CITATION: R. v. Neundorf, 2011 ONCA 732
DATE: 20111123
DOCKET: C49385
COURT OF APPEAL FOR ONTARIO
Moldaver, Feldman and Sharpe JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Dara Lynn Neundorf
Appellant
Brian H. Greenspan and Jill D. Makepeace, for the appellant
Christine Tier, for the respondent
Heard: October 12, 2011
On appeal from conviction entered by Justice R. Boyko of the Superior Court of Justice, dated June 20, 2008.
BY THE COURT
Introduction
[1] The appellant mother was convicted of taking away her two boys in contravention of the terms of a custody order, with the intent of depriving the boys’ father of possession of the boys, contrary to s. 282(1)(a) of the Criminal Code. While the order granted custody of the boys to the mother, the father had access rights to see the boys over Christmas and on spring break. The mother and her new husband took the boys to Singapore in October 2001 for an indefinite time, initially without informing the father and then providing him with misleading information regarding their whereabouts and contact information, finally returning in May 2002.
[2] The appellant argues on appeal that the conviction should be set aside because the essential elements of the offence were not made out and the trial judge misapprehended the evidence. In the alternative, the sentence imposed was overly harsh in its consequences.
[3] For the reasons that follow, we dismiss the appeal against conviction, grant leave to appeal sentence, and reduce the sentence to an absolute discharge.
Facts
[4] From 1986 to 1993, the appellant and John Baird were in a common law relationship and lived in Markham Ontario. They had two sons, born respectively in 1989 and 1993. The couple separated, and in 1996, the appellant married Jim Neundorf. Thereafter the appellant and Baird became engaged in acrimonious custody and access proceedings regarding their two sons. In 1998, the appellant moved with the children to Calgary to pursue Ph.D. studies at the University of Calgary. This made it difficult for Baird to have access to the children, and there were further variations of the court orders on access. A trial in Family Court in Newmarket, Ontario in March 2000 culminated in a consent order dated May 4, 2000; this was later amended by a final consent order of December 11, 2000 dealing with custody and access details.
[5] The December 2000 order gave the appellant sole custody of the children, and gave Baird access to the children during Christmas, the spring, and the summer of each year. The order provided fixed dates for the Christmas and summer access. The spring access was to coincide with the boys’ spring break from school, and the appellant was to inform Baird of these dates by October 15 of the previous year. Baird was to arrange and pay for the childrens’ travel from Calgary to Toronto for the access visits and had to provide information regarding flight times to the appellant 30 days in advance. Baird had Christmas access in December 2000 and spring and summer access in 2001.
[6] The order also provided for telephone access. The children were entitled to phone the parent they were not with at reasonable times, and the parents were entitled to call the children every second day when they did not have access.
[7] In the spring of 2001, Mr. Neundorf lost his job in Toronto. In the summer, he accepted an invitation to present a paper in Singapore, hoping that this would lead to employment there. The appellant decided to join him and use the opportunity for a family vacation. On a motion to dispense with Baird’s consent to travel for the purpose of obtaining passports for the children, Baird testified that he was not opposed to the children travelling, but was concerned that the appellant might not return, suspecting that she intended to move to Singapore. Although the appellant’s motion was successful, Baird brought a further ex parte motion in Ontario on August 8, 2001 seeking to prevent the travel, but the motion was not heard. The appellant and the boys travelled to Singapore and other east Asian countries from August 9 to September 17, 2001.
[8] After the Singapore conference, Mr. Neundorf accepted a two to three month employment contract in Singapore. At that point, the family was experiencing financial issues. Mr. Neundorf and the appellant decided that she and the children would also come to Singapore. They sold their house in Calgary and moved their furniture, phone line and permanent mailing address to a rental property they owned in Calgary. They boarded their pets in Toronto. The boys were taken out of private school in Calgary and transferred to an internet-based home schooling program. Without informing Baird, the appellant and the children returned to Singapore on October 7, 2001.
[9] Baird did not know that the appellant had taken the children back to Singapore a second time or that the boys were no longer in school in Calgary. In October he attempted to contact them at their Calgary number and sent e-mails to the children which were unanswered. Finally he had his lawyer write to the appellant’s lawyer on October 26, 2001 saying: “Your client and the children have gone missing and are incommunicado.”
