CITATION: Ma v. Gu, 2026 ONSC 4713
COURT FILE NO.: FC-25-00002055-0000 DATE: 20260722
Superior Court of Justice Endorsement
Applicant(s): Boxuan Ma
Counsel: Kim Wong kim@kimwongfamilylaw.ca
Respondent(s): Weilin Gu
Counsel: J. Randal Montgomery chenmontlaw@gmail.com
Respondent(s): Zili Zhao
Counsel: J. Randal Montgomery chenmontlaw@gmail.com
Date: 22 July 2026
Motion Relief
[1] The Applicant Father filed a motion seeking the following: declaration of breach, fines/penalties and to strike the Respondent Mother’s pleadings.
[2] The Respondent Mother filed her responding materials late. The responding materials were accepted and, correspondingly, I extended the time for service and filing of the Applicant Father’s Reply.
[3] The Respondent Mother’s maternal grandmother did not file any material and did not attend the motion.
[4] The parties argued their motion. After hearing the submissions, I advised that I intended to grant relief as requested by the Applicant with some modifications. I offered the parties the opportunity to attempt to resolve the root issues rather than simply address the motion. I noted that I would provide a decision on the motion in the event that the parties were not able to resolve matters.
[5] The parties agreed to attempt to resolve the issues. After spending a significant amount of time attempting to assist the parties (much of the day), no resolution was reached.
Decision on Motion
Brief Background
[6] The Applicant, Boxuan Ma, is the father of the children. The Respondent, Weilin Gu is the mother of the children. The Respondent, Zili Zhao, is Ms. Gu’s mother and the maternal grandmother to the children.
[7] They have three children of the marriage: M.Y.M., born 2020 (“MYM”), I.A.M., born (“IAM”), and I.S.M., born 2023 (“ISM”) (collectively, the “children”). They were all born in Ontario and are Canadian citizens.
[8] The Respondent Mother took the children to China without the Applicant Father’s consent or knowledge on September 24, 2025.
[9] At an urgent motion on December 15, 2025, Justice Bateman found that the children are habitually resident in Ontario, had been abducted by the Respondent Mother to China, and ordered that the children immediately return to the care of the Applicant father in Canada pending the hearing of the case. Her decision is detailed in her reasons including the basis for the children’s return and the supporting contact to occur pending their return.
[10] The Respondent Mother has not sought to appeal the decision and has not returned the children.
[11] At a case conference on January 7, 2026, the Applicant was given leave to bring a motion for a declaration of a breach by the Respondent Mother if the children had not returned to Canada by January 17, 2026.
[12] The children have not returned to Canada to date. The Applicant father has also not had contact with the children as ordered by Justice Bateman on December 15, 2025.
Issue 1 – Should I grant monetary fines/penalties given that the children have not returned to Canada and have had no contact with the Applicant father since the Order of Justice Bateman dated December 18, 2025?
Law regarding Breaches and Fines
[13] Rule 1(8) of the Family Law Rules, O.Reg. 114/99 provides as follows:
(8) FAILURE TO OBEY ORDER - 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.
[14] Rule 1(8) provides the court with wide discretion in dealing with a party’s failure to obey an order. The court is permitted to make any order that it considers necessary for a just determination of the matter. Once the court is satisfied that a party is in non-compliance with a court order, the court can fashion a substantive remedy providing it is tied to the breached order such that the remedy will encourage compliance with the breached order. The scope of the court’s discretion to fashion a responsive substantive remedy is particularly appropriate where at issue is the wellbeing of children: K.M. v. J.R., 2024 ONSC 1338; Bouchard v. Sgovio, 2021 ONCA 709.
[15] A request for relief under Rule 1(8) entails a three-step analysis: (a) The court must first determine if there has been a triggering event, namely non-compliance with a court order; (b) if there has been a triggering event, the court should then determine whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8); and (c) if the court determines that it should not exercise its discretion in favour of the non-complying party, then it is left with the very broad discretion as to the appropriate remedy under rule 1(8). K.M. v. J.R., 2024 ONSC 1338.
Analysis
[16] It is abundantly clear that there is a breach of the order of Justice Bateman dated December 18, 2025, given that the children have not returned to Canada. Therefore, a triggering event as set out in the first part of the test is established.
Issue 2: Since there has been a triggering event of non-compliance, should I exercise my discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8)?
