Godard v. Godard, 2015 ONSC 799

Godard v. Godard, 2015 ONSC 799

COURT FILE NO.: 14157/05

DATE: 2015/01/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Terri-Lynn Godard

Applicant

– and –

Christopher Godard

Respondent

Guy Wainwright, for the Applicant

Paul Mongenais, for the Respondent

HEARD: January 28, 2015

DECISION ON MOTION

TREMBLAY J.:

Introduction

1The respondent (“father”) brings a contempt motion pursuant to rule 31(1) of the Family Law Rules. He alleges that the applicant (“mother”) is in contempt of an order of Justice C.A. MacDonald dated November 3, 2014 and paragraphs 2 and 3 of an order of Justice D. Cornell dated July 18, 2014.

2At the request of the parties, the motion proceeded on a written record consisting of the Affidavits of the father dated November 19, 2014 and January 12, 2015; the Affidavit of the mother dated December 3, 2014; the Affidavit of Geraldine Duval dated December 3, 2014; the transcripts of the hearing of July 10, 2014 and November 28, 2014; the Reasons of Justice Cornell of July 18, 2014; the Report of Holly Pontello of January 23, 2012 and other references by counsel to the continuing record.

3Central to this motion is the extent of a parent’s duty to require a 12-year-old daughter to attend for access with the other parent.

4In his decision on a previous contempt motion as well as a motion for summer access released on July 18, 2014, Justice Cornell provided a useful overview of the case up to that point in time:

2This 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.

3There are two children of the marriage, I.G. born in 2000, and S. G., born in 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.

4On 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.

5From 2006 until 2010, there are a variety of orders that address the respondent’s access at Christmas, in the summer and at other times.

6In the fall of 2010, I. 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 I. shall have her principal residence with the respondent. Although a plan was proposed that would establish access between I. and her mother, such plan has apparently not been followed with the result that I. has had virtually no contact with her mother since 2010.

7A further temporary order was made to define the respondent’s summer access in 2011.

8The 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 in 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.

5On June 18, 2014, the father brought a contempt motion against the mother on the basis that he had been deprived access since the weekend of January 10-12, 2014. He also brought a motion to specify his summer access and for a number of other sundry requests for relief.

6The motion was heard by Justice Cornell on July 10, 2014. After hearing the parties and meeting with the child, S., privately for some considerable period of time, Justice Cornell rendered his decision on July 18, 2014.

7Justice Cornell did not decide the contempt motion on its merits, but dismissed it on the basis that, in essence, the respondent alleged contempt of an order that did not exist, as the de facto arrangements for delivery of the child that the applicant would have breached differed from the existing order. The father was otherwise successful in obtaining an order for summer access.

8The order provided that:

1- The contempt motion is dismissed without prejudice to another contempt motion on further and better material if the circumstances warrant such action; 2- The applicant will provide a schedule by July 25, 2014, whereby the respondent shall have three weeks of summer access with S. If a dispute remains about the dates of summer access, either party may apply to the court to have the issue resolved; 3- 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.

9In his decision, Justice Cornell noted at para. 27 that “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 S. from her father.”

10The parties agreed upon the dates for the summer access. However, the father did not have summer access to S., nor did the access every second weekend resume once the summer vacation ended. The reason provided by the mother, through her lawyer, was that the child adamantly refused to attend for access for even part of the three weeks. The situation remained unchanged after the end of the summer.

11On October 14, 2014, the father brought a motion for an order for specified access to S. and an updated, specified, exchange protocol.

12On November 3, 2014, Justice MacDonald made the following order:

1. 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 the mother at 6:00 p.m. on Sundays.

2. Dan Duval shall not be present at the pick-up or drop-off or be in the vehicle at those times.

3. These orders are without prejudice to the motion being brought back and the issue of whether Justice Cornell is seized being decided.

4. Costs are reserved to the next event after the Trial Management Conference.

Position of the parties

Summary of the position of the father

13The father alleges that the mother is in contempt of the order of Justice MacDonald as she failed to drop-off S. at the paternal grandparents’ residence on Friday, November 14, 2014 at 6:30 p.m. at 137 Gough Street in Kapuskasing. The father submits that the order is very specific, clear and unambiguous, that it was within the mother’s knowledge at the relevant time, and that she was given proper notice of its terms since it was an order on consent. The father claims that the mother thereby intentionally did, or failed to do, something in contravention of the order.