[10] After arriving in Singapore, the appellant, Mr. Neundorf and the boys stayed with their friends, the Andersons. They did not provide this information to Baird. Instead, they contacted Baird through the appellant’s lawyer. On October 30, 2001, Baird received the following letter from the appellant’s lawyer:
I received an e-mail from my client on Tuesday, October 23, 2001. She indicates that after she and her husband returned home to Canada from the trip to Singapore, her husband was offered a job in Asia. Apparently, this was done by telephone interview from overseas. My client indicates that she attempted to contact me to advise me of this development, but was unsuccessful in reaching me. Due to my schedule, I was unable to meet with her to discuss this. Because of the developments in the United States, my client was concerned about flights, and accordingly, she and the children left to go back to Singapore.
The children will be schooled at a virtual school at the School of Hope out of Vermillion, Alberta. My client has elected to take an academical sabbatical based in Singapore while her husband works there. She will be using that sabbatical to prepare for her candidacy exams for her Ph.D. as an applied psychologist at the University of Calgary.
I have been instructed by my client to close my file. I will no longer be representing her in this matter. Your client’s records, and the children’s new address is as follows:
10 Anson Road # 16-16
Suite #5324
Singapore 079903
Telephone: +65 (227) 1558 x 5324
My client advises that she will be setting up an e-mail address for the children in the future and will have them contact your client directly when same is in place.
As I am no longer retained by my client, I would request that you contact Ms. Taylor-Neundorf directly if need be. Accordingly, please find attached the original and one copy of our Notice of Ceasing to Act in this matter. Kindly admit service on the second copy where indicated and return same to our offices at your earliest opportunity.
[11] In fact, the children were not at the Anson Road address or the telephone number provided; the address was for a P.O. box and the telephone number was for a messaging service.
[12] Mr. Neundorf’s Singapore employment fell through. The family decided that because of their financial problems, it would be cheaper to travel in Asia and continue home schooling the children until they could return to Canada once he had secured employment there, rather than to return to Canada immediately. They spent part of the time at the Andersons in Singapore and part of the time travelling. Neundorf had ongoing negotiations to resume his Toronto employment. The date for his return to Toronto was pushed forward from January to February and finally, to March 1, 2002. He returned to Canada in February to get ready to commence work. The appellant had air tickets for herself and the children with flexible return dates. They did not return to Canada until May.
[13] Two days before their return, the appellant facilitated a call from one of the children to Baird. She testified that the purpose of the call was for the boy, who was nine years old, to tell Baird that they were returning to Canada. However, the boy did not do so. Instead, when asked where they were, he replied that he didn’t think his mother and Mr. Neundorf wanted him to tell, then said they were in Singapore. The boy said they were going to be renting a house. The appellant testified that this conversation should have indicated to Baird that they were returning to Canada, but he instead understood that they would be renting in Singapore.
[14] There was some limited e-mail and other communication between Baird and the children and the appellant over the period. However, Baird was never told exactly where they were or what their plans were. He was not given regular telephone access to the children, as provided for in the custody order. When he sent an email on December 8, 2001 asking about his Christmas access visit, the appellant took the position with him that he had not given her 30 days notice in accordance with the court order and therefore could not have his Christmas access.
[15] Baird went to the authorities in Canada in December 2001. A Canada-wide warrant was issued for the appellant in March 2002 and was executed when the appellant landed in Vancouver in May 2002. She was arrested and the children were first put into foster care until they flew to Toronto pursuant to a temporary custody order that Baird obtained. Eventually the children returned to live with the appellant in Markham, Ontario.
[16] At the trial the appellant testified, explaining that she never intended to deprive the father of his access rights, and stating that she always intended to return with the boys to Canada. She took the position that because the father did not give 30 days’ notice of flights from Calgary to Toronto over Christmas, he had forfeited his right to access. The trial judge rejected her evidence and found that the appellant’s conduct in travelling to Singapore and staying in Asia travelling around for seven months with no specific plan to return home constituted a “taking” and that she intended to deprive the father of his access rights at Christmas and in the spring. The trial judge imposed a conditional sentence of 12 months plus 12 months probation and 110 hours of community service. The trial judge declined to impose a discharge, which was requested by the appellant.
