ONTARIO COURT OF JUSTICE

DATE: 2020·10·13 COURT FILE No.: Woodstock D60/15

BETWEEN:

Melissa Schmidt Applicant

— AND —

Jonathan Amy Respondent

Before: Justice S. E. J. Paull

Motion Heard on: October 4, 2021 Reasons for Judgment released on: October 13, 2021

Counsel: Joshua E. Stevenson, for the applicant(s) Respondent, on his own behalf

PAULL J.:

[1] Before the court is an urgent motion regarding one of the parties’ children, Maddaline born […], 2008, which was brought by the applicant. She seeks a return to the prior status quo pursuant to the parties’ separation agreement that had Maddaline residing in her primary care.

[2] Mr. Amy does not dispute that since April 27, 2021 Maddaline has remained in his care, firstly because the applicant tested positive for Covid-19, and secondly because he states that Maddaline did not wish to return to her mother’s home.

[3] Ms. Schmidt seeks a finding of urgency and that she have temporary decision-making and primary residence of Maddaline, with Mr. Amy having alternate weekends of parenting time. She further seeks an order that Maddaline attend school in her catchment area where she has attended for several years, and that a police assistance clause issue in her favour.

[4] Mr. Amy has not brought a cross-motion but did file responding affidavits. He seeks an order that Maddaline be able to remain in his primary care as that is what she wishes.

[5] Both parties attempted to offer additional unsworn evidence during argument. As I indicated to the parties then, the court will not consider allegations that were not included in the sworn affidavit material or the Voice of the Child Report. For the same reason I have not considered the additional factual allegations in the applicant’s Written Argument filed by her counsel which were not reflected in her affidavits.

[6] The parties each filed two affidavits and when this matter was scheduled for argument on August 18, 2021 an order was made that no further affidavits be filed without leave. Neither party sought leave to file further evidence.

[7] I have reviewed and considered the affidavits of the parties filed at tabs 4, 5, 6, and 8, of the Continuing Record and the Voice of the Child (VOC) Report dated July 26, 2021.

Background and Evidence

[8] The parties were married in 2005 and separated on January 18, 2016. They have two children together, Jolene born […], 2006 and Maddaline born […], 2008. The motion before the court only deals with Maddaline.

[9] With the assistance of counsel, the parties entered into a separation agreement dated February 13, 2017 wherein they agreed to joint custody with the children residing primarily with Ms. Schmidt, with regular access to Mr. Amy. The children have attended school in Ms. Schmidt’s catchment area since separation.

[10] This was the status quo until April 27, 2021 when Maddaline went to her father’s home for access and did not return.

[11] At that time Ms. Schmidt had tested positive for Covid-19 and voluntarily agreed to have Maddaline stay at Mr. Amy’s until it was resolved. However, Mr. Amy subsequently refused to permit Maddaline to return.

[12] Mr. Amy does not dispute overholding the child. He states that this was done initially due to Ms. Schmidt’s positive Covid-19 status, and then because he states that Maddaline did not wish to return.

[13] It is undisputed that after April 27, 2021 Maddaline and Ms. Schmidt had no face-to-face contact until an interim without prejudice order was made on the first return date of the motion on June 21, 2021 that, pending argument of the motion, Maddaline would be in the care of the applicant on alternate weekends and Wednesdays after school.

[14] The court also made an order requesting a VOC Report and directed the parties not to discuss this litigation with Maddaline or expose her to negative talk about the other parent.

[15] Both parties make significant allegations against the other. Ms. Schmidt alleges the father is not cooperative and frequently harasses and belittles her. She states that Maddaline has special needs including ADHD, anxiety, and a learning disability and takes prescribed medication. She has always been primarily responsible for these issues and has no confidence that Mr. Amy is able to properly address them.

[16] Mr. Amy disputes this and states that he is aware of and has addressed all of Maddaline’s issues since May 2021, including getting additional medication when Ms. Schmidt refused to provide it.

[17] Mr. Amy does not dispute that he has a strained relationship with his other child, Jolene, and that she has not attended his home for visits since early 2021.

[18] Portions of text message communications between the parties were filed which illustrate the relationship between the parents as one marked by conflict and mutual distrust.

[19] Both parties allege that the CAS has been involved at various times because of the other party. Mr. Amy alleges that Ms. Schmidt’s partner used physical discipline on Maddaline in November 2020 which included a “bare-bottom” spanking, which resulted in the Oxford CAS becoming involved. He states that CAS required that Ms. Schmidt and her partner take parenting courses. Ms. Schmidt disputes this and indicates that she had voluntarily requested information about parenting courses from the CAS as Maddaline was prone to temper tantrums and could get out of control at times.

