Court File and Parties

Ontario Court of Justice

Date: July 15, 2020

Court File No.: Woodstock D47/16

Between:

P.D. Applicant

— And —

M.C. Respondent

Reasons for Judgment on Motions

Per: COVID-19 Protocol

July 15, 2020

Counsel:

• R. Sandy Bruce — counsel for the applicant(s)
• David Winninger — counsel for the respondent(s)

PAULL J.:

[1]

As a result of COVID-19, separated families face additional and extraordinary pressures which impact their ability to resolve custody and access disputes.

[2]

Before the court are motions brought by each party with respect to their two children, I.D. (female) born […], 2011, and J.D. (male) born […], 2009. These motions have been brought on the basis of urgency during the suspension of regular Court operations due to COVID-19.

[3]

P.D., the children's father, seeks an order that the parties return to the status quo of joint and shared custody pursuant to their separation agreement. He feels that M.C., the children's mother, acted unilaterally and unreasonably in suspending that arrangement in early May 2020.

[4]

M.C. seeks an order for sole custody and proposes an alternate weekend access arrangement with an alcohol prohibition when P.D. has produced reports from professionals confirming that he has addressed his personal issues.

[5]

In addition to the submissions of counsel, I have reviewed the following affidavits. P.D.'s two affidavits dated June 4, 2020 and his reply affidavit of June 30, 2020, his partner R.P.'s affidavits dated June 4 and June 30, 2020, and M.C.'s affidavit dated June 22, 2020. I have also reviewed the parties' sworn 35.1 affidavits. There are page limits for urgent motions outlined in the Woodstock OCJ COVID-19 protocol. When this matter was spoken to me I expressed some flexibility on these limits in certain circumstances, however, I note that both parties' affidavits and attachments were significantly in excess of that limit.

The Law

[6]

These are both urgent motions brought pursuant to the OCJ COVID-19 Protocol and to Rule 14. Rule 14(14) states that there are no motions before case conference save and except as outlined in rule 14(4.2), and that is unless the court is of the opinion that there is a situation of urgency or hardship, or that a case conference is not required. Prior to the pandemic, urgency has been held to include abduction or threat of an abduction, harm or threat of harm, dire financial consequences, extreme situations justifying the court in acting immediately, and issues which are determined or deemed to be crucial, serious, vital or essential.

[7]

In Thomas v. Wohleber, 2020 ONSC 1965, the court found that the following factors are necessary in order to meet the requirement of urgency during the suspension of regular court operations as a result of COVID-19:

1. The concern must be immediate; that is one that cannot await resolution at a later date;

2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;

3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child's health, welfare, or dire financial circumstances) rather than theoretical;

4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[8]

If urgency is established, the court must decide what custodial and residential order is in the child's best interests. The test for determining access is also what order is in the best interests of the children. Section 24 of the Children's Law Reform Act requires that any determination with respect to custody and access be made on the basis of the best interests of the children and section 24(2) outlines a number of specific best interests factors.

[9]

Children should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27.

[10]

The best interests of the children have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. General Division).

[11]

There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[12]

In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.

[13]

In Southorn v. Ree, 2019 ONSC 1298, J.P.L. McDermot, J. stated the following at paras 12 and 13:

Normally, the status quo which arises between the parties after separation largely determines the time-sharing relationship between the parties pending trial. The case law confirms that the court is hesitant to change a long term status quo unless compelling circumstances dictate otherwise see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda 2013 ONSC 7869, Green v. Cairns and Papp v. Papp, [1970] 1 O.R. 331 (C.A.). In Grant v. Turgeon, MacKinnon J. notes the required circumstances for an interim variation of custody as being "exceptional circumstances where immediate action is mandated."

There are good reasons for this. It is presumed that where parties have agreed to a time sharing arrangement, that arrangement best reflects their initial assessment as to the best interests of the children. Moreover, to change custody on an interim motion runs the risk of the child going through two changes of custody: one after the interim motion and another at trial. That would create more, not less instability in the child's life. Moreover, evidence at a trial has the benefit of being tested through cross examination whereas evidence at a motion is by affidavit where conflicting versions of the truth cannot be determined with any certainty and the court is unable to make credibility findings.

