An Access Order Is Not A Suggestion

A case comment on the Court of Appeal for Ontario decision in Godard v. Godard1

The Court of Appeal's recent decision in Godard has sent a firm message to parents: access orders are not simply a suggestion. A parent's failure to facilitate court-ordered access could give rise to a finding of contempt. Indeed, in Godard, the Court of Appeal upheld Justice Tremblay's finding that the mother was in contempt due to her failure to do all that she could to attempt to comply with the access order. Simply put, the access order required the mother to deliver the child to the paternal grandparents' home2 and the mother's failure to do so contributed to a finding of contempt.

In Godard, the mother had demonstrated a prior pattern of frustrating the father's access to the child, S., who was 12 years of age at the time of the father's contempt motion. In fact, in a prior court order, Justice Cornell noted that he had "serious concerns that the [mother] is engaged in a pattern of behaviour designed to alienate [S.] from her father". No doubt guided by that concern, Tremblay J. noted the following undisputed facts in his decision in the father's contempt motion:

The [father] 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 [the] motion; 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 [mother] 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 [father]; S. does not want to have access with the [father] for undetermined reasons and refuses to attend; and The [mother] was aware of [access order] and understood its terms.3 In the context of those facts, Tremblay J. found that the mother had "effectively abdicated her parental authority on the issue of access" by allowing the child to decide if access would take place. Justice Tremblay took great issue with this approach and went on to find the mother in contempt. The mother appealed.

There were three issues on appeal, one of which was Tremblay J.'s finding that the mother had deliberately and wilfully breached the access order. It was the mother's position that since Tremblay J. accepted that the child did not want to see her father and that the mother had made some efforts to facilitate the court-ordered access, Tremblay erred in...