Court File and Parties

Court File No.: Date: 2020-04-27 Ontario Superior Court of Justice

Between: Rheba Jane Gillespie, Applicant – and – Michael Charles Jones, Respondent

Counsel: Jessica Luscombe, lawyer for the applicant Self-represented and acting in person, for the respondent

Heard: April 23, 2020

Reasons for Decision

DIAMOND J.:

Overview

[1] By Endorsement dated April 17, 2020 of Justice Hood, I was designated to conduct a telephone hearing with the parties to hear argument of the applicant’s motion which originally sought, inter alia, the following relief:

a) an Order requiring the respondent to immediately return the parties’ son (born October 29, 2013) to the applicant’s care in Toronto, Ontario within 24 hours;

b) an Order immediately suspending the respondent’s in-person access with the parties’ son; and,

c) an Order requiring the respondent to now have Facetime or Skype video access with the parties’ son child for up to one hour each day, pending the return of the motion or further date/event.

[2] In accordance with the Chief Justice’s Notice to the Profession dated March 15, 2020 and updated on April 2, 2020 (“the Notice”), Justice Hood reviewed the applicant’s motion materials and found that the requested relief presumptively fit the “urgency requirement” as set out in the Notice. Justice Hood set a timetable for the parties to exchange and file responding and reply motion materials.

[3] The parties complied with Justice Hood’s timetable (save for the late filing of the respondent’s responding affidavit), and I reviewed all their motion materials in advance of the telephone hearing which proceeded before me on April 23, 2020.

[4] Of note, as the facts have changed, or at least updated, since the applicant served her motion (as described hereinafter), the relief she now seeks is as follows:

a) an Order mandating the respondent’s in-person access with the child, including regular and holiday parenting time, to take place in Ontario, until further order of the Court or written agreement between the parties;

b) an Order precluding the respondent from taking the parties’ son on any public transit of any kind, including flights, buses, subways, and trains, until further order of the Court or written agreement between the parties; and,

c) an Order requiring the respondent to follow all COVID-19 government protocols and directives for the duration of the COVID-19 pandemic while the parties’ son is in his care, and specifically that the respondent practice social distancing by remaining 6 feet apart from other individuals, and avoid all social gatherings.

The Bowden Order

[5] The parties were married on July 7, 2012 and separated on July 15, 2015. The respondent commenced family law proceeding in British Columbia. The trial of that proceeding took place over 14 days in late 2016, resulting in the final Order dated March 23, 2017 of the Honourable Mr. Justice Bowden (“the Bowden Order”).

[6] Pursuant to the terms of the Bowden Order, the parties share joint custody and guardianship over their son with the applicant having final decision making authority with respect to parenting issues (subject to the respondent’s ability to have the applicant’s parenting decisions reviewed by a court in Ontario).

[7] Their son’s primary residence is with the applicant in Toronto, Ontario. At the time the Bowden Order was made, the respondent lived primarily in Whistler, British Columbia.

[8] Under the Bowden Order, the respondent’s parenting time schedule with the parties’ son after school Tuesday to Wednesday morning, after school Thursday to Friday morning and Saturday at noon to Sunday at noon. With a view to facilitating his regular parenting time with the parties’ son (which access, according to the applicant, amounted to approximately 43% of the total parenting time), the respondent would normally commute to Toronto and rent an apartment although according to the applicant the respondent has only exercised approximately 20-30% of his permitted parenting time.

[9] According to the applicant, while the respondent maintains that he remains primarily resident in Whistler, and that he spends twenty days each month in Toronto for the purpose of exercising his parenting time with their son, the applicant believes that the respondent in fact has a full time position at KPMG on Bay Street in downtown Toronto and resides primarily in a home in the High Park area.

[10] With respect to holidays, the respondent would typically exercise his holiday access with the parties’ son in Whistler where he lives “in an isolated mountain town at the end of a dead-end street with a large property and endless opportunity for true isolation”. While the respondent maintains that the Bowden order does not require him to secure the applicant’s consent to travel with their son to Whistler if the trip takes place during his parenting time, pursuant to paragraph 13 of the Bowden Order, the traveling parent is required to provide the other parent with one month’s notice of any intended trip with their son, and to provide a detailed travel itinerary. Of note, there is no set deadline in the Bowden Order for the provision of the travel itinerary.