[14]

A separation agreement does not have the effect of an order and no material change is required. The court has no authority to vary a separation agreement about custody but can under the Family Law Act disregard any provision in an agreement and make an order if it is in the best interests of the children.

[15]

The court must consider first and foremost the best interests of children, while being mindful of the importance of parents' autonomy in making their own arrangements to resolve their parenting issues. Blois v. Gleason.

Background and Evidence

[16]

P.D. alleges that the parties began cohabiting in 1998 while M.C. alleges that it was in 2004. They agree that they separated on July 1, 2014.

[17]

They also agree that the status quo prior to May 2020 was joint custody and a shared residential arrangement pursuant to a separation agreement dated November 25, 2017. Some form of shared residency had been in place since then up to May 2020. The parties are not subject to any court orders regarding custody and access.

[18]

During P.D.'s week with the children from April 27, 2020 to May 4, 2020 he contacted M.C. requesting that she take the children. The parties disagree on what precisely was said or the intent of that request, however P.D. acknowledges being under considerable stress at the time and requesting that M.C. take the children before the end of his week. She did this and was not prepared to resume the shared arrangement when P.D. later requested that it recommence. He has only had video/phone contact with the children since.

[19]

M.C. deposes that her position is based on a number of concerns with P.D. including that he has a serious alcohol addiction, that his relationship with his partner R.P. has been unstable and conflictual and resulted in a separation with P.D. residing in a motel when he had the children. She also feels that P.D. has not been forthcoming with consenting to counselling for the children and that his instability has put unnecessary stress on them.

[20]

M.C. resides with her partner, S.L. in London. She deposes that she is a registered massage therapist and able to meet the needs of the children. She seeks a graduated approach to the reinstatement of access to P.D. and that in the meantime sole custody and primary residence with her would be in the children's best interests.

[21]

P.D. is self-employed and owns a coffee roasting business and lives with his partner R.P. in Woodstock. He and R.P. were married in October 2018. She has two children from a prior relationship who reside primarily with her and are close in age to I.D. and J.D.

[22]

I.D. and J.D. attend a French school in London and P.D. drove them to school there when they were in his care.

[23]

P.D. acknowledges that in mid-2019 he stopped drinking "cold turkey" and experienced some withdrawal symptoms for a short period. He acknowledged that he and R.P. temporarily separated for approximately three months in late 2019. Prior to acquiring a monthly rental in Port Stanley, he spent his time with the children in a motel. During this time, he deposed that he ensured the children's attendance at school remained consistent. It does appear that during this period I.D.'s teacher noted some behavioural issues with her and requested a meeting with the parents in late 2019.

[24]

P.D. and R.P. reunited in January 2020 and have remained together since. They had plans to take all the children to Disney in March 2020 which M.C. agreed to, however, the trip was cancelled because of the pandemic.

[25]

With respect to April 29, 2020, P.D. acknowledges being under considerable stress trying to run his business during the pandemic and that he also had not slept well the night before. He called M.C. and she picked up the children at his request.

[26]

P.D. deposes that his intent in seeking M.C.'s assistance was a temporary one based on situational stressors and not meant to change the long-standing shared arrangement they had in place.

[27]

M.C. also raised a historic concern that P.D. had assaulted R.P. in late 2019 around the time of their separation. M.C. provided texts between her and R.P. in which R.P. states that P.D. was angry and, "got physical with me, twice in less than a week. Nothing to the kids." P.D. and R.P. both deny that there was assaultive behaviour, however R.P. did not provide any explanation for the content of her text to M.C.

[28]

Neither party has a criminal record or history with the CAS. The parties appear to have recently contacted CAS and the police, however, there is no evidence of police or CAS intervention or action.

[29]

P.D. and R.P. acknowledge that in late 2019 there were stressors in their home in terms of managing their blended family. During their separation they began attending counselling together. A report dated May 15, 2020 was provided by Laura Glenny, a registered psychotherapist, who has provided counselling support for them. The report outlines that Ms. Glenny commenced working with the couple in November 2019 and has continued to do so on a weekly basis since then. She reported that P.D. and R.P. have progressed and continue to work on improving their relationship.

