





CITATION:
R. v. Neundorf, 2011 ONCA 732



DATE: 20111123



DOCKET: C49385



COURT OF APPEAL FOR ONTARIO



Moldaver, Feldman and Sharpe JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Dara Lynn Neundorf



Appellant



Brian H. Greenspan and Jill D. Makepeace, for the appellant



Christine Tier, for the respondent



Heard: October 12, 2011



On appeal from conviction entered by Justice R. Boyko of the
          Superior Court of Justice, dated June 20, 2008.



BY THE COURT



Introduction

[1]

The appellant mother was convicted of taking away her two boys in
    contravention of the terms of a custody order, with the intent of depriving the
    boys father of possession of the boys, contrary to s. 282(1)(a) of the
Criminal
    Code
. While the order granted custody of the boys to the mother, the father
    had access rights to see the boys over Christmas and on spring break. The
    mother and her new husband took the boys to Singapore in October 2001 for an
    indefinite time, initially without informing the father and then providing him
    with misleading information regarding their whereabouts and contact
    information, finally returning in May 2002.

[2]

The appellant argues on appeal that the conviction should be set aside
    because the essential elements of the offence were not made out and the trial
    judge misapprehended the evidence. In the alternative, the sentence imposed was
    overly harsh in its consequences.

[3]

For the reasons that follow, we dismiss the appeal against conviction,
    grant leave to appeal sentence, and reduce the sentence to an absolute discharge.

Facts

[4]

From 1986 to 1993, the appellant and John Baird were in a common law
    relationship and lived in Markham Ontario.  They had two sons, born
    respectively in 1989 and 1993. The couple separated, and in 1996, the appellant
    married Jim Neundorf. Thereafter the appellant and Baird became engaged in
    acrimonious custody and access proceedings regarding their two sons. In 1998,
    the appellant moved with the children to Calgary to pursue Ph.D. studies at the
    University of Calgary. This made it difficult for Baird to have access to the
    children, and there were further variations of the court orders on access. A
    trial in Family Court in Newmarket, Ontario in March 2000 culminated in a
    consent order dated May 4, 2000; this was later amended by a final consent order
    of December 11, 2000 dealing with custody and access details.

[5]

The December 2000 order gave the appellant sole custody of the children,
    and gave Baird access to the children during Christmas, the spring, and the
    summer of each year. The order provided fixed dates for the Christmas and
    summer access. The spring access was to coincide with the boys spring break
    from school, and the appellant was to inform Baird of these dates by October 15
    of the previous year. Baird was to arrange and pay for the childrens travel
    from Calgary to Toronto for the access visits and had to provide information
    regarding flight times to the appellant 30 days in advance. Baird had Christmas
    access in December 2000 and spring and summer access in 2001.

[6]

The order also provided for telephone access. The children were entitled
    to phone the parent they were not with at reasonable times, and the parents
    were entitled to call the children every second day when they did not have
    access.

[7]

In the spring of 2001, Mr. Neundorf lost his job in Toronto. In the
    summer, he accepted an invitation to present a paper in Singapore, hoping that
    this would lead to employment there. The appellant decided to join him and use
    the opportunity for a family vacation. On a motion to dispense with Bairds
    consent to travel for the purpose of obtaining passports for the children, Baird
    testified that he was not opposed to the children travelling, but was concerned
    that the appellant might not return, suspecting that she intended to move to
    Singapore. Although the appellants motion was successful, Baird brought a
    further
ex parte
motion in Ontario on August 8, 2001 seeking to prevent
    the travel, but the motion was not heard. The appellant and the boys travelled to
    Singapore and other east Asian countries from August 9 to September 17, 2001.

[8]

After the Singapore conference, Mr. Neundorf accepted a two to three
    month employment contract in Singapore. At that point, the family was
    experiencing financial issues.   Mr. Neundorf and the appellant decided that
    she and the children would also come to Singapore. They sold their house in
    Calgary and moved their furniture, phone line and permanent mailing address to
    a rental property they owned in Calgary. They boarded their pets in Toronto.
    The boys were taken out of private school in Calgary and transferred to an
    internet-based home schooling program. Without informing Baird, the appellant
    and the children returned to Singapore on October 7, 2001.

[9]

Baird did not know that the appellant had taken the children back to
    Singapore a second time or that the boys were no longer in school in Calgary. In
    October he attempted to contact them at their Calgary number and sent e-mails
    to the children which were unanswered. Finally he had his lawyer write to the
    appellants lawyer on October 26, 2001 saying: Your client and the children
    have gone missing and are incommunicado.