Analysis
[17] The Respondent Mother argues that I should not grant any monetary fines or the striking of her pleadings because she has good reasons not to have the children return to Canada. Her counsel’s submissions were that this is a case of “blame the victim” and courts are able to not find a breach or sanction if the court finds there was a “good reason” for the breach. In summary, she argues the following:
(a) A repeat of much of her evidence as it was before Justice Bateman, namely, that she was abused, that the Applicant Father had no interest in the children, and that there was a marriage contract that gave her primary residence of the children in the event of separation. Her taking the children to China without the Applicant Father’s consent was an act of a victim needing to flee;
(b) The children may not be able to get on a plane because of passport and immigration issues;
(c) The children should not be separated from their maternal grandmother and their mother who are their primary caregivers;
(d) The children do not know or have a relationship with the Applicant Father;
(e) The Respondent Mother will face criminal charges if she returns to Canada therefore, she cannot come to Canada and therein she will never see her children; and
(f) She cannot afford any of the fines.
[18] The Respondent Mother argues that I should not grant any remedies arising out of a declaration that she is in breach of the Order for no contact between the Respondent Mother and the Applicant Father because it is the Applicant Father’s fault that he has had no virtual contact with the children. She blames the Applicant Father because he did not ask for any virtual contact. She claims if he had asked, she would have provided the virtual contact.
[19] The Respondent Mother argues that there should be no monetary fines if I make a declaration of a breach because she cannot afford it.
[20] I do not find the Respondent Mother’s reasons for not complying with the Order compelling or reasonable. Justice Bateman already considered the Respondent Mother’s evidence that she was abused by the Applicant Father and her in-laws and did not find that the Respondent Mother’s version of the events was accurate. On the contrary she found that the Respondent Mother engaged in self help and abducted the children.
[21] I find the Respondent Mother is simply re-litigating the previous motion by relying on any justification of not complying with the order for historical reasons that were already considered and not accepted by Justice Bateman. The decision was not sought to be appealed and was not appealed. Therefore, these historical reasons cannot be the type of reasons that allow a court not to find a breach.
[22] The Respondent Mother has not attempted to have the children fly to Canada. She relies on mere speculation that they will not be able to leave China. The Applicant Father’s materials demonstrate that the children have Canadian passports, and all indications point to their ability to return to Canada. I do not accept the Respondent Mother’s evidence or argument as genuine.
[23] While I appreciate that the Respondent Mother is concerned about the children being away from her, the Respondent Mother can return to Toronto so it is not accurate that if they return to Canada, she will not see them. Justice Bateman’s Order allows for the Respondent Mother to attend court to determine her parenting time with the children once she returns to Canada. I acknowledge that facing criminal charges upon return to Canada may be difficult for the Respondent. The children, however, will not be facing criminal charges in Canada. The reason the Respondent mother may face criminal charges is because of her choices. Not facing the consequences of your own mistakes is not a basis to not comply with the order or request to not be fined. Following orders is not optional and it belies logic to think that a court will base not wanting to be held accountable for your serious actions as a basis to be permitted to not comply with an order with no consequence.
[24] On the issue of contact, the order of Justice Bateman is clear and designates a positive obligation on the Respondent Mother to arrange contact. It is undisputed that there is no evidence of initiation and action by the Respondent Mother to arrange such contact. It is a complete abdication of responsibility for the Respondent Mother to suggest the Applicant Father had to request that she comply with the order otherwise she should not be held responsible. The Respondent Mother’s actions have served to sever the relationship between the children and the Respondent Father for 9 months. I find that she has willfully and intentionally not followed the order to have virtual contact every other day. I believe she was well aware that she did not arrange the contact and frankly never wishes to create such contact.
[25] The Respondent Mother’s continued breach of the order of Justice Bateman dated December 18, 2025 is extremely serious. The Applicant Father has not brought a contempt motion but given the evidence, it is highly likely that he would be successful.
[26] While it may be true that she does not have liquid funds to pay the fines, the Respondent Mother has property in Canada that may become relevant for claims and remedies such as a vesting order. The Respondent Mother noted that a vesting order was not sought in the motion but was aware of this possibility as it had been mentioned to her. If she was unaware before, she should be on notice now that a vesting order is a possible remedy to collect on these fines when there is continued flagrant disregard for court orders. Not to mention that a vesting order may be a relevant remedy with respect to equalization.