[30]

P.D. also acknowledged that since January 2020 he has been working with his family physician, Dr. Malu, on reducing his alcohol consumption. P.D. provided a short written report from Dr. Malu dated June 29, 2020 wherein Dr. Malu confirms that since January 2020 he has prescribed Naltrexone to P.D. to help reduce his alcohol intake.

[31]

Dr. Malu observed that P.D., "has shown a willingness to engage with medical services to help deal with his emotional struggles as well as his alcohol use. He is currently enrolled with Addiction Services in Woodstock and continues to have regular 3-6 weekly virtual or face-to-face visits with myself for ongoing support."

[32]

Dr. Malu reported having no concerns with any interactions he has observed between P.D. and the children and concluded by stating that, "there is no doubt that excessive alcohol intake can have an effect on his ability to care for young children and I am happy that he has sought help with this."

[33]

In addition, P.D. deposes that he and R.P. worked with Blended Family Support and completed its seven-step course last year although no independent confirmation was provided. P.D. indicates he continues to work with that program's facilitator regarding blended family and work-related issues.

Analysis

[34]

Both parties have filed affidavits outlining many current and historic allegations against the other. Without the benefit of viva voce evidence and cross-examination the Court is not in a position to assess the veracity of all these allegations. The evidence has not been tested and the Court recognizes that on urgent motions decisions need to be made on the evidence available at the time.

[35]

Findings the court is able to make are based on the acknowledged or uncontested evidence and on areas where there is independent evidence directly from service providers.

[36]

For the reasons that follow urgency has been established, and the best interests of the children support a graduated return to the previous shared custody arrangement with additional terms. In making these determinations, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.

[37]

There is no dispute that until May 2020 the status quo was a shared arrangement originally agreed to in a separation agreement dated November 25, 2017. In spite of both parties stated historic concerns with the other they agreed to this arrangement and maintained it for significant period of time. It is presumed that they agreed to this because it reflected their assessment at the time of the children's best interests and neither party has sought relief from the court until now.

[38]

There was however some cause for concern with respect to P.D. starting in 2019. Alcohol is an issue for him. He acknowledged experiencing withdrawal symptoms in the summer of 2019 when he tried to quit "cold turkey" which illustrates a level of concern.

[39]

P.D.'s relationship with R.P. has also been conflictual at times and in late 2019 resulted in a three-month separation. R.P. texted M.C. at the time referring to P.D.'s anger. She denied an assault but chose not to explain what she meant when she stated that P.D. "got physical" with her on two occasions. In the absence of any explanation, the plain meaning is suggestive that P.D.'s anger was expressed by physical outbursts on two occasions around the time they separated in October 2019. Even if not assaultive behaviour, it is still a cause for concern.

[40]

During his separation with R.P. it was also not ideal that the children resided with P.D. in a motel, although this appears to have been for a relatively short time. I.D.'s behavioural issues at school which resulted in her teacher requesting a meeting with the parents in November 2019 may be related to the conflict and separation of P.D. and R.P., and the resultant upheaval to the children's living circumstances while with their father.

[41]

However, it is also clear that P.D. and R.P. responded proactively and appropriately in addressing the issues in their home. The evidence from Ms. Glenny in her report suggests that P.D. and R.P. acknowledge the challenges in their home, and immediately and actively sought to address them. That they have continued accessing this support and that Ms. Glenny has observed progress are both positive factors.

[42]

P.D. also recognizes that alcohol is an issue for him and has sought the assistance of his family physician. Dr. Malu confirmed in his report that P.D. continues to actively work with him to reduce his alcohol intake. I also note that while alcohol is a concern for him there was little evidence of specific examples of it impacting his ability to safely parent.

[43]

The reports directly from Dr. Glenny and Dr. Malu support a finding that P.D. recognizes that there are issues and that he has made genuine efforts to address them.

[44]

Unfortunately, it seems that P.D. did not make M.C. fully aware of the supports he engaged to address his personal issues so that when he called her on April 29, 2020 and requested she pick up the children early because he was overwhelmed she would reasonably have viewed this as a culmination of the concerns.

[45]

It is on this basis that I do not see her actions after April 29, 2020 as self-help. Given the circumstances she was aware of leading up to that time, and the fact that P.D. was not forthcoming about his efforts to address his issues, her concern with returning to the shared arrangement was not entirely unreasonable. As I will explain further below, however, both parties should have done more to resolve this matter prior to commencing litigation.