Issues
(1) The appellant submits that despite her technical non-compliance with the custody order, her conduct did not constitute criminal “child abduction” within the meaning of s. 282(1) of the Code, and that neither the actus reus nor the mens rea of the offence were established on the evidence.
(2) The appellant further submits that the trial judge misapprehended portions of the evidence and applied different standards of scrutiny to the evidence of the crown and of the defence.
(3) On the issue of sentence, the appellant submits that the trial judge wrongly believed that the appellant was disentitled to a conditional discharge, and that she erred in her treatment of aggravating factors.
Analysis
(1) Conviction Appeal
[17] Section 282(1) of the Code provides:
282(1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with the intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years;
(b) an offence punishable on summary conviction.
[18] The appellant asserts that this is a case like R. v. McDougall (1990), 1990 CanLII 6788 (ON CA), 1 O.R. (3d) 247 (Ont. C.A.), where this court admonished parents in the throes of post-separation acrimony over custody and access to their children, not to seek to use the criminal law to help them deal with their difficulties unless there has truly been an abduction of a child or children. However, the facts of that case are in no way comparable to this one. There the father had the right to weekend access to his two children. Because of a snow-storm, he decided not to return them from Oshawa to Brampton on Sunday night, but instead to return them on Monday after work. Although the father called the mother on Sunday and said he left a message, he made no further attempt to contact her or the children’s school the next day. The situation was further exacerbated when the baby-sitter lied to the mother, telling her she did not know where the children were. At that point, the mother called the police, and the father was ultimately arrested.
[19] On those facts, Doherty J.A. held that the father did not intend to deprive the mother of possession of the children. He explained at p. 260:
A consideration of the purpose of the legislation, the context in which the words “intent to deprive” appear and the generally accepted meaning of the word “deprive” lead me to conclude that the section requires proof of an intention to deny, defeat or take away the other parent’s ability to regain physical control or custody of the child. If the overholding parent intends only not to assist the other parent in taking possession of the child but does not intend to deny that other parent’s right to possession, then, in my view, it cannot be said that the overholding parent intends to deprive the other parent of possession of the child. This is particularly so when, as in this case, it is found that the overholding parent intended to assist in the returning of the children to the other parent later on the same day.
And at p. 259, the court further defined the meaning of “intent to deprive” in the context of the section as follows:
To intend to deprive the other parent of that physical control or custody, one must intend to somehow put the child beyond the reach of that control or custody.
[20] In this case, the appellant did not merely “overhold” the children for a day. Furthermore, she did not intend to return them to Canada in time for the Christmas or the spring access visits with Baird provided by the custody order of December 2000. Although this case may be seen as less serious than others because the appellant eventually returned with the children, the deprivation of access provided in a custody order is also a very serious matter, and has long been held to be within the meaning of the section: see R. v. Petropoulos (1990), 1990 CanLII 1347 (BC CA), 59 C.C.C. (3d) 393 (B.C.C.A.).
[21] As the trial judge found at para. 46, the appellant intended to deprive Baird of physical control over the children as long as she remained in Asia:
I find that the mother chose to move to Singapore with undefined plans to begin with other than knowing she would be gone for a considerably long period of time to warrant taking the children out of school and enrolling them in an internet home schooling program. Further, when her preliminary plans about where she would live changed when James Neundorf did get the job he hoped for, she did not update the father about her living or travel itinerary. Lastly, her communication with him was for all intents and purposes incomplete and deceitful. She did nothing to facilitate the access she knew he was entitled to under the existing court orders.
[22] The appellant also submitted that she did not prevent Baird from exercising control over the children by taking them to Singapore. She submits that Baird abdicated his right to Christmas access by failing to give 30 days’ notice of the children’s travel arrangements as required by the custody order. Therefore, she did not “take” the children in the sense described by the Supreme Court of Canada in R. v. Dawson, 1996 CanLII 150 (SCC), [1996] 3 S.C.R. 783 – i.e. preventing the other parent from exercising control over the child.
[23] There is no merit in this submission. The order provided for unconditional Christmas access. The trial judge addressed this submission with a specific finding that she did not believe the appellant’s testimony that she would have returned the children for Christmas had Baird given the 30 day notice. She found at para. 41:
Her conduct, long before the deadline the father had under the court order to give notice of his intention to exercise Christmas access by buying tickets and sending them to the 10 Anson Road postal address, revealed an intention to deprive him of his Christmas access by effectively frustrating any meaningful contact between him and his sons either by email or telephone and misleading him about her actual location and travel itinerary.
