Court File and Parties
Court File No.: FS-16-86418 Date: 2020 04 09
ONTARIO SUPERIOR COURT OF JUSTICE
Between: Elzibieta Kostyrko, Applicant Counsel: Monika Curyk, for the Applicant
- and -
Andrij Kostyrko, Respondent Counsel: Guy Hunter, for the Respondent
Heard: April 7, 2020
Reasons for Decision
Lemay J
[1] The parties were married on November 15th, 2013, and were separated on March 22nd, 2016. A final Order was issued in this matter on August 20th, 2018. It dealt with all issues between the parties, including custody and access. The Applicant has primary residence and sole custody of the parties’ children.
[2] The parties have two children, a son currently aged 5 (who will be six in July) and a daughter who just turned 4. For the purposes of this decision, I will refer to them as the children.
[3] The children went to visit the Respondent on March 13th, 2020. They were scheduled to be there until March 23rd, 2020. On March 22nd, 2020, the Respondent advised the Applicant that he was not sending the children back to her. The Respondent claimed that he had an agreement with the Applicant that the children would stay with him for the duration of the current health crisis (“the pandemic” or “the COVID-19 crisis”).
[4] The Applicant tried to have the Respondent send the children back to her without success. On April 2, 2020 the Applicant mother brought a motion seeking the urgent return of the children from the Respondent father. By way of an endorsement dated the same day, I directed the Respondent father to provide his submissions on both whether this matter was urgent and on the merits of this matter. The Respondent argued both that the matter was not urgent, and that on the merits, the children should remain with him for the duration of the pandemic.
[5] In addition to providing written material, the parties were permitted the opportunity to provide oral submissions during the course of a conference call that took place on the afternoon of April 7th, 2020. At the conclusion of the call, I advised the parties that I viewed the matter as urgent, and decided that the children should be returned to their mother and that the terms of the final Order should be adhered to. I also directed that the Order be enforced by the relevant police forces, if necessary.
[6] I advised the parties that written reasons would follow. These are those reasons.
Background
a) The Family Circumstances
[7] As noted above, the parties were married on November 15th, 2013, and there are two children of the marriage. The parties separated on March 22nd, 2016, approximately two weeks after the birth of their second child.
[8] The parties separated after the Applicant alleged that the Respondent engaged in acts of domestic violence towards her. The Respondent was criminally charged, but was acquitted of most of the offences at trial. He was found guilty of a charge of mischief.
[9] The Order of August 20th, 2018 was based on the agreement of the parties. Coincidentally, it was signed by me. That Order sets out that the Applicant shall have sole custody of the children and that the children shall have their primary residence with the Applicant.
[10] Under this final Order, the Respondent was (and remains) entitled to at least the following access:
a) Six hours, twice a week, between Monday and Saturday as agreed by the parties. b) Alternate weekends from Saturday at 10 am to Sunday at 6 pm c) Alternate holidays d) One week every summer.
[11] I understand that this Order was generally adhered to between the date that it was signed and the date of this hearing. Indeed, the Respondent may have received more access than he was entitled to under the final Order. The Respondent has had no difficulties in obtaining access to the children.
[12] The Applicant lives in an apartment building in Mississauga. The Respondent lives on a 30 acre farm in the Town of Midland in Ontario with his girlfriend. There is no information in the Affidavits about either party’s current employment, although I understand that the Respondent’s girlfriend currently does some baking, and sells it online or through in-person sales that are made in a socially distant way.
b) The Events Around March Break
[13] In February of this year, the Respondent asked for the children’s passports so that he could take them on a trip to Cuba. As a result of the global crisis from the spread of the coronavirus, that trip did not happen. However, the Respondent still has the children’s passports. Prior to the hearing of this motion, the parties have agreed to a consent Order that requires the Respondent to return the children’s passports to the Applicant and I so ordered at the conclusion of the conference call.
[14] The parties agreed that the children would spend ten days with the Respondent at his home in Midland. Those ten days were to be from March 13th, 2020 to March 23rd, 2020. The children were with the Respondent starting March 13th, 2020. This was confirmed in a text message between the parties which said that the Respondent’s vacation would be from March 13th to March 23rd.
[15] On March 19th, 2020, the Applicant and the Respondent had an exchange of text messages about the return of the children. In that exchange, the Respondent stated “Your [sic] picking them up Monday already told u.”
[16] On March 22nd, 2020, the Respondent sent the Applicant a detailed memo. In that memo, the Respondent advised the Applicant that he was not going to be returning the children the following day, and that the parties had an agreement that the children would remain with the Respondent for the duration of the current crisis.
