COURT FILE NO.: FC-16-00000197-0000
DATE: May 12, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NATASHA JAQUELINE VILLENEUVE
Applicant
– and –
DAVID LOUIS WILSON
Respondent
Elizabeth Midolo, for the Applicant
Brian Ludmer, for the Respondent
Ruling on motion
ABRAMS, J
Introduction
[1] This is the Respondent’s motion for compliance brought against the Applicant with respect to the Final Order of Pedlar J. dated November 14, 2017 (“the Order”), pertaining to promoting and facilitating parenting time with the children, Anika Jacqueline Wilson, born April 14, 2007 (“Anika”), and Kamri Lou Wilson, born September 13, 2010 (“Kami”).
[2] The Respondent contends that the Applicant has failed to obey the Order by ensuring the children attend the parenting time in accordance with the schedule the parties consented to.
[3] The Respondent seeks to enforce the Order by requesting:
a. A finding that the Applicant is in breach of the Final Order of Justice Pedlar, dated November 14, 2017.
b. An Order that the Applicant complies with the Order.
c. An Order for make-up time for any missed parenting time from September 2, 2020, and ongoing.
d. An Order that the children be removed from their current therapist, Kelli Tosh and be placed in reconciliation therapy; and
e. Various supplemental Orders as outlined in his Notice of Motion.
[4] The Applicant contends that the children, at 14 and 11 years of age, are refusing to attend parenting time with the Respondent, despite her various attempts to encourage, facilitate and abide by the Order.
[5] The Applicant asserts that the children have valid reasons for their reluctance to follow the court ordered parenting time, which should be taken into consideration when determining whether to impose any sanction(s) against her.
Brief Background
[6] The parties began cohabitating in 2005 and separated on or about August 20, 2012.
[7] Anika and Kamri are the only children of the relationship.
[8] The parties were able to co-parent for a short period of time post-separation, but the ad-hoc arrangement eventually broke down.
[9] As a result, the Applicant initiated a court proceeding to obtain an order for, inter alia, predictable parenting time with a view to limiting contact and conflict between the parties.
[10] The parties eventually entered into the consent Order on November 14, 2017.
[11] The parties did, for a time, follow the Order and conducted exchanges at the children’s’ school to prevent any unnecessary conflict.
[12] In May 2020 Anika began experiencing stomach pains. Thereafter, she began refusing to attend the Respondent’s home for the scheduled parenting time.
[13] By September 2020, both children begin refusing to go to the Respondent’s home.
[14] In the circumstances, the Respondent contends that the Applicant has wilfully disobeyed a court order, implying elements of parental alienation.
[15] The Applicant denies any intentional disregard for the Order.
[16] Given the apparent breakdown of the relationship between the children and the Respondent, the Applicant argues that the parenting schedule should be reviewed and reflective of what the children would prefer.
[17] Notably, the Applicant took no steps to have the Order changed. Rather, she waited for the Respondent to take the initiative to address the parenting issues by way of this motion.
The Law
Rule 1(8)
[18] Rule 1(8) of the Family Law Rules (“the Rules”) gives the Court a broad authority to make “any order that it considers necessary for a just determination of the matter” where a party fails to obey an order in a case or a related case.
[19] An order under Rule 1(8) may be made “at any time during a case”, and the power to make such an order is in addition to any other power as the Rules may specify and exists unless the Rules expressly provided otherwise.
Test
[20] The case law establishes a 3-part inquiry in applying Rule 1(8):
The court must ask whether there is a triggering event of non-compliance with a court order that would allow it to consider the wording of Rule 1(8).
If the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under Rule 1(8).
In the event the court determines it will not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy under Rule 1(8).
Compliance with Parenting Orders
[21] It is the role of a parent to abide by court orders until such time as the orders have been terminated or varied through legal means. It is also the role of parents to instill in their children a respect of the law and legal institutions. A parent who does not do so does a huge disservice to his or her child- a disservice that can have long lasting ramifications throughout a child's life”: Stuyt v. Stuyt, 2009 43948 (ON SC), Aitken J., at para. 62.