[20] Ms. Schmidt deposes that on that occasion in November 2020 Maddaline had a tantrum and that her partner, “picked up Maddaline by the waistband of her shorts and her shirt so that she would not hit or kick him, the walls or furniture while she was flailing, and carried her to her room. He did this in an appropriate way, and certainly did not give her or intend to give her a bare-bottom spanking [sic]”, as alleged by Mr. Amy.

[21] At the time of the incident in November 2020, Ms. Schmidt sent a lengthy text message to Mr. Amy to give him a “heads up” that Maddaline had been out of control. She stated that her partner, “picked her up by the arms and legs put her on the bed turned her over and spanked her, grounded her etc. [sic]”.

[22] Ms. Schmidt provided independent confirmation that she and her partner successfully completed the Triple P and Pathway Group parenting programs offered through Oxford CAS in early 2021.

[23] Following Mr. Amy’s refusal to return Maddaline in early May 2021, both parties contacted the police in their jurisdiction. The brief police occurrence reports filed note a dispute over custody, and that Ms. Schmidt was upset and refused to release additional doses of Maddaline’s medication. The occurrence report noted “No fear for child”, and that CAS was called.

[24] Maddaline has attended Tavistock Public School since grade 5, which is in Ms. Schmidt’s catchment area. She is now in grade 8. Ms. Schmidt is concerned that Mr. Amy has now unilaterally changed her school to the one in his catchment area in Palmerston. Ms. Schmidt submits that this is a further example of unilateral action taken by Mr. Amy that is contrary to Maddaline’s best interests as she has significant supports in place at her school in Tavistock. Mr. Amy does not dispute that he changed Maddaline’s school but takes the position that he made all the arrangements with the new school including setting up her IEP.

[25] There is no evidence of ongoing CAS involvement or that the CAS has at any time initiated court proceedings against the parents. There is no evidence that the CAS has provided either parent with a written caution or confirmation that protection concerns have ever been verified. Further, there is no evidence that either party has a criminal record.

[26] Other than two brief police occurrence reports for May 4, 2021, and the letters from CAS confirming Ms. Schmidt and her partner successfully completed the parenting courses, the court has no other independent evidence from the police or the CAS to support either parties position with respect to the concerns regarding the other party. The court also has no independent evidence from Maddaline’s school.

[27] The court has the benefit of a VOC Report dated July 26, 2021 which may be summarized as follows:

1. The clinician described Maddaline as a polite, cheerful, and happy girl who presented as open and honest in her two meetings with her. She was also described as relaxed and comfortable during the interviews and that she was responsive and appeared to fully comprehend the purpose of the interviews.
2. Maddaline reported that she has ADHD and takes medication on her own every day which makes her feel better. She reported that following her mother’s positive test for Covid-19, she was happy to stay at her father’s home.
3. She dislikes online school and wants to attend school in person with her stepsiblings who reside with her father. Maddaline reported that there were some bullies at her school, and she would not mind switching schools.
4. Maddaline indicated that her mother’s partner yells at her, and that he and her mother yell at each other. Maddaline also reported the incident when her mother’s partner, “swatted me on the butt and it hurt my feelings”.
5. Maddaline loves both her parents and knows that they both love her. She described activities she enjoys with both her parents and stated that she was happy in both homes but would prefer to remain at her father’s and visit her mother’s.
6. The clinician concluded that Maddaline, who was 12 when she was interviewed, was clear and consistent in her views and preferences that she wished to reside with her father and attend school in person with her stepbrothers in that jurisdiction.

[28] Both parties make serious allegations against the other with respect to their fitness to parent. There was little independent evidence available to corroborate either party’s stated level of concern. Without the benefit of viva voce evidence and cross-examination the court is not in a position to assess the veracity of all the allegations. The court recognizes that on urgent motions decisions need to be made on the evidence available.

[29] However, while a cautious approach is warranted based on the limited and untested evidentiary record, there are findings that may appropriately be made based primarily on the uncontested areas of evidence. The findings include the following:

a. The parties signed a separation agreement 2017 agreed to joint custody with the children residing primarily with Ms. Schmidt. Maddaline has always attended school in Ms. Schmidt’s catchment area. Given the parenting arrangements it is more likely than not that Ms. Schmidt was primarily responsible for ensuring that Maddaline’s health and educational needs were being met on a daily basis. However, given the liberal parenting time Mr. Amy had it is also likely he had some involvement with these issues also. b. Since early May 2021, without consent or a court order, Mr. Amy withheld the child and did not permit any face-to-face contact between Maddaline and her mother until after the interim without prejudice order of June 21, 2021. c. Despite the separation agreement where the parties agreed to joint custody, the parties have a history of parental conflict and mutual distrust. I accept on a balance of probabilities that the parents have permitted the children to be exposed to their conflict and that they have likely been adversely affected by it.