The April 2020 vacation

[11] The respondent planned to take the parties’ son with him to Whistler for the April 2020 vacation period. He gave evidence that given the state of the COVID-19 pandemic, he was continually assessing the situation and had consulted with numerous Government of Canada websites related to COVID-19 restrictions and guidelines.

[12] The respondent noted that leading up to and on the day of their planned departure, (a) there were no orders or guidelines against travel within Canada (save for those individuals exhibiting COVID-19 symptoms) and (b) there were no interprovincial travel restrictions in British Columbia and Ontario.

[13] The applicant gave evidence that it was only on March 18, 2020 (less than the one month’s notice required by the terms of the Bowden Order) when the respondent advised her of his intention to take the parties’ son to Whistler. The March 18, 2020 text message from the respondent indicates that the April 2020 vacation dates would be April 8-15, 2020 inclusive (and not April 7-17, 2020 as alleged by the applicant).

[14] The applicant submits that she objected to those proposed dates as they exceeded the “one week in April” vacation time afforded to the respondent pursuant to paragraph 6(a) of the Bowden Order.

[15] However, the respondent produced an exchange of text messages between the parties on March 3, 2020 (more than one month prior to the planned trip to Whistler) which included a text from the applicant stating as follows (the name of the parties’ son is redacted):

“Please provide me with your April dates and ensure they are for no longer than 8 consecutive nights and that W does not miss more than 5 days of school. I also need his complete flight itinerary no less than 21 days in advance.”

[16] The respondent thus argues that the applicant was given adequate notice of the intended trip to Whistler, and that she also understood and was content with the length of that trip lasting more than “one week in April”.

[17] In any event, the applicant did not hear back from the respondent, and was concerned about the COVID-19 pandemic and the directives from all levels of government to maintain social distancing. The applicant texted the respondent on April 6, 2020 (the day before the proposed Whistler trip) and asked him to exercise his parenting time with their son at the respondent’s Toronto property. The respondent did text her back, but in the applicant’s eyes, he did not provide her with a clear answer, saying only that “the trip may change” and that he was considering going to Haliburton or perhaps staying in Toronto.

[18] The respondent’s parenting time was scheduled to commence at 3:00 pm on April 7, 2020. At 10:30 am that morning, the applicant sent the respondent an email reiterating her concerns as follows:

“ The orders from the Prime Minister and all top health officials are the same. We are all required to stay home, practice social-distancing, and not participate in non-essential travel. An amber alert was sent out over the weekend reminding people that only essential workers should be out. Everyone else should be staying home and only going out for groceries or medications. This trip is a vacation. It is non-essential travel that exposes you and our son and those around you to increased risk. You cannot stay 6 feet away from another person on an airplane. You would be exposing W to two airports and multiple flight attendants and passengers. I understand that you want to take your trip with W but this is not a time for non-essential travel, especially travel that brings our child to the other side of the country during these uncertain times. This is a rapidly changing situation with increased restrictions happening almost daily.

What is most important at this point is that we both have regular access to our son and that we all stay safe and keep others safe. We are both in Toronto with W right now. We're following our regular parenting schedule and we both have frequent contact with W. If you take W to BC right now, things may change. Borders may close, you may become ill, flights may be cancelled and suddenly W would have restricted access to his little sister, stepfather, and me for an indefinite period of time. These are unprecedented circumstances. This is not a time to be booking a vacation. I had to cancel my vacation at the last-minute in March, which was very disappointing. I understand that this is disappointing to you as well but we need to prioritize the well-being of all Canadians here and discuss how to deal with our missed vacations in the future.”

[19] At 10:51 am, the respondent replied by email advising that while he was not happy with what he viewed as the applicant threatening to withhold their son in exchange for meeting her demands, the respondent confirmed that he would “not fly or drive” their son out of Toronto.

[20] In her reply email, the applicant then asked the respondent to confirm that his parenting time would not exceed seven days in accordance with the terms of the Bowden Order, and that he and their son would be staying in Toronto for the seven day period. After a further exchange of email correspondence, the respondent ultimately advised that (a) he and their son would be staying “at home…only leaving to ride bikes or walk to the trails in the park”, and (b) the vacation would start on April 7, 2020 and end on April 14, 2020.

[21] The applicant gave evidence that when the respondent arrived at the applicant’s home just after 3:00 pm on April 7, 2020, he once again confirmed orally that he was not taking their son to Whistler.