[17] While the Respondent’s memo is lengthy, there are some excerpts worth setting out in detail, as follows:
I need to know that you have an appropriate plan for the children if you are to take them back with you to the city, that you can guarantee they will be safe and properly isolated, cared for, and how you will continue their education at home.
However, it has become extremely difficult in the last few days to discuss this issue with you appropriately. I’m not convinced you are taking the pandemic serious enough and neglect to provide simple information so I can be satisfied the children are not at an immediate risk to danger. I understand that this pandemic has escalated very quickly, so it is difficult and sometimes scary for you to try and understand it fully, but my partner and I have been following this very closely. I suggested to you that it is not likely a good idea to take the kids back on March 23rd, 2020 because of your current address in a multi-level apartment building in a high density area of Mississauga while the pandemic is still increasing locally.
[18] There are other comments within the letter that suggest the Respondent is of the view that the Applicant is not taking the pandemic seriously. The letter ends by stating that the Respondent will retain the children in isolation in his home until a number of things can be addressed, including confirming the name of the Applicant’s boyfriend, providing a criminal records check for the Applicant’s boyfriend, and requiring detailed written proof that the Applicant and her boyfriend have “taken appropriate precautions in the last 14 days” to deal with the pandemic.
[19] I note that, since March 22nd, 2020 the parties have conflicting versions as to what amount of contact the Applicant had with the children. The Applicant states that the Respondent was not facilitating her access to the children by FaceTime or other methods. The Respondent disagrees and says that he was facilitating the Applicant’s access to the children. It is not necessary for me to resolve this factual dispute in order to resolve the motion.
[20] Similarly, it is not necessary for me to resolve any of the historical grievances that the parties have raised in their Affidavits in order to resolve this motion.
c) The Procedural History of This Motion
[21] Given the failure of the Respondent to return the children to the Applicant, she originally sought the return of the children through counsel. This was unsuccessful, and the Applicant brought a motion on April 2nd, 2020.
[22] This motion was referred to me by the Local Administrative Judge in Brampton for consideration as to whether it was an urgent matter within the meaning of the current practice direction, and I made a preliminary determination that this motion may be urgent. As a result, on April 2nd, 2020, I issued a scheduling endorsement directing the Respondent to reply to the motion both on the question of whether the matter was urgent and on the merits of the Applicant’s motion. I originally directed that a hearing take place on April 6th, 2020.
[23] The Respondent’s counsel sought to have a case conference in this matter before the motion was heard. I rejected that request as I was of the view that the motion needed to be heard first, and that an unsuccessful case conference would result in a significant delay in hearing the motion.
[24] In the alternative, the Respondent also asked for additional time to prepare his motion materials. I granted some additional time and postponed the hearing from April 6th, 2020 to April 7th, 2020.
[25] Neither party was able to provide a sworn Affidavit for the hearing. As a result, at the commencement of the conference call, I affirmed both parties, and confirmed with both parties that they had reviewed the Affidavits tendered on their behalf, and that these Affidavits were the truth, the whole truth and nothing but the truth. Once those affirmations were made, I proceeded with hearing the motion.
Issues
[26] The foregoing facts reveal two issues that need to be determined:
a) Whether this matter meets the test for urgency under the Superior Court of Justice’s practice direction? b) If this matter is urgent, what custody arrangement is in the best interests of the children?
[27] I will deal with each issue in turn
Issue #1- Is the Matter Urgent?
[28] The Respondent argues that the matter is not urgent. The reasons for this argument can be summarized as follows:
a) The parties had an agreement that the children would remain with the Respondent during the course of the pandemic. b) The children would be safer with him during the pandemic. c) By keeping the children he has acted in their best interests.
[29] There are a number of other details in the Respondent’s Affidavit on the question of urgency, but the arguments why this matter is not urgent boil down to those three points.
[30] All of these arguments suffer from a fatal flaw. The Respondent has unilaterally changed the status quo by overholding the children. He then argues that his conduct is reasonable and, therefore, the Courts should not intervene to even consider whether that conduct is, in fact reasonable. The fatal flaw is that the Respondent has unilaterally made these changes in defiance of an existing Court Order.
[31] In this case, the Respondent does not have the final say in whether his conduct is reasonable or in the best interests of the children. There is an existing Order that governs the access arrangements, and where the parties cannot agree on changes to that order it is the Courts that must have the final say. In order to have that final say, the Courts must consider the merits of the Applicant’s motion.
[32] I also note that the Respondent argues that, by keeping the children, he is merely carrying out the agreement of the parties. Again, the problem with this argument is that the Applicant does not agree that there was ever an agreement that the Respondent was going to keep the children for the duration of the COVID-19 crisis. In order to determine whether there was an agreement (and whether that agreement is in the best interests of the children), the Court must consider the merits of the parties’ positions.
