BACKGROUND

The parents of a child born in 2017 were involved in a parenting dispute that began in February 2022. The matter was resolved on April 13, 2023, when Justice Clay ordered shared decision-making responsibility between the parents, based on an agreement proposed by the father. Justice Clay instructed the final agreement to be submitted through the standard court process.

The father’s lawyer prepared the final version of the agreement, but the mother’s lawyer refused to sign it. The case returned to court on August 31, 2023, where Justice Clay confirmed the agreement was binding and issued an Order for shared decision-making responsibility. During this hearing, the mother proposed homeschooling the child, which the father opposed. Justice Clay ruled that homeschooling required both parents’ consent. Despite this, the mother unilaterally homeschooled the child, leading to a contempt finding on November 9, 2023. To purge the contempt, Justice Clay granted the father sole decision-making authority over education for the 2023/2024 school year and authorized him to register the child for in-person attendance at Eagle Ridge Public School in Ajax.

The father delayed enrollment until after the winter break to minimize disruption. On January 10, 2024, he informed the mother that he planned to register the child at Elizabeth B. Phin Public School due to school boundary issues. The mother did not respond and continued homeschooling, refusing to provide program details or send the child to school. She also unilaterally relocated to Hamilton without consulting the father. The father now seeks a finding of contempt for the mother’s failure to comply with the November 9, 2023 Order.

The mother argues that the Order only limited the father’s authority to enrolling the child at Eagle Ridge Public School, and she claims to have only received the full Order on February 9, 2024. She blames delays on the father’s actions and ineffective counsel, claims that late enrollment would harm the child’s well-being, and asserts the father failed to explore alternative solutions.

THE LAW

To prove contempt of court, the following elements must be established beyond a reasonable doubt:

1. The Order must clearly state what should and should not be done;
2. The party alleged to have breached the Order must have had actual knowledge of it; and
3. The party allegedly in breach must have intentionally done the act prohibited or failed to do the act the Order requires. (Moncur v. Plante, 2021 ONCA 462)

Courts use contempt sparingly and only as a last resort when no other adequate remedies are available. In cases involving children, the court prioritizes the best interests of the child over punitive actions.

ANALYSIS

The court declined to consider the mother’s allegations regarding ineffective counsel or inaccuracies in the prior Order, as these were deemed irrelevant in a contempt motion. The November 9, 2023 Order was found to be valid as it had not been overturned on appeal or set aside.

The mother argued that the use of the word "may" in the Order, which permitted the father to enroll the child at Eagle Ridge Public School, meant the father’s action was mandatory. However, the court found this interpretation to be incorrect, determining that the father had sole decision-making authority over education for the 2023/2024 school year. The court also emphasized that the mother was prohibited from unilaterally deciding to homeschool the child without the father’s consent, as per the Order.

The court found that the mother knowingly and deliberately breached the Order by continuing to homeschool the child despite the father’s objections. This occurred even after she was found in contempt on November 9, 2023, and was aware of the Order by November 28, 2023. The mother did not comply, ignored the option to seek relief through a Motion to Change, and continued her actions without engaging meaningfully with the father.

The court ultimately found the mother in contempt for her continued failure to comply with Justice Clay’s Order dated November 9, 2023. As a result, the child was ordered to be immediately enrolled in a public school chosen by the father, with the mother responsible for ensuring regular attendance. The mother was fined $2,500 and ordered to pay $8,000 in costs, payable in installments starting July 2024. She was also prohibited from filing any new motions against the father until these payments were made. Additionally, the father’s sole decision-making authority over the child’s education was extended for the 2023/2024 and 2024/2025 school years.