[30] The issue of Maddaline’s views and preferences and the VOC Report will be discussed below.

The Law and Analysis

[31] The first issue to be determined is whether the applicant has established urgency.

[32] Rule 14(14) of the Family Law Rules 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.

[33] Concerns due to Covid-19 and urgent motions brought during the suspension of regular court operations are subject to additional considerations. The issue of when an urgent hearing is justified in these circumstances was reviewed in detail by Pazaratz J. in Ribeiro v. Wright, 2020 ONSC 1829.

[34] I agree and adopt his analysis. The court noted that Covid-19 concerns are of grave importance, however at paragraph 10 noted that, “a blanket policy the 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.”

[35] There is no presumption that the existence of Covid-19 automatically results in a suspension of in person parenting time or that its existence will automatically result in an urgent hearing.

[36] Justice O’Connell in L.B. v. I.L., 2020 ONCJ 336, summarized the law as follows:

[55] The rapidly developing body of COVID-19 case law in family law custody and access cases is clear. There is a presumption that all custody and access orders should be respected and complied with. Ribeiro v. Wright, 2020 ONSC 1829, per Justice Alex Pazaratz.

[56] The onus, therefore, is on the party seeking to restrict access to provide specific evidence or examples of conduct by the other party that are inconsistent with COVID-19 protocols and expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886.

[57] The same must be said for parenting agreements, as in the case before me.

[58] A parent is not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time. If the parent fears that the current routine may compromise their child’s well-being, or the health of a person in the home; then the parent must provide specific evidence of this and bring a motion to change the order. See: Almadi v. Kalashi, 2020 ONSC 2047.

[59] In determining a suspension of parenting time, the court must assess the medical vulnerabilities of a child in the home, the ability of the parents to follow COVID health protocols and the risk to the child of diminishing their relationship with one parent. See: C.L.B. v. A.J.N., 2020 ONCJ 213.

[60] In Lee v. Lee, 2020 ONSC 2044, the court stated that in the face of anxious and distressing times, any child will most benefit from the love, connection and support shared with both parents so long as it is all done safely.

[37] I accept that the applicant has established urgency. The urgency in this case is not created by Covid-19 or the fact that Ms. Schmidt apparently tested positive for it in April 2021. At that time Ms. Schmidt agreed that Maddaline could remain with her father until it resolved.

[38] The parties had a long-standing status quo pursuant to a Separation agreement dated February 13, 2017 entered into by the parties when each had the benefit of counsel. They agreed that the children would remain primarily with Ms. Schmidt with parenting time for Mr. Amy. With respect to Maddaline this was the status quo up until the end of April 2021. Mr. Amy’s unilateral action in withholding Maddaline after May 4, 2021 once Ms. Schmidt’s positive Covid-19 status had been resolved establishes urgency. Temporary changes to the parenting arrangements due to Covid-19 do not establish a new status quo.

[39] On the basis of a finding of urgency, the court must now determine what order with respect to decision making and parenting time is in the child’s best interests. In making these determinations, I have considered the expanded best interest factors set out in section 24 of the Children’s Law Reform Act, as well as all other relevant considerations.

[40] The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents and the child 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. Maximum contact with both parents is presumed to be beneficial. Berry v. Berry, 2011 ONCA 705 (Ont. C.A.).

[41] The “maximum contact” principle, as it is called, is mandatory, but not absolute. The maximum contact principle only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. Casselman v. Noonan, 2017 ONSC 3415.

[42] There is a presumption that regular parenting time by both parents 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).

[43] The best interests of the child have been held to be met by the child 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 RFL (4th) 375 (SCJ).

[44] In this case there is no prior court order, however the parties were subject to a separation agreement.

[45] As I noted in P.D. v. M.C., 2020 ONCJ 323:

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.

[46] Courts are not bound by parenting terms in domestic contracts although they may give an indication about parental intentions at the time they were entered into. C. (M.A.) v. K.(M.), 2009 ONCJ 18; Libbus v. Libbus. They can also be reflective of the status quo – an important best interests consideration. B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438.

[47] Further, while there is no presumption in favor of decision-making to either parent in any initial application following separation, the status quo – and avoiding the reckless creation of a new status quo- are important considerations at the interim custody stage. Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.

[48] 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 parenting order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests.

