend parenting time.
57On that motion, the respondent raised the events of February 5, 2026, these events are repeated in her motion material filed for the motion currently before the court.
58The respondent has unsuccessfully tried to suspend the applicant’s parenting time in February. She raises the same claims here and new ones regarding inappropriate touching, which has not been verified.
59She has had several cost orders against her, the majority of which remain unpaid.
60She failed to participate in this motion, despite being aware of the date, time, and Zoom information.
61She has historically, and continues, to refuse to comply with court orders and remains intent on withholding the child from the applicant.
62She has demonstrated a clear disregard for court orders.
63Considering the foregoing, this court will not exercise discretion in favour of the respondent.
64The court now must determine what remedies are appropriate in the circumstances of this case.
65Police enforcement orders should be made sparingly and only in an extraordinary circumstance.
66Having a six-year-old witness police involvement could be traumatizing and may negatively affect the child long-term.
67However, the parties consented to the parenting order which was intended to provide a child with stability and routine. The mother unilaterally, terminating parenting time and withholding the child runs contrary to the child's best interest.
68The respondent has withheld the child on more than two occasions. She has a track record of non-compliance with court orders and, at each subsequent step, raises new issues to justify her noncompliance.
69This is the third motion brought by the applicant to address the respondent’s refusal to facilitate his parenting time.
70The respondent's pattern of conduct and the child's need for stability as it relates to parenting time leads the court to conclude that in the event that there is future noncompliance, the police should enforce the terms of the parenting order.
71In this case, police enforcement may be the only way of ensuring that the mother complies with court orders and does not resort to self-help measures. Police enforcement is viewed as an enforcement focussed remedy.
72To date, cost orders made against the respondent have proven to be ineffective to ensure compliance.
73The applicant has not seen the child since February 12, 2026. The respondent has not brought this matter back to court seeking a variation of the consent parenting order, rather she has behaved in a manner that demonstrates an inability to place the child's needs ahead of her own. She does not support the applicant's relationship with the child.
74The court expects the respondent to comply with the parenting order. If she does, police enforcement will not be necessary. If she does not, there will be consequences, the most significant of which is exposing the child to police presence. To be clear, this should be avoided.
75This court is not prepared to order make up parenting time as asked by the applicant.
76The police enforcement clause should be sufficient to ensure future compliance such that make up time will not be needed.
77However, if makeup time is required to take place this court cannot practically order specified make up time based on the unknown.
78The court's refusal to order make up parenting time is not a signal that it would not be appropriate if parenting time was missed, rather it's refusal as based on an inability to make an order that specifically sets out dates and times for such make up parenting time.
79Rule 1(8) Specifically provides that the court can order the payment of an amount to a party or the court as a penalty or fine.
80The court does have the jurisdiction to order that the respondent pay $1,000 to the applicant for every day of parenting time missed.
81In my view, this type of remedy should ensure compliance, which is the focus of this court
82The payment of $1,000 for each missed parenting day will address the respondent’s failure to comply with a parenting order and is likely necessary to achieve enforcement.
83It is the expectation of this court that the respondent will comply with the parenting order. She agreed to. The payment to the applicant is intended to dissuade her from further non-compliance.
84Rule 1(8)(a.1) empowers the court to order the respondent to pay the $1,000 to the applicant or to the court.
85In my view, it would be appropriate for the payment to be made directly to the applicant, and not the court. The applicant suggests that he would deposit any money paid into an account in trust for the child. This court will not order him to do so but he is free to if he wishes.
86This court will not be ordering a cooling off in the event that there are two or more failures to comply with a parenting order such as the applicant has primary residence of the child for 90 days.
87There is insufficient evidence to conclude that such an order is consistent with the child’s best interests.
88Further, I take a view that such a drastic remedy should only be made if there is a finding of parental alienation. At this time, there is no request for such a finding to be made, nor can that court make such a finding at this interim stage.
Costs
89The applicant seeks his costs on this motion on a full indemnity basis the amount of $5,508. He requested this amount to be paid from the respondent share of the net proceeds of sale of the matrimonial home, once sold.
90I have reviewed the bill of costs and find the time spent and the hourly rates to be reasonable. There is no evidence of an offer to settle before the court.
91The applicant is the more successful party and is presumptively entitled to costs. The respondent’s conduct is unreasonable. She filed a supplementary affidavit, despite not having the right to do so. She did not attend the motion, despite being provided with ample opportunity to participate and being fully aware of when and how the motion would proceed.
92I find that a fair, reasonable and proportionate cost award having regard for the factor set out in Rule 24 of the Family Law Rules and the circumstances of this case is $5,000, inclusive of HST and disbursement.
Orders
93An order shall issue in accordance with paragraph 2,3 and 5 (as amended) of the applicant’s Notice of Motion dated February 24, 2026. Paragraph five shall be amended to provide that the respondent shall pay to the applicant $1,000 for every day of parenting time missed
94The respondent shall pay to the applicant his cost of this motion in the amount of $5,000, inclusive of HST and disbursements payable from her 1/2 share of the net proceeds of sale of the home.
JUSTICE K. SAH
Date: April 17, 2026