ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14157/05(00)
(Cochrane File)
DATE: 20140718
BETWEEN:
Terri-Lynn Godard
Applicant
– and –
Christopher Godard
Respondent
Guy A. Wainwright, for the Applicant
Paul Mongenais, for the Respondent
HEARD: July 10, 2014 in Cochrane, ON
DECISION ON MOTION
cornell j.:
Introduction
[1] The respondent has brought a contempt motion as well as a motion for summer access along with other sundry requests for relief.
Background
[2] This application was commenced in 2005. The file reflects the high conflict between the parties that has and apparently continues to exist. The application has not been brought to a conclusion, so no final order has been made. Many interim orders have been required.
[3] There are two children of the marriage, Ireland Godard born March 18, 2000, and Schyler Godard, born January 19, 2002. In the early stages, a number of temporary orders were made to define the access that the respondent would have to the children. Pursuant to orders made on March 24, 2006 and June 15, 2006, the applicant was to have interim custody of the children. The respondent continued to have access every second week.
[4] On October 27, 2006, an interim-interim order was made terminating access without prejudice to such access being reinstated. On November 24, 2006, access was reinstated.
[5] From 2006 until 2010, there are a variety of orders that address the respondent’s access at Christmas, in the summer and at other times.
[6] In the fall of 2010, Ireland raised concerns about the applicant’s partner and the physical discipline that was being administered in the applicant’s home. The Children’s Aid Society became involved and the Office of the Children’s Lawyer was asked to prepare an updated report. On October 21, 2010, a temporary order was made that Ireland shall have her principal residence with the respondent. Although a plan was proposed that would establish access between Ireland and her mother, such plan has apparently not been followed with the result that Ireland has had virtually no contact with her mother since 2010.
[7] A further temporary order was made to define the respondent’s summer access in 2011.
[8] The file indicates that the applicant has made many efforts to restrict or terminate the respondent’s access to the children of the marriage. This included a motion of May 2006 to restrict access, as well as a motion in October 2006 to terminate access. The applicant prevented access for five months in 2010 and brought another motion to terminate access in November 2010, which motion was unsuccessful.
Contempt Motion
[9] The Notice of Motion for the contempt proceeding alleges that the applicant is failing to comply with an interim access order. During the course of oral argument, counsel for the respondent also alleged that the applicant was in contempt for failing to comply with an order that required her to disclose health care benefits that might be available. When it was pointed out by counsel for the applicant that no notice of this had been provided, this ground was withdrawn.
[10] Under the order made by Gauthier J. on November 25, 2006, the respondent is to have interim access to the children of the marriage every other weekend after school until 5 p.m. on Sundays. The order goes on to provide that the children may be picked up from school and returned to the applicant by way of the Supervised Access Centre in Kapuskasing.
[11] The order was amended on December 17, 2010, by order of MacDonald J. to provide that the respondent would “pick up the children at the maternal grand-father’s at 6:30 p.m. on Friday and dropped off at same place at 6 p.m. on Sunday and from pick up.”
[12] The affidavit filed in support of the contempt motion indicates that the access arrangements had been altered without benefit of court order to provide that the applicant would drop off the child at the Wal-Mart in Kapuskasing and would then be taken by the paternal grand-father to meet with the respondent father in Driftwood.
[13] The general requirement in contempt applications is that the charge must be specific. This means that the date, time, place and other facts sufficient to identify the particular acts alleged to constitute contempt must be set out. See Toronto Transit Commission v. Ryan 1998 14635 (ON SC), [1998] O.J. No. 51 (1998), 37 O.R. (3d) 266 (Gen.Div.).
[14] Apart from that, the order must be precise enough for the person against whom it is issued to know exactly what they can and cannot do.
[15] In this case, the de facto arrangements differ from the existing access order. In essence, the respondent alleges contempt of an order that does not exist, that is to say, that the applicant did not deliver Schyler to the Wal-Mart in Kapuskasing.
[16] This is a sufficient reason to dismiss the contempt motion. The dismissal is without prejudice to another contempt motion on further and better material if the circumstances warrant such action.
Interim Relief
[17] The second notice of motion seeks a variety of relief including reinstating access, specifying the respondent’s summer access, the restoration of Schyler’s last name to Godard, access to Schyler’s birth certificate file, an order that access travel be shared more equally and an order that the applicant maintain Ireland, who is in the respondent’s care and control, as a beneficiary of any health benefits which are available to the applicant. The focus of these submissions centered on the issue of summer access.