[49] 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.

[50] As previously noted, temporary changes to parenting arrangements that are necessary due to Covid-19 do not create a new status quo. Maddaline had been in her mother’s primary care for a significant length of time. Ms. Schmidt agreed to a temporary arrangement where Maddaline would be with Mr. Amy until her Covid-19 status was resolved. Her reasonable expectation would have been that they would return to the prior parenting arrangements.

[51] Mr. Amy has exercised self-help by overholding Maddaline in an effort to create a new status quo. He did this without the consent of Ms. Schmidt, without a court order, and in contravention of the parties’ separation agreement and the long-standing status quo. He did not initiate court proceedings and instead withheld Maddaline from any face-to-face contact with her mother for approximately two months.

[52] I find that this initial refusal to permit contact by Mr. Amy would very likely have persisted had the court not made the interim without prejudice order on the first return date of Ms. Schmidt’s urgent motion. Mr. Amy’s approach has not been reasonable or child focused in the circumstances. These factors strongly support an order returning to the prior parenting arrangement in place prior to April 27, 2021.

[53] With respect to what order would be in the best interests of Maddaline, neither party has established the level of concern they have with the others’ parenting.

[54] As previously noted, there is no evidence of ongoing CAS involvement or that the CAS has at any time initiated court proceedings against the parents, verified protection concerns, or provided a written caution. Further, there is no evidence that either party has a criminal record.

[55] However, it is clear that the parties at times have a conflictual relationship and it is likely both children have been exposed and negatively impacted by the parental conflict.

[56] Both parties’ approach to this matter has been unreasonable at times, however Mr. Amy’s has been a particular concern. His unilateral and wholesale change of the lengthy status quo without a court order or agreement was self-help and not child focused. However, while it is understandable that Ms. Schmidt would be upset by the circumstances in early May 2021, to withhold Maddaline’s medication was also not a child focused decision.

[57] The incident of Ms. Schmidt’s partner spanking Maddaline in November 2020 also invites comment. The extent of the incident alleged by Mr. Amy has not been established through independent evidence from the CAS or police, and Maddaline stated to the OCL clinician that he, “swatted me on the butt and it hurt my feelings”. Despite Mr. Amy’s concern he did not bring the matter to court at that time or since. Further, Ms. Schmidt’s characterizations of how the incident unfolded in her affidavit and text message sent at the time contained material inconsistencies which negatively impact her credibility.

[58] Despite Maddaline’s characterization which seems to minimize the incident, it reflects poor judgement and a concern that Ms. Schmidt would permit her partner to “hands-on” discipline and spank her 12 year-old daughter in the manner she described in her affidavit and her text message.

[59] However, it was reasonable and appropriate that Ms. Schmidt and her partner undertook parenting support programming through the CAS, and the court has independent evidence that they have each done so successfully. There is no evidence that this behaviour has been repeated.

[60] The only evidence that appears to support a wholesale change of the status quo on an temporary basis are the views and preferences of Maddaline as expressed to the OCL clinician.

[61] With respect to the VOC Report, Ms. Schmidt feels that it does not accurately reflect Maddaline’s views and preferences as she feels that Mr. Amy has pressured and manipulated her. As a result, she submits that the court should put little weight on her views and preferences as expressed in the Report until the court has the benefit of cross-examination of the parties and the OCL clinician.

[62] In some respects, Maddaline’s views and preferences as outlined in the VOC Report struck me as relatively balanced despite the circumstances of her parents’ conflict. She was clear she loved both her parents and was happy in both homes, but she expressed a preference to reside primarily with her father. Her views were clear and consistent, and the clinician reported no concerns that would impact the independence of Maddaline’s views. The clinician also felt that Maddaline was open and engaged during the interviews and that she was both responsive and appeared to fully comprehend the purpose of the meetings.

[63] However, while I accept that Maddaline was endeavouring to be honest with the clinician, her views and preferences must be considered in context. The Report is based on two virtual visits with the clinician one day apart on July 13 and 14, 2021. Further, I am mindful that the interviews took place very shortly after she had gone for approximately two months of her father restricting any face-to-face contact with her mother and during a period of significant parental conflict and turmoil in the family.

[64] The court cannot ignore the real possibility that these circumstances manufactured by Mr. Amy may have impacted Maddaline’s views and preferences. Further, there were only two interviews done over two consecutive days. While I do not fault the OCL for this given the timelines of a VOC Report, I am unable to find that her views and preferences have remained consistent over a sufficient period of time, which diminishes the weight that the court can place on them.

