“I would not accept the father’s 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). 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.
“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; Children’s 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”.
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.
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 party’s failure to comply, a flexibility that is of particular importance when the orders address the well-being of children: Children’s 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).
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 judge’s 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).”