[10]

After arriving in Singapore, the appellant, Mr. Neundorf and the boys
    stayed with their friends, the Andersons.  They did not provide this
    information to Baird. Instead, they contacted Baird through the appellants
    lawyer.  On October 30, 2001, Baird received the following letter from the
    appellants lawyer:

I received an e-mail from my client on Tuesday,
    October 23, 2001. She indicates that after she and her husband returned home to
    Canada from the trip to Singapore, her husband was offered a job in Asia.
    Apparently, this was done by telephone interview from overseas. My client
    indicates that she attempted to contact me to advise me of this development,
    but was unsuccessful in reaching me. Due to my schedule, I was unable to meet
    with her to discuss this. Because of the developments in the United States, my
    client was concerned about flights, and accordingly, she and the children left
    to go back to Singapore.

The children will be schooled at a virtual school
    at the School of Hope out of Vermillion, Alberta. My client has elected to take
    an academical sabbatical based in Singapore while her husband works there. She
    will be using that sabbatical to prepare for her candidacy exams for her Ph.D.
    as an applied psychologist at the University of Calgary.

I have been instructed by my client to close my
    file. I will no longer be representing her in this matter. Your clients
    records, and the childrens new address is as follows:

10 Anson Road #
    16-16

Suite #5324

Singapore 079903

Telephone: +65 (227) 1558 x 5324

My client advises that she will be setting up an
    e-mail address for the children in the future and will have them contact your
    client directly when same is in place.

As I am no longer retained by my client, I would
    request that you contact Ms. Taylor-Neundorf directly if need be. Accordingly,
    please find attached the original and one copy of our Notice of Ceasing to Act
    in this matter. Kindly admit service on the second copy where indicated and
    return same to our offices at your earliest opportunity.

[11]

In fact, the children were not at the Anson Road address or the
    telephone number provided; the address was for a P.O. box and the telephone
    number was for a messaging service.

[12]

Mr. Neundorfs Singapore employment fell through. The family decided that
    because of their financial problems, it would be cheaper to travel in Asia and
    continue home schooling the children until they could return to Canada once he
    had secured employment there, rather than to return to Canada immediately. They
    spent part of the time at the Andersons in Singapore and part of the time
    travelling. Neundorf had ongoing negotiations to resume his Toronto employment.
    The date for his return to Toronto was pushed forward from January to February
    and finally, to March 1, 2002.  He returned to Canada in February to get ready
    to commence work. The appellant had air tickets for herself and the children
    with flexible return dates. They did not return to Canada until May.

[13]

Two days before their return, the appellant facilitated a call from one of
    the children to Baird. She testified that the purpose of the call was for the
    boy, who was nine years old, to tell Baird that they were returning to Canada.
    However, the boy did not do so. Instead, when asked where they were, he replied
    that he didnt think his mother and Mr. Neundorf wanted him to tell, then said
    they were in Singapore. The boy said they were going to be renting a house. The
    appellant testified that this conversation should have indicated to Baird that
    they were returning to Canada, but he instead understood that they would be
    renting in Singapore.

[14]

There was some limited e-mail and other communication between Baird and
    the children and the appellant over the period. However, Baird was never told
    exactly where they were or what their plans were. He was not given regular
    telephone access to the children, as provided for in the custody order. When he
    sent an email on December 8, 2001 asking about his Christmas access visit, the
    appellant took the position with him that he had not given her 30 days notice
    in accordance with the court order and therefore could not have his Christmas access.

[15]

Baird went to the authorities in Canada in December 2001. A Canada-wide
    warrant was issued for the appellant in March 2002 and was executed when the
    appellant landed in Vancouver in May 2002. She was arrested and the children
    were first put into foster care until they flew to Toronto pursuant to a
    temporary custody order that Baird obtained. Eventually the children returned
    to live with the appellant in Markham, Ontario.

[16]

At the trial the appellant testified, explaining that she never intended
    to deprive the father of his access rights, and stating that she always
    intended to return with the boys to Canada. She took the position that because
    the father did not give 30 days notice of flights from Calgary to Toronto over
    Christmas, he had forfeited his right to access. The trial judge rejected her
    evidence and found that the appellants conduct in travelling to Singapore and
    staying in Asia travelling around for seven months with no specific plan to
    return home constituted a taking and that she intended to deprive the father
    of his access rights at Christmas and in the spring. The trial judge imposed a
    conditional sentence of 12 months plus 12 months probation and 110 hours of
    community service. The trial judge declined to impose a discharge, which was
    requested by the appellant.

Issues


(1) The appellant submits that despite her technical
    non-compliance with the custody order, her conduct did not constitute criminal
    child abduction within the meaning of s. 282(1) of the
Code
, and that
    neither the
actus reus
nor the
mens rea
of the offence were
    established on the evidence.

(2)
    The appellant further submits that the trial judge misapprehended portions of
    the evidence and applied different standards of scrutiny to the evidence of the
    crown and of the defence.

