



COURT OF APPEAL FOR ONTARIO

CITATION: Bouchard
    v. Sgovio, 2021 ONCA 709

DATE: 20211013

DOCKET: C69080

Pardu, Paciocco and Nordheimer JJ.A.

BETWEEN

Leslie Bouchard

Applicant (Appellant)

and

Angela Sgovio

Respondent (Respondent)

John P. Schuman and Katelyn Bell, counsel for the appellant

Brian J.R. Hall, counsel for the respondent

Heard: September 1, 2021 by videoconference

On appeal from the order of Justice Jayne E. Hughes of
    the Superior Court of Justice, dated February 9, 2021 with reasons at 2021 ONSC
    1055.

Paciocco J.A.:

OVERVIEW

[1]

The appellant father, Leslie Bouchard, appeals an enforcement order made
    by Hughes J. pursuant to the
Family Law Rules
, O. Reg. 114/99, r. 1(8),
    granting the respondent mother, Angela Sgovio, a temporary parenting order to
    facilitate the enrollment of their two children in Family Bridges: A Workshop
    for Troubled and Alienated Parent-Child Relationships (Family Bridges).
    Family Bridges is an intensive therapeutic program for all family members,
    designed to heal fractured parent-child relationships resulting from parental alienation.

[2]

The father also appeals a restraining order the motion judge made against
    him pursuant to the
Childrens Law Reform Act
, R.S.O 1990, c. C.12, s.
    35.

[3]

The parties have two children, T.B., a son, who was born in March 2006,
    and a daughter, S.B., who was born in September 2009. The enforcement and restraining
    orders are premised on the fathers alleged misconduct in alienating T.B. from his
    mother. There were no independent concerns expressed during the underlying
    litigation for the wellbeing of S.B., who maintains a positive relationship
    with both parents.

[4]

The father argues that the motion judge erred by: (1) imposing the enforcement
    order without jurisdiction, (2) making the enforcement order without fully considering
    the best interests of the children and without sufficient evidence; and (3) imposing
    a restraining order that was not requested by either party.

[5]

The father has presented fresh evidence in support of his appeal. The
    fresh evidence purports to show a change in circumstances. There is
    disagreement over the relevance and cogency of this evidence. However, it is
    not contested that the fresh evidence demonstrates that the terms of the restraining
    order interfere with the fathers livelihood. The mother consented to the
    variation of the restraining order to remedy this but argues that the fresh
    evidence is not otherwise admissible or useful.

[6]

I would grant leave to admit the fresh evidence, but I would dismiss the
    appeal relating to the enforcement order for the reasons that follow.
    Immediately after hearing this appeal, the panel granted the appeal relating to
    the restraining order and varied that order on consent. I would not otherwise
    interfere with the restraining order.

THE MATERIAL FACTS

[7]

The parties separated on March 31, 2017. On June 26, 2019, they entered
    into a Parenting Agreement that provided for shared parenting of T.B. and S.B. That
    same day, the Parenting Agreement was made into a final order on consent (the
    Leef Order).

[8]

The Leef Order included a detailed regular schedule and an equally
    detailed holiday schedule. It also provided that the children, both T.B. and S.B.,
    would receive weekly counselling with Ms. Stacey Rennehan, and it forbade the
    parties from involving the children in adult conversations about legal issues
    or legal disputes.

[9]

On August 18, 2018, the mother brought a notice of motion seeking relief
    arising from the fathers alleged noncompliance with the Leef Order, including
    the shared parenting regime. This motion was argued before Hughes J. on August
    22, 2019.

[10]

On
    October 23, 2019, Hughes J. released her decision (the Hughes Order). She found
    that there was ample support in the fathers own evidence to find that he was breaching
    the Leef Order by withholding the child T.B. from his mother as a strategy for
    resolving outstanding property issues. This finding was based on his past-practice
    and the pattern and timing of the breaches of the Leef Order that she found to
    have occurred.

[11]

Specifically,
    the father confirmed in his affidavit evidence that prior to the Leef Order he had
    withheld T.B. from his mother to secure the shared parenting order. This fact was
    supported by text messages that had been filed in which he was using contact
    with T.B. as an ultimatum in exchange for a shared parenting settlement.

[12]

The
    motion judge found that, consistent with this past practice, the repeated
    breaches of the shared parenting schedule in the Leef Order began the day after
    an unsuccessful property settlement conference had been held. Moreover, she
    found that this same day, the father, in breach of the Leef Order,
    manipulated T.B. by communicating with T.B. about his extreme frustration
    with the mother arising from their legal dispute. She found that this conduct
    fueled T.B.s animosity towards his mother.

[13]

The
    motion judge also found that the father had failed to take the children to
    counselling sessions with Ms. Rennehan as directed, and she rejected his
    explanation that he could not afford the costs of the counselling.

[14]

As
    the result of her findings, the motion judge ordered the father to pay a global
    fine of $18,000 to the mother, which she itemized between the several breaches
    of the Leef Order that she had identified. She also ordered that [u]ntil the [father]
    brings himself into compliance with the Leef Order, he shall not be entitled to
     (d) [b]ring any further motions without leave of this court. The Hughes
    Order has not been appealed.

[15]

When
    she made the Hughes Order, the motion judge adjourned the matter to November 1,
    2019 for a compliance hearing. That adjournment date was subsequently postponed
    to December 18, 2019.

[16]

Pending
    the December 18, 2019 adjournment date, the mothers care of T.B. had not
    resumed, and on November 8, 2019 Ms. Rennehan withdrew from her counselling
    role. On December 4, 2019, the mother, who had already moved for additional fines
    for further alleged non-compliance, brought a Form 14 Amended Notice of Motion seeking,
    among other things, an order that Mills Psychology shall conduct reintegration
    therapy between the mother and T.B. The Notice of Motion did not identify the
    source of the courts authority to make such order.

[17]

The
    parties settled the mothers December 4, 2019 motion and on December 18, 2019,
    McGee J. made a temporary consent order directing that the mothers care of T.B.
    was to resume, and that T.B. attend counselling with Mr. Jeff Packer and Ms.
    Nicole Bolotenko (the McGee Order). The motion was further adjourned to April
    17, 2020 to permit T.B.s progress in therapy to be monitored.

[18]

Unfortunately,
    the April 17, 2020 date was scuttled because of lockdowns during the COVID-19 pandemic.
    It was rescheduled to be heard on September 28, 2020.

[19]

On
    August 18, 2020, pending the September 28, 2020 hearing, the mother moved for still
    further relief in another Form 14 Notice of Motion. As in the case of the
    Notice of Motion she brought on December 4, 2019, she did not identify the
    legal authority under which the relief was sought.

[20]

In
    the affidavit in support of the Notice of Motion the mother claimed that
    despite the Leef Order, the Hughes Order, and the McGee Order, she had not
    managed to see her son outside of counselling since December 2019, and she
    alleged that the father had sabotaged every attempt at therapeutic
    intervention. Materially, she asked for an order that: (1) she have temporary custody
[1]
of the children; (2) that the children be enrolled in Family Bridges; (3) that
    pending further Order of this Court, the children shall have no contact with
    the [father], his relatives, friends or associates, including his spouse,
    except as directed by Family Bridges, or the aftercare professional, or any
    other professional designated by the [mother] or the Court, and none of the
    abovementioned individuals shall contact the children; and (4) that the
    father, who worked in an educational capacity with the Durham District School
    Board, be placed at a school at least 20 kilometers away from the schools the
    children would be attending.

[21]

On
    August 25, 2020, the father brought a cross-motion for: (1) an order pursuant
    to s. 30 of the
Childrens Law Reform Act
appointing Marcie Goldhar
    to complete an expedited focused assessment to determine the reasons for the
    difficulties in the relationship between T.B. and his mother; (2) an order
    that the parties exchange offers to settle temporary parenting issues; and (3)
    an order setting the school T.B. would be attending as well as setting out the
    details of any necessary transportation and online learning arrangements. As was
    the case with the mothers requests for further relief, the fathers requests
    were made in a Form 14 Notice of Motion and did not identify the legal
    authority for the orders sought.

