CITATION: Bandy v. Newell, 2026 ONSC 4702
COURT FILE NO.: FS-26-234-00AP
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melora Newell, Appellant
AND:
Douglas Paul Bandy, Respondent
BEFORE: Kurz J.
COUNSEL: Melora Newell, Self-represented
Michelle Rozanski, for the Respondent
HEARD: July 28, 2026
ENDORSEMENT
Introduction
[1] The Appellant mother, Melora Darlene Newell (the “Mother”), moves to stay three temporary orders of Cleghorn J. pending appeal. The orders she is appealing include a parenting time order, a contempt finding against her and a sentencing term which reverses parenting time regarding the parties’ eight-year-old child, R.N. (the “child").
[2] The three orders in question are:
(1) On February 27, 2026 the motion judge ordered that the Respondent father (the “Father”), have parenting time with the child. That time was to be graduated, moving from the status quo supervised parenting time to unsupervised parenting time.
(2) On June 9, 2026, the motion judge found the Appellant in contempt of the parenting orders of April 21, 2026 (which clarified the details of the exchange of the child) and a subsequent order of May 13, 2026, which contained substantially the same terms.
(3) On July 13, 2026 the motion judge ordered, pursuant to r. 31(5)(d) of the Family Law Rules, Reg. 114/99 that:
i. The parties immediately share parenting decisions regarding the child but that the Father have sole decision making, commencing August 23, 2026;
ii. Parenting shall be reversed on a temporary basis, commencing August 23, 2026 at 4:00 p.m.;
iii. The Mother shall deliver the child to the Father on August 23, 2026 at 4:00 p.m.;
iv. The police shall enforce the parenting order;
v. The Mother shall pay costs to the father, fixed at $15,000; and
vi. The matter shall return before the motion judge three days before the changeover, on August 20, 2026.
[3] The Appellant is already attempting to appeal the February 27, 2026 order. She brought a motion to stay it before Juginovic J., who has reserved her decision. For that reason, I will not consider the request to stay the February 27, 2026 order. In any event, two subsequent orders clarify the terms of the February 27, 2026 order. They are the basis of the contempt finding and the parenting reversal order.
[4] For the reasons which follow, I dismiss this motion.
Background
[5] The parties never married. They met when they worked together at the same place of employment. The Father still works there while the Mother is unemployed. The parties cohabited for a period of time which is not set out in the materials before me. However, the parties separated on or about August 3, 2017.
[6] The parties have one child, R.N. The child has been found to meet the criteria for a diagnosis of ADHD, Combined Type, Moderate to Severe. It was recommended that he have an Individualized Education Plan.
[7] At all material times the mother was the child’s sole caregiver. She has never agreed to allow the Father to be alone with the child. The parties’ separation agreement of October 29, 2018, provides for the Mother to have sole decision-making and primary residence of the child and the Father to have two supervised visits per week.
[8] In her February 27, 2026 endorsement, the motion judge offers the following background information regarding the Mother’s unproven allegations against the Father, their investigations and the resulting parenting arrangements:
5The mother has made multiple reports to a protection agency over the years with allegations that the father poses a risk of sexually abusing their son. Investigations were conducted, and no concerns were verified.
6On October 31, 2023, the police attended the father's home as the mother had alleged that the father inappropriately touched their son. No charges were laid.
7The mother alleges that the father inappropriately stared at their son's genitals and stroked the child's bum when the child was an infant, held him over a bridge and that the father had an erection during a video call. The father categorically denied all allegations levelled by the mother.
8The mother has alleged that when the parents lived together, she believed the father had a fixation on the mother's older daughter and slept naked with his bedroom door open so that his teenage step-daughter could see him. Again, the father categorically denies all allegations levelled by the mother.
9Lastly, when the parents were working at the same place of employment, the mother alleged that he sexually assaulted her by pressing his body against her, exposing himself and asking her to touch his genitals. The father denies these allegations.
[12) The father's current parenting time is bi-weekly for two hours at CAPP and one virtual visit. He has had more than 30 visits at CAPP since July 2024. The father reports his son is excited to spend time with him and engages with him in a meaningful way. Neither parent raised any concerns about the father's parenting time, including inappropriate behaviour or the father's ability to meet the child's needs during the CAPP visits.