[33] None of these arguments assist the Respondent in demonstrating that the motion is not urgent. Indeed, the practice direction issued by the Chief Justice makes it clear that this is the type of matter that should be heard. I Paragraph 2(b) of the list of urgent matters that are to be heard states that the Court will hear “urgent issues that must be determined relating to the well-being of a child, including essential medical decisions or issues relating to the wrongful removal or retention of a child”.
[34] Counsel for the Respondent argues that the decision in Douglas v. Douglas, an unreported decision of MacPherson J. from the Superior Court in Hamilton dated March 25th, 2020, supports his view that this matter is not urgent. In Douglas, the Court was dealing with a case that was in litigation. The parties had one child, who was 6 ½ years old. The father had had access problems in the past, but had started to have regular access time in February of 2019. As a result of the pandemic, the mother in Douglas advised the father that she was no longer prepared to permit the father to have any in-person access.
[35] The father brought an urgent motion seeking to have the access he was enjoying, of every other weekend, restored. The motions judge determined that the motion was not urgent, and stated (at paragraph 11):
This matter is understandably very important to the father. However, in my view it is not urgent nor is it an emergency. There is no indication that Hudson’s safety is at risk. While father’s counsel might wish to have this court interpret the mother’s actions as wrongfully retaining the child, from my perspective, the language used in the Chief’s notice was done purposefully to mirror the language under the Convention on Civil Aspects of International Child Abductions (the “Hague Convention”) and would not be applicable when the issue is parenting time. It may be that there will be some limited scenarios involving an abduction of a child where relief is sought under the Children’s Law Reform Act, and a court finds such mater to be urgent. But this is not one of those cases.
[36] I am of the view that Douglas is distinguishable from the case before me on its facts. In Douglas, the parties were still in litigation. In this case, a final Court order is in place and the Respondent has unilaterally decided to hold the children contrary to that final order.
[37] While only urgent matters are being heard at this stage, a seemingly unilateral breach of a court order relating to custody and access of children, no matter how well intentioned, will likely rise to the level of urgency required by the practice direction. In these uncertain times, it is particularly important for the public to have confidence that the Courts will continue to fulfill their constitutionally mandated role of overseeing the justice system. A key part of that role is ensuring that Court orders are enforced, and are not unilaterally changed by a party without Court scrutiny.
[38] I would also note that the list of items that are to be heard, as set out in the Chief Justice’s practice direction are inclusive and not exhaustive. As a result, judges have some discretion in what cases are to be heard.
[39] The application of this discretion has resulted in other cases that have gone the opposite way to Douglas. For example, there is the decision in C.Y. v. F.R. (2020 ONSC 1875), which was a case decided before Douglas. In that case, Diamond J. was faced with a case where, during litigation and before a final Order had been issued and entered (as was the case in Douglas), there was a unilateral taking and overholding of the children.
[40] In C.Y., the mother returned from a trip to Brazil on March 13th, 2020. On March 15th, 2020, the father determined to take the children to the rental property where he was living for a week, contrary to the existing practices between the parties. On the evidence before Diamond J., the father had not had significant access with the children and, indeed, there was some suggestion that he had not been with the children without their nanny present. Diamond J. not only found that the matter was urgent, but ordered the father to return the children and restored the status quo.
[41] In addition to Jackson, supra, there are other cases where one parent has unilaterally overheld the children, and the Court has found it to be an urgent matter. For example, in Elsaesser v. Rammeloo (2020 ONSC 2025), the children lived primarily with their mother, who is a Registered Practical Nurse at the Grand River Hospital. On March 23rd, 2020, their father refused to return the children to the mother on the basis of her potential exposure to coronavirus. Madsen J. found the matter to be urgent, and directed a hearing before another judge. Similar reasoning was adopted in Skuce v. Skuce (2020 ONSC 1881).
[42] At this point, we do not know how long the COVID-19 crisis will last. The recent comments of various political leaders suggest that it could be some “weeks or months” before the social distancing measures that we are currently taking, and that have resulted in the closure of the Courts, are relaxed. There is, therefore, no end time on how long the Respondent in the case before me would have the children without access to the Applicant, who is the custodial parent.
[43] Similarly, a parent who unilaterally denies another parent access because of concerns about the COVID-19 crisis will be doing so indefinitely. This type of unilateral “self-help” remedy is always discouraged by the Courts. Adopting a very narrow holding as to what matters will be viewed as urgent runs the risk of sending a message to parents who have primary residence of the children that it is acceptable to simply refuse to provide access to the other parent under the guise of the “COVID-19” crisis.