[22]

On
    September 28, 2020 Hughes J. conducted the hearing, which she described as a
    proceeding to compel the [father] to comply with the Leef Order and orders made
    subsequent, and to monitor the [fathers] compliance. The mother filed affidavit
    evidence in support of the findings and orders she requested, although she did
    not file a Form 35.1 sworn parenting affidavit, which is required in r. 15
    motions when seeking to change parenting orders. In the supporting affidavit
    she did file, however, she included a detailed description of Family Bridges,
    and appended literature from the program as an exhibit.

[23]

Despite
    having brought his own motion for substantive relief at the hearing, the father
    objected to the motion judges jurisdiction to provide the relief that the
    mother was seeking, arguing that such relief, including a change of parenting
    time, cannot be provided as a remedy in a contempt proceeding, or an
    enforcement proceeding under r. 1 of the
Family Law Rules
, if thats
    what this is about. He also argued that he had done everything he could to get
    T.B. to comply with the court orders, and he argued that the evidence did not
    support a finding that he has alienated T.B. from his mother. He argued that,
    in fact, T.B.s estrangement from his mother is justified based on her conduct.
    He also argued that the s. 30 assessment he requested is required before the
    court has jurisdiction to grant relief based on parental alienation. Finally,
    he argued that the orders sought would not be in T.B.s best interest.

[24]

With
    respect to the child S.B., the father argued that there was no suggestion that S.B.
    was alienated from her mother, inferring that even if such therapy is ordered
    relating to T.B., the order should not include S.B.

[25]

The
    father also made submissions about the unsuitability of the Family Bridges program.
    Specifically, he expressed concern that the parties cannot meet the enrolment
    criteria, given that enrolment depends on the childs views about the alienated
    parent being unrealistic, when T.B.s views about his mother are not
    unrealistic. He presented affidavit evidence from Durham District Childrens
    Aid Society case worker, Ms. Cathy Bugden, in which Ms. Bugden expressed
    concerns that being sent to a treatment facility could have an extreme impact
    on [T.B.s] well-being. In that affidavit, Ms. Bugden, who conceded that she
    lacks expertise in the area of determining parental alienation, noted that if
    the [professional] assessment supports this, then the professionals will have
    made the official recommendations based on their findings.

[26]

Notably,
    the father suggested no alternative programs or therapies to the Family Bridges
    program, only the alternative strategy of a s. 30
Childrens Law Reform Act

assessment.

[27]

Counsel
    for the Durham District School Board appeared to oppose the order the mother requested
    that would have imposed area limits on the fathers employment placement.
    Counsel for the Board noted that if the Board was forced to comply with such an
    order it would place the Board in conflict with the collective agreement and
    create significant staffing challenges during the COVID-19 pandemic.

[28]

The
    motion judge released her decision on February 9, 2021. In her endorsement, she
    rejected the fathers challenge to her jurisdiction to make the orders sought,
    noting that this was a compliance matter, not a contempt matter. She said that
    [t]he
Family Law Rules

provide the court sufficient discretion
    to consider the relief claimed by both parties. She held that where a party
    to the proceeding has failed to obey an order, [s.] 1(8) of the
Family Law
    Rules
provides this court with a very broad discretion to make an order
    the court considers necessary to compel that party into compliance. She ruled:

I find that I do have jurisdiction to place [T.B.] on an extended
    visit with his mother on a temporary basis, and to authorize her to obtain the
    treatment for herself and the children necessary to reverse the harm that has
    been caused to [T.B.] as a result of his fathers refusal or inability to
    comply with the Leef Order.

[29]

With
    respect to the merits of the application, the motion judge found, based
    predominantly on evidence that the father had filed, that:

[I]t is clearly in [T.B.s] best interest to resume the loving,
    supportive and healthy relationship he had with his mother prior to his
    parents separation, and that his father be provided the therapeutic assistance
    he needs to be able to support [T.B.s] relationship with his mother and
    recognize the importance of [T.B.s] mothers role in the childs life in order
    that [T.B.] may enjoy fully the 50-50 shared parenting plan set out in the Leef
    Order, which both parents recognized as being in his best interest.

[30]

However,
    she found that:

Despite ample time to correct his course, the [fathers]
    ongoing non-compliant conduct [with the Leef Order] has remained undeterred by
    both the Hughes Order and the McGee Order, and I find that it is not in [T.B.s]
    long-term best interest that his current circumstances continue further.

[31]

The
    non-compliance the motion judge found consisted of the fathers continued
    failure to facilitate the resumption of T.B.s parenting time with his mother,
    and efforts by him to sabotage or actively undermine the therapy that had
    been ordered to support T.B.s reunification with his mother.

[32]

Specifically,
    she found that the fathers motion materials were peppered with examples of [his]
    ongoing abusive conduct in speaking to T.B. about legal issues, including
    telling T.B. that his feelings have no weight or importance and will not be
    considered. He also acknowledged telling T.B. that Hughes J. said that, his
    mother is right and his feelings and memories of his experiences are wrong.
    The motion judge found that the father was not only breaching the court order
    by making those statements to T.B., he also knew he was not truthful, tried to
    justify his noncompliance, and appeared to be blind to the damage his
    non-compliant conduct has caused to [T.B.].

[33]

The
    motion judge also made findings that the father had actively obstructed the
    therapeutic efforts made by each of the counsellors who had been retained
    pursuant to the court orders  Ms. Rennehan, Mr. Packer and Ms. Bolotenko. She
    found that he also undermined the therapeutic efforts made by Mr. Gary Brooks,
    who had been retained by agreement on the recommendation of Durham Childrens
    Aid Society case worker, Ms. Bugden, after Mr. Packer and Ms. Bolotenko had
    resigned.

[34]

The
    motion judges finding that the father had undermined the therapeutic work of Ms.
    Rennehan was supported by correspondence between the father and Ms. Rennehan. The
    motion judge found that the father actively undermined Ms. Rennehans
    therapeutic efforts by insisting, despite her recommendation to the contrary, that
    the only way T.B. would proceed was if he and his new partner attended the
    sessions; by insisting that she meet with T.B. so that T.B. could explain what
    he wanted and needed out of the therapy; by suggesting to her that she was not
    mandated by the court order to set reunification as a goal of the therapy; by
    accusing Ms. Rennehan of having had private conversations with the mother; and
    by requesting that he be permitted to record their meeting. These events led
    Ms. Rennehan to conclude that trust had been broken and that securing a new
    counsellor [for T.B.] is ideal.

[35]

With
    respect to the team counselling led by Mr. Packer and Ms. Bolotenko that was
    ordered under the McGee Order, the motion judge accepted the contents of a
    report that was written to the Durham Childrens Aid Society by Ms. Bolotenko,
    but jointly signed by both counsellors, explaining why ethical and safety
    reasons required their resignation. That report included the following
    information:

Before reunification counselling began, the parents agreed to
    attend two sessions with Jeff Packer in order to assess and determine parents
    readiness, level of commitment, and ability to engage in reunification counselling
    and cooperative parenting coaching. During these two sessions (January 17 and
    31, 2020) and subsequent correspondence, this writer found that the [father]
    continued to engage in blame and put downs of his co-parent rather than
    agreeing and committing to treatment plans set out by the writer for the
    improvement of the [mothers] relationship with their son. Facing these
    enduring high conflict patterns of behaviour, this writer offered alternatives
    such as individual sessions, parallel parenting or parent co-ordination
    approaches. The parties were also provided knowledge on how a lack of improvement
    of engagement in their sessions would undermine and effect [T.B.s] motivation
    and faith in his own counselling within the same organization. The [father] put
    up further barriers to continued treatment with threatening and inappropriate
    behaviour towards both the [mother] and the writers. On February 8, 2020, the [father]
    and the [mother] were informed (via email) by the writers that they could not
    continue to provide service for ethical and safety reasons:

It is our concern and impression, given the several hours of
    documentation read from court, email correspondence and sessions with the writers
    that [the father] continues to ignore court orders for shared custody and is
    unwilling and unmotivated to participate in T.B. having a comfortable, healthy
    and meaningful connection with his mother. The writers are concerned that [the
    father] is directly and indirectly contributing to T.B.s sense of hostility,
    dislike and aggression towards his mother. It is our assessment at this time. [The
    father] struggles with his responsibility as a parent to encourage the
    development of a healthier relationship between T.B. and his mother. Finally,
    in keeping with a family systems approach, we are concerned with the health and
    wellness of both children should exposure to such high-level parental/caregiver
    contact continue.

