Court File and Parties

COURT FILE NO.: not yet issued DATE: 20200407 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lynne McArdle, Applicant AND: Brian Budden, Respondent

BEFORE: Kiteley J.

COUNSEL: Ilana Zylberman Dembo and Stephanie Romano, for the Applicant Heather Hansen and Shannon Beddoe, for the Respondent

HEARD: April 6, 2020

Endorsement on Motion and Cross-Motion

[1] On April 2, 2020, Hood J. reviewed the materials that had been filed on behalf of the Applicant in support of her urgent motion and the affidavit filed on behalf of the Respondent in anticipation of his urgent motion. As Triage Judge, he referred the matter to me to be considered this morning. For the reasons that follow, the substantive elements of the motion and cross-motion are dismissed.

[2] The parties married in 2003 and have children aged 15 and 13. The parents separated in 2019 although they disagree whether it was in January or in August. The Respondent purchased a home and the deal closed in November 2019. Prior to his departure from the matrimonial home in December the parents participated in mediation with Christine Kim and agreed to the terms of a Memorandum of Understanding with a draft Parenting Plan attached.

[3] The Respondent sent monthly calendars for several months. January was uneventful. In February and early March there were disagreements about two events that the Respondent had allocated to him and with which the Applicant disagreed.

[4] The COVID-19 conflict began in mid-March, described in more detail below.

[5] As the Triage Endorsement noted, by Thursday April 2, in support of her urgent motion, the Applicant had served an affidavit sworn April 1, 2020 of 133 pages and, in response to her urgent motion and his urgent cross-motion, the Respondent had served an affidavit of 127 pages. In each case, many of the exhibits contained the proliferation of emails that demonstrated the conflict between the parents in February and in March and on the issue of COVID-19. On the morning of Monday April 6, the Applicant filed an affidavit sworn April 4 in response to some of the evidence of the Respondent. Her counsel pointed out that since the Respondent’s notice of motion was served, the Applicant had not had time to fully respond to the substantive aspect of his motion with respect to instituting a 5-2-2 parenting schedule.

[6] In passing, I observe that the materials filed do not comply with the Chief Justice’s Notice to the Profession that only “brief materials” should be filed.

[7] At the outset of the hearing, I indicated that, given that the parties had created a voluminous record, that the Applicant was withholding parenting time, and that there was no suggestion that a case conference would have any impact on the urgent issue, I would hear submissions by audio conference which was recorded. Counsel efficiently followed my direction with respect to their submissions and I reserved decision.

[8] I have read all of the evidence. I am aware of areas where there is conflict. Because of the urgency of the matter, I intend to deal only with the evidence that I consider relevant to this decision.

Development of Jurisprudence

[9] There is a considerable volume of decisions released by the Superior Court on the issue of what constitutes urgency in the context of the suspension of regular court operations. Counsel each referred to several of them. Both counsel made reference to the decision in Ribiero v Wright 2020 ONSC 1829, in which Pazaratz J. gave reasons for finding that the motion by the mother for an order suspending parenting time indefinitely was not urgent. Those aspects of his decision relevant to this case are as as follows:

7. On the one hand, in this case there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.
8. On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.
9. Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children. . . .
10. In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing. . . .
11. And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk. . . .
12. Each family will have its own unique issues and complications. There will be no easy answers.
13. But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely. . . Emphasis in original
14. If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.
15. We will deal with COVID-19 parenting issues on a case-by-case basis. a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols. b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc. c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
16. Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.
17. While the mother’s concerns about COVID-19 are well-founded, I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future. Emphasis added

Notice of Motion by the Applicant

[10] On Wednesday April 1, 2020, after an exchange of emails and mutual threats of bringing a motion to court, the Applicant refused to make the children available that evening although it had been agreed to as part of his parenting time. I am satisfied that the Applicant’s unilateral withdrawal of the time that the children were to enjoy with their father meant that that aspect had to be addressed on an urgent basis.

[11] In her submissions, counsel for the Applicant indicated that she wanted to amend several aspects of the draft order. She recited them during the hearing and afterward, sent first to counsel for the Respondent and then to me a revised draft order.