[44] Finding that this matter is not urgent would also be contrary to other jurisprudence of this Court. For example, in Ribiero v. Wright (2020 ONSC 1829), Pazaratz J. held that parents “should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.” Parties are expected to act responsibly to attempt to solve problems before they resort to urgent Court proceedings. Similarly, parties should act responsibly and attempt to solve problems before they use the closure of the Courts to engage in self-help remedies.
[45] For these reasons, I prefer the reasoning in Jackson and the other cases that find urgency in circumstances such as the ones before me.
[46] I am mindful of the fact that the definition of “urgent” is very high under the Chief Justice’s practice direction. It is also, as I have noted, something that individual judges have discretion over. In exercising my discretion, I am guided by the reasons of Kurz J. in Thomas v. Wohleber (2020 ONSC 1965), where the judge listed (at paragraph 38) the factors that should be considered in deciding whether a matter is urgent.
[47] Although the test for urgency is high, it must be remembered that urgency is a threshold question. In my view, a judge’s determination of the urgency of the request should be determined as preliminary issue that is generally separate from an assessment of the merits of the case. Of course, the merits will have to be considered to some extent to determine whether the case is the type of case that is viewed as urgent or whether the facts as set out by the moving party, if accepted as true, disclose urgency. However, a granular review of whether the specific facts are urgent will result in conclusions being made about the merits of the case that are best left to a determination on the merits. Those conclusions should be avoided on a preliminary question.
[48] This brings me back to the case before me, which is a case of custody and access. Relations between parents and children, especially young children, are built piece-by-piece through regular contact with both parents. This is why the maximum contact principle exists. Completely eliminating in-person access for an indefinite period, or substantially changing a child’s routine, is an immediate concern. It is a serious concern because part of the health of the children is achieved through regular relationships with their children. It meets the test for urgency as described by Kurz J.
[49] It is why, in my view, the Chief Justice’s direction specifically speaks to the “wrongful retention” of a child, and I view it as being broader than a wrongful retention under the Hague Convention. This is particularly true when the fact that the list in the Chief Justice’s Notice to the Profession is an inclusive, and not exhaustive list, is remembered. In my view, this matter is urgent and should be addressed on its merits.
Issue #2- What is In the Best Interests of the Children?
[50] In a normal circumstance, the decision in this case would be automatic, at least on an interim basis. There is a final Court order in place and, therefore, it should be obeyed and the children should be returned to the Applicant. The current circumstances require a different analysis in my view. They must focus on what is in the best interests of the children given the ongoing pandemic.
[51] To conduct that analysis, I need to address two sub-issues, as follows:
a) Did the parties have an agreement that the children would remain with the Respondent during the course of the current crisis? b) Would having the children remain in Midland be in their best interests?
[52] I will deal with each issue in turn. In writing these reasons, I have referred to Midland as the area where the Respondent lives. He lives in an area near the Town of Midland, but that detail is not relevant to my determination. Therefore, I have not included it in my reasons.
a) Was There An Agreement?
[53] The Respondent asserts that the parties had an agreement that he would keep the children for the duration of the current health crisis. The Respondent disagrees and says that there was not an agreement that the children would remain in Midland.
[54] On the record before me, I have come to the conclusion that the parties did not have an agreement. I reach that conclusion for a number of reasons as follows:
a) The contemporaneous text messages from the parties suggest that the children were to be returned to their mother on March 23rd, 2020. Two messages stand out. First, the message at the beginning of the children’s time with the Respondent, where the length of the stay is confirmed. There is no ambiguity in this message. Second, the message on March 19th, 2020 (discussed at paragraph 15) makes it clear that the Respondent was returning the children to the Applicant on March 23rd, 2020. b) There is no evidence of an agreement between the parties save and except for the Respondent’s assertion that there is an agreement. Indeed, the evidence discussed in points (a) and (c) suggests that there was no agreement. c) The Respondent’s March 22nd, 2020 letter claiming that there is an agreement is internally inconsistent with his position that there was an agreement in a number of ways. First, the Respondent accuses the Applicant of not taking the pandemic seriously. If the Applicant was not taking the crisis seriously, then it is unlikely she would have agreed to leave the children in Midland for the duration of the pandemic. Second, the Respondent suggests that he will only let the children go back to live with the Applicant if she can guarantee that they will be safe and properly looked after. If the Respondent and the Applicant had an agreement that the children were to stay with the Respondent during the pandemic, then the Respondent would not need this reassurance. Third, the Respondent wanted information about the Applicant’s boyfriend’s criminal record. Again, if there was an agreement that the children were to stay with the Respondent during the pandemic, then the Respondent would not need this information.