[36]

The
    counselling that had been arranged with Mr. Brooks had initially been going
    well and producing positive results. It is not contested that it ended with a
    letter from Mr. Brooks to the father in which Mr. Brooks set out the conditions
    the father had agreed to, which included making sure T.B. attends therapy, not
    discussing adult or court related issues with T.B. for any reason, and not
    interrogating, asking questions, discussing, or inquiring how therapy went,
    even if T.B. initiated such conversation. The letter continued:

Les your email clearly demonstrates that you did everything you
    agreed you would not do which effectively sabotaged the therapeutic process.
    Your actions further alienated T.B. from his mom. At this point, given your
    actions as witnessed by your detailed email, I do no[t] feel reconciliation
    therapy can be effective while T.B. remains in your care, under your direction
    and influence. Regretfully, T.B. and his mom will have to seek out the services
    of yet another therapist.

[37]

The
    father provided alternative explanations for the breakdown of each therapeutic relationship,
    but the motion judge rejected each of them. She commented that there is no
    reason why the four therapists would provide inaccurate information, and that
    given their professional duties, they probably accurately documented the events.

[38]

Of
    note, Durham Childrens Aid Society Case Worker, Ms. Bugden, provided affidavit
    evidence in support of the fathers conduct towards T.B. After reviewing Ms.
    Bugdens affidavit and related documentary information, including Ms. Bugdens
    own notes, the motion judge found that the father had manipulated Ms. Bugden,
    who was inexperienced with parental alienation and therefore unsuspecting of
    manipulative characteristics of parents with alienation tendencies. The motion
    judge found that the father had provided her with inaccurate and incomplete
    information, dominated their communications, and was given access to statements
    made by T.B. to Ms. Bugden that should have been kept private. When the father
    confronted Ms. Bugden by telling her that T.B. felt she was minimizing his
    feelings about the years of his mother talking negatively about his father and
    lying about issues, Ms. Bugden did not interrogate this claim but apologized to
    T.B.

[39]

Mr.
    Michael Blugerman, a registered social worker with expertise in child welfare,
    was retained by the father to assist him with the counselling process. He
    provided an affidavit that is supportive of the father and critical of the
    counselling Mr. Packer had provided. The motion judge rejected Mr. Blugermans
    views, noting that Mr. Blugerman did not have expertise in parental alienation
    or reunification, had not contacted Mr. Packer with questions relating to the
    reunification method being utilized, had displayed no concern for the fact that
    the father had shared with him a surreptitiously recorded conversation with Mr.
    Packer, and that Mr. Blugerman had received manipulative and incomplete information
    from the father relating to Mr. Packers decision to discontinue counselling T.B.

[40]

Based
    on this evidence, the motion judge found that [t]ime has become of the
    essence and given the fathers pattern of refusing to engage with professional
    therapists, it was not in in T.B.s best interest to delay the enforcement of
    the Leef Order pending a further assessment to determine the cause of T.B.s
    resistance. She said, [i]t is not necessary to wait for a fourth counsellor to
    advise me that the [father] continues to actively alienate his son [T.B.] from
    the childs mother.

[41]

The
    motion judge concluded that it was necessary to order that the children be
    enrolled in the Family Bridges program, that a temporary parenting order
    relating to T.B. and S.B. be given to the mother for the period of time the
    children are enrolled in the Family Bridges program, and that steps be taken to
    prevent the [father] from sabotaging the program by controlling his contact
    with the children until his involvement is required by the leaders of the
    [Family Bridges] program.

[42]

In
    relevant part, the key provisions of the order under appeal provide:

2. The [mother] shall have temporary custody of the children, [T.B.]
    and [S.B.]  until further order of the court.

3. The [mother] shall enroll with the children in Family
    Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships
    (Family Bridges), to enable and assist the children in adjusting to living with
    the [mother], without the consent of the [father].

[43]

In
    her endorsement, the motion judge also imposed the following restraining order
    against the father:

Pursuant to s. 35 of the
Childrens Law Reform Act
,
    the [father] is restrained from directly or indirectly contacting or
    communicating with the children , and from coming within 1000 meters of any
    location where they are likely to be, including, without limitation, the [mothers]
    residence, their schools  the Durham Childrens Aid Society offices
[2]
,
    the offices out of which the Family Bridges Program operates, except as
    directed by the leaders of the Family Bridges Program or the aftercare
    professional, or any professional designated by the [mother] or the court.
    Indirect contact shall include from the [fathers] relatives, friends,
    associates, and includes his spouse. Contact includes all forms of
    communication, including, without limitation, by phone, text, written letters,
    email, social media, via computer, in person, or via any third parties. For
    clarity, this restraining order does not impact contact between counsel
    relating to the ongoing litigation. The restraining order against the [father]
    shall not be varied until a minimum of 90 days have passed from the
    commencement of therapy recommended by Family Bridges for the [father] unless
    the court orders otherwise. This 90-day period is a minimum only. The extension
    of which will be considered by the court based on the [fathers] progress made
    in any aftercare therapeutic program recommended by Family Bridges

[44]

Both
    the order and the endorsement went on to identify the factors that the court
    would consider in deciding whether to terminate or extend the restraining order.
    Those conditions effectively turn on the fathers compliance with the
    requirements of the Family Bridges program, and his behaviour relating to the
    promotion of a positive relationship between the children and their mother.

[45]

The
    motion judge denied the mothers request to impose an area restriction on the
    fathers employment because the Durham District School Board had not been
    served and given a full opportunity to respond, and she lacked jurisdiction to
    interfere with the contractual terms of the collective agreement. However, the
    restraining order prevented the father from attending the childrens schools.

ISSUES

[46]

The
    issues that were argued by the father both orally and in writing can be framed and
    addressed as follows:

A.

Did the motion judge
    commit jurisdictional error by making the orders that she did?

B.

Did the motion judge
    err by failing to consider fully the best interests of the children or by
    making the orders that she did with insufficient evidence?

C.

Did the motion judge
    err in making the restraining order?

[47]

Although
    the motion judges decision is not without its concerns, I would not allow the
    fathers appeal beyond affirming the variation to the restraining order that
    the panel ordered at the close of the hearing of this appeal.

ANALYSIS

A.

Did the motion judge COmmit Jurisdictional Error by Making the Orders
    that She did?

[48]

I
    would not accept the fathers argument that the motion judge lacked
    jurisdiction in the proceedings to make a temporary parenting order in favour
    of the mother and to order the enrollment of the mother and children in the
    Building Bridges program. The motion judge properly made those orders pursuant
    to r. 1(8) of the
Family Law Rules
. Specifically, r. 1(8) provides:

1(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 it
    considers necessary for a just determination of the matter, including:

(a)

an order for costs;

(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)

on motion, a contempt order.

[49]

As
    long as the judge is satisfied that there has been a failure to obey an order
    in a case or a related case subrule 1(8) is triggered and the relief
    provided for therein can be ordered:
Hughes v. Hughes
, (2007), 85 O.R.
    (3d) 505,

at para. 17 (Ont. S.C.J.). Although r. 1(8) provides an
    itemized list of forms of relief that are available, that list is inclusive,
    not exclusive:
Mullin v. Sherlock
, 2018 ONCA 1063, at para. 46;
Childrens
    Aid Society of Haldimand and Norfolk v. J.H. and M.H.
, 2020 ONSC 2208, at
    para. 126. 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.