13On April 2, 2024, the parents agreed that the father would undergo a risk assessment, including phallometric testing, with the mother to assume the cost. They also agreed that Dr. Ainslie Heasman would conduct the assessment. The mother wanted the assessment, and the father agreed. As a result, a consent order was made.
14The physiological testing component was completed in March 2025. The phallometric portion has not been completed because the Centre for Addiction and Mental Health's (CAMH) laboratory has remained closed and continues to experience technical issues.
[9] The Heasman assessment was conducted pursuant to a court order requested by the Mother but consented to by the Father. Dr. Heasman released her risk assessment report on December 13, 2025.
[10] The Heasman assessment consisted of five hours of interviews and psychological testing. Dr. Heasman was unable to conduct phallometric testing because the CAMH phallometric testing lab had been closed during the period of the assessment. Dr. Heasman stated that she did not have confidence in phallometric testing at a lab in Ontario other than the CAMH lab and would not rely on such results. She stated that the other centres offering such assessments were less robust than CAMH and two of them utilized criteria to identify someone as having pedophilia or hebephilia (sexual interest in younger adolescents) that are more “liberal” than those utilized by CAMH; pointing to the risk of false positive findings.
[11] Dr. Heasman summarized the evidence provided to her of the Father’s alleged sexual conduct towards the Mother’s teenaged daughter and R.N. as follows:
All of Ms. Newell’[s] concerns were investigated by Child & Family Services, which determined that Mr. Bandy did not pose a risk and that the alleged interactions between Mr. Bandy and [R.N.] were non-sexual in nature. There is no indication, historically and currently, that Mr. Bandy has engaged in sexual abuse of a child.
There is also no indication that unsupervised access, in and of itself, presents a sexual safety risk to the child currently.
12Dr. Heasman concluded as follows:
A review of empirically supported factors associated with sexual offending against children indicates that the majority are absent in Mr. Bandy’s presentation. There is no evidence of emotional congruence with children, persistent feelings of social rejection or loneliness, a generalized lack of concern for others, generalized lack of concern for others, generalized impulsivity, marked negative emotionality, or poor cognitive problem-solving skills. From a sexual self-regulation standpoint, there is no indication of sexual preoccupation, use of sex as a coping strategy, or atypical or deviant sexual interests. He does not endorse attitudes supportive of sexual offending against children. Protective and stabilizing factors include stable employment and residence, absence of substance abuse, absence of significant mental health concerns, and a history of sustained adult intimate relations.
Factors warranting consideration include a remote history of non-sexual violence and the ongoing belief by Ms. Newall that the child is at risk when in Mr. Bandy’s care. While these concerns are taken seriously, based on the totality of available information, there is no clear evidence of a current sexual risk to harm R.N. posed by Mr. Bandy. There is also no indication that unsupervised access, in and of itself, presents a sexual safety risk to the child currently.
13Because the Father had not previously enjoyed either unsupervised parenting time with the child or a primary caregiving role. Dr. Heasman recommended that the Father engage in parenting education and involvement with the child’s supports. That may include “coordinated involvement with Ms. Newell and other caregivers to ensure a shared understanding of the child’s developmental needs, routines, expectations, and caregiving responsibilities.”
14The motion judge pointed to a number of objections which the Mother raised against the Heasman report. The most serious was the absence of phallometric testing. The motion judge pointed out that the assessment was conducted at the mother’s request, with an expert she had chosen. Nonetheless the motion judge stated that she placed little weight on it, writing:
While the assessment is admissible and forms part of the evidentiary record, I place limited weight on it for the purposes of this motion. The assessment is referenced not as determinative of risk, but to confirm that the historical allegations raised by the mother have been consistently investigated and found to be unsubstantiated, and that the collateral sources relied upon by the assessor do not support the mother's view that the father poses a risk to the child. My findings are grounded primarily in the independent evidence before the court, including the history of child protection and police involvement and the extensive period of supervised parenting time without incident.
15She added that the Mother’s allegations were historical and not corroborated. Rather, she wrote:
Based on the independent evidence before the court, including the findings of child protection authorities, police investigations, and the extensive history of professionally supervised parenting time without incident, I find no evidence that the father poses a risk to his son.