[55] For these reasons, I have concluded that the parties did not have an agreement to keep the children in Midland for the duration of the pandemic.
b) Is Having the Children Stay in Midland in Their Best Interests?
[56] No. There is no reason on the record before me to change the current arrangements.
[57] I reach that conclusion for a number of reasons. First, and most important, the routines established for children are important for their development, security and happiness. Those routines are built around the children’s current custodial arrangements, which have them living primarily with the Applicant, and these routines should be continued.
[58] This brings me to the arguments that the Respondent advances as to why the children should remain in Midland with him. Part of the Respondent’s argument is that the Applicant is not taking the pandemic seriously, and is not engaging in social distancing. The problem with the Respondent’s assertions in this regard is that they are argument, and not fact. The Respondent simply makes bald assertions, without any supporting evidence.
[59] The only facts I have about the Applicant’s conduct in the pandemic come from the Applicant’s Affidavits. Those Affidavits make it clear that the Applicant is engaging in appropriate social distancing and is otherwise taking precautions. Specifically, the precautions that the Applicant is taking are as follows:
a) She is only leaving her apartment when absolutely necessary. b) She has already purchased additional “groceries and supplies” before the onset of the pandemic. c) She has committed to having no physical contact with her boyfriend moving forward. d) Her mother and brother will assist her with necessary shopping, so that it is not necessary for her to leave the apartment.
[60] All of these precautions sound entirely reasonable to me, and will ensure that the Applicant and the children are kept as safe as possible during the pandemic. As a result, I see no safety issue in the children returning to live primarily with the Applicant.
[61] The Respondent’s letter also raises the question of whether the Applicant can guarantee the education of the children. There are two responses to that concern. First, the Applicant has already been responsible for their ongoing education. Second, the children are not yet in grade school, so that the bulk of learning will take place at home in any event. This is not a basis to leave them in Midland with the Respondent.
[62] Finally, the Respondent argues that his farm property is both safer because there are fewer people who live in the area and an environment where the children can run around and play. In response to this argument, the Applicant argues that there will be harm that comes from the children being separated from their mother. In addition, the Applicant argues that the fact that she does not own a large rural property should not disqualify her from being the children’s primary custodial parent.
[63] I agree with the Applicant’s arguments on this point. In addition, the social distancing measures that the Applicant has proposed are reasonable and the ownership of a rural or recreational property is not a reason to change the custodial arrangements even in the midst of a pandemic.
Conclusion and Costs
[64] For the foregoing reasons, I order as follows:
a) The children are to be returned to the Applicant by 4:00 p.m. on April 8th, 2020. b) Once the children are returned to the Applicant, at a minimum, the access schedule in the Order of August 20th, 2018 is to be reinstated, with the Respondent’s first weekend of access being the weekend commencing April 17th, 2020. c) The Peel Police, the Ontario Provincial Police and any police force in the Town of Midland are to enforce these Orders. d) The parties are required to file hard copies of their materials with the Trial Office within ten (10) calendar days of the Courts resuming regular operations. e) In addition, the Applicant is to pay any filing fee required to have brought this motion within ten (10) calendar days of the Courts resuming regular operations.
[65] In addition, there are the costs of this motion. The Applicant is to provide her costs submissions of no more than two (2) single-spaced pages exclusive of bills of costs, case law and offers to settle within fourteen (14) calendar days of receiving these reasons.
[66] The Respondent is to provide his responding costs submissions within fourteen (14) days of receiving the Applicant’s costs submissions. Again, the Respondent’s submissions are to be no more than two (2) single-spaced pages exclusive of bills of costs, case law and offers to settle.
[67] The submissions are to be served on the other party by e-mail, and copied to my judicial assistant, again by e-mail. If there are any issues with these time limits because of the pandemic, the parties may seek an extension by e-mailing my judicial assistant. Costs submissions are to be filed in hard copy within ten (10) days of the Court resuming regular operations.
[68] Reply submissions on costs are neither required nor permitted. In the event that I do not receive either costs submissions or a request for an extension of time within the time limits set out above, I will presume that the parties have resolved the issue of costs, and none shall be payable.
[69] I should make one final observation. My order that the access schedule at a minimum should be reinstated was confirming that the order contains the minimum access for the Respondent. If the parties have had a habit of providing more access to the Respondent than what the Order requires, then I see no reason why that should not continue as long as it can be done safely.
_______ ORIGINAL SIGNED BY LeMAY J _____
LEMAY J Released: April 9, 2020