[50]

As
    a result, even though, with the notable exception of r. 1(8)(g), each of the
    itemized forms of relief in r. 1(8) can be described as purely procedural, r.
    1(8) has not been interpreted as being confined to purely procedural remedies. In

Freedman v. Freedman
, 2020 ONSC 301, at para. 20, for example, the
    court relied on r. 1(8) to give the applicant access to account information as
    well as exclusive authority to deal with insurance polices and off-shore
    accounts in order to prevent the respondent from dissipating these assets in an
    attempt to avoid compliance with court orders to make payments and asset
    disclosure. In
Shouldice v. Shouldice
, 2016 ONSC 1481, at paras.
    17-19, pursuant to r. 1(8) a receiver of property was appointed to manage rental
    property so that support obligations that were being evaded could be enforced.
    In
Sadlier v. Carey
, 2015 ONSC 3537, at paras. 64-67, an order was
    made pursuant to r. 1(8) requiring the respondent to surrender his passport to the
    court to prevent his flight from the jurisdiction, and he was ordered to post
    security after he had been evading support orders.

[51]

Such
    broad and purposeful applications of r. 1(8) are sensible. The relevant
    substantive right is created by the order that is being enforced, while r. 1(8)
    serves to provide the means of enforcement so that those substantive rights may
    be realized. The rule therefore provides broad discretion to courts to make
    orders it considers necessary to fully address a partys failure to comply, a
    flexibility that is of particular importance when the orders address the
    well-being of children:
Childrens Aid Society of Haldimand and Norfolk v.
    J.H. and M.H.
, at para. 127. Stated simply, if the remedy ordered
    addresses or [deals] with the failure to comply with the substantive order
    and the remedy ordered is found to be necessary to achieve the enforcement of
    the order being breached, that remedy is
prima facie
authorized by r.
    1(8).

[52]

I
    use the term
prima

facie

authorized because I do not
    mean to suggest that there are no limits to the kinds of enforcement orders
    that can be made under r. 1(8). For example, it may well be that the remedies
    that are provided for in r. 31(5), which is reproduced below, cannot be imposed
    pursuant to r. 1(8), absent a successful contempt motion as contemplated by r.
    1(8)(g): see
Mantella v. Mantella
, 2009 ONCA 194. This proposition
    seems sensible since contempt orders require proof beyond a reasonable doubt,
    and although they are remedial in purpose, they are punitive in nature, and are
    therefore to be used as a last resort:
Hefkey v. Hefkey
, 2013 ONCA 44,
    at para. 3;
Prescott-Russell Services for Children and Adults v. G. (N.)
,
    [2006] 82 O.R. (3d) 686 (Ont. C.A.), at para. 26. I need not resolve this specific
    question since the ground of appeal before us concerns only the temporary
    parenting order and the Building Bridges order, neither of which are remedies
    contemplated by r. 31(5); the father did not appeal the Hughes Order where the
    motion judge did impose punitive fines without making a finding of contempt
    against the father, nor did he raise any objections in this appeal to the
    motion judges order that those fines would remain in full force and effect. Nevertheless,
    this illustration demonstrates that there may be other legal limits on the
    kinds of orders that courts may impose under r. 1(8).

[53]

The
    father contends that however broad the remedial authority under r. 1(8) may
    otherwise be, there is another legal limit that applies and was breached. Specifically,
    he contends that r. 1(8) cannot be used to make parenting orders, and the
    motion judge erred by purporting to do so. He maintains that parenting orders
    may only be made or varied under the authority of ss. 16 and 17 of the
Divorce
    Act
, R.S.C. 1985, c. 3 (2nd Supp.), or ss. 20-29 of the
Childrens Law
    Reform Act
. He maintains that since no such proceedings were underway
    there was no active parenting case before the [c]ourt to enable the motion
    judge to make the orders that she did.

[54]

In
    my view, the father mischaracterizes the motion judges order in making this
    argument. The motion judge did not purport to vary the parenting terms
    contained in the Leef Order. Instead, she imposed an order that temporarily
    reassigned parenting rights to facilitate a therapeutic process that was
    ordered to enable the enforcement of the parenting terms set out in the Leef
    Order. Put otherwise, the order made by the motion judge did not vary or
    replace the Leef Order. Contrarily, it was made to facilitate the Leef Order. I
    am satisfied that this order fell within the motion judges remedial authority
    under r. 1(8).

[55]

Moreover,
    the implications of the fathers position are untenable. If he is correct, the
    proper procedural mechanism for remedying parental alienation that is
    frustrating a final parenting order is for the injured party to apply to reopen
    and vary the very order they want to enforce. If that were so, a party could
    provoke a new hearing on the terms of a final order by simply breaching it.

[56]

Appropriately, where one parent wrongfully withholds a
    child from the other, in violation of a court order, r. 1(8) provides quick
    access to a remedy, including for example, make-up time with the child. The
    parent entitled to court ordered time with the child should not be compelled to
    bring a motion to change the existing order. The same holds true where parental
    alienation is frustrating a parenting order. When dealing with the best
    interests of a child, delay should be avoided as much as possible. Litigation
    about children is costly and procedural roadblocks should be avoided.

[57]

Nor
    do I accept the fathers submission that the relief that was ordered was not
    pled. In fact, it was specifically requested by the mother in her Form 14 Notice
    of Motion dated August 18, 2020.

[58]

I
    also reject both arguments the father makes in reliance on r. 31(5), namely,
    (1) that the motion judge erred in making a r. 1(8) order in a contempt
    hearing; and (2) that the motion judge erred, contrary to the decision in
Chan
    v. Town
, 2013 ONCA 478, by using a parenting order as a punishment for
    contempt. I will set out r. 31(5) before addressing these submissions. That
    rule provides:

31(5) If the court finds a person in contempt of the
    court, it may order that the person,

(a)

be imprisoned for any period and
    any conditions that are just;

(b)

pay a fine in any amount that is
    appropriate;

(c)

pay an amount to a party as
    a penalty;

(d)

do anything else that the court
    decides is appropriate;

(e)

not do what the court forbids;

(f)

pay costs in an amount
    decided by the court, and

(g)

obey any other court order.

[59]

I
    will make two responses to the fathers submission that the motion judge erred
    by making a r. 1(8) order in a contempt hearing.

[60]

First,
    there is no clean division between contempt hearings and enforcement hearings.
    As r. 1(8)(g) illustrates, a party seeking enforcement under r. 1(8) may, but
    need not, bring a contempt motion as an enforcement mechanism. More
    importantly, even where contempt is at issue in a hearing, a judge may make a
    r. 1(8) order. As I have already indicated, contempt remedies are to be used as
    a last resort:
Hefkey
, at para. 3. Indeed, as this Court explained in
Hefkey
,
    at para. 3, a contempt remedy should not be granted in family cases if other
    remedies would suffice. This includes enforcement orders. There is nothing to
    prevent a court from making an enforcement order in addition to, or in lieu of,
    a contempt order even if a contempt order is sought in the proceedings: see
Murano
    v. Murano

(2002), 219 D.L.R. (4th) 334 (Ont. C.A.).

[61]

Second,
    contempt was not even in issue at the hearing where the impugned order was
    made. The motion judge arranged the hearing for the express purpose of
    monitoring compliance, and none of the general Form 14 Notices of Motion that
    the parties filed for additional relief in advance of the hearing sought a
    finding of contempt. Not surprisingly, in her endorsement the motion judge
    described the hearing as a proceeding to compel the [father] to comply with
    the Leef Order and orders made subsequent, and to monitor the [fathers]
    compliance. Relief provided for in r. 1(8) was therefore available to the
    motion judge at the proceedings.