(3)
    On the issue of sentence, the appellant submits that the trial judge wrongly
    believed that the appellant was disentitled to a conditional discharge, and
    that she erred in her treatment of aggravating factors.

Analysis

(1)       Conviction Appeal

[17]

Section 282(1) of the
Code
provides:

282(1) Every one who, being the parent, guardian or
    person having the lawful care or charge of a person under the age of fourteen
    years, takes, entices away, conceals, detains, receives or harbours that
    person, in contravention of the custody provisions of a custody order in
    relation to that person made by a court anywhere in Canada, with the intent to
    deprive a parent or guardian, or any other person who has the lawful care or
    charge of that person, of the possession of that person is guilty of

(a) an indictable offence
    and liable to imprisonment for a term not exceeding ten years;

(b)  an offence punishable
    on summary conviction.

[18]

The appellant asserts that this is a case like
R. v. McDougall
(1990), 1 O.R. (3d) 247 (Ont. C.A.), where this court admonished parents in the
    throes of post-separation acrimony over custody and access to their children,
    not to seek to use the criminal law to help them deal with their difficulties
    unless there has truly been an abduction of a child or children. However, the
    facts of that case are in no way comparable to this one. There the father had
    the right to weekend access to his two children. Because of a snow-storm, he decided

not to return them from Oshawa to Brampton on Sunday night, but instead to
    return them on Monday after work. Although the father called the mother on
    Sunday and said he left a message, he made no further attempt to contact her or
    the childrens school the next day. The situation was further exacerbated when
    the baby-sitter lied to the mother, telling her she did not know where the
    children were. At that point, the mother called the police, and the father was
    ultimately arrested.

[19]

On those facts, Doherty J.A. held that the father did not intend to
    deprive the mother of possession of the children. He explained at p. 260:

A  consideration of the purpose of the legislation,
    the context in which the words intent to deprive appear and the generally
    accepted meaning of the word deprive lead me to conclude that the section
    requires proof of an intention to deny, defeat or take away the other parents
    ability to regain physical control or custody of the child. If the overholding
    parent intends only not to assist the other parent in taking possession of the
    child but does not intend to deny that other parents right to possession,
    then, in my view, it cannot be said that the overholding parent intends to
    deprive the other parent of possession of the child. This is particularly so
    when, as in this case, it is found that the overholding parent intended to
    assist in the returning of the children to the other parent later on the same
    day.

And at p. 259, the court further defined the meaning of intent
    to deprive in the context of the section as follows:

To intend to deprive the other parent of that
    physical control or custody, one must intend to somehow put the child beyond
    the reach of that control or custody.

[20]

In this case, the appellant did not merely overhold the children for a
    day. Furthermore, she did not intend to return them to Canada in time for the
    Christmas or the spring access visits with Baird provided by the custody order
    of December 2000.  Although this case may be seen as less serious than others
    because the appellant eventually returned with the children, the deprivation of
    access provided in a custody order is also a very serious matter, and has long
    been held to be within the meaning of the section: see
R. v. Petropoulos
(1990), 59 C.C.C. (3d) 393 (B.C.C.A.).

[21]

As the trial judge found at para. 46, the appellant intended to deprive Baird
    of physical control over the children as long as she remained in Asia:

I find that the mother chose to move to Singapore
    with undefined plans to begin with other than knowing she would be gone for a
    considerably long period of time to warrant taking the children out of school
    and enrolling them in an internet home schooling program. Further, when her
    preliminary plans about where she would live changed when James Neundorf did
    get the job he hoped for, she did not update the father about her living or
    travel itinerary. Lastly, her communication with him was for all intents and
    purposes incomplete and deceitful. She did nothing to facilitate the access she
    knew he was entitled to under the existing court orders.

[22]

The appellant also submitted that she did not prevent Baird from
    exercising control over the children by taking them to Singapore. She submits
    that Baird abdicated his right to Christmas access by failing to give 30 days notice
    of the childrens travel arrangements as required by the custody order.
    Therefore, she did not take the children in the sense described by the Supreme
    Court of Canada in
R. v. Dawson
, [1996] 3 S.C.R. 783  i.e. preventing
    the other parent from exercising control over the child.

[23]

There is no merit in this submission. The order provided for
    unconditional Christmas access. The trial judge addressed this submission with
    a specific finding that she did not believe the appellants testimony that she
    would have returned the children for Christmas had Baird given the 30 day
    notice. She found at para. 41:

Her conduct, long before the deadline the father
    had under the court order to give notice of his intention to exercise Christmas
    access by buying tickets and sending them to the 10 Anson Road postal address,
    revealed an intention to deprive him of his Christmas access by effectively
    frustrating any meaningful contact between him and his sons either by email or
    telephone and misleading him about her actual location and travel itinerary.