16While finding no reason to be concerned with the Father’s risk of harming the child, the motion judge expressed real concern regarding the Mother entrenchment in negative beliefs regarding the Father’s purported risk. the motion judge wrote:
The mother appears to be entrenched in historical beliefs that have now crystallized in her mind, that the father is a predator. She continues to raise that the father acted inappropriately to her daughter, despite her daughter telling a social worker she was fine around the father.
The mother is displaying concerning behaviour, a pattern of not accepting what a protection agency, the police and now a doctor have communicated to her.
17The motion judge pointed out that the Mother speaks of a “violation” by the Father in entering her daughter’s bedroom, when the daughter expressed no concern about the Father to a social worker investigating the allegation.
18The motion judge pointed out that the Father had acquiesced to supervised parenting for all of the child’s life, without demonstrating any concerning behaviour. Yet the Mother just kept thinking of new obstacles to unsupervised parenting time. Following the release of the Heasman report, the Mother had changed tack regarding her grounds for opposing unsupervised parenting time. She went from a sole reliance on the alleged risk of sexual abuse to a risk of coercive control and anger. She insisted on both additional testing and a parenting capacity assessment for the Father. The Motion judge rejected both requests.
19Instead, the motion judge concluded that the child “has a right to know his father and form a more meaningful bond without the mother's interference.” She adopted what she described as “a gradual, child focussed schedule [proposed by the Father] to increase his parenting time and remove the supervision requirement.
20The motion judge then concluded as follows:
53The child has been severely restricted in forming a bond with his father, given the mother's restrictive views on when, where and under what conditions the father may spend time with their son.
54The mother has shown she is not willing to support the development and maintenance of the father-son relationship. The mother disagrees with collateral sources and adds new obstacles to support supervision. It would appear that until the mother can find a third party to reinforce her unreasonable belief, she may continue to find new obstacles until the father either gives up or the child turns 18.
55Having regard to the factors set out in section 24(1) of the Children's Law Reform Act, including the child's safety, the nature and quality of his relationship with the father, and the absence of evidence of risk, I find that it is in the child's best interests to have increased, unsupervised parenting time with his father.
21Yet the Mother did not obey the motion judge’s temporary parenting time order, refusing to allow unsupervised parenting. On April 21, 2026, the Father moved for a finding that the Mother was in contempt of the February 27, 2026 order. In response, the Mother argued that the exchange locations were not clearly set out in that order. So the court clarified those locations in its April 21, 2026 order. The matter was then put over to a settlement conference regarding the contempt motion, where those changeover details were again confirmed.
Contempt Motion
22The contempt motion was heard on June 8, 2026. The motion judge’s decision was released the following day. In response to the Father’s contempt motion, the Mother moved to find him in contempt of the portion of the April 2, 2024 order, requiring him to undergo the Dr. Heasman assessment, including phallometric testing. She also requested that the motion judge set aside her February 17, 2026 order. The motion judge dismissed both requests.
23In doing so, the motion judge pointed out that the Mother had already appealed the February 17, 2026 order and moved to stay it (the decision on that stay remains pending). Regarding the lack of phallometric testing, the motion judge found that the Father was not in contempt of her assessment order. She pointed out that the facility which Dr. Heasman had contemplated for phallometric testing was not available at the time. Further, the Father had maintained his willingness to complete the testing when the CAMH facility reopened. Thus, the court could not find beyond a reasonable doubt that the Father had violated the term regarding phallometric testing.
24The motion judge did find beyond a reasonable doubt that the Mother was in contempt of the April 21, 2026 and May 13, 2026 parenting time orders. She found that the Mother’s position throughout the proceedings was consistent in refusing to allow unsupervised parenting time, despite court orders.
25The motion judge pointed to a revealing piece of evidence found in the Mother’s email to the Father on May 20, 2026, one day before the first unsupervised visit was scheduled to take place. There, the Mother berated the Father and the court before declaiming her intention to refuse to obey parenting orders, as follows:
No cowardly abusive man, no ignorant judge, no lawyer who is devoid of integrity and all of whom see a child as a possession and not a child with the human right to live a life free from abuse, emotional, physical, sexual, may strip me of my legal and biological right to protect [R.N.]
I will not be leaving [R.N.] alone with you. He trusts me and I will not betray that trust.