[12] To the extent that the relief sought in the Notice of Motion was altered by the amended draft order, I refer to the latter which includes procedural orders and the following substantive orders:

2. The parties shall comply with the personal protective measures and community-based measures to mitigate the spread of COVID-19, as published by the Government of Canada at https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/guidance-documents.html, and in particular, the parties shall comply with the following particular COVID-19-based protective measures: (a) To avoid being within 2 metres of anyone, outside the immediate family (with the exception of contact with grandparents if they require assistance or for work purposes if essential and cannot be addressed remotely); (b) To refrain from inviting third parties into the home, outside the immediate family (with the exception of grandparents if they require assistance or for work purposes if essential; and cannot be addressed remotely); (c) To refrain from attending any playgrounds; (d) To avoid leaving the home, except for the following reasons: accessing healthcare or medication, shop for groceries once per week, walk the dog, care for a grandparent or daily exercise; (e) If unable to avoid leaving the home, to refrain from having the children accompany the party for the outing, if possible.
3. The terms in paragraph 2 shall be reviewed on June 1/20 to consider whether any adjustments are necessary. The parties shall continue to abide by paragraph 2 until either further written agreement or court order.

[13] In her affidavit sworn April 1, 2020, the Applicant explained that she reluctantly did not allow the Respondent to have the children on the evening of Wednesday April 1 and she brought this motion because of the Respondent’s “explicit refusal to abide by physical distancing measures during the periods when he does not have the children. The Applicant argues that his refusal in this regard unnecessarily risks exposing our children to COVID-19.”

[14] The Applicant has failed to persuade me on a balance of probabilities that paragraphs 2 and 3 of her draft order are required to protect the best interests of the children for these reasons.

[15] First, the parents have a parenting arrangement arising from the MOU dated November 26, 2019 that reflects the “mediator’s understanding of the parents discussions and agreements”. It is stated as non-binding and was provided so that the parents could each get legal advice. The draft Parenting Plan is attached as Schedule A and contains a detailed inventory of the parenting schedule, which is described as “primary residence” when the children are with either the mother or the father, and contains decision making. The parenting schedule reflects 8 days with mother and 6 days with father at that time. In their evidence they disagree whether the ultimate schedule would be 50/50. But they do agree that they will co-parent their children. The draft Parenting Plan indicates that “we are committed to this Parenting Plan and shall share in the parenting of our children”. Custody is defined as involving two major aspects: decision making and parenting time. In the section under Decision-Making the following appears:

IV. Major Decision making Parents agree to JOINT custody.

[16] The emphasis is in the original text.

[17] Immediately after the MOU and the draft Parenting Plan Respondent proposed schedules and there was dialogue between the parents. There is no question that on the evening of April 1, the children were to be with the Respondent.

[18] While the Applicant insists that she has been the primary caregiver and that that should justify more than 50% of parenting time with two teen-agers, she nonetheless agrees that the Respondent is an excellent father and has been an involved parent.

[19] While the MOU is a product of the mediator’s understanding and the Parenting Plan is not finalized and signed, there clearly was an arrangement. As indicated by Pazaratz J., there is a presumption that existing arrangements must be respected.

[20] Second, I am not persuaded that the Applicant has rebutted that presumption. The evidence on which the Applicant relies relates to two issues: (1) the Respondent’s initial resistance to self-isolation when he returned from his trip and what he did during the period of self-isolation; and (2) his position that he would adhere to public health guidelines while the children are with him but he refused to stipulate that he would abide by physical distancing measures during the periods when he does not have the children.

[21] The W.H.O. made a declaration on March 11 that COVID19 was a pandemic. The Respondent was in California and British Columbia and he returned on March 12. Upon his return the Applicant insisted that the Respondent self-isolate for 14 days before seeing the children. Because self-isolation was not at that point mandated, the Respondent did not agree. The parties and their counsel exchanged considerable correspondence. In the end result, the Respondent agreed. His period of isolation ended March 26. The Applicant relies on his initial refusal to self-isolate and the fact that he told her that during his self-isolation, “he went to [a] grocery store, continued to run errands, and walked the dog around the neighbourhood” to assert that the Respondent disregards proper precautions and puts his children at risk.

[22] I disagree. The preventative measures advocated by authorities and the differences between “self-isolation” and “physical distancing” continue to evolve. The Respondent’s initial resistance and then acquiescence combined with his failure to comply with rigorous self-isolation, given that evolution and his evidence as to his commitment to compliance does not raise the kind of concerns that require an interruption in the children continuing to see their father. If he were to now depart from the current self-isolation rigorous protocol, that could demonstrate recklessness. But not at the time and in the circumstances in this case.

[23] The second subject on which the Applicant relies is her assertion that he refused to agree in writing directly or through his lawyer to abide by physical distancing measures during the periods when he does not have the children. Much time and energy was spent by the parents and their lawyers on this issue. I will not review the details contained in the many emails.