The Respondent takes their son to Whistler

[22] On April 8, 2020, the respondent texted the applicant stating, inter alia, “you’re not getting away with the crap you pulled yesterday”. When the applicant attempted to follow up with the respondent with further inquiries, the respondent told her that he was “dealing with her lawyers”, and not to text him back.

[23] Despite further efforts by the applicant to obtain information, the respondent did not respond further that day. The applicant then contacted the Whistler police and asked them to attend at the respondent’s Whistler home. The applicant then learned from the police that both the respondent and the parties’ son were at the Whistler home on April 8, 2020.

[24] After the police had left the respondent’s home, he sent an email to the applicant advising that his agreement to stay with their son in Toronto was made “under duress due to the applicant’s threats”, and that he was keeping their son in Whistler for his entire vacation time until their return to Toronto on April 17, 2020.

The time in Whistler

[25] The respondent testified that during his vacation time with the parties’ son, the Applicant had consistent contact with their son on Skype calls “at minimum every two days” as per the terms of the Bowden Order.

[26] The applicant expressed concern over the respondent’s decision to take their son camping with friends (and their children) in the Whistler area. She gave further evidence that their son told her upon his return to Toronto that he played with other children while camping, and also played at his friend’s house.

[27] The respondent testified that while he did take their son camping with friends, they were isolated approximately 50 metres away from our friends with each family in their own area. According to the respondent, the families did not come together to eat, play, or socialize in close proximity, and other than the camping trip they spent the entire time in complete isolation at the respondent’s property.

The return to Toronto

[28] The respondent and their son returned to Toronto on April 17, 2020 (making some of the relief originally sought by the applicant effectively moot).

[29] The respondent testified that when he dropped their son off at the applicant’s home, she greeted their son at the door with her daughter in hand and immediately facilitated them all kissing and hugging. According to the respondent, “these are not the actions of someone with genuine concern about W’s health and infectiousness and certainly not to the extent warranting…the suspension of in-person parenting access”.

[30] Finally, once the parties’ son was returned to the applicant’s home, she did not enforce any 14 day isolation period for their son, and in fact allowed the respondent to resume his regular access in Toronto the following day.

Position of the Applicant

[31] The applicant argues that the respondent unilaterally took their son to Whistler (a) against the applicant’s wishes, (b) in breach of their agreement, and (c) without her consent, and as such the respondent’s conduct ought not to be condoned by this Court. The applicant is very concerned about the respondent’s decision to travel unnecessarily with their son in the midst of the COVID-19 pandemic and in contravention of the federal, provincial and municipal protocols and precautions.

[32] The applicant submits that the respondent not only unnecessarily, but intentionally, placed their son’s health, and the health of every person who may come in contact with their son, at risk. Both the respondent and their son were exposed to numerous individuals in two airports (twice including the return trip) and two airplanes, and potentially other people in both British Columbia and Ontario. As put by the applicant, the respondent “has broken whatever trust there was between us.”

Position of the Respondent

[33] The respondent claims that the applicant “coerced written statements from him under duress” by “threatening to withhold W during his court ordered parenting time”.

[34] The respondent submits that the applicant has misled the Court since she had personal knowledge of flight plans, travel dates, and was in regular contact with their son between April 7-17, 2020.

[35] The respondent further argues that he was never in breach of the Bowden Order, nor did he act in contravention of any federal or provincial COVID-19 protocols by flying with their son to and from British Columbia, and he practiced social distancing and self-isolation while in Whistler.

Decision

[36] To begin, neither party explicitly raised the issue of whether this Court had jurisdiction to hear the applicant’s motion to essentially vary the terms of a final Order of the British Columbia Supreme Court. In my view, this Court has jurisdiction for three reasons:

a) the parties were not divorced until January 4, 2018, and thus terms of the Bowden Order were made under the provincial Family Law Act, S.B.C. 2001 c. 25 and not the Divorce Act, R.S.C. 1985, c. 3;

b) section 22 of the Children’s Law Reform Act, R.S.O. 1990 c. C12 (“CLRA”) permits the Ontario Superior Court of Justice to exercise its jurisdiction to make an order for custody or access to a child where the child is habitually resident in Ontario at the commencement of an application; and,

c) paragraph 2 of the Bowden Order affords the applicant the right to have the Ontario Superior Court of Justice review any impasse between the parties with respect to parenting responsibilities other than day to day decisions.

Issue #1 Did the respondent breach the terms of the Bowden Order?