26The Mother also wrote to the Father, stating:
In order to keep [R.N.] out of conflict, as I am the parent and my role is to take care of and protect him, I have presented you with two options for parenting time. I will facilitate parenting time in a manner that is safe as is my right, and [R.N.’s] right.
27The Father pointed out that her response was contrary to the court order. Nonetheless, he attended at the library where the Mother had supervised a number of his parenting visits. She never attended. Rather, she claimed that she was at home and that it was the Father’s fault for not attending there.
28On April 4, 2026 the Father’s lawyer suggested in an email to the Mother that he have a visit on Easter weekend, with an exchange at the library. The Mother never responded and then blamed the lawyer for failing to state that her email was time sensitive.
29On May 9, 2026 a visit took place at the library with the Mother present. The Father accepted that supervision because he had not seen the child in two months. The Mother than cancelled the May 30, 2026 visit, claiming, without apparent proof, that she and the child were ill.
30The Mother argued to the court that the Father was exerting coercive control over her by bringing his contempt motion, that the Father’s lawyer was bullying her and the February 27, 2026 order was wrong and obtained by “fraud”.
31The motion judge recounted that on April 21, 2026 the Mother made clear to the court that she would not obey any order requiring unsupervised parenting time of the Father. Rather than make arguments regarding the supposed ambiguity of the February 27, 2026 order, the Mother left the courtroom. Nonetheless, the court set out exact times and places for parenting exchanges. Because of the seriousness of the contempt motion, the motion judge adjourned the contempt motion to a settlement conference on May 13, 2026 because of the Mother’s absence from the courtroom and to allow the Mother to reengage with the court process. Ultimately the matter came before the court for argument on June 8, 2026.
32In her analysis of the test for contempt and whether the Mother met it, the motion judge accurately set out the provisions of r. 31, the fact that contempt is a remedy of last resort, the quasi-criminal nature of contempt, including the need to prove contempt beyond a reasonable doubt. She further set out the elements of contempt which had to be proven beyond a reasonable doubt as follows:
(1) Did the mother have proper notice of the hearing?
(2) Was the Final Order in force at the time of the hearing?
(3) Is the Final Order clear about what should be done and what should not be done?
(4) Did the mother know about the Final Order?
(5) Did the mother intentionally fail to follow the Final Order?
33The motion judge found that all elements requiring proof had been proven beyond a reasonable doubt. Since the Mother clearly has notice of the hearing, knowledge of the final order and the order was in place, the issues before her, as the motion judge described them were:
(1) Was the Final Order clear?
(2) Did the mother intentionally fail to follow the Final Order?
(3) If the elements of breach are proven beyond a reasonable doubt, should the court make a finding of contempt or exercise its discretion not to make a finding of contempt?
(4) If contempt is found, what is the appropriate sentence? If contempt is not found, what is the appropriate remedy?
Clarity of the Order
34Regarding the clarity of the order, the motion judge noted that the order must be unequivocal and that any ambiguity must be resolved in favour of the Mother. She fairly accepted that the February 27, 2026 order was not sufficiently clear regarding the exchange provisions in regard to the missed in person visits between February 27, 2026 and April 21, 2026. But that ambiguity had been clarified on April 21, 2026. At that time, the court advised the parties that it was making the terms of the Father’s parenting “crystal clear”. Further the terms of the May 13, 2026 order contained “substantially the same exchange terms” as the April 21, 2026 order.
35The motion judge wrote that the April 21, 2026 order “clearly contemplated unsupervised parenting time”. Further, “[t]he concept of unsupervised parenting time is inconsistent with the mother remaining in a supervisory capacity during the visit”.
Intentionally Failing to Follow the Order
36The motion judge stated that during the April 21, 2026 discussion of ambiguity in the exchange terms in the February 27, 2026 order, the Mother “maintained that she would not facilitate parenting arrangements that she considered unsafe and stated that she would agree only to parenting time that remained supervised or virtual.” The motion judge found that “the significance of that exchange is that it demonstrates that the mother's objection extended beyond exchange logistics and reflected an ongoing refusal to implement the court-ordered transition to unsupervised parenting time.”