[24] In his affidavit sworn April 2, the Respondent said the following:

9. While I have reassured Lynne directly and through counsel that I am, and have always been, acting in the best interest of the children in relation to Covid-19, i.e. following public health and government orders (as they exist and as they develop), taking diligent steps to avoid unnecessary contact with third parties, and in those instances when I have contact with others maintaining a safe distance (e.g. occasional grocery shopping), Lynne still refuses to produce the children unless I agree to adopt and abide by all her exact rules. Effectively, Lynne wishes to police my conduct and be the judge who decides, before every access transition, whether or not I am entitled to have the children in my care.
10. After withholding the children, Lynne has now brought an urgent motion to try to impose her rules by way of Court Order. She has left me with no choice but to bring this cross-motion on an urgent basis.
11. Again, and as discussed further below, Lynne’s requested rules are not only an unwarranted invasion but also disproportionate and impractical in any case. We are a low-risk family with no underlying relevant health issues and we are both sophisticated, educated, law-abiding citizens. It is of course perfectly appropriate for us to confirm to one another that we will take all the government-required precautions and follow official protocols (e.g. with respect to regular cleaning and handwashing, etc), but there is no need for there to be a further layering on of rules dictated by Lynne (which include, for example, that my shopping must be done online and that I have no contact with anyone outside the family even if I reasonably determine the contact required/appropriate and a safe distance is maintained).

[25] Based on all of the evidence, the Applicant has not rebutted the presumption that the existing parenting arrangement should be respected. Having reviewed the considerable exchanges between the parties and their counsel, I draw these conclusions. The Respondent never refused to follow published guidelines. Based on his distinction between while the children were in his care and while they weren’t, the Applicant decided that he would be non-compliant when the children were not with him and thereby expose the children to risk when they were with him. Even if the Applicant was justified in her concern, the evidence does not disclose any basis for concluding that he would act in a way that would create risk to the children.

[26] The third reason for dismissing the Applicant’s motion is that, if the order as set out in paragraphs 2 and 3 is granted, it will inevitably attract more conflict. In addition to incorporating the Government of Canada protocol, the Applicant has “personalized the ground rules for our family and so that we (being Brian and I) understood what we expect from each other, in order to protect the health and safety of our children.” The fact that the draft order of the Applicant changed between Thursday April 2 and Saturday April 4 demonstrates how the “protective measures” are evolving. In her amended draft order, the website referred to “guidance documents” while her with prejudice offer to settle dated. . . referred to “prevention/risks” which suggests reference to a different aspect of the same document. After the affidavit sworn April 2 and the first draft order, the City of Toronto issued its own by-law that affects conduct in public places. In other words, the government protocols are not static but likely reflect how science is evolving. The parties now agree to three specific sources. The Applicant proposes five additional conditions such as refraining from attending any playgrounds which is now covered by the City of Toronto by-law. And at least two of those conditions require an assessment of whether the work “cannot be addressed remotely”. Who will make that decision? What if the Applicant and Respondent disagree as to whether it can be addressed remotely? Maintaining that status quo until June 1, 2020 is unreasonable given the changes that could not be contemplated between now and then.

[27] For those reasons, I find that the parenting arrangement in place did not permit the Applicant to unilaterally withdraw the children from seeing their father and the motion for an order in accordance with paragraphs 2 and 3 is dismissed.

Notice of Motion by the Respondent

[28] The Respondent’s draft order is consistent with his notice of motion. Other than procedural issues that are not controversial, the substantive relief he sought was as follows:

2. The children. . . shall be immediately transitioned to the Respondent’s care.
3. An equal, 5-2-2 parenting schedule in respect of the children, shall proceed on an interim interim basis, to be implemented immediately on the transition contemplated in (2).

[29] In her submissions, counsel for the Applicant took the position that the Respondent’s motion was not urgent within the meaning of the Notice to the Profession, the Public and the Media initially issued Sunday March 15 and amended on April 3, 2020. She pointed out that, while her client had responded to some of the evidence in the Respondent’s April 2 affidavit, she had not had time to respond fully to his position that the parenting schedule should immediately be changed to 50/50.

[30] Counsel for the Respondent pointed out the challenges that, as a result of the unilateral conducted of the Applicant, her client had experienced in February, early March and last week and she took the position that, absent the court imposing an interim interim order or a time-limited order, that the Respondent would be at the mercy of the Applicant as to when he saw the children. For that reason, his motion was urgent.

[31] I do not agree that the motion by the Respondent to immediately institute an equal sharing of parenting time on the 5-2-2 model is urgent. The parents must participate in a case conference before such a motion may be brought. Hopefully before the case conference is held, the parents will return to mediation to build on the progress that they made in November, 2019.