[62]

I
    also reject the fathers related submission that, contrary to the decision in
Chan
,
    the motion judge used a parenting order as punishment for contempt. The motion
    judge in
Chan

purported to assign custody to the father as
    punishment for a finding of contempt that was made on contested evidence that
    could not support a finding of contempt beyond a reasonable doubt. In contrast,
    the motion judge in this case made a temporary order that effectively suspended
    parenting rights conferred in the final order and she did so to facilitate therapy,
    not to punish the father. The motion judges order was based predominantly on
    the fathers own evidence and was made in order to fulfil the terms of the Leef
    Order. Moreover, as I explain below, the motion judge made this order because
    of her assessment of the best interests of the children. The cases are not
    comparable, and the principles articulated in
Chan
are not offended by
    the r. 1(8) order.

[63]

Accordingly,
    the motion judge had the jurisdiction to make the orders that she did. I would therefore
    reject this ground of appeal.

B.

Did the Motion Judge Err by Failing to Consider Fully the Best Interests
    of the Children, Or by making the orders that she did with insufficient
    evidence?

[64]

I
    do not accept the fathers submission that the motion judge erred by failing to
    fully consider the best interests of the children or that she acted on
    insufficient evidence in making the orders that she did. In explaining my
    conclusions, I will address several discrete objections that the father raised
    to the motion judges decision, including: (1) his contention that she should
    not have made a finding of alienation without expert evidence or the s. 30
Childrens
    Law Reform Act

assessment that he had requested; (2) his submission
    that she should not have made the findings or imposed the orders that she did
    without a voice of the child report from T.B.; and (3) that she misapprehended
    or ignored the evidence that the father had relied upon.

(1)

T.B.

Did the Motion Judge turn her mind to T.B.s best interest?

[65]

It
    is patent that the motion judge fully considered whether the orders she was
    making were in T.B.s best interest. She noted explicitly that although it was
    an enforcement order that she was considering, given the relief that was
    requested by the mother, the test remained what disposition is in T.B.s best
    interest. She then listed the best interest factors enumerated in s. 24(2) of the
Childrens Law

Reform Act

that a judge shall consider,
    and she ultimately concluded that the temporary order was required because time
    was of the essence, a consideration that was clearly focused on T.B.s best
    interest.

[66]

It
    is true that the motion judge did not overtly address each of the factors
    enumerated in s. 24(2). However, the failure to mention listed factors is not
    an error
per

se
; it is an error only if there is an
    indication that the judge failed to consider them:
Van de Perre v. Edwards
,
    2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 14-16. In my view, there is no
    basis for concluding that the motion judge failed to consider the material
    factors in this case. The best interests issue relating to T.B. was decidedly narrow.
    The parties agreed before the motion judge that it was in T.B.s best interest
    to have a healthy relationship with his mother, a concession the motion judge
    readily and reasonably accepted. There was therefore no need for her to canvass
    all of the s. 24(2) factors
seriatum
.

[67]

The
    remaining piece is whether the motion judge considered T.B.s best interests in
    attending the Building Bridges program. Once again, her reasons make it clear that
    she did. She concluded that given the fathers ongoing alienating behaviour,
    this more invasive approach was necessary to restore T.B.s relationship with
    his mother, an outcome that was in his best interest.

Did the Motion Judge have sufficient evidence?

[68]

I
    do not accept the fathers contention that the motion judge lacked the evidence
    required to decide that the orders she made were in T.B.s best interest.

[69]

Unless
    an error of law has occurred, or a decision is plainly wrong, appellate courts
    must defer to a motion judges appreciation of the facts, even if the appellate
    judge may have come to a different decision, particularly where the orders at
    issue affect the welfare of children:
A.M. v C.H.
, 2019 ONCA 764, at
    para. 4;
Slaughter v. Slaughter
, 2013 ONCA 432, at para. 6;
A.P.
    v. L.K.
, 2021 ONSC 150, at para. 66;
Van de Perre
, at para. 13. Accordingly,
    the motion judges decision that it was in T.B.s best interest to make the
    orders that she did is entitled to deference.

[70]

There
    was evidence before the motion judge supporting each of her findings about the
    failure of the father to comply with the Leef Order. When she made the Hughes
    Order, the motion judge had a foundation from the fathers own documentation
    that he had communicated with T.B. about legal issues he was having with T.B.s
    mother and that the father did so destructively, damaging T.B.s relationship
    with his mother. The evidence suggested that these conversations were the onset
    of T.B.s estrangement from his mother and that they occurred after a failed
    settlement conference. The motion judge was entitled to draw the inference that
    the father promoted the breach in T.B.s relationship with his mother for the
    purpose of pressuring the mother to settle their legal claim to his
    satisfaction. Of note, that finding was never appealed.

[71]

The
    additional findings the motion judge made about the fathers misconduct after
    the September 28, 2020 hearing were also grounded in the evidence, with most of
    it again from the fathers own materials. Most importantly, she had an ample
    evidentiary basis for finding that he was actively and systematically
    sabotaging the therapeutic programs that had been ordered and that he lacked
    insight into how damaging his behaviour was to T.B.

[72]

This
    evidence, coupled with the simultaneous change in T.B.s behaviour towards his
    mother, adequately supports the motion judges conclusion that the father was
    alienating T.B. from his mother, even without evidence from an expert in parental
    alienation. As this court made clear in
A.M. v. C.H.
,

at para. 31,
    alienation is not a psychiatric diagnosis that invariably requires expert
    evidence, but a factual finding about what happened in the family. In this
    case, the factual evidence of alienation was adequate without expert evidence.

[73]

Nor
    do I see any error in the motion judges decision to deny the fathers request
    for an assessment by an expert in parental alienation under s. 30 of the
Childrens
    Law Reform Act
. As I have explained, expert evidence was not required to
    make this determination. More importantly, based on the motion judges findings,
    the father had systematically scuttled every previous effort that had been made
    to provide the required therapeutic intervention. To be sure, it was in his
    interest to do so, since during the delay that ensued, T.B. was exclusively
    with him and not with his mother. The motion judge also found that the father
    had manipulated other professionals, including the Durham Childrens Aid
    Society worker, Ms. Bugden. In light of the fathers past behaviour, she could
    have no confidence that if she ordered an assessment it would be productive,
    and the point had been reached where delay was not an option.

[74]

Simply
    put, I see no error in her decision to proceed without expert evidence or a s.
    30 assessment. The absence of expert evidence did not undermine her finding
    that the father was alienating T.B. from his mother.

[75]

A
    factual finding that alienation is occurring, such as the reasonable finding of
    alienation made by the motion judge in this case, can have implications for the
    need for a voice of the child report, even for older children such as T.B., who
    was 14 years of age at the time of the hearing. As this court recognised in
A.M.
    v. C.H.
, at para. 27, where a child has been poisoned against a parent and
    their wishes are not independent because they have been manipulated, a judge is
    entitled to give a childs views no weight. It is evident that, in the motion judges
    assessment, T.B.s views would not be independent and could carry little if any
    weight.

[76]

Moreover,
    T.B.s views were well known at the time of the hearing. It was patent on the
    evidence, including the email exchanges between T.B. and his mother that had
    been filed, that T.B. resisted spending time with his mother, did not believe
    he was being alienated from her, and believed that she bore responsibility for
    the rift between them. It was not an error in principle in these circumstances
    for the motion judge to proceed without a voice of the child report, particularly
    given that the father brought no motion to secure one. Nor did the absence of
    such a report create a gap in the evidence that undermines the best interest
    findings that the motion judge made.

[77]

There
    is no basis for concluding that the motion judge misapprehended the evidence or
    failed to consider the evidence the father was relying upon to dispute the
    alienation claim. The motion judge gave cogent explanations for why she did not
    credit that evidence.

[78]

Finally,
    although the father did not raise this objection or make it a ground of appeal,
    for the sake of completeness I will address the fact that the motion judge made
    the order that she did even though mother did not file a Form 35.1 sworn
    parenting affidavit. Form 35.1 sworn parenting affidavits are required where
    parenting rights are sought in r. 8 applications, as the result of r. 11 amendments
    to applications, or in r. 15 motions-to-change. Form 35.1 affidavits include designated
    information that is valuable for judges when considering parenting orders,
    including a parenting plan, and the disclosure of any criminal charges or
    convictions of the party seeking the parenting order. I need not decide whether
    a Form 35.1 sworn parenting affidavit was technically required to secure an
    enforcement order that touches on parenting rights, but the mother would have been
    well advised to include such an affidavit given the nature of the relief she
    was requesting. Nevertheless, the motion judge had a clear indication of the
    parenting plan during the period covered by the order, and as I have indicated,
    the inquiry into the best interests of the children in this case was narrow. In
    the absence of any objection, it was not unreasonable for the motion judge to
    proceed in the absence of a Form 35.1 sworn parenting affidavit.