37The motion judge turned to the two visits scheduled between April 21, 2026 and the commencement of argument of the contempt motion on June 8, 2026. The Mother refused to allow the May 9, 2026 visit to take place at all unless she supervised it, despite the clear court order to the contrary. Rather than lose the visit after not seeing his child for two months, the Father acquiesced. But the Mother’s insistence on supervision was “inconsistent with the order”.
38The second visit was to take place on May 30, 2026. It never occurred because of the Mother’s claim that both she and the child were ill. The court did not accept that explanation. The motion judge found beyond a reasonable doubt that the reason for the failure of that visit was the Mother’s intentional non-compliance with her order. She based that finding on the Mother’s repeated statements that she would not comply with court orders permitting unsupervised parenting time along with her conduct during the proceeding itself. The court found that the Mother’s April 21, 2026 statements to the court were evidence of her intent.
39I note as well that the endorsement of June 9, 2026 makes no reference to any medical evidence supporting the claim of illness. The Mother’s affidavit in support of a stay includes no such medical evidence either.
40The motion judge found that the two missed visits of May 9 and 30, 2026 were not isolated incidents. Rather they represented “a deliberate course of conduct to prevent the implementation of the father's court-ordered unsupervised parenting time. The mother's actions have frustrated, sabotaged, and thwarted the orders of this court.”
41Thus, the Father was found to have proven contempt in deliberate disobedience of the April 21 and May 21, 2026 orders.
42The motion judge did not jump directly to a finding of contempt. She stated that she had exercised the caution and restraint required in contempt proceedings. That was particularly the case on April 21, 2026, when she chose not to find the Mother in contempt of the February 27, 2026 order. She accepted the Mother’s argument that the order was ambiguous regarding the exchange logistics. Instead the court issued a further order, which resolved any ambiguity and allowed the Mother another opportunity to obey the parenting time order before making a contempt finding.
43The motion judge also considered the alternatives such as compliance orders, declarations of breach, makeup time and remedies set out in r. 1(8). In light of the Mother’s clear declarations of her refusal to obey any order involving unsupervised parenting, the motion judge was not satisfied that any alternative to a contempt finding would secure compliance. Further, a failure to enforce her orders, thereby allowing the Mother to engage in her self-help measures “would significantly impair the development of the father and [R.N.’s] relationship and would not be in [R.N.’s] best interests”.
44The motion judge also dismissed the Mother’s claim that the February 27, 2026 order was obtained by fraud as the allegation was unsupported by evidence.
45The issue of penalty/order was adjourned to July 13, 2026.
Penalty Order
46In her endorsement of July 13, 2026, the motion judge spoke to the purpose of a sentence for contempt. She stated that a sentence for contempt is not merely intended to punish but to uphold the administration of justice and ensure compliance with court orders.
47Even on July 13, 2026, the motion judge was prepared to allow the Mother to purge her contempt. She offered to hold the sentencing hearing down to allow for an unsupervised visit. But the Mother forthrightly avowed her intention to continue to disobey the court’s parenting time orders. The motion judge found the Mother’s contempt to be “serious and ongoing.”
48In determining sentence, the motion judge considered “the nature and duration of the contempt, the degree of deliberateness involved, the prejudice suffered by the father, the impact upon the child, the need for both specific and general deterrence, and any mitigating circumstances.” She found that the greatest harm arising from the Mother’s repeated and deliberate disobedience was the child. She pointed out that “[c]hildren benefit from meaningful relationships with both parents whenever it is safe and appropriate. A parent cannot be permitted to unilaterally frustrate those relationships simply because they disagree with an existing court order.”
49The motion judge also considered, as a mitigating factor, the Mother’s genuine albeit misguided belief that she was acting in the child’s best interests. But that misbegotten motivation, even absent malice or a desire to punish the Father, cannot supersede an order of the court. It does not excuse contempt.
50While the Father requested a $5,000 fine as punishment for the Mother’s contempt, the court rejected the submission as inadequate. The motion judge also considered the appropriateness of a custodial sentence. But she felt that such a penalty should only be imposed when a lesser sanction would be ineffective or fail to address the contempt. Rather than incarceration, she determined that the objective of allowing the Father and child to develop a relationship would be best achieved through a reversal of primary parenting. She added that supervised parenting time for the Mother after the changeover would not be in the child’s best interests. She felt that the re-establishment of the Father-child relationship required stability and a lack of conflict or interference.