[22] Misconduct by one parent toward another, “when it impairs the ability of a parent to exercise access to the children, cannot help but be injurious to the long-term interests of the children.” A major source of security for children in separated families derives from strong and healthy relationships with each parent. “Children's positive self-image, crucial to their ability to adjust successfully to the changes in their family, depends in large measure on the positive regard they have toward each of their parents. If their respect for either parent is diminished, their regard for themselves may also suffer”: Hosein v. Dhamoon, 2017 ONSC 2482, at paras. 60, 79, & 101.
Positive Obligations on Parents
[23] The leading case on what a primary residential parent is required to do with respect to an access order is our Court of Appeal’s decision in Godard v. Godard (2015) (“Godard”). According to Godard, 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. Ontario courts have consistently held that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order” and that merely “encouraging” or abdicating decisions to the children is a breach of the Court’s Order: Godard v. Godard, 2015 ONCA 568, at para. 28.
[24] Godard has been interpreted to mean that, while parents are not obligated to do the impossible, they are required to do all that they reasonably can to comply with the order. Failure to take concrete measures to apply normal parental authority to have the child comply with the access order can constitute contempt.
[25] Godard is also followed in non-contempt cases where one party says that a child is resisting access. The Courts have relied on Godard to order access and to outline the positive obligations upon the custodial/primary residence parent to take concrete measures and do all that they reasonably can to ensure compliance. The Court of Appeal has made it “very clear” that compliance with Court-ordered access cannot be left up to the child: Karar v. Abo-El Ella, 2016 ONSC 7926, at para. 17.
[26] A parent cannot hide behind the child’s purported wishes as a reason not to comply with a parenting order. A parent who does this abdicates his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences of breaching to order. Whether the parent or the child agrees or disagrees with that order, both must comply with it. It is the responsibility of the parent to show that she is the adult, she is the parent, and she will take appropriate steps to comply with an access schedule: King v. King, 2016 ONSC 3752, at para. 48.
[27] In Jackson v. Jackson (2016), Chappel J. explained that a parent’s positive obligations “goes beyond simply accommodating it [parenting time], making the child available for parenting time and encouraging the child to comply. Rather, the parent must require that parenting time occur and actively facilitate it”. Further, Chappel J. explained what actively promoting and facilitating means, as follows:
d) Actively promoting and facilitating compliance with a custody and access [order] requires the parent to "take concrete measures to apply normal parental authority to have the child comply..." (Godard, supra.; Wright v. Meyer, 2012 CarswellOnt 14827 (S.C.J.)). In determining whether appropriate measures were taken, the court should consider whether the custodial parent did the following:
i. Did they engage in a discussion with the child to determine why the child is refusing to go?
ii. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?
iii. Did they offer the child an incentive to comply with the order?
iv. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order? (Godard, supra.; Jackscha v. Funnell, 2012 CarswellOnt 10467 (Ont. S.C.J.)): Jackson v. Jackson, 2016 ONSC 3466, at paras. 63 (c) & (d).
[28] What steps a parent must take to have the child attend access with the other parent depends on the circumstances and age of the child. Usually, passive “reasoning with the child” is insufficient and is in breach of the access order. There is a positive obligation to ensure that a child complies with the order. The parent is not entitled to leave access decisions to the child: Geremia v. Harb, 2006 38350 (ONSC), at para. 63, Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.), at para. 8, B.K. v. A.P., [2005] O.J. No. 3334 (S.C.) at paras. 22-25, Godard, supra, at para. 29.
Analysis
[29] On the evidence proffered by the Applicant on the motion, she has failed to meet her positive obligation to ensure that the children comply with the Order, for the following reasons.
[30] The Applicant baldly asserts that she has: (1) supported the Respondent; (2) encouraged compliance with the Order; and (3) impressed upon the children that they must comply with the Order. I do not see it that way.
[31] The Respondent in his materials details very specific events and statements attributed to the Applicant, which she does not deal with in her materials, save for a blanket denial and unsupported assertions to the contrary:
On October 14, 2020, the Applicant wrote: (1) “I have left it to them to decide if and how much they want to see you.”; and (2) “The custody agreement is to define a schedule for you and I to follow. It is not enforceable by police and the best interests of the children take precedence.”