[18] I asked that Schyler meet with me privately and she did so for some considerable period of time.
[19] She began by saying that she enjoyed spending time with her paternal grand-parents. She liked doing baking with her grand-mother and spending time doing yard work with her grand-father. Occasionally, she would stay in their home over night.
[20] Her sister, Ireland, has resided with the respondent for approximately four years. The respondent has been in a common-law relationship with a woman by the name of Renee. Renee has three daughters who reside with her and the respondent. Schyler said that she liked Renee. She said that Renee’s children were “like sisters” to her. When she spent time in her father’s home, she said that they did “family stuff”.
[21] She really enjoyed spending time with her sister Ireland with whom she shared a bedroom.
[22] She indicated that most meals are eaten at the “big table”. Although her father does most of the cooking, she enjoys eating Renee’s baking, particularly her banana bread.
[23] All of this information was reported to me in a happy and expressive manner.
[24] Schyler then indicated that she did not want an order that would obligate her to go to her father’s residence on a regular basis, rather, she would prefer to choose the dates so as not to conflict with her schedule and activities. She reported that a representative of the Children’s Aid Society had told her that she could decide when she turned 12 whether she wished to continue with access to her father. Schyler did raise some concerns about the access and the inconvenience associated with it, but there was nothing mentioned that would go beyond the usual sort of inconvenience associated with access. She also raised some concerns about certain situations in her father’s house, none of which exceeded the usual sorts of irritations that could be expected to be found in almost any household.
[25] Perhaps the most telling exchange occurred when Schyler stated in a somewhat angry fashion that if Ireland could choose not to see her mother, then she should have the right to choose when she wanted to see her father.
[26] The file indicates the extensive efforts that the respondent has been required to make in order to gain access to Schyler at Christmas and during the summer vacation period.
[27] The history of the matter and the information provided to me raise serious concerns that the applicant is engaged in a pattern of behaviour designed to alienate Schyler from her father.
[28] During the course of my conversation with her, Schyler mentioned three or four summer events that had been planned by her mother that she was very interested in attending. She was unable to provide me with the dates of those activities. No summer schedule was put forward by either counsel. This makes it quite difficult to define the summer access. Accordingly, I order that the applicant provide a schedule by July 25, 2014, whereby the respondent shall have three weeks of summer access with Schyler. This will permit Schyler to have input into the schedule so as not to conflict with activities that may already be planned. If a dispute remains about the dates of summer access, either party may apply to the court to have the issue resolved.
[29] The order for the respondent to have access every second weekend shall resume once the summer vacation ends. The access order should be amended on consent or otherwise to reflect the actual arrangements which are to be made to facilitate access and the travel arrangements.
[30] On consent, an order is to issue that will direct the Registrar of Vital Statistics to provide to the respondent the information that was submitted at the time of the registration of Schyler’s birth as well as a copy of Schyler’s birth certificate.
[31] The balance of the interim relief sought by the respondent is adjourned sine die to be brought back on seven days’ notice. I am not seized of the claims to such relief as there was insufficient time to address them and accordingly if the respondent returns such matters to the list, it is appropriate that another judge deal with them.
Trial Management Conference
[32] As I mentioned earlier, this application was started in 2005. On April 23, 2009, Koke J. conducted a settlement conference and directed that the matter proceed to a trial management conference. Despite this, neither party has seen fit to bring the matter to a trial management conference or to trial. In view of this, I order that the parties are to proceed to Assignment Court in September 2014 and to a trial management conference to be held by December 12, 2014, on a date to be set by the trial coordinator. If neither party has filed a Trial Record by that date, the issue shall be addressed as part of the trial management conference.
Costs
[33] I encourage the parties to attempt to settle the issue of costs. If this is not possible, either party is at liberty to present a claim for costs within 21 days of the release of this decision. The claim for costs shall not exceed three pages, exclusive of the bill of costs itself. Any responding material shall be filed within 14 days and shall be subject to the same limitations with respect to content. If a claim for costs is not presented within this timeframe, it shall be conclusively deemed that the issue of costs has been settled.
The Honourable Mr. Justice R. Dan Cornell
Released: July 18, 2014
COURT FILE NO.: 14157/05(00)
(Cochrane File)
DATE: 20140718
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Terri-Lynn Godard
Applicant
– and –
Christopher Godard
Respondent
DECISION ON MOTION
Cornell J.
Released: July 18, 2014