[79]

I
    would therefore defer to the motion judges clearly grounded decision that it was
    in T.B.s best interest to take immediate steps to address the parental
    alienation that she found to be occurring. The fathers conduct was profoundly
    contrary to T.B.s best interests.

[80]

The
    remaining issue is whether there was a proper evidentiary basis for the motion
    judges decision that it was in T.B.s best interest to attend the Building
    Bridges program, and be removed from his father for a temporary period of time
    as required by the program, so that this therapeutic intervention could be
    undertaken. Although a better evidentiary foundation can easily be imagined, I
    do not agree that the motion judge lacked sufficient evidence about the program
    to conclude that it was in T.B.s best interest to attend the Building Bridges
    program and to be separated from his father, as required by the program.

[81]

As
    indicated, less invasive forms of therapeutic intervention had failed,
    suggesting that more invasive steps were needed. The Building Bridges program
    was described in some detail in the mothers affidavit, to which material from
    their website had been appended. Other courts had ordered treatment at the
    Building Bridges program and similar therapeutic programs in other cases, for
    example in
X. v. Y.
,
2016 ONSC 4333;
J.C.W. v. J.K.R.W.
,
2014 BCSC 488, [2014] B.C.J. No. 503;
E.T. v. L.D.
, 2018 ONSC
    5132; and
M.L.S. v. N.E.D.
, 2017 SKQB 183. Further, the father
    presented no evidence about alternative programs, or about any problems with the
    Building Bridges program itself. The motion judge acted on the evidence before
    her, and in my view, although the evidence was not ideal, it was sufficient. I
    would defer to her factual findings and her determination of the appropriate
    remedy for T.B.

(2)

S.B.

[82]

I
    am of the same views with respect to S.B., although I agree that the motion
    judge should have been much more explicit than she was in addressing S.B.s
    best interests when including her in the impugned orders. It is important to
    remember, however, that this litigation was focused on T.B. The father affirmed
    in his submission that it was not about S.B. It is not entirely surprising,
    therefore, that the motion judge did not focus her attention on S.B. when
    explaining her decision.

[83]

Moreover,
    it is clear from her comments relating to T.B. that the motion judge had a full
    understanding of the best interest principle. It is also evident that it was
    not in S.B.s best interest to be excluded from the orders. In these
    circumstances, it is not appropriate to infer that the motion judge failed to
    consider S.B.s best interest.

[84]

Specifically,
    the motion judge arrived at the reasonable findings that the father had used
    the mothers relationship with T.B. as a strategy for achieving his goals, had
    manipulated T.B. to achieve this, and lacked awareness of the damage that this
    had done to T.B. Although there was no evidence of similar behaviour relating
    to S.B., it was obviously in S.B.s best interest for the court to attempt to
    ameliorate this kind of behaviour by the father to reduce the risk that she
    could be similarly manipulated going forward.

[85]

In
    addition, there was evidence before the motion judge that S.B. had a loving and
    secure relationship with both parents. There is therefore merit in the fathers
    objection that it was not in S.B.s interest to interrupt the positive
    relationship with him, even for the temporary period provided for by the motion
    judges order. At the same time, however, the motion judge was persuaded that
    it was in T.B.s best interest to place him and his mother in the Building
    Bridges program and to segregate them from his father. If S.B. was not included
    in the program, she would therefore be separated from her mother and her
    brother, which was not in her best interest. Moreover, the loving and secure
    relationship that S.B. has with her father gives comfort that their
    relationship would not suffer long-term damage by the temporary order the
    motion judge was making.

[86]

Finally,
    there was also evidence before the motion judge that the Building Bridges
    program is designed for all family members and required S.B.s participation.
    The mother expressed her understanding with the motion judge that S.B. would
    need to participate in the program and would be attending the sessions, an
    understanding that finds support in case law: see
X v. Y.
, at para. 22.
    S.B.s participation was therefore important to T.B.s best interest, as
    determined by the motion judge. In making this observation, I am not
    supplanting S.B.s best interest with what is best for T.B. To a significant
    degree, what is best for T.B. is best for S.B. They are siblings, and members
    of the same family. It is not in S.B.s best interest if her brother T.B.s
    relationship with their mother is broken and hostile.

[87]

Although
    it would have been much preferred had the motion judge addressed these
    considerations overtly in her reasons, I am not prepared to find that she
    failed to consider them or that there was inadequate evidence of S.B.s best
    interest to warrant her inclusion in the orders made. Nor am I prepared to
    undermine a last resort and long-delayed order that the motion judge made in T.B.s
    best interest, because the motion judge did not articulate adequately why she
    came to the only decision she could have relating to S.B.s inclusion in the
    impugned orders.

[88]

I
    would therefore reject the fathers claim that the motion judge erred by
    failing to fully consider the best interests of the children or acted without
    sufficient evidence. I have reviewed the fresh evidence filed by the father and
    see nothing in it to alter any of the above conclusions.

C.

Did the Motion Judge err in making the REstraining order?

[89]

The
    appellant argues that the motion judge erred in making a restraining order that
    neither party asked for in their pleadings. He also objects that the
    restraining order that the motion judge imposed included a prohibition on
    contact with his daughter S.B., non-attendance at his place of employment that
    would result in the termination of his employment, and at the Durham Childrens
    Aid Society, without rationale at all.

[90]

Based
    on the fresh evidence we admitted and on the mothers consent, we ordered that
    the order restraining the father from attending at the childrens school or
    within 1000 meters of specific locations is varied to provide that the
    appellant may attend at the school that is his workplace and may communicate
    there with a child of the marriage who attends that school. Based on evidence
    that the boundary order relating to the Durham Childrens Aid Society Offices
    frustrates the fathers travel to work, we further varied the order to provide
    that he may pass within 1000 meters of the Durham Childrens Aid Society
    offices when travelling from one location to another.

[91]

Beyond
    the variations we have already ordered, I would not otherwise interfere with
    the restraining order. I do not accept the fathers contention that the mother
    had not sought a restraining order in her pleadings. Although the mother did
    not use the language of s. 35 of the
Childrens Law Reform Act
, she
    asked for a temporary order that the father have no direct or indirect contact,
    including by communication, with the mother and children. She also asked for an
    order relating to his employment that would place him at least 20 kilometres
    away from the high school the children were expected to attend. In my view, the
    restraining order that the motion judge made pursuant to s. 35 of the
Childrens
    Law Reform Act
was contemplated by the pleadings.

[92]

For
    the reasons I have already provided, I do not accept the fathers submission
    that the restraining order related to S.B. was imposed without reason. The
    motion judge was attempting to segregate T.B. from all communication with his
    father, direct or indirect. There is a heavy risk of indirect communication
    with T.B. if the father is free to contact or communicate with S.B. when she is
    in T.B.s company. I would not interfere with the motion judges order.

CONCLUSION

[93]

I
    would therefore dismiss the appeal. I would order the costs in this appeal to
    be payable to the mother in the agreed upon amount of $10,000, inclusive of
    disbursements and applicable taxes.

David M. Paciocco
    J.A.

I agree. G. Pardu
    J.A.



Nordheimer J.A. (dissenting):

[94]

I
    have read the reasons of my colleague. He has set out, with his usual clarity,
    the questions raised in this case. He has also provided a sound analysis and
    rationale for the ultimate order made  one that was not provided by the motion
    judge. Nevertheless, while I understand my colleagues justification for the
    order that was made, I am unable to agree that it was properly granted. In my
    view, there were fundamental procedural errors that occurred in reaching the
    conclusion in this case. Consequently, the order cannot stand and must be set
    aside.