On November 19, 2020, the Applicant wrote: (1) “Kamri told me she was coming here. She doesn’t want to stay there on school nights and doesn’t want to spend all her weekends there.”; (2) “I’m done convincing her to go. I told you that. It’s between you and her. I will not force her into anything. Say what you want, I’m in (sic) her side.”; and (3) “Kamri knows what she is doing. She us (sic) adamant about it. She wont care what the courts say. She will just hate you for dragging me through dirt because I won’t let you control her. Well good for you Dave!”
On November 26, 2020, the Applicant had Kamri, who was 10 years old at the time, send an email to the Respondent requesting that he agree to reduced parenting time. In describing Kamri’s alleged views, the Applicant wrote: “Soon enough she will be 12 and so I would suggest you try to be agreeable, or you will lose her like you have Anika. You can keep threatening to take me to court but what you don’t realize is that you will be taking us all to court. This can end right now if you start to listen to Kamri.”
On December 11, 2020, the Applicant enlisted Anika to request that the Respondent acquiesce to the Applicant’s demands regarding Kamri.
On January 5, 2021, the Applicant wrote, “Are you going to keep forcing her [Kamri] to go to your house on Thursdays and Fridays from school ... if you are going to force her she will not be going to school those days ... unless you let the school know she can come here after school on those days she will not go.”
[32] The Order remains extant and therefore is presumed to be in the best interests of the children.
[33] Until such time as the Order has been terminated or varied through legal means, the Applicant must abide by it: Stuyt, supra, at para. 62.
[34] Once the court has determined that parenting time is in the child’s best interests, a parent cannot leave the decision to comply with the access order up to the child: Godard, supra, at para. 28.
[35] In my view, the statements attributed to the Applicant’s are telling against her in terms of her delegation of authority to the children to comply [or not] with the Order, specifically: (1) “I have left it to them to decide if and how much they want to see you.”; and (2) “I’m done convincing her to go. I told you that. It’s between you and her. I will not force her into anything. Say what you want, I’m in (sic) her side.”
[36] In my view, the Applicant has not done all that she reasonably can to ensure compliance with the Order. Indeed, the Applicant has not engaged in even passive “reasoning with the child”, as a minimum. To the contrary, I find that the Applicant has emboldened Kamri to ignore the Order, where she said: “She wont care what the courts say. She will just hate you for dragging me through dirt because I won’t let you control her”. Further, I can only infer that the Applicant has approached Anika’s non-compliance in the same manner.
[37] In the circumstances, I find that the Applicant is hiding behind the children’s purported wishes as a reason not to comply with the Order: King, supra, at para. 48
[38] On the record before me, there is an absence of evidence that the Applicant has taken concrete measures to apply normal parental authority to have the children comply with the Order as articulated by Chappel J. in Jackson, supra, at paras. 63 (c) & (d).
[39] In summary:
(1) There is a triggering event of non-compliance with the Order that allows the Court to consider the wording of Rule 1(8).
(2) For the reasons set out above, the Court is not inclined to exercise its discretion in favour of the Applicant by not sanctioning the Applicant under Rule 1(8).
(3). The Court is then left with the very broad discretion as to the appropriate remedy under Rule 1(8).
Conclusion
[40] The Respondents Motion is granted in part, specifically paras. 7 (a)-(c) as set out in the Confirmation of Motion, dated December 20, 2021. The balance of the relief claimed is adjourned to the Case Conference, save for issue of costs. If the parties are unable to agree on costs, written submissions shall be filed with the Court within 30 days limited to five pages, double spaced, one side of the page, 12-point font or larger, together with any Offers to Settle and a Bill of Costs.
The Honourable Mr. Justice B. W. Abrams
Released: May 12, 2022
COURT FILE NO.: FC-16-00000197-0000
DATE: May 12, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NATASHA JAQUELINE VILLENEUVE
Applicant
– and –
DAVID LOUIS WILSON
Respondent
RULING ON motion
Abrams, J.
Released: May 12, 2022