Summary of the position of the mother

14The mother’s position is that she has done nothing directly or indirectly to undermine any order of the court. Specifically, she claims to have done nothing to prevent access to the father for the younger child, and that she has actually done her best to encourage the child to participate in the access as provided for the Interim Orders.

15It is the mother’s view that the situation is simply that the child refuses to participate in access with the father. She claims that the access periods over the years have been difficult for the child, but that when she was younger, she was able to simply force her or manipulate her into attending. This is no longer the case and she knows of no method by which she can force the child to attend.

16The only method she can think of is to physically coerce her into attending. However, the child is now approximately the same size as she is and significantly stronger. She would never attempt to physically force her to travel to Timmins for an access period, but even if she did, she would lose.

17Additionally, the mother feels that the child is now much more mature to the point of being defiant and will not cooperate in any way in attending for access with the father no matter what she says or does with her. Since she was forced to attend at court in Cochrane on July 18, 2014 to be interviewed by Justice Cornell, her position in respect to refusing to visit her father has become more intense and more determined.

18The mother does not believe that the situation is one of bad behaviour of the child for which punishment of the child is deserved or is appropriate. The child has thoroughly convinced her that she has a genuine deep rooted objection to having any contact with her father whatsoever.

19The mother indicates that she has tried to teach her daughter that court orders should be complied with. She has made arrangements for the child to be interviewed by a psychologist with the first interview scheduled to take place in North Bay on January 22, 2015.

The Law

20An order regarding access may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available. (Family Law Rules, O. Reg 114/99, r. 31(1))

21The 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. (Hefkey v. Hefkey, 2013 ONCA 44)

22The three essential requirements for a finding of contempt were listed by Blair J.A. in G.(N) c. Services aux enfants & adultes de Prescott-Russsell (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.) at para. 27:

27The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.

23It is unnecessary to prove that the alleged contemnor intended to put himself or herself in contempt. However, it must be established that he or she deliberately or wilfully or knowingly did some act which was designed to result in the breach of a court order. (Hatcher v. Hatcher 2009 14789 (ON SC), 2009 Carswell Ont 1765 (Ont. S.C.J.) at para. 23)

24A 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.)

25Justice Kozak commented on situations involving the custodial parent withholding access to respect the wishes of children at para. 11 in Campbell v. Campbell 1994 CarswellOnt 4468:

11There is no doubt but that the respondent has wilfully deprived the petitioner of the access to which he was entitled for the weekend of June 17th to June 19, 1994 and two consecutive weeks of summer access in 1994 pursuant to the order of January 13, 1994. In denying the petitioner his specified access, the respondent is sheltering behind what she states to be the wishes of the three children ages nine, seven, and five. Judges have been frustrated as to what to do with such cases. In Tassou v. Tassou, 1976 1930 (AB SCTD), [1976] 28 R.F.L 171 (Alta. T.D.) it was stated:

From a practical point of view this Court has no effective way of actually physically forcing the children to see their father. I do feel however that the mother has a duty to do everything within her power to see that the boys see their father and to carry out the wishes of this Court as contained in my original judgment.

26A parent governed by an access order is not entitled, in law, to leave access up to the child. (K.(B) v. P(A), [2005] O.J. No. 3334 (Ont. S.C.J.) at para. 24.)

27As pointed out by Justice Quinn at para. 44 in Geremia v. Harb, 2007 1893 (ON SC), [2007] O.J. No. 305:

Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

Analysis

Undisputed facts

28Despite the lengthy history of this case, the facts material to this motion are rather straightforward and not in dispute. They are as follows:

• The father 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. G., 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 mother 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 her father;

• S. does not want to have access with her father for undetermined reasons and refuses to attend;

• The mother was aware of the order of Justice MacDonald dated November 3, 2014 and understood its terms;

• The mother did not drop-off S. at the paternal grandparents’ on Friday, November 14, 2014 at 6:30 p.m. at 137 Gough Street in Kapuskaing contrary to the order of Justice MacDonald dated November 3, 2014.

Do the orders breached state clearly and unequivocally what should and should not be done?