[95]

In
    my view, the motion judge lacked the jurisdiction to make the enforcement
    order that she did through the process that was before her. What the motion
    judge did, in essence, was to vary a final order without requiring the
    respondent mother to follow the detailed procedures for seeking such a
    variation, thus denying the appellant father, and the children, the procedural
    safeguards to which they were entitled before such a serious variation was
    made.

[96]

Even
    without this fundamental problem, I would find that the motion judge erred in
    including certain terms in her order.

[97]

My
    colleague has set out the background facts succinctly. It is unnecessary for me
    to repeat them.

A.

JURISDICTION

[98]

The
    fundamental error committed by the motion judge is that she failed to consider
    and address her jurisdiction to make the ultimate order that she did. The
    motion judge relied on r. 1(8) of the
Family Law Rules
, O. Reg.
    114/99, to make the order. While I appreciate the analysis that my colleague
    has undertaken, which ultimately finds that r. 1(8) can be relied upon in this
    case, I do not agree that r. 1(8) authorized the order that was made. In
    that respect, I agree with, and reinforce, my colleagues point that r. 1(8) is
    not a provision by which any form of relief, necessary to enforce an order, can
    be granted.

[99]

I
    concede the general and broad nature of the introductory language in
    r. 1(8), which grants the court authority to make any order that it
    considers necessary for a just determination of the matter in the face of
    non-compliance with a previous court order. However, in my view, that broad
    language does not provide the court with a carte blanche to make any order that
    it wishes. Rather, the itemized list of suggested orders in r. 1(8), while
    non-exhaustive, does indicate the kind of orders that are appropriately made,
    the vast majority of which are procedural in nature. Of more immediate
    relevance for this case is that those suggested orders do not include varying a
    final order.

[100]

Instead, it is r. 15
    that is dedicated to changing a final order or agreement. Importantly, where
    the claim relates to parenting orders, r. 15(5.1) requires the parties to file
    up-to-date Form 35.1 affidavits. These affidavits include information relevant
    to the safety of the subject children, such as whether either parent has been
    charged with or found guilty of a criminal offence, as well as the parents
    plan for the care of the children and any support network available to them. In
    this case, the court did not have the benefit of this potentially relevant
    information before it proceeded to alter the parenting order by relying on r.
    1(8).

[101]

I accept my
    colleagues distinction between taking steps to enforce orders short of a contempt
    finding and enforcement that involves the contempt power. I accept that
    distinction because this court has already said that the civil contempt remedy
    is one of last resort:
Hefkey v. Hefkey
, 2013 ONCA 44, 30 R.F.L.
    (7th) 65, at para. 3. However, as I have already said, and as my colleague
    points out, the broad language of the introductory portion of r. 1(8) cannot
    provide jurisdiction to make whatever order the court wishes. It does not
    bestow unlimited authority on a judge to do whatever they choose. My colleague
    implicitly acknowledges that there are constraints on the authority granted by
    r. 1(8), when he says, at para. 52, there may be other legal limits on the
    kinds of orders that courts may impose under r.  1(8).

[102]

I would go farther and
    make it clear that there are such limits. They are necessary because, before
    certain types of orders are made against a party, it is necessary to follow
    certain procedures, including applying the proper burden of proof. These
    procedures must be followed because they provide necessary procedural
    safeguards to the person who is to be subjected to any such order. For example,
    in cases where penal sanctions are sought, those safeguards are provided by
    r. 31 of the
Family Law Rules
.

Procedural safeguards are
    not to be avoided simply because it is more convenient or more expedient to do
    so.

[103]

The problem with
    distinguishing between those orders for which jurisdiction can be found in r.
    1(8), and those orders for which jurisdiction can only be found in other rules,
    such as r. 31, is made more difficult in this case for two reasons. One is the
    language used by the motion judge in her reasons and the other is because of an
    order that she made in this case in October 2019.
[3]
The language to which I refer is
    the motion judges use of the word penalties in her reasons (see
    paras. 92, 101). Penalties are generally only available after a finding of
    contempt has been made. This is clear from the provisions of r. 31, namely r.
    31(5)(c), and from the existing authorities: see, e.g.,
Belcourt v.
    Charlebois
, 2020 ONSC 4124 at paras. 28-32.

[104]

Furthermore, as this
    court held in
Chan v. Town
, 2013 ONCA 478, 34 R.F.L. (7th) 11, at
    para. 6, parenting orders should never be used as punishment:

Custodial arrangements of children cannot be used as a
    punishment for contempt. That is not to say that there may not be a
    circumstance where a change in custodial arrangements would be in the best
    interest interests of the child, but this is not that case.
There was no
    motion to vary the final order for custody based on a material change in
    circumstances
. The motion judges rationale was that he hoped that this
    would bring peace to warring parents, although he said he recognized that it
    could make matters worse. [Emphasis added.]

[105]

In fairness, the
    motion judge did begin her analysis by reciting the factors relevant to the
    child(ren)s best interests. She specified that any order she might make under
    r. 1(8) must be determined to be in [the childs] best interests: at para.
    86. However, at para. 90, she concluded that [t]ime has become of the
    essence. She also found that the evidence before the court was sufficient to
    conclude that the father was unwilling or unable to comply with the shared
    parenting time arrangement under the Leef Order. Two problems arise from the
    motion judges analysis, though.

[106]

First, it is difficult
    to discern the factual foundation for the motion judges conclusion that time
    was of the essence. The issues that were before the motion judge dated back at
    least two years. Indeed, as earlier noted, the same motion judge made an order
    in October 2019 addressing some of the same concerns with which she was faced
    in making the order that is now under appeal. It is hard to see, therefore, how
    this matter had suddenly become so urgent that proper processes could not be
    followed or that proper evidence could not be required.

[107]

Second, when the
    motion judge made the order that she did, there was no evidence before the
    court that the proposed intensive intervention through the Family Bridges program,
    including zero contact between the father and the children for a minimum of 90
    days, was suitable for these particular children at this particular time.
    Indeed, there was very little evidence before the court generally regarding the
    Family Bridges program.

[108]

In my view, before a
    judge decides to order the type of serious intervention that was made in this
    case, and that is inherent in imposing attendance at a program such as Family
    Bridges, there must be comprehensive and cogent evidence regarding the program
    placed before the court. This evidence should include specific and detailed
    information regarding the program itself and, more importantly, specific and
    detailed information regarding the success rate of the program generally, and
    the likelihood of success in the individual case that is before the court,
    including with relation to the ages of the children involved, and the other
    specific circumstances. The required evidence should be of a nature similar to
    what a court would expect to receive from an expert, who is recommending a
    certain course of remedial action or treatment. No such evidence was before the
    court in this case. It follows that, among other concerns, there was no
    opportunity for the appellant to challenge any such evidence. In my view, the
    motion judge erred in making such an intrusive order in the absence of a proper
    evidentiary foundation.

[109]

I would add one
    further observation regarding these rules. It seems curious that r. 1(8) would
    become the principal rule dealing with the enforcement of orders when, in
    addition to the contempt route provided for in r. 31, the
Family Law Rules
also include r. 26 that expressly addresses the subject of the enforcement of
    orders. The result is that there are at least two different rules (or three, if
    my colleague is correct to include r. 1(8)) that purport to deal with the topic
    of enforcing orders. It is perhaps time for the Family Rules Committee to look
    at this issue and rationalize these various provisions.

[110]

In any event, my
    colleagues efforts to surmount the jurisdiction concerns raised by the order
    made, and the motion judges reliance on r. 1(8), does not fully answer the
    jurisdiction question. In that regard, it is important to remember the effect
    of the motion judges order. It changed the shared parenting regime that had
    been provided for by agreement of the parties and formalized in the Leef Order.
    It also imposed a drastic therapeutic order on these teenaged children, as well
    as removing them from all contact with the father for a considerable period of
    time.

