



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 respondents 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 Judges 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 respondents
    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), 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 courts 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
    judges disposal including a settlement conference, the involvement of the
    Ontarios Childrens 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 respondents
    access to S. The respondent has brought numerous motions asserting his access
    rights in the face of the appellants 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 appellants 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 appellants
    uncontradicted evidence in the absence of cross-examination on her affidavit,
    thereby violating the rule in
Browne v. Dunn
(1893), 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 judges key findings of fact were, in fact, consistent with the
    appellants 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
    appellants 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 childs 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 childs 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 CanLII 43948 (Ont. S.C.);
Stuyt
    v. Stuyt
, 2009 CanLII 43948 (Ont. S.C.); and
Hatcher v. Hatcher
,
    [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 appellants 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 dont think is going to help at all, MacDonald J.
    asked:

[W]hat does the mother do when this child doesnt want to go to
    school or doesnt 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
    shes not allowed to go to if she doesnt 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 judges
    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 judges
    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.


