Godard v. Godard, 2015 ONCA 568

• Judge: Hoy, A.C.J.O., Epstein and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 06, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 568;(2015), 337 O.A.C. 9 (CA)

Godard v. Godard (2015), 337 O.A.C. 9 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.004

Terri-Lynn Godard (appellant) v. Christopher Godard (respondent)

(C59999; 2015 ONCA 568)

Indexed As: Godard v. Godard

Ontario Court of Appeal

Hoy, A.C.J.O., Epstein and Huscroft, JJ.A.

August 4, 2015.

Summary:

A consent order granted a mother custody of the parties' daughter, with the father having specified access. The father applied for an order finding the mother in contempt of the order.

The Ontario Superior Court found the mother in contempt. The mother appealed.

The Ontario Court of Appeal dismissed the appeal.

Contempt - Topic 43

General - Elements of contempt - Wilfulness - A consent order granted a mother custody of the parties' daughter, with the father having specified access - The father obtained an order finding the mother in contempt of the order - The mother appealed, asserting that there was insufficient proof to satisfy the judge that she wilfully disobeyed the order - Specifically, she asserted that once the judge accepted that the daughter (aged 12) did not want to see the father and that she was making some efforts to encourage the daughter to see him, it was inconsistent to then find deliberate and wilful disobedience beyond a reasonable doubt - The Ontario Court of Appeal rejected the assertion - There was ample evidence to support the motion judge's conclusion that the mother essentially left the decision concerning compliance with the access order up to the daughter - It was possible that nothing short of physical force could have brought the daughter to the access visits - However, that did not excuse the mother given the judge's findings that she had not done all that she could to attempt to comply with the order - The judge found that despite being on notice that attempts at stronger forms of persuasion might be required, the mother did not go beyond mere encouragement - In those circumstances, the judge properly concluded that deliberate and wilful disobedience was established - See paragraphs 26 to 33.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - [See Contempt - Topic 43 ].

Contempt - Topic 2803

Bars - Existence of alternative remedy - A consent order granted a mother custody of the parties' daughter, with the father having specified access - The father obtained an order finding the mother in contempt of the order - The mother appealed, asserting that there were various adequate alternate remedies at the motion judge's disposal including a settlement conference, the involvement of the Ontario's Children's Lawyer and setting the action down for trial, and that the contempt finding was inappropriate as a result - The Ontario Court of Appeal rejected the assertion - The mother had a history of trying to limit or terminate the father's access - He had brought numerous motions asserting his access rights in the face of the mother's persistent non-compliance with access orders - Following a prior unsuccessful contempt motion brought by the father, and the presiding justice's expression of concern about the mother's behaviour, several settlement conferences were held - In light of that history, it was open to the motion judge to conclude that a finding of contempt was the only adequate remedy - See paragraphs 17 to 21.

Contempt - Topic 5088

Practice - Evidence and proof - Affidavit evidence - A consent order granted a mother custody of the parties' daughter, with the father having specified access - The father obtained an order finding the mother in contempt of the order - The mother appealed, asserting that the motion judge erred by rejecting the mother's uncontradicted evidence in the absence of cross-examination on her affidavit, thereby violating the rule in Browne v. Dunn (1893, HL) - The Ontario Court of Appeal rejected the assertion - Oral evidence was not a precondition to a finding of contempt - In any event, the motion proceeded on the written record at the parties' request - No findings of credibility were made or needed - The judge's key fact findings were consistent with the mother's affidavit evidence - The judge gave the mother the benefit of the doubt that she was trying to encourage the daughter to visit with her father - However, the judge found that the mother's affidavit supported the conclusions that she had left it to the daughter to decide whether she would attend for access with the father and that she had effectively abdicated her parental authority on the issue of access - Those findings formed the basis for the contempt finding and were open to the judge on the affidavit evidence - See paragraphs 22 to 25.

Evidence - Topic 4716

Witnesses - Cross-examination - On testimony to be contradicted - [See Contempt - Topic 5088 ].

Evidence - Topic 4726

Witnesses - Examination - Impeaching credibility - Duty to give witness opportunity to explain - [See Contempt - Topic 5088 ].

Family Law - Topic 2175

Custody and access - Enforcement of orders - Contempt proceedings - [See Contempt - Topic 43 , Contempt - Topic 2803 and Contempt - Topic 5088 ].

Cases Noticed:

Services aux enfants et adultes de Prescott-Russell v. N.G. et al. (2006), 214 O.A.C. 146; 82 O.R.(3d) 669, refd to. [para. 11].

Hefkey v. Hefkey, [2013] O.A.C. Uned. 29; 30 R.F.L.(7th) 65; 2013 ONCA 44, refd to. [para. 17].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 22].

Quaresma v. Bathurst, [2008] O.T.C. Uned. O80 (Sup. Ct.), refd to. [para. 28].

Campo v. Campo, 2015 ONSC 1349, refd to. [para. 28].

Stuyt v. Stuyt, [2009] O.T.C. Uned. E11; 2009 CanLII 43948 (Sup. Ct.), refd to. [para. 28].

Hatcher v. Hatcher, [2009] O.T.C. Uned. 742 (Sup. Ct.), refd to. [para. 28].

Counsel:

Guy A. Wainwright, for the appellant;

Paul Mongenais, for the respondent.

This appeal was heard on July 6, 2015, by Hoy, A.C.J.O., Epstein and Huscroft, JJ.A., of the Ontario Court of Appeal. The following decision of the court was released on August 4, 2015.