[111]

Perhaps in
    anticipation of this jurisdiction issue, my colleague appears to draw a
    distinction, for jurisdiction purposes, between a temporary order (which he
    finds this order to be) and a final order. In drawing this distinction, he
    appears to accept that reliance on r. 1(8) to justify interference with a final
    order would be problematic. However, he does not accept that the same concern
    arises if the motion judges order is temporary.

[112]

In my view, whether
    the motion judges order changes the parenting regime permanently or
    temporarily, matters not. And, of course, we do not know at this stage whether
    the change that the motion judge made will be permanent or temporary.
[4]
In any event, the
    therapeutic intervention that has been ordered will significantly affect the
    children and is, in my view, final in its effect on them.

[113]

I appreciate that some
    might say that dwelling on such procedural issues interferes with the need to
    address matters arising out of a partys non-compliance with a court order
    quickly. However, there are reasons why we require certain steps to be taken
    before relief, of this nature, is obtained. Principal among those reasons is to
    ensure that there are safeguards in place such that an order that may have
    profound effects on the parties or their children, or indeed third parties, is
    not made hastily, or without a sufficient evidentiary foundation. With respect,
    these are not procedural roadblocks as my colleague characterizes them. It is
    simply a question of requiring a party to comply with the Rules in order to
    obtain the relief that they seek.

[114]

I would add, on this
    point, that it is not solely a question of picking between r. 15 and r.
    1(8). There are statutory provisions that address changes to parenting orders.
    For example, the
Children's Law Reform Act
, R.S.O. 1990, c. C.12,
    provides in s. 29(1):

A court shall not make an order under this Part that varies a
    parenting order or contact order unless there has been a material change in
    circumstances that affects or is likely to affect the best interests of the
    child who is the subject of the order.

[115]

Similarly, the
Divorce
    Act
, R.S.C., 1985, c. 3 (2nd Supp.), provides in s. 17(5):

Before the court makes a variation order in respect of a
    parenting order or contact order, the court shall satisfy itself that there has
    been a change in the circumstances of the child since the making of the order
    or the last variation order made in respect of the order, or of an order made
    under subsection 16.5(9).

[116]

Neither of these
    provisions is referred to by the motion judge nor, for that matter, is there
    any reference to r. 15 in her reasons. Once again, the relief granted is
    justified by reliance on r. 1(8). Regardless of the debate over the extent to
    which enforcement relief can be granted under r. 1(8), there is no suggestion
    that the enforcement powers provided by this rule can also be relied upon to
    vary final orders. I note, on that point, that the respondent has not provided
    this court with any case in which a final order was varied through reliance on
    r. 1(8).

[117]

There are established
    procedures that are required to be followed to obtain specific relief, such as
    the variation of a final order. Taking shortcuts to those procedures simply to
    benefit the alleged aggrieved party, by attempting to expedite some form of
    relief, must not be permitted. As I have already said, procedural safeguards
    are important. They are not to be avoided simply based on expediency or on a
    manufactured sense of urgency. If a party seeks a variation, or a motion judge
    wishes to grant a variation, then the proper procedure must be followed. It was
    not in this case.

B.      TERMS OF THE ORDER

[118]

Even if one could
    overcome the jurisdiction issues that impact on the order as a whole, there are
    problems with some of the individual terms of the order that was made. First,
    in para. 14 of her order, the motion judge ordered that the Durham Regional
    Police Service, the Ontario Provincial Police, the RCMP, or any other Canadian
    police service, are directed to enter into any dwelling at any time to locate,
    apprehend, and return the children. In making that order, the motion judge
    relies on s. 36(2) of the
Children's Law Reform Act
, although she does
    not refer to its terms. Section 36(2) reads:

Where a court is satisfied upon application that
    there are reasonable and probable grounds for believing,

(a) that any person is unlawfully withholding a
    child from a person entitled to decision-making responsibility, parenting time
    or contact with respect to the child;

(b) that a person who is prohibited by court order
    or separation agreement from removing a child from Ontario proposes to remove
    the child or have the child removed from Ontario; or

(c) that a person who is entitled to parenting
    time or contact with respect to a child proposes to remove the child or to have
    the child removed from Ontario and that the child is not likely to return,

the court by order may direct a police force, having
    jurisdiction in any area where it appears to the court that the child may be,
    to locate, apprehend and deliver the child to the person named in the order.

[119]

I first note that this
    type of order ought to be granted rarely and only in extraordinary
    circumstances. It should only be granted in very serious cases where there is
    solid evidence that such interference by the police is necessary. I note on
    that point the requirement in the section that there be reasonable and
    probable grounds. The evidence in this case does not rise to that level nor
    was there any evidence to satisfy any of the other statutory requirements.
    Indeed, the motion judge does not point to any such evidence. This term of the
    order ought not to have been included. The fact that it was included tends to
    show the overreach of the order that was made.

[120]

Second, this overreach
    is also demonstrated by para. 1 of the motion judges order that purports to
    both continue the penalties that were imposed in her earlier order, including
    fines in the amount of $3,000 for each and every instance of non-compliance,
    while also raising the possibility that the penalties might be extinguished.
    It is unclear to me what penalties were to be extinguished under the order, or
    how. While there was no appeal of the earlier order, I am satisfied, for the
    reasons that I have set out above, that there was no jurisdiction to impose
    penalties on the appellant, absent a motion for contempt being brought. An
    order made without jurisdiction is a nullity. It cannot gain jurisdiction
    simply because it was not appealed.

[121]

Third is the
    restraining order that is set out in para. 101 of the motion judges reasons,
    at item 9.
[5]
No one asked the motion judge to make a restraining order. I do not agree with
    my colleague that the relief language used in the respondents motion can be
    equated to a request for a restraining order. Certainly, it does not appear
    that the motion judge treated it as such when she recited the relief being
    sought by the respondent in her reasons.

[122]

Further, the fact that
    both parties had to consent to variations to the restraining order to, in
    essence, eliminate a significant aspect of it would suggest that they had
    neither sought nor contemplated the specific relief that the motion judge
    granted.

[123]

However, the fact that
    the motion judge did grant that relief, with its resulting potential impact on
    the appellants employment, amply demonstrates the problem in dealing with
    these difficult issues in a summary and procedurally deficient manner. It also
    serves to reinforce my concerns about the breadth of the order, or its
    overreach as I referred to it above.

[124]

Consequently, even if
    the jurisdictional issues that apply to the order, as a whole, could be
    overcome, paras. 1 (purporting to both continue and potentially extinguish
    penalties imposed in the previous order) and 14 of the order (directing the
    police to enter into any dwelling at any time to locate, apprehend and return
    the children to the respondents care) cannot stand and must be set aside. I
    would be inclined to do the same with the restraining order, but since the
    parties have consented to significant changes to that term of the motion
    judges order, the issues, as they relate to that single term by itself, are
    now largely moot.

C       CONCLUSION

[125]

I would allow the
    appeal, set aside the order of the motion judge, and dismiss the respondents
    motion, without prejudice to the respondent bringing a motion to vary the Leef
    Order on proper material and in conformance with r. 15 of the
Family Law
    Rules
, if she is so advised. I would make no order as to costs.

Released: October 13, 2021 G.P.

I.V.B. Nordheimer
    J.A.





[1]

The term custody is no longer used. Instead, the orders that
    confer the parenting rights once described as custody are more properly
    referred to as decision-making orders and parenting time:
Divorce Act
, R.S.C.,
    1985. c. 3

(2nd Supp), s. 35.4;
Childrens Law Reform Act
, R.S.O. 1990, c. C-12, s. 76(2)-(3).



[2]
The Durham Childrens Aid Society was included in the restraining order because
    it was the designated location for the transfer of TB to the Family Bridges
    program



[3]

Bouchard v. Sgovio
, 2019 ONSC 6158,
    34 R.F.L. (8th) 483.



[4]
I would note that the formal order refers to it being both temporary and final.



[5]
I note that, for reasons that are unexplained, this term does not appear in the
    formal order.


