By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*
The court has a broad authority to deal with a party’s failure to obey a court order pursuant to R. 1(8)-(8.4) of the Family Law Rules, O. Reg. 114/99.
Recently, the Ontario Court of Appeal (“ONCA “) was asked to address whether a R. 1(8) motion, following a final order from the Ontario Court of Justice (“OCJ”), can be brought before the same OCJ judge without a new proceeding or whether a new proceeding must be brought solely for enforcement purposes.
The ONCA confirmed that, even where an order is final, the OCJ is not functus with respect to ensuring that the order is followed. In other words, the OCJ judge retained jurisdiction to ensure that the order made was followed: Children’s Aid Society of Toronto v. R.I., 2024 ONCA 93 (CanLII), at para 24.
On the facts of that case, the OCJ trial judge determined that the two younger children should live with their parents while the oldest child should live with the grandparents. Both placements were for 12 months and subject to Society supervision, and the court ordered specified access between the younger children and their sibling and grandparents: paras 2-3. Following subsequent breaches of the access terms, the Office of the Children’s Lawyer brought an enforcement motion before the OCJ, on behalf of the oldest child: para 4. The matter was adjourned several times to provide the parents with time to remedy the breach. The Children’s Aid Society unsuccessfully appealed this order to the Superior Court of Justice (“SCJ”) on the issue of the OCJ’s jurisdiction to entertain the enforcement motion. The Society then appealed to the ONCA, arguing again that the OCJ did not have jurisdiction to hear a R. 1(8) motion where there was no live application before the court: paras 9-10.
The ONCA dismissed the appeal and confirmed that a party need not bring a new proceeding solely for the purpose of enforcing an order. Such a result would be “entirely inconsistent with one of the fundamental principles of our court system, which is to avoid a multiplicity of proceedings”: para 25. It would also be inconsistent with the Family Law Rules definition of a “case”: para 26, referring to R. 2(1) of the Family Law Rules, O. Reg. 114/99. The Family Law Rules expressly contemplate that enforcement “is part of the case” and enforcement of an order cannot take place until the order is made: paras 27-29.
As such, an OCJ judge – like any trial judge – retains jurisdiction to ensure that any order made is followed, without a new proceeding being brought. There need not be an existing proceeding, or ongoing case, for a judge to be able to resort to R. 1(8): paras 23-24.
Other Key Takeaways
- Rule 1(8) motions to enforce orders can be brought in child protection proceedings, just as they can in domestic family law proceedings: paras 10-14, 28, & 30.
- For a recent case setting out the three-part inquiry in applying R. 1(8), see, e.g., H.C. v. J.S., 2023 ONSC 2551 (CanLII), at paras 9-11, citing various cases.
- There are two other Rules that deal with enforcement: (1) R. 26 deals with certain types of enforcement; and (2) R. 31 deals with contempt: para 27, citing Rs. 26 & 31 of the Family Law Rules, O. Reg. 114/99.
- Another issue that the ONCA dealt with briefly was that the test for a reasonable apprehension of bias is high (and was not found here): paras 18-21, citing Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC).
*with thanks to Vanessa Lam and Kayleigh Pink for their suggestions and edits.
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