[37] As early as March 3, 2020, the applicant had already contemplated the possibility of the respondent taking their son to Whistler during his vacation, and had asked the respondent to ensure that such a vacation would not exceed eight consecutive nights – which is obviously more than the “seven day period” which the applicant insisted upon in the days leading up to April 7, 2020 and beyond. As such, if the purpose of paragraph 13(a) of the Bowden Order is to provide at least one month’s notice of a parent’s intention to travel with their son during that parent’s scheduled vacation time, then the applicant had subjective notice of the respondent’s intention and the fact that their son could be traveling with the respondent to Whistler as he had done in the past.

[38] With respect to the obligation to provide a travel itinerary, I agree with the applicant that the respondent never did actually send her the exact details of the flight to British Columbia. No doubt the applicant was already familiar with the flights the respondent had previously taken, but the date and time of the flight he intended to take this vacation was not provided.

[39] The respondent did comply with his obligation to maintain phone or Skype contact between the applicant and their son, but he did not provide the applicant with confirmation of safe arrival within 12 hours of their landing. During argument of the motion, the respondent attempted to explain that his April 8, 2020 email sent at 11:17 pm was in fact drafted when they landed the night before, but never sent due to phone coverage or wifi issues. Not only is there no evidence of this contention in the record, but I agree with the applicant that such a position does not have an air of reality to it given the respondent’s unilateral actions described in my disposition of Issues #2 and #3 below.

[40] Accordingly, the answer to Issue #1 is technically “yes”, although such an answer on its own would likely not warrant the granting of the amended relief sought by the applicant on this motion.

Issue #2 Did the respondent breach the terms of the parties’ agreement?

[41] On the record before me, I find that on or about April 7, 2020 the parties reached an agreement that the respondent would not take their son outside the greater Toronto area (“GTA”), and would spend his vacation time with their son in his Toronto home. Leading up to that agreement, the applicant had made her position clear that given the state of the COVID-19 pandemic, a vacation to British Columbia was unnecessary travel and posed far too great a risk to their son. While the respondent was initially somewhat coy and non-committal in providing his responding position, by April 7, 2020 he made it clear, both orally and in writing, that he would not fly or drive their son out of the GTA.

[42] The respondent could not have been under any misapprehension as to why the applicant was pursuing such an agreement. Her concerns were thoroughly explained and canvassed through numerous email correspondence and text messages, and conveyed to the respondent on the heels of the applicant having taken the position that she had not agreed to the proposed length of the vacation in any event.

[43] During argument of the motion, the respondent submitted that he did not make the decision to fly to British Columbia with their son until after (a) he picked their son up from the applicant’s home, and (b) he reviewed various government COVID-19 protocols. While that may be true, regardless of when he made his decision, I find his decision to be an exercise in self-help. The respondent either misled the applicant, or, more likely, chose to unilaterally revisit the issue and recast his vacation. This decision was a breach of the parties’ agreement.

[44] In his responding affidavit, the respondent argued that the agreement was invalid and unenforceable because he was forced to provide his consent, and that consent was given under duress. I reject the respondent’s position. As set out in Berdette v. Berdette, for any alleged pressure to amount to duress, it must be a “coercion of the will” or result in the party being placed in such a position as to have “no realistic alternative” but to submit to that pressure. The actions of the applicant do not amount to a coercion of the respondent’s will. More importantly, it cannot be said that the respondent had no other realistic alternatives. In the respondent’s own emails, he himself offered various alternatives including staying in Toronto to spend the week on bike rides and walking through trails in parks.

[45] Accordingly, the answer to Issue #2 is “yes”.

Issue #3 Does the respondent’s conduct warrant the relief sought?

[46] Since the onset of the COVID-19 pandemic the relevant jurisprudence has confirmed that the family law focus is and should always be the best interests of the child no matter what situation in which parents may find themselves. I repeat and adopt the comments of Justice Pazaratz in Ribeiro v. Wright, 2020 ONSC 1829:

“None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

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.

In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

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.

Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.

And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

Each family will have its own unique issues and complications. There will be no easy answers.

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.”

[47] The respondent submits that as there were no interprovincial travel restrictions imposed by the federal and relevant provincial governments, and the terms of the Bowden Order permit him to travel with their son to Whistler on his vacation, the applicant’s motion is ill-founded and not urgent. The respondent argues that the applicant’s motion should be dismissed as he did not breach any applicable government COVID-19 protocols, and he maintained proper social distancing efforts while he and the parties’ son were in Whistler.