51Thus, she ordered the change in decision-making and the deferred parenting changeover to August 23, 2026 at 4:00 p.m., with a suspension of the Mother’s parenting time as set out above. She also ordered that the parties appear before her on August 20, 2026, three days before the changeover, “to determine the next step in the Application”.
Authorities Regarding a Stay Pending Appeal of a Parenting
52The general jurisdiction to stay a proceeding is found in s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA s. 106"), which reads as follows: “[a] court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.”
53The test for a stay is the same as the test for an interim injunction. It is found in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 (“RJR-MacDonald”), at p. 334 as follows:
Serious issue to be tried;
Irreparable harm if the request is denied;
Balance of convenience between the parties: "which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits."
54In applying the RJR MacDonald test, the court must be mindful that "[t]hese three criteria are not watertight compartments. The strength of one may compensate for the weakness of another. Generally, the court must decide whether the interests of justice call for a stay": Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677; Trop v. Trop, 2024 ONCA 855, at para. 3.
55In the family law context, the Court of Appeal for Ontario described the application of the RJR MacDonald test as follows in D.C. v. T.B., 2021 ONCA 562, at para. 9:
9Custody and access orders remain in effect pending an appeal to this court unless the court has ordered otherwise. In determining whether to stay an order involving the parenting of a child, the courts must consider: (1) whether, on a preliminary assessment, the appeal raises a serious question (recognizing that this is a low threshold); whether the child will suffer irreparable harm if a stay is refused; and (3) the balance of convenience: namely whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal. The overriding consideration, again, is the best interests of the child. In other words, the court must be satisfied that it is in the child’s best interests to grant a stay: K.K. v. M.M., 2021 ONCA 407, at para. 17 and Lefebvre v. Lefebvre, 2002 CanLII 17966 (ON CA), 167 O.A.C. 85 (C.A.), at para. 6.
56In cases involving children, “the court must be satisfied that it is in the best interests of the child to grant a stay”: Mazzeo v. Mazzeo, 2026 ONCA 447, at para. 24, citing D.C. v T.B., 2021 ONCA 562, at para. 9. The overriding consideration is the best interests of the child: Mazzeo, ibid.
57I will consider each of the three arms of the RJR MacDonald test within the context of this case, below.
Serious Issue
58As the Court of Appeal stated in D.C. v. T.B. at para. 10:
The standard for appellate review of a custody or parenting decision is exacting: Bors v. Bors, 2021 ONCA 513, at paras. 18-20. The function of this court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious misapprehension of the evidence, or an error of law.
59Nonetheless, as set out above, the threshold for this arm of the test is a low one. It must not be "frivolous or vexatious" (RJR MacDonald at p. 335). The issue is not whether the decision below will be upheld: Berry v. Berry, 2010 CarswellOnt 10983, (Ont. C.A. in chambers), at para. 6. Further, where children’s best interests are central, there is almost always a serious issue to be tried: Mazzeo at para. 25, citing K.K. v. M.M., at para. 17.
60Nonetheless, as Zarnett J.A., cautioned in K.K. v. M.M. at para. 26, a motion to stay a parenting order pending appeal must be approached cautiously because:
Parenting decisions are inherently exercises in discretion: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. A trial judge’s exercise of discretion, and the factual findings in connection with it, are entitled to deference on appeal: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4. That caution is even more apposite on this sort of motion, where the opportunity to examine the record is even more limited than it will be on the appeal itself.
61Furthermore, even though the test of serious issue to be tried is not a rigorous one, a low chance of success of the appeal weighs against granting the stay: Mazzeo, at para. 28.
62Here, there is no obvious error in either the finding of contempt or the sentencing order. The motion judge engaged in every step required before making a finding of contempt. She showed herself to be circumspect regarding any ambiguity in her original February 27, 2026 order. She offered many opportunities to allow the Mother to purge her contempt. The Mother was brazen in her ongoing refusal to obey parenting orders with which she does not agree.
63Regarding the parenting reversal, that is a decision entitled to great deference absent an obvious error in principle or a palpable and overriding error.