[46]

The parties both submit that there is urgency in this matter but disagree on the basis for it. Urgency is established in my view when M.C. began withholding the children starting in May 2020, although as indicated at the time her understanding was based on a cumulative series of concerns and P.D. was not communicative about his efforts to address them.

[47]

These concerns with P.D. also support urgency and the need for court ordered terms to mitigate them. Further, urgency is established in that without the court imposing an interim order the parties will likely remain unable to agree on a framework to get themselves and the children through this crisis so that a return to some semblance of normalcy can be achieved in a timely and child focused manner.

[48]

On the basis of the finding of urgency the Court is required to determine what custody, access and residential arrangement will best serve the children's interests at this time. In making these determinations, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.

[49]

For the following additional reasons, the best interests of the children support a graduated return to the shared residency arrangements with additional terms to mitigate the concerns.

[50]

It is a long standing legal principle that absent compelling evidence that an immediate change is required, the status quo is ordinarily to be maintained until trial. In other words, in making an interim custody order, a court should generally maintain the status quo in the absence of important or compelling reasons suggesting that change is necessary in the child's best interests.

[51]

Through the lens of the child's best interest the court must determine what temporary living arrangements are the least disruptive, most supportive and most protective for the child. If appropriate, the status quo of the child, that is—the living arrangements with which the child is most familiar, should be maintained as closely as possible.

[52]

As noted there were a number of issues in P.D.'s home which supported a level of concern for M.C. and which culminated in the suspension of the shared arrangement. However, it was reasonable that P.D. would reach out to M.C. if he required assistance with the children. I also accept that P.D. has and continues to take proactive steps to address his personal issues and alcohol use. I find the independent evidence of Ms. Glenny and Dr. Malu persuasive in this regard.

[53]

In the circumstances it is appropriate that P.D. continue to work with Dr. Malu and Addiction Services in Woodstock to assist him in continuing to reduce his alcohol intake. In the circumstances this approach is more appropriate than an absolute alcohol prohibition. This plan is in place, has the support of Dr. Malu, and appears to be effective as there are no current or specific examples provided of P.D.'s alcohol consumption impacting his ability to provide appropriate care for the children. It is appropriate that P.D. be subject to an additional term to not consume alcohol excessively while in a caregiving role or in the presence of the children.

[54]

I also see R.P. as a strong support for P.D. and the children. It is clear she has a positive relationship with the children, and they appear to have a positive relationship with her and her children. P.D. and R.P. remain committed to working on the relationship and the blended family issues. Their counsellor noted no concerns and confirmed progress was being made.

[55]

I also note that in spite of the issues R.P. and M.C. have maintained, to both of their credit, amicable and appropriate communications between them. Since the suspension of the shared arrangement M.C. and R.P. have also gotten together with all the children on one occasion for a visit.

[56]

I do not have the benefit of independent views and preferences of the children, however, I accept that both parties share love, affection, and an emotional attachment with them. Neither parent has alleged that the children do not have a good relationship with both their parents or would not benefit from time with each of them.

[57]

There have been historic concerns in P.D.'s home which need to be monitored. However, when the evidence as a whole is considered, particularly P.D.'s ongoing engagement with appropriate supports and the lack of any other specific evidence of immediate concerns, it does not represent the compelling grounds that would be necessary to dictate a departure from the long-standing status quo. The least disruptive plan that will support the children's best interests is to transition back to the status quo of shared residency with certain conditions.

[58]

Access shall commence immediately with the children being with P.D. for three days in alternate weeks for four weeks, after which time the shared arrangement shall resume. It is also appropriate for P.D.'s partner to be present for the first two visits to ensure they are successful, although this is not intended to be a term of supervision.

[59]

P.D. shall be required to continue to work with Addiction Services of Woodstock and Dr. Malu with respect to the cessation of his alcohol consumption. P.D. shall also continue to attend counselling until such time as the counsellor is not recommending further sessions.

[60]

P.D. shall be required to provide independent written confirmation from service providers to confirm the counselling and his work with Dr. Malu when requested by M.C. with such requests being no more frequent than every four months.

[61]

In the circumstances as I have found them there shall be no makeup access. That would be inconsistent with the transitional order made, and as counsel for P.D. pointed out ordering makeup access is problematic in the circumstances of a shared residential arrangement in any event.