[48] While the respondent may be correct insofar as not having breached interprovincial travel protocols, the need to follow reasonable health precautions and comply with social distancing measures should be increased and subject to stricter judicial scrutiny when dealing with the safety of a child. In my view, the respondent’s decision to travel with the parties’ son was simply unnecessary in the circumstances, and while it may have satisfied the respondent’s wishes, it only served to increase the risks of exposure to the parties’ son.

[49] This is a blended family situation, where the applicant resides with a new partner and other young children. The respondent always knew that at the end of his vacation time, he would be returning the parties’ son back to the applicant’s home. Two long flights, four trips to and from two airports, and time spent outside the respondent’s Whistler home, all in the face of the COVID-19 pandemic, place the respondent’s parental judgment squarely into issue. The respondent not only increased the risks of exposure to the parties’ son, but also to the applicant and the inhabitants of her home.

[50] As held by Justice Pazaratz in Ribeiro, there should be zero tolerance for any parent who recklessly exposes a child to any COVID-19 risk. There is no doubt that the respondent wanted to resume spending his vacation with the parties’ son in Whistler, as he had done on previous occasions. However, those trips to Whistler took place in very different times.

[51] The Court will not condone the unnecessary exposure of risk to a child. While the respondent may have had an honest, subjective belief that travelling to Whistler was in their son’s best interests, I find that he was preferring his own best interests over those of their son.

[52] The current social distancing imperative must guide the judgment of all parents with minor children. The respondent ought to have adhered to the agreement he made with the applicant, and stayed in the GTA with their son while maintaining proper social distancing protocol and precautions. The respondent did not, and his poor exercise of judgment both justifies the applicant bringing her motion and warrants the Court’s involvement.

[53] Accordingly, the answer to Issue #3 is “yes”.

What is the appropriate remedy?

[54] The amended relief proposed by the applicant is both reasonable, and in my view, necessary. I have no doubt that, after reviewing these Reasons, the respondent will avoid making similar lapses in judgment with a view to complying with all government COVID-19 protocols and precautions and exercising his parenting time in a safe and prudent manner.

[55] In circumstances of this case, I find that the respondent’s access should be varied on an interim basis as follows:

• the respondent shall hereby follow, abide by and comply with all federal and provincial COVID-19 protocols and directives, both on his own and while their parties’ sons is in his care, including practicing and maintaining social distancing and avoiding all social gatherings;

• the respondent’s in person access with the parties’ son (including vacation time) shall continue but take place in the province of Ontario pending further court order or agreement between the parties; and,

• as the respondent confirmed during argument of motion that he has and will continue to rent a vehicle during his trips to and stays in the GTA, the respondent shall not take the parties’ son on any public transit including flights, buses, subways and trains, pending further court order or agreement between the parties.

Costs

[56] In the event the parties cannot resolve the costs of this motion, they may serve and file costs submissions, which shall total no more than five pages (including a Costs Outline) and be delivered in accordance with the following schedule:

a) the applicant’s costs submissions shall be served and filed within 7 business days of the release of these Reasons; and,

b) the respondent shall thereafter have an additional 7 business days from the receipt of the applicant’s costs submissions to serve and file his responding costs submissions.

Summary

[57] In summary, I make the following interim Order:

a) these Reasons are an Order of the Court enforceable by law from the moment they are released.

b) the respondent shall hereby follow, abide by and comply with all federal and provincial COVID-19 protocols and directives, both on his own and while their parties’ sons is in his care, including practicing and maintaining social distancing and avoiding all social gatherings.

c) the respondent’s in person access with the parties’ son (including vacation time) shall continue but take place in the province of Ontario pending further court order or agreement between the parties.

d) while exercising his access in Ontario, the respondent shall not take the parties’ son on any public transit including flights, buses, subways and trains, pending further court order or agreement between the parties.

e) in the event the parties cannot resolve the costs of this motion, they may serve and file costs submissions (totalling no more than five pages including a Costs Outline) in accordance with the following schedule:

i) the applicant’s costs submissions shall be served and filed within 7 business days of the release of these Reasons; and,

ii) the respondent shall thereafter have an additional 7 business days from the receipt of the applicant’s costs submissions to serve and file his responding costs submissions.

Diamond J.

Released: April 27, 2020