64While the Mother claims that the entire contempt process was improper and that the Father represents a danger to the child, those claims are not borne out in the evidence before me. The Mother complains that the Father did not take phallometric testing and even sought to have him cited for contempt for that failure. But the assessor explained the absence of such testing and why she was nonetheless able to offer a strong opinion regarding the Father’s low risk of harm. That explanation was not countered by competing evidence. The motion judge was entitled to accept it. Furthermore, the motion judge found that evidence independent of the Heasman report supported the finding that the father posed no risk of sexual harm to the child.
65I add that as early as 2000, the Supreme Court of Canada expressed concern regarding the use of phallometric testing in a forensic context in R. v. J.-L.J. 2000 SCC 51, [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, at paras. 51-61.
Irreparable Harm
66In the family law context, the issue of irreparable harm looks to harm to the child. In that regard Zarnett J.A. considered the issues of irreparable harm and balance of convenience in K.K. v. M.M., writing at para. 25:
25… The father’s irreparable harm and balance of convenience arguments thus proceed on a different view of J.K.’s best interests than taken by the trial judge. But, on a motion to stay, the result of the trial is to be treated as prima facie correct: Circuit World, at para. 13.
67Of course, this is an appeal of an order on a motion not a trial. But it too is a final order as it deals with contempt. The parenting order is a temporary one. But as a case managing judge in the Ontario Court of Justice (where single judge case management is the rule rather than the exception), the motion judge had ongoing involvement with this family and had acquired an understanding of many of its nuances. She dealt with both the issue of parenting and the mother’s refusal to comply with court orders over a number of appearances. Her findings on a motion such as this are entitled to deference. The greatest risk of potential harm in this case, as the motion judge found, was to the child’s ability to form a relationship with his Father if the Mother was allowed to continue to flaunt the court orders which would deprive him of that relationship.
68The Mother’s arguments of harm fall flat in light of the objective evidence before the motion court: those of the CAS interviews, the risk assessment by the expert of the Mother’s choice, and the Mother’s own conduct. She appears from the evidence to be unable to objectively look at the facts of this case.
69The Mother argued before me that allowing the July 13, 2026 order to stand would amount to experimenting with the child. But in light of the evidence and findings cited above, the Mother is the one asking the court to experiment with the child. She wants it to experiment with the idea of indefinitely depriving the child of a meaningful relationship with his father.
70In this motion, the Mother attempts to present the court with a Hobson’s choice. She attempted to place the court into the position of either accepting the prospect of her continuing breaches or taking the child out of her care. Neither choice is optimal. But she left the motion judge with little choice. As the motion judge stated, more restrained remedies would do little good in enforcing compliance. A fine would be of little effect as the Mother is essentially judgment proof. She advised this court that she is in receipt of public assistance. The motion judge further found that incarceration was not an appropriate remedy, in the face of the Mother’s misguided view that she is acting to protect the child.
71The motion judge found, on the specific facts of this case, that only a temporary parenting reversal with a police enforcement clause would allow the child to build a relationship with the Father. She found that such a remedy was in the child’s best interests. Allowing the Mother to continue in her contempt, and thus depriving the child of the chance of building a meaningful relationship with his Father was not in his best interests.
Conclusion
72In Mazzeo, at para. 29, Madsen J.A. repeated the well-known aphorism that a court order is not a suggestion (citing Martin v. Watts, 2020 ONCA 406, at para. 16). She added that the legal entitlement of the Mother to an appeal (of a Hague Convention decision) when she was in breach of California custody order “must be considered in the context of her own failure to obey court orders”.
73Here, in a decision that was entitled to deference, the motion judge carefully considered the evidence and options available to her and found that the parenting reversal and other terms she ordered were in the child’s best interests. Nothing offered in this motion causes this court to find otherwise. The Mother’s appeal appears weak. The risk of harm of the child losing his relationship with his Father and the balance of convenience favour dismissing this motion.
74I add that the parties will appear one more time before the motion judge on August 20, 2026. At that time and at her discretion, it is open to the motion judge to review the progress of the plans she put in place for the temporary reversal of parenting time and other relief she granted on July 13, 2026.
75Accordingly, and for all of the reason set out above, I dismiss this motion.
76Costs of this motion are reserved to the appeal.
______________________ Kurz J.
Released: August 14, 2026