29I find that paragraphs 2 and 3 of the order of Justice Cornell dated July 18, 2014 do not state clearly and unequivocally what should and should not be done by the mother. This appears to be the reason why the order of Justice MacDonald of November 3, 2014 was required in the first place.

30I find that the order of Justice MacDonald of November 3, 2014 clearly and unequivocally states that the mother must drop-off the child on Friday, November 14, 2014 at 6:30 p.m. at the residence of the paternal grandparents located at 137 Gough Street in Kapuskasing.

Did the mother disobey the order?

31I also find that the mother did not drop off S. at the grandparents on Friday, November 14, 2014 at 6:30 p.m. at 137 Gough Street. It is therefore established beyond a reasonable doubt that the mother disobeyed the order of November 3, 2014.

Did the mother deliberately and wilfully disobey the order?

32The issue that I must decide is whether the evidence shows beyond a reasonable doubt that the mother disobeyed the order deliberately and wilfully and is therefore in contempt.

33The first argument raised by counsel for the mother at the hearing of the motion is that the Notice of Motion does not disclose any specific allegations as to what she has done to be in contempt of any order issued by the court, making it very difficult for her to respond. Furthermore, counsel indicated that he only found out the day of the motion that the action complained of by the father was his client’s failure to impose sanctions against the child following her refusal to attend for access with the father.

34The court rejects this assertion. The Notice of Motion indicates that the motion is for a finding that the mother is in contempt of the court because she did not comply with the access order of November 3, 2014, the terms of which are specific and straightforward. Furthermore, the Affidavit of the father filed in support of the motion specifically refers to the visit of November 14, 2014, thereby giving fair notice of the alleged contempt. Finally, it is clear from the transcript of the proceedings of November 28, 2014 before Justice MacDonald that counsel for the mother was aware that the issue of the use of discipline and consequences in parenting would be a key element in this motion.

35It should be noted that it is the failure to drop-off the child at the grandparents in order for this visit to take place that constitutes the contempt, which gave rise to the motion. The issue of whether the mother disciplined the child or provided consequences for her refusal to attend for the access with her father is merely one of the factors that this court must consider in determining whether the mother disobeyed the order deliberately and wilfully.

36Despite the mother’s previous attempts at restricting or terminating the father’s access from 2006 to 2010 and Justice Cornell’s comment in his July 18, 2014 decision that the history of the matter and the information provided to him raise serious concerns that the mother is engaged in a pattern of behaviour designed to alienate S. from her father, I am prepared, for the purposes of this motion, to give the mother the benefit of the doubt that she is indeed trying to encourage the child to visit with her father.

37Furthermore, the court accepts that, sometime prior to November 28, 2014, the mother did schedule an appointment with a psychologist for January 22, 2015 to help ascertain the underlying causes of S.’s refusal to see her father. However, I note that these steps were not undertaken until several months after the access ceased to take place and only after the father brought two motions for contempt. Furthermore, I was disappointed to hear on the day of the hearing of this motion that the meeting with the psychologist had been postponed to allow the child to participate in a hockey tournament.

38This being said, upon review of the evidence tendered in this case by way of a written record, it is the court’s finding that the mother has left up to the child the decision as to whether or not she will attend for access with her father. She has effectively abdicated her parental authority on the issue of access.

39I am of the view that the e-mail of November 14, 2014 to her lawyer attached as Exhibit “F” to her Affidavit is quite telling in this regard:

Spoke with S. again yesterday about going to her Dad’s. Her reaction was to tell me to leave her alone that she had already said she didn’t want to go and that she was fed up of being harassed about it. I tried to push a little more to see if she would tell me why and she just shut down on me. I had trouble with her for the rest of the day until Dan explained to her that I did not enjoy doing it to her but that we had to. If she wanted to go we had to know. I also told her that we didn’t want her to he (sic) scared to tell us. (Emphasis added)

40The mother is clearly not insisting on her daughter attending the visit with her father. She does not state that this is non-negotiable. When she “pushes her daughter a little more”, it is merely to determine why she does not want to attend. This e-mail illustrates that the choice to attend or not is ultimately left with the 12-year-old daughter.