[65] Any order this court makes in the circumstances will be an imperfect solution to a complex problem, based on an incomplete and untested evidentiary record. The court is not in a position to conduct a detailed best interest analysis that would be possible at a trial. It is important to emphasize that the only consideration is what is in the best interests of the child on a temporary basis and not what might be in the interests of either of the parents.

[66] The compelling grounds necessary to support an immediate change to the status quo on an interim basis have not been established. The evidence available at this time of Maddaline’s views and preferences is not sufficient on its own to justify a wholesale change to the parenting arrangements on a temporary basis when the entirety of the circumstances are considered. The remaining evidence before the court supports a return to the parties’ status quo.

[67] Pending a trial the best interests of Maddaline support the maintenance of the lengthy status quo that was in place pursuant to the parties’ separation agreement prior to Mr. Amy’s unilateral actions in May 2021.

[68] Maddaline shall be forthwith returned to the primary care of her mother and continue to attend school in her catchment area. Mr. Amy will continue to have his parenting time with Maddaline as outlined in the parties’ separation agreement.

[69] The parties will remain under terms to not discuss this litigation with Maddaline or expose her to any parental conflict and negative comments about the other parent or their family. Further, Ms. Schmidt shall ensure that Maddaline is not subjected to any physical discipline in her home.

[70] I am not prepared to make an interim order for decision-making to either parent at this time. I am mindful of the level of conflict between the parties at times and that this can militate against joint decision-making. However, the parties have previously agreed to joint decision-making and parenting time, and up until May 2021 had managed for several years to maintain this arrangement and to work matters out without the need for litigation.

[71] The court will make an order requesting the further involvement of the OCL by way of appointing counsel for Maddaline so the parties and court can have the benefit of her views and preferences going forward from an independent source. If Maddaline’s views and preferences remain consistent over the coming weeks and months, and the court finds that both parties are capable of providing primary care, given her age her views will likely be a significant factor in the best interest analysis following a trial.

[72] Ms. Schmidt also seeks a police assistance clause pursuant to section 36 of the Children’s Law Reform Act.

[73] An order requiring the police to enforce parenting orders is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation. Allen v. Grenier, [1997] O.J. No. 1198 (General Div.); Klinkhammer v. Dolan and Tulk, 2009 ONCJ 630; F.(M.) v. M. (C.) (2009), 2009 NSFC 15, 72 R.F.L. (6th) 226 (N.S. Fam. Ct.).

[74] Police enforcement of parenting orders may give rise to a wide range of negative emotions and consequences in the child involved and should only be imposed as a last resort when required in the best interests of the child, after considering the risk of trauma to the child. Patterson v. Powell, 2014 ONSC 1419.

[75] The court is not prepared to order a police assistance clause at this time. There is insufficient evidence to establish that this is an exceptional circumstance or to permit the court to consider the impact such an order may have on Maddaline. However, the court expects both parents to cooperate and comply with this order. If either party does not cooperate with the implementation of this order or in ensuring that the parenting arrangements in the separation agreement are continued, the court may reconsider the issue of temporary decision-making, parenting time, and the appropriateness of a police assistance clause.

[76] The parties are strongly encouraged to make efforts to reduce their level of conflict and improve their ability to communicate in a child focused way, and to work towards resolving this matter through negotiation rather than litigation.

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

1. The applicant has established urgency, and she is granted leave to proceed with her motion.
2. Maddaline shall forthwith be returned to the primary care of the applicant and the parties shall adhere to the decision-making and parenting time arrangements outlined in their Separation Agreement unless otherwise agreed by the parties in writing or until further order of the court.
3. Maddaline shall attend school in the applicant’s catchment area.
4. Neither party shall expose the child to adult conflict or to any discussion about adult issues, or to negative or derogatory language about the other parent or their family.
5. The parties shall not communicate with each other during parenting time exchanges or otherwise in the presence of the child.
6. The applicant shall ensure that Maddaline is not subjected to any physical discipline by anyone in the home.
7. The claims for a temporary decision-making and a police enforcement order are dismissed without prejudice to renewing the claims if circumstances warrant.
8. An order shall issue requesting the further involvement of the OCL by way of appointing counsel. The clerk of the court shall provide these Reasons to the OCL along with the order requesting its further involvement.
9. The clerk of the court shall forthwith provide the parties with the OCL Intake Forms, and the parties shall file them with the OCL within 10 days.
10. Both parties shall serve and file a sworn financial statement with attachments by October 29, 2020.

The parties are encouraged to agree on the issue of costs in this matter. However, if the parties are unable to agree the issue may be addressed on the return date.

Released: October 13, 2021 Signed: “Justice S. E. J. Paull”