[27] I find it appropriate to levy fines against the Respondent Mother for her continued choice to disregard orders as well as to actively thwart a relationship between the children and their father. I find her behaviour betrays that she does not think the law and rules should apply to her if she does not like the rules. Her behaviour is damaging to the children.
[28] I find it appropriate and necessary at this stage to grant fines per day of non-compliance given the Respondent Mother’s non-compliance. I find the total request of $3,000 a day across the two orders quite high. These fines are meant to incentivize compliance. I will therefore impose fines that will continue to increase over periods of time as long as the Respondent Mother continues to be in breach of the order of Justice Bateman dated December 18, 2025.
Issue 3 – Should I strike the Respondent Mother’s pleadings given her breaches of the Order?
Law
[29] The same three-prong test applies to the striking of pleadings.
[30] It is commonly cited as a remedy of last resort.
[31] The Court of Appeal stated that pleadings should be struck only in “exceptional cases and where no other remedy would suffice”. At paras. 49 and 50, the Court of Appeal stated:
49The adversarial system, through cross-examination and argument, functions to safe guard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. This court said at p. 23 of Marcoccia v. Marcoccia (2009), 2008 ONCA 866, 60 R. F. L. (6th) 1 (Ont. C.A.), the remedy of striking pleadings is “a serious one and should only be used in unusual cases”. The court also explained at p. 4 that the remedy imposed should not go “beyond that which is necessary to express the court’s disapproval of the conduct in issue”. This is because denying a party the right to participate at trial may lead to factual errors giving rise to an injustice, which will erode confidence in the justice system.
50Nonetheless, the decision to strike pleadings and to determine the parameters of trial participation is a discretionary one that is entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue…..
[32] In family law cases involving children, the Court of Appeal identified at paragraph 48, a particular caution when dealing with cases where the interests of children are at issue:
48Similarly, special care must be taken in family law cases where the interests of children are at issue. The consequences of striking pleadings or limiting trial evidence when custody or access is at issue was discussed in King v. Mongrain (2009), 2009 ONCA 486, 66 R. F. L. (6th) 267 (Ont. C.A.) where Gillese J.A. observed at p. 273 that pleadings should not be struck if such a remedy leaves the court with insufficient information to determine custody.
[33] The court in Z.A. v. A.A., 2019 ONSC 5601 strikes pleadings in a case where the child was inaccessible to the mother because the court found it unfair for the mother to continue the proceeding in the absence of being able to obtain evidence to defend against the allegations of poor parenting. As the child was not in the jurisdiction, the mother could not involve the OCL or relevant professional to establish evidence to the contrary.
Analysis
[34] The Applicant Father asks me to strike the Respondent Mother’s pleadings based on the same principle as articulated in Z.A v. A.A. I find it is unfair for the Applicant Father in this case to continue to a trial when the impact of the non-compliance is that the children’s lack of physical presence is a barrier to allow the Applicant Father to have current evidence before the court about his parenting abilities. The Applicant Father similarly cannot request the involvement of the OCL so that his parenting can be assessed. He cannot spend time with the children to allow for any evidence about his interactions with the children in a caregiving role to be before the Court.
[35] The order of Justice Bateman dated December 18, 2025 does not prevent the Respondent Mother from litigating to move with the children to China. It does not prevent the Respondent Mother from seeking a final order as she wishes. It does not limit her ability to present evidence and pursue assessments as required. It is her actions that circumvent the Applicant Father’s options in this litigation. She is required to comply with an order that she has simply disregarded. It would be unfair to permit her to continue to co-opt the litigation process in this manner.
[36] I therefore find that the remedy of striking pleadings is a remedy of necessity.
Creative Resolution Offering to Avoid Penalties for Non-Compliance
[37] As I have indicated earlier in this decision, the root issue is more than what is before me. While I find there are no sufficient reasons for the lack of compliance, I will give the Respondent Mother a final chance to comply with the order with terms that address her concerns that make following the order of Justice Bateman difficult. To be clear, by giving the Respondent Mother this last chance, this court is not saying that the Respondent Mother’s non-compliance or reasons for lack of compliance are justified or reasonable. I have made the opposite finding. This court is giving the Respondent Mother the opportunity simply because the children, who are the vulnerable persons in this matter, benefit.