41I find that simply discussing the issue with her daughter and encouraging her to attend for access with her father falls short of the mother’s obligations as the custodial parent to ensure that the access order is complied with. The mother must take concrete measures to apply normal parental authority to have the child comply with the access order.

42This court is not suggesting that the mother should use physical force in order to ensure compliance with the access order and agrees with her that it would in any event likely be impossible in light of the size and strength of her daughter. However, this leaves many other reasonable means to enforce parental authority, measures which the mother has thus far failed or refused to utilize. Had these measures been utilized and proved unsuccessful, the mother would likely not have been found in contempt of the court order.

43The court notes that the events of November 14, 2014 are consistent with the indications received from the mother when the father was initially deprived access on January 31, 2014. On that day, she forwarded a message dated January 27, 2014 to the father indicating: “I spoke with Sky and she would prefer to stay here this weekend.” (Emphasis added). (Exhibit “D” to the Affidavit of Christopher Godard dated June 18, 2014) The tone of the e-mail suggests that the child might have attended had the mother been more insistent. Not unlike Justice Chadwick in Fenato v. Fenato (1991) O.J. No. 3546 (Ont. S.C.J.): “I find it hard to understand how a custodial parent cannot control or direct an 11-year old child unless the parent is not making a sincere effort to do so.” (The child had just turned 12 in the current case).

44The child may, as indicated in the mother’s Affidavit, now be more defiant than before and adamantly refuse to attend for access with her father. This may require more significant measures in order to obtain compliance, potentially including disciplinary action, removal of privileges or other types of sanctions. However, the above noted e-mail suggests that such methods were likely not required back in January 2014 and may never have become necessary had the mother more effectively dealt with the situation at the time. Instead, she chose to let her 12-year-old child make the decision.

45The mother further confirmed that it was her view that the child should be making these decisions in an e-mail dated March 4, 2014 and which is reproduced Exhibit “F” to the Affidavit of Christopher Godard dated June 18, 2014: “Secondly, S. is getting older and is more than capable of deciding when she would like to go to your house to visit.”

46It is important to remember that this contempt of the order of Justice MacDonald dated November 3, 2014 has to be viewed in the larger context of a continuing deprivation of access to the father that started more than a year ago. It is unconceivable that the mother would not have been able to find a way to have the child attend for at least one visit with her father over the course of that time period had she been committed to this objective.

47In light of these circumstances, the history of these proceedings, which include attempts by the mother to restrict or terminate the father’s access and the number of motions the father had to bring in order to specify access, I find that it was appropriate for the father to bring a motion for contempt at this stage.

48While these findings are sufficient to dispose of this motion, I do wish to comment on a few other aspects of this case that are of some concern.

49There appears to have been many instances where the failure to comply with the terms of the access orders have allowed the child to participate in hockey tournaments, something she, from all accounts, enjoys greatly. On such occasions, the refusal to visit her father therefore resulted in positive consequences for the child, which certainly does not reinforce the importance of complying with the access order.

50Another concern is the fact that the mother’s view that it would be preferable for S. be able to make her own decisions, which her father should accept, appears to be based on her own experience with her oldest daughter, I., with whom she has not visited for four years according to her Affidavit. The fact that she has resigned herself to this unfortunate state of affairs does not mean that the father should do the same in regards to S., nor does it justify her failure to exercise reasonable parental authority to enforce the access order.

51Unfortunately, the mother appears to have shared her point of view with S. Both parties directed my attention to the transcript of the proceedings of July 10, 2014 in which Justice Cornell provided a summary of his interview with S. I will refer to it as both parties included it in their written materials and specifically requested that I consider it. At page 117 of that transcript, Justice Cornell did report that S. had told him that: “Mom doesn’t make I. come and visit her. Mom says that it’s the kid’s decision as to what the child wants to do and if I. doesn’t want to see me that’s I.’s decision.” This is of great concern to the court as these are the types of comments that could tacitly encourage or induce the child in not complying with the terms of the access order.

Conclusion

52For the reasons stated above, I am convinced beyond a reasonable doubt that the applicant mother is in contempt of the order of Justice MacDonald dated November 3, 2014. The court will hear from the parties on the issue of the sanctions which should be imposed at a date to be set with the assistance of the trial co-ordinator.

The Honourable Mr. Justice Robin Y. Tremblay