COURT OF APPEAL FOR ONTARIO

CITATION: Godard v. Godard, 2015 ONCA 568

DATE: 20150804

DOCKET: C59999

Hoy A.C.J.O, Epstein and Huscroft JJ.A.

BETWEEN

Terri-Lynn Godard

Appellant

and

Christopher Godard

Respondent

Guy A. Wainwright, for the appellant

Paul Mongenais, for the respondent

Heard: July 6, 2015

On appeal from the order of Justice Robin Y. Tremblay of the Superior Court of Justice, dated February 3, 2015.

By the Court:

[1] The appellant mother appeals from the order of the motion judge, finding her in contempt of the order of MacDonald J. granting the respondent father access to their daughter, S.

[2] The appeal is dismissed for the reasons that follow.

a. Background

[3] The appellant and respondent were married in 1999 and separated in 2005. They have two children, I. and S., born in 2000 and 2002. A number of temporary custody and access orders have been made since separation.

[4] The appellant was awarded interim custody of the children in 2006 and the respondent was granted access every second week. On October 21, 2010, a temporary order was made mandating that I.’s principal residence would be with the respondent. S. remained with the appellant. The appellant has brought various unsuccessful motions in an effort to limit or terminate the respondent’s access to S.

[5] The respondent brought a contempt motion on June 18, 2014, alleging that he had been deprived of weekend access since January, 2014. Justice Cornell found that the de facto access arrangements differed from the existing access order and dismissed the contempt motion as a result. Nevertheless, Cornell J. noted “serious concerns that the applicant is engaged in a pattern of behavior designed to alienate [S.] from her father”.

[6] Cornell J. made an order for summer access on the basis of agreed dates. However, the respondent did not have access to S. over the course of the summer, nor did he have access on every second weekend after the summer ended, as the order required. The appellant attempted to justify this situation by citing S.’s refusal to attend for access with the respondent.

[7] On October 14, 2014, the respondent brought a motion for an order for specified access and an updated exchange protocol. On November 3, 2014, MacDonald J. made the following order, on consent:

Access to continue every second weekend shall resume on November 14, 2014 with drop off by the mother at the paternal grandparents on Fridays at 6:30 p.m. at 137 Gough Street in Kapuskasing. With pick up by mother at 6:00 p.m. on Sundays.

[8] The appellant did not drop S. off at her paternal grandparents’ home on November 14 or any Friday thereafter as required by the order, and the respondent brought a second motion to find the appellant in contempt.

b. Motion Judge’s Decision

[9] At the request of the parties, the motion proceeded on a written record that included affidavits from both parties, transcripts of previous hearings, and reasons rendered in previous proceedings, among other documents.

[10] The appellant argued that she had done her best to facilitate the respondent’s access, but S. had persistently refused to see the respondent. However, the motion judge was convinced beyond a reasonable doubt that the appellant was in contempt of the November 3, 2014 order. The motion judge began his analysis by outlining a number of undisputed facts:

• The respondent last had access to his daughter, S., the weekend of January 10-12, 2014, that is more than a year ago at the time of the hearing of this motion;
• S. did not visit her older sister, I. and her paternal grandparents either during this time period;
• S. was 11 years old at the time of the last period of access, 12 years old at the time of the alleged contempt of the court order by the appellant and recently turned 13 years old;
• S. is under the impression that she could decide, starting at the age of 12, whether she wished to continue with access to the respondent;
• S. does not want to have access with the respondent for undetermined reasons and refuses to attend;
• The appellant was aware of the order of Justice MacDonald dated November 3, 2014 and understood its terms;
• The appellant did not drop-off S. at the paternal grandparents’ on Friday, November 14, 2014 at 6:30 p.m. contrary to the order of Justice MacDonald dated November 3, 2014.

[11] The motion judge employed the three-part test for contempt as outlined by this court in G. (N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 2006 81792 (ON CA), 82 O.R. (3d) 669 (C.A.), at para. 27:

(i) the order that was breached must state clearly and unequivocally what should and should not be done; (ii) the party who disobeys the order must do so deliberately and wilfully; and (iii) the evidence must show contempt beyond a reasonable doubt.

[12] The motion judge found that the order of Cornell J. dated July 18, 2014 did not state clearly and unequivocally what the appellant was required to do, and that this appeared to be the reason why the November 3, 2014 order of MacDonald J. was necessary. The motion judge found the order of MacDonald J. to be clear and unequivocal in setting out the requirement to drop off S. on November 14, 2014.

[13] Although the motion judge gave the appellant “the benefit of the doubt that she is trying to encourage the child to visit with her father”, the motion judge found that the appellant had left it up to S. to decide whether or not she would attend the visits with the respondent, and in addition noted that S.’s refusal to visit the respondent had sometimes resulted in positive consequences for her. The motion judge found that the appellant “has effectively abdicated her parental authority on the issue of access” (paras. 36, 38, 49), and concluded that he was convinced beyond a reasonable doubt that the appellant was in contempt of the access order.

[14] The motion judge noted that there were many avenues available to the appellant, short of physical force, to encourage her daughter to comply with the access order and stated: “Had these measures been utilized and proved unsuccessful, the mother would likely not have been found in contempt of the court order” (para. 42).