[38] If the Respondent Mother completes one of the options below, I will not make an order for fines nor will I strike her pleadings. I will vary the order of Justice Bateman as set out below.
[39] The Respondent Mother’s conditions precedent to obtain the variation order below:
(a) The Respondent Mother confirms in writing with proof of purchased flights for the children and herself to land in Toronto by August 6, 2026.
(b) The Respondent Mother shows proof to the Applicant Father and his counsel that she has provided $8,000 to her lawyer’s trust account by July 30, 2026. She must show proof that she has signed an acknowledgement with her lawyer that the $8,000 is only to be returned to her if the children return to Toronto by August 5, 2026. The $8,000 is a signal that the Applicant Father can purchase tickets to fly the children to Toronto with his father on August 5, 2026 or a date soon thereafter.
ORDER
- As long as one of the paragraphs 39 (a) or (b) has occurred, the following order shall apply:
(a) Upon arriving in Canada, the children are to reside with the parties on a shared residency arrangement.
(b) The mother will reside in the matrimonial home pending the closing of her condominium, at which point she will move out of the matrimonial home. The Applicant’s mother and the Applicant Father will not reside in the matrimonial home while the Respondent Mother is residing in the matrimonial home.
(c) The Applicant Father to pay spousal support on a taxable basis to the recipient and on a tax-deductible basis to the Applicant Father in the amount of $1,500.00.
(d) The Applicant Father will make best efforts to follow through on his claim that he will not seek to have the Respondent Mother criminally charged.
(e) In this part of the order, I request that the police not criminally charge the Respondent Mother.
(f) The Applicant Father will pay expenses towards the matrimonial home in the amount of $5,500 pending its sale on a without prejudice basis to seeking post separation adjustments.
(g) The Applicant Father to pay for the children’s daycare costs without prejudice to future adjustment once all financial matters are resolved.
- If by August 6, 2026 the children are not in Toronto, then there is no variation to the Order of Justice Bateman dated December 18, 2025 and the following order shall apply:
(a) Weilin Gu, the Respondent Mother is found to be in breach of Justice P. Bateman’s order dated December 18, 2025.
(b) The Respondent Mother is in breach of Justice P. Bateman’s order dated February 3, 2026.
(c) The Respondent Mother shall not have any status to participate in the within proceedings (including filing an Answer, evidence and making submissions) or be entitled to any order from this court, unless she returns the children to Ontario to the Applicant Father’s care as per Justice P. Bateman’s order dated December 18, 2025 and she first appears in person before this court and obtains an order otherwise.
(d) The Respondent Mother shall pay a daily fine to the Applicant Father in the amount of $500 per day for each day of non-compliance of Justice P. Bateman’s order dated December 18, 2025 to return the children to Ontario to the Applicant Father’s care from August 6, 2026 to September 6, 2026.
(e) The Respondent Mother shall pay a daily fine to the Applicant Father in the amount of $1000 per day for each day of non-compliance of Justice P. Bateman’s order dated December 18, 2025 to return the children to Ontario to the Applicant Father’s care from September 7, 2026 to October 6, 2026.
(f) The Respondent Mother shall pay a daily fine to the Applicant Father in the amount of $2000 per day for each day of non-compliance of Justice P. Bateman’s order dated December 18, 2025 to return the children to Ontario to the Applicant Father’s care from October 7, 2026 forward.
(g) The Applicant Father has leave to proceed to an uncontested trial of his claims.
(h) Service of any document by the Applicant Father on the Respondents in this proceeding may be validly effected by emailing the document to the Respondents’ lawyer of record, or to any Ontario legal representative authorized to accept service on behalf of the Respondents, or by email and WhatsApp directly to the Respondent Mother if she has no legal representative.
(i) Such service shall be deemed to be service in Ontario and shall not require transmission of the document abroad for service under the Hague Service Convention.
The Respondents’ Answer (if any) shall be struck out. If no pleadings are filed by the Respondents, they are prohibited from filing an Answer, unless this court orders otherwise.
The Applicant Father’s Hague Service Convention Certificate of Service dated March 2, 2026 is deemed served and filed.
The Respondent Mother shall pay the Applicant Father costs of this motion in the amount of $18,000 inclusive of HST on a full indemnity basis, payable forthwith.
This Endorsement is deemed to be an order of the court that is operative and enforceable without any need for a signed or entered, formal, typed Order.
_________________________________________ The Honourable Justice S. Jain