[24]

In other words, the trial judge found as a fact that when she left
    Canada, the appellant took the children with the intention of depriving Baird
    of his access before he had to purchase the plane tickets and provide the
    details for the childrens travel from Calgary to Toronto. On the evidence, it
    was open to the trial judge to make this factual finding and there is no basis
    for appellate interference.

[25]

The appellants second alleged error by the trial judge is that she
    misapprehended evidence in 15 findings of fact, and that there was evidence
    that the appellant did not intend to deprive the father of his access to the
    children.

[26]

The appellant is effectively asking this court to reassess the evidence
    and to reject the findings of fact made by the trial judge. The alleged errors
    of misapprehension are either minor and inconsequential or are not errors at
    all. As an example, the appellant argues that the trial judge erred by stating
    in her reasons that Mr. Neundorf remained in Singapore between the first and
    second trip, when his evidence was that he returned to Canada after the first
    trip. This error was of no consequence.

[27]

For another example, the appellant alleges that the trial judge erred
    in finding that the appellant failed to disclose their true location and travel
    itinerary to Baird, despite Bairds repeated expressions of concern. The
    appellant argues that Baird was provided with a legitimate mailing address,
    which he failed to use, and that she was not required to provide a travel
    itinerary.  This argument misses the point. The appellant would not have been
    required to provide Baird with the childrens travel itinerary and whereabouts,
    had she ensured that he could contact the children and have his access to them on
    the court-ordered occasions. Because she did not do so, her failure to provide
    a travel itinerary exacerbated the situation. There is no basis to conclude
    that the trial judge misapprehended the evidence in this regard.

[28]

Finally, the appellant alleges that the trial judge applied a different
    level of scrutiny to the evidence of the appellant and of Baird and did not
    refer to the evidence of Mr. Neundorf on behalf of the appellant. As this court
    stated in
R. v. J.H.
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para.
    46-47, this argument is often an invitation for the Court of Appeal to reassess
    credibility findings, which is tantamount to a submission that the verdict is
    unreasonable.

[29]

The court explained that in order to succeed on this ground the
    appellant must point to something in the reasons of the trial judge or perhaps
    elsewhere in the record that make it clear that the trial judge had applied
    different standards in assessing the evidence of the appellant and the
    complainant.
J.H.
, at para. 59.

[30]

The trial judge fully reviewed the record and made clear findings of
    credibility based on her assessment of all of the evidence and of the
    witnesses. There is nothing in the reasons which suggests that the trial judge
    did anything other than consider the evidence fairly and make her findings
    based on her assessment. We would not give effect to this ground.



Sentence Appeal

[31]

The trial judge gave full reasons for the sentence she imposed of twelve
    months conditional to be served in the community, 110 hours of community
    service, followed by 12 months probation. She specifically declined to impose a
    conditional or absolute discharge. She declined to do so because of the
    aggravating factors including the alienation that was caused between the father
    and the boys. The trial judge also noted a significant number of mitigating
    factors including the fact that the appellant has no criminal record, the fact
    that the appellant returned voluntarily to Canada, the appellants strong
    family and community support, the fact that a relatively small amount of access
    was missed, the fact that the appellant is gainfully employed, and the fact that
    the appellant served five days in pre-trial custody. The trial judge also noted
    that specific deterrence had been met.

[32]

Although the trial judge gave full reasons on sentence, there were two
    matters that were submitted to her by the defence which she did not appear to
    consider in deciding to impose a conditional sentence rather than a conditional
    discharge. The first was that because the appellant is a professional who
    travels to speak, a criminal record would be a particular hardship to her as it
    would preclude her travelling to the United States. On appeal, the court was
    further advised that the appellant has a sister in the United States.

[33]

The second and much more significant issue was that as a result of her
    arrest and the change in the custody and access rights of the parties, the
    appellant did not see the children for over a year. This was a significant
    hardship on a mother and something that should have been factored in when
    considering the appropriate sentence in all the circumstances of this case.

[34]

On the appeal, the appellant asks this court to substitute a discharge
    in order to remove the appellants criminal record. The appellant has fully
    served the conditional sentence and performed all of her obligations as
    originally imposed. In those circumstances, we would allow the appeal against
    sentence, and substitute a discharge, which, at this stage will be an absolute
    discharge.

Result

[35]

In the result, the appeal against conviction is dismissed, leave to
    appeal the sentence is granted, the appeal against sentence is allowed and an
    absolute discharge is substituted.

RELEASED:

NOV 23 2011                                            M.J.
    Moldaver J.A.

KF J.A.                                                       Kathryn
    Feldman J.A.

Robert
    J. Sharpe J.A.