C. Issues on Appeal

[15] The appellant argues that the motion judge erred by

1. failing to consider alternate remedies to contempt;
2. rejecting her uncontradicted evidence; and
3. finding that the appellant had deliberately and wilfully breached the access order.

[16] We deal with each of these arguments in turn.

d. Analysis

(1) Availability of Alternate Remedies

[17] The motion judge was aware of the exceptional nature of contempt findings in family law. He cited this court’s decision in Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, and wrote that, “[t]he Courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and as a last resort where conferences to try to resolve access problems or motions for enforcement have failed.”

[18] The appellant submits there were various adequate alternate remedies at the motion judge’s disposal including a settlement conference, the involvement of the Ontario’s Children’s Lawyer, and setting the action down for trial, and that the contempt finding was inappropriate as a result.

[19] We disagree.

[20] In our view, the history of this case belies the adequacy of alternate approaches. The appellant has a history of trying to limit or terminate the respondent’s access to S. The respondent has brought numerous motions asserting his access rights in the face of the appellant’s persistent non-compliance with access orders. Following the first contempt motion brought by the respondent and Cornell J.’s previously noted expression of concern about the appellant’s behaviour, several settlement conferences were held.

[21] In light of the history of this dispute, it was open to the motion judge to conclude that a finding of contempt was the only adequate remedy in the circumstances.

(2) Cross-examination on the Affidavits

[22] The appellant submits the motion judge erred by rejecting the appellant’s uncontradicted evidence in the absence of cross-examination on her affidavit, thereby violating the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (U.K. H.L.).

[23] There is no merit to this argument.

[24] We note, first, that oral evidence is not a precondition to a finding of contempt. In any event, the motion in this case proceeded on the written record at the request of the parties. No findings of credibility were made, nor were any required. The motion judge’s key findings of fact were, in fact, consistent with the appellant’s affidavit evidence. There was, in other words, no conflict of evidence in the affidavits relevant to disposition of the motion.

[25] As noted above, for purposes of the motion, the motion judge gave the appellant “the benefit of the doubt that she is indeed trying to encourage the child to visit with her father". However, the motion judge found that the appellant’s affidavit supported the conclusions that she has "left up to the child the decision as to whether or not she will attend for access with her father”, and that she has “effectively abdicated her parental authority on the issue of access" (para. 38). These findings form the basis for the finding of contempt and were open to the judge on the affidavit evidence, as discussed below.

(3) Proof of Deliberate and Wilful Disobedience Beyond a Reasonable Doubt

[26] The appellant argues there was insufficient proof to satisfy the motion judge beyond a reasonable doubt that she wilfully disobeyed the access order. Specifically, the appellant argues that once the motion judge accepted that S. did not want to see the respondent and that the appellant was making some efforts to encourage S. to see him, it was inconsistent to then find deliberate and wilful disobedience beyond a reasonable doubt.

[27] We reject this argument.

[28] Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup.Ct.).

[29] No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do do all that she reasonably could: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order".

[30] As the motion judge noted, the appellant had been put on notice in prior proceedings that more than mere encouragement was required. For example, in response to the submission of her counsel on November 28, 2014 that “any type of a forced provision I don’t think is going to help at all”, MacDonald J. asked:

[W]hat does the mother do when this child doesn’t want to go to school or doesn’t want to go to the dentist? What are her mechanisms? Right? … Does this child have an allowance? Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see dad before? Are there things she could do to force her to go short of the police attending at her house and physically removing her?

[31] Despite this, it is clear from her affidavit that the appellant took no further steps. She did not go beyond mere encouragement to attempt any stronger forms of persuasion.

[32] In our view, there was ample evidence in the record to support the motion judge’s conclusion that the appellant essentially left the decision concerning compliance with the access order up to S. For example, the motion judge cited an email sent by the appellant to the respondent on January 27, 2014, in which she wrote: “I spoke with [S.] and she would prefer to stay here this weekend.” The motion judge referred to another email sent by the appellant on March 4, 2014 in which she stated: “[S.] is getting older and is more than capable of deciding when she would like to go to your house to visit.” Finally, the motion judge referenced an email sent by the appellant to her lawyer on November 14, 2014, in which she described how she tried to ask S. why she did not want to visit her father and stated: “[i]f she wanted to go we had to know.”

[33] It is possible that nothing short of physical force could have brought S. to the access visits. However, this does not excuse the appellant given the motion judge’s finding that she has not done all that she could to attempt to comply with the access order. The motion judge found that despite being on notice that attempts at stronger forms of persuasion may be required, the appellant did not go beyond mere encouragement. In these circumstances, the motion judge properly concluded that deliberate and wilful disobedience was established beyond a reasonable doubt.

e. DISposition

[34] The appeal is dismissed. The appellant shall pay the respondent $8,293.79, inclusive of taxes and disbursements, for the costs of the appeal. Costs of the motion will be determined by the motion judge when he addresses the sanction for contempt.

Released: August 4, 2015 “GE”

“Alexandra Hoy A.C.J.O.”

“Gloria Epstein J.A.”

“Grant Huscroft J.A.”