[24] In other words, the trial judge found as a fact that when she left Canada, the appellant took the children with the intention of depriving Baird of his access before he had to purchase the plane tickets and provide the details for the children’s travel from Calgary to Toronto. On the evidence, it was open to the trial judge to make this factual finding and there is no basis for appellate interference.
[25] The appellant’s second alleged error by the trial judge is that she misapprehended evidence in 15 findings of fact, and that there was evidence that the appellant did not intend to deprive the father of his access to the children.
[26] The appellant is effectively asking this court to reassess the evidence and to reject the findings of fact made by the trial judge. The alleged errors of misapprehension are either minor and inconsequential or are not errors at all. As an example, the appellant argues that the trial judge erred by stating in her reasons that Mr. Neundorf remained in Singapore between the first and second trip, when his evidence was that he returned to Canada after the first trip. This error was of no consequence.
[27] For another example, the appellant alleges that the trial judge erred in finding that the appellant failed to disclose their true location and travel itinerary to Baird, despite Baird’s repeated expressions of concern. The appellant argues that Baird was provided with a legitimate mailing address, which he failed to use, and that she was not required to provide a travel itinerary. This argument misses the point. The appellant would not have been required to provide Baird with the children’s travel itinerary and whereabouts, had she ensured that he could contact the children and have his access to them on the court-ordered occasions. Because she did not do so, her failure to provide a travel itinerary exacerbated the situation. There is no basis to conclude that the trial judge misapprehended the evidence in this regard.
[28] Finally, the appellant alleges that the trial judge applied a different level of scrutiny to the evidence of the appellant and of Baird and did not refer to the evidence of Mr. Neundorf on behalf of the appellant. As this court stated in R. v. J.H. (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46-47, this argument is often an invitation for the Court of Appeal to reassess credibility findings, which is tantamount to a submission that the verdict is unreasonable.
[29] The court explained that in order to succeed on this ground “the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.” J.H., at para. 59.
[30] The trial judge fully reviewed the record and made clear findings of credibility based on her assessment of all of the evidence and of the witnesses. There is nothing in the reasons which suggests that the trial judge did anything other than consider the evidence fairly and make her findings based on her assessment. We would not give effect to this ground.
Sentence Appeal
[31] The trial judge gave full reasons for the sentence she imposed of twelve months conditional to be served in the community, 110 hours of community service, followed by 12 months probation. She specifically declined to impose a conditional or absolute discharge. She declined to do so because of the aggravating factors including the alienation that was caused between the father and the boys. The trial judge also noted a significant number of mitigating factors including the fact that the appellant has no criminal record, the fact that the appellant returned voluntarily to Canada, the appellant’s strong family and community support, the fact that a relatively small amount of access was missed, the fact that the appellant is gainfully employed, and the fact that the appellant served five days in pre-trial custody. The trial judge also noted that specific deterrence had been met.
[32] Although the trial judge gave full reasons on sentence, there were two matters that were submitted to her by the defence which she did not appear to consider in deciding to impose a conditional sentence rather than a conditional discharge. The first was that because the appellant is a professional who travels to speak, a criminal record would be a particular hardship to her as it would preclude her travelling to the United States. On appeal, the court was further advised that the appellant has a sister in the United States.
[33] The second and much more significant issue was that as a result of her arrest and the change in the custody and access rights of the parties, the appellant did not see the children for over a year. This was a significant hardship on a mother and something that should have been factored in when considering the appropriate sentence in all the circumstances of this case.
[34] On the appeal, the appellant asks this court to substitute a discharge in order to remove the appellant’s criminal record. The appellant has fully served the conditional sentence and performed all of her obligations as originally imposed. In those circumstances, we would allow the appeal against sentence, and substitute a discharge, which, at this stage will be an absolute discharge.
Result
[35] In the result, the appeal against conviction is dismissed, leave to appeal the sentence is granted, the appeal against sentence is allowed and an absolute discharge is substituted.
RELEASED:
“NOV 23 2011” “M.J. Moldaver J.A.”
“KF J.A.” “Kathryn Feldman J.A.”
“Robert J. Sharpe J.A.”