[62]

In terms of the custodial designation it is appropriate there be joint custody on an interim basis. This is consistent with the long-standing status quo reflected in the parties' separation agreement. In spite of both parties concerns they agreed and maintained this arrangement since at least November 2017. Neither party disputes that the other is not a loving parent and there were examples of appropriate communication between the parties at times in the text messages that were provided. It is clear the parties have different parenting styles and priorities and have disagreed on issues with respect to the children. However, when the entirety of the communications are reviewed they were able at times to cooperate, which included adjusting the schedule for the shared residency.

[63]

These motions should not have been necessary, particularly if both parties had approached this matter in a more child focused manner. P.D. should have been more forthright about his issues and how he was addressing them. He should have obtained and provided M.C. with the reports from his counsellor and doctor sooner. Further, once M.C. received independent confirmation that P.D. was addressing the issues she ought to have recognized that appropriate supports were in place and worked with P.D. on a transition plan.

[64]

Further, both parties should have agreed to interim without prejudice arrangements for some face-to-face contact pending resolution of the motions. Access is the right of the children and separated parents are expected to cooperate to facilitate reasonable contact. In this case there was ample opportunity for the parties to make some temporary arrangements with appropriate conditions. No face-to-face contact was unreasonable, as would have been simply returning to the shared arrangement without independent confirmation of supports and some additional conditions in place including a short period of transition to ensure that it is successful.

[65]

The Court expects parents to make good faith efforts to resolve issues before litigation is commenced, particularly during this time when regular court operations are suspended due to the pandemic. This includes sharing important information that might assuage the other parent's legitimate concerns. Parents need to discuss the concerns, propose additional terms that might mitigate the concerns while maintaining meaningful timesharing, propose specific solutions to specific problems, and seek the least intrusive variation that will address the concerns.

[66]

I repeat and adopt the following comments of Justice Pazaratz in Ribeiro v. Wright, 2020 ONSC 1829, which is another matter that proceeded during the pandemic:

22. Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources in a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.

23. Judges won't need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there's a problem. What we're looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

24. I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

[67]

With these points in mind the parties with the assistance of counsel are encouraged to do whatever is necessary to improve their communication and cooperation to ensure that any issues are being addressed. This approach will ensure that the children's best interests are served and the disruption to their lives minimized in these unprecedented times. Parents must be ever mindful of the importance of the love, guidance, and emotional support that children need and receive from both their parents.

[68]

The parties have no doubt gone to great effort and expense to prepare the lengthy evidence they have to support their claims. These resources could have been put to better use in these uncertain times. Both parties, with the assistance of counsel, should carefully consider this issue before this matter returns to court.

[69]

On the basis of all these considerations an interim order shall issue as follows:

Order

1. Joint custody of the children.

2. Commencing August 10, 2020, the week-about shared residential arrangement the parties had in place shall resume.

3. Prior to the resumption of the alternate week residential schedule on August 10, 2020, P.D. shall have the children in his care for three days per week during alternate weeks with the dates and times as agreed between the parties.

4. For the first two visits P.D.'s partner, R.P. shall be generally present to ensure a smooth transition. This is not intended to be a term of supervision.

5. P.D. shall continue to work with Addiction Services of Woodstock and Dr. Malu with respect to the cessation of his alcohol consumption. P.D. shall not consume alcohol excessively while in a caregiving role or in the presence of the children.

6. P.D. shall continue to attend counselling with Laura Glenny until such time as the counsellor is not recommending further sessions.

7. P.D. shall be required to provide independent written confirmation from the service providers of his counselling and his work with Dr. Malu when requested by M.C. with such requests being no more frequent than every four months.

In the circumstances of the COVID-19 emergency, these Reasons for Judgment are deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed order. The parties may submit formal orders for signing and entry before normal Court operations resume, however, these Reasons are an effective and binding Order from the time of release.

The parties are strongly encouraged to agree on the issue of costs, if any, in this matter. However, if the parties are unable to agree the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments by July 27, 2020, with the responding party filing written submissions, not to exceed three pages, excluding attachments by August 10, 2020. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.

Released: July 15, 2020

Signed: "Justice S. E. J. Paull"