Parenting Schedule in the Immediate Future

[32] The Applicant’s motion to impose the terms of paragraphs 2 and 3 of her order and the Respondent’s motion to impose the terms of paragraphs 2 and 3 of his order have been dismissed. The conflicts over the Respondent’s adherence to the Applicant’s protocol and over the institution of a 5-2-2 have been resolved, neither in the way the parent advocating the change sought. It is now the responsibility of the parents to agree to a schedule pending mediation and a case conference.

[33] After the affidavits were served, on Thursday and Friday, the parties, through lawyers, exchanged with prejudice offers to settle. Both offers reflect compliance with recommendations and requirements in three government websites to which reference is made below. Both offers include additional terms but they are not consistent. Having not accepted the terms sought by the Applicant and having accepted the references in three government websites, I need not make any ancillary rules. I leave it to the parents to select from their respective lists those on which they do agree and confirm those in writing. Those on which they do not agree should not be the subject of discussion.

[34] As for the details of the parenting plan, I remind them that they have an important MOU and equally important draft parenting plan. They acknowledge that they will co-parent their children. In the immediate future, they need to agree on a plan either directly or with the mediator. The evidence indicates that the Applicant intended the Respondent would have make up time for the 14 days of self-isolation when he did not see the children. The only order I make below is on that issue so that it has immediate effect.

[35] The children are not in school for the month of April and a decision will be made later in the month about May and June. For as long as they are not in school, they should have opportunities to be with each of their parents. This is a dynamic opportunity for the parents to agree on a home-education plan to which each parent can bring his/her individual talents. While typically children remain together, based on the needs and interests of these children, particularly given the prolonged absence from school, perhaps the parents should consider that each parent have one child for certain periods of time. The Respondent is CEO of a company and has been working from home and expects to continue to do so. On my review of their proposed summer parenting plans there is almost consensus as to equal parenting time although the beginning and end might differ. I am optimistic they can agree on April to the end of August.

[36] The parents have an opportunity to resume negotiations with Christine Kim. Failing reaching success, they can ask for a case conference because, as a result of the modification by the Chief Justice on April 2, 2020, the Superior Court will be expanding events available remotely to include case conferences.

Costs

[37] Each party asked for costs and included a term to that effect in the proposed draft orders. Given the haste with which the documents were prepared, served and filed, neither included submissions on costs in their material.

[38] Neither was “successful” in achieving the main objective. It is the case that the Applicant has been found to have wrongly refused parenting time. In the novel stressful and anxious environment, I do not consider that the circumstances warrant an order that she pay costs of her unsuccessful motion or that he should be ordered to pay costs of his unsuccessful motion.

Order to Go as Follows:

[39] The motion by the Applicant is “urgent” within the meaning of the Notice to the Profession, the Public and the Media dated March 15, 2020.

[40] The Applicant is granted leave to bring this motion prior to attending the Management Information Program and prior to attending a case conference.

[41] The relief sought in paragraphs 2 and 3 of the Applicant’s notice of motion, as amended in her draft order dated April 4, 2020 is dismissed.

[42] On consent, at all times, both parties will follow government orders and requirements as set out and as updated here: https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html https://www.ontario.ca/page/2019-novel-coronavirus#section-7 https://www.toronto.ca/home/covid-19/

[43] The Respondent shall immediately advise the Applicant as to the period of time he proposes for make-up for the period he should otherwise have been with the children during his 14 days of self-isolation. Unless within 4 hours from his communication to the Applicant the parents agree otherwise, his proposal will take effect.

[44] The motion by the Respondent is not “urgent” and is dismissed. Leave is not granted to bring it prior to attending a case conference.

[45] If by April 27, 2020 the parties have not agreed to a parenting plan for the period to and including August 30, 2020, counsel shall contact the Trial Co-ordinator to arrange a case conference before me if available.

[46] The Applicant shall issue and serve the Application, Financial Statement and Form 35.1 affidavit within 30 days of the date of this endorsement.

[47] The Respondent shall serve an Answer (or Answer and Claim), Financial Statement and Form 35.1 affidavit within 50 days of the date of this endorsement.

[48] Each party shall attend the Management Information Program as soon as notice is given by the court.

[49] Service by one party on the other of the materials to date by email is validated. Service by email is permitted so long as the suspension of regular court operations continues.

[50] Counsel having commissioned the affidavits by observing the deponent on videoconference is validated.

[51] This order takes effect without a formal order being signed and entered.

Kiteley J. Date: April 7, 2020