Deliberate Disobedience and Contempt of Access Order
Godard v Godard, 2015 ONCA 568
This case deals with a mother’s appeal of an order by a motion judge that found her in contempt of an access order. It highlights a parent’s responsibility to do all that they can to have their child comply with an access order – that they must go beyond mere encouragement in order to avoid a contempt finding.
The appellant mother and respondent father were married in 1999. They separated in 2005 and have two children, I. and S. Post-separation, numerous temporary custody and access orders have been made.
In 2006, the mother was awarded interim custody of both children, and the father was granted access every second week. In 2010, a temporary order was made authorizing that I.’s residence would now be with the father, whilst S. remained with the mother. Since then, the mother has brought several unsuccessful motions to limit and terminate the father’s access to S.
In June 2014, the father brought a contempt motion, alleging that the mother had continuously deprived him of his weekend access. The court dismissed that motion, citing that the de facto access arrangements were different from the existing order. The court however, noted serious concerns about the mother’s alienating behavior. The court proceeded to make an order for summer access on the basis of agreed dates; but this order was not followed and the father did not have access to S. over the summer or on alternating weekends after the summer ended. The mother justified this situation by claiming that S. refused to see her father.
In October 2014, the father brought a motion for an order for specified access and an updated exchange protocol. In November 2014, the court made an order (on consent) that access shall be continued every second weekend, with drop-offs and pick-ups by the mother at the paternal grandparents’ home. The mother failed to comply with this order as well, and so the father brought a second contempt motion.
Motion Judge's Decision
Although the mother argued that she had tried her best to facilitate the father’s access, the motion judge was convinced beyond a reasonable doubt that she was in contempt of the November 2014 order.
The motion judge noted that the father last had access to S. in January 2014. He further noted that S. (who had recently turned 13 years of age) did not want to have access with her father, refused to see him, and believed that she could decide whether or not she maintained a relationship with him.
The motion judge then used the following three-part test for contempt, pursuant to G. (N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 82 O.R. (3d) 669 (C.A.):
- the order that was breached must state clearly and unequivocally what should and should not be done;
- the party who disobeys the order must do so deliberately and willfully; and
- the evidence must show contempt beyond a reasonable doubt.
The motion judge found that the November 2014 order clearly and unequivocally set out the requirements and specificities of the access arrangement. Although the judge gave the mother the benefit of the doubt, he found that she had inappropriately left the decision of whether or not S. wanted to meet with her father up to the child. The judge held that the mother had deliberately renounced her parental authority on the access issue and was therefore convinced beyond a reasonable doubt that she was in contempt of the access order.
The motion judge further noted that there were several options available to the mother, short of physical force, and stated that if she had used these measures to encourage S. to comply with the access order (whether successfully or not), she would have likely not been found in contempt of the court order.
On appeal, the mother argued that there were various alternate remedies available to the motion judge, and that his finding of contempt was inappropriate and too extreme. The Court of Appeal rejected this argument; finding that the motion judge acknowledged the exceptional nature of contempt findings in family law, and was aware that such findings must be made sparingly and as a last resort. The Court of Appeal held that the mother’s history of trying to limit and terminate the father’s access to S. was enough to warrant a finding of contempt.
The mother further argued that there was insufficient proof to satisfy the motion judge beyond a reasonable doubt that she was willfully in contempt of the access order. She asserted that once the judge accepted that she had made an effort to encourage access, it was then inconsistent to find deliberate disobedience of the order. The Court of Appeal disagreed with this argument; holding that although a child’s wishes are an important factor, once a court has found access to be in that child’s best interests, a parent cannot leave the decision to comply with the order up to the child.
The Court of Appeal further stated that a parent has a positive obligation to ensure that a child who resists contact with their access parent complies with the access order. The court noted that although parents are not required to do the impossible in order to avoid a contempt finding, they must do all that they reasonably can.
In this case, the Court of Appeal held that the motion judge inferred willful disobedience of the access order from the mother’s failure to do all that she, as a normal parental authority, reasonably ought to have – that it was clear that she took no further steps, and did not go beyond mere encouragement.
The Court of Appeal held that there was sufficient evidence to support the motion judge’s finding that the mother essentially (and inappropriately) left the decision to comply with the access order up to the child. The court concluded that the motion judge was right in concluding that deliberate and willful disobedience had been established beyond a reasonable doubt, and consequently dismissed the mother’s appeal.