Court File and Parties
COURT FILE NO.: FS-19-00013549 DATE: 20200406 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Min Zhang, Applicant AND: Hui Hao, Respondent
BEFORE: Kiteley J.
COUNSEL: Heng (Pandora) Du, counsel for the Applicant Erica Lien, counsel for the Respondent
HEARD: March 17, 2020
Endorsement on Motion and Cross-Motion
[1] This was a motion and cross-motion in which each parent was seeking many interim orders. The only contested matters arose from parenting issues with respect to their daughter O.
Background
[2] When the parties married in China in 2006, the father had permanent resident status in Canada and the mother was a resident of China. The father submitted a spousal sponsorship application. Their son T. was born in China in February 2008 and he is now 12 years old. The family came to Canada in July 2008. At some point, the mother returned to China to care for T. The mother and T. came back to Canada in March 2009. Their daughter O. was born on April 7, 2011 and she is now almost 9 years old. Between approximately October 2014 and October 2016, the father lived in Ottawa during the week because he had a job.
[3] It appears that after he returned to Toronto full time, the relationship between the mother and the father deteriorated. They agree that in January 2018, they separated but continued to reside in the matrimonial home. In May, 2019 they signed an agreement of purchase and sale with a closing date of August 28, 2019.
[4] On July 24, 2019 an incident occurred as a result of which the police attended at the home. The mother was removed from the home and charged with assault of the father. The children remained in the home with their father. According to the Undertaking to Appear dated November 6, 2019, the mother is restrained from contacting the father except through an agreed upon third party and restrained from attending near the matrimonial home. At the time of the Undertaking, the court date was set for March 11, 2020.
[5] On August 6, 2019 the father and T. went to China to visit the paternal grandparents. On August 5, O. was taken by a neighbour to her mother's residence. O. has lived with her mother since then.
[6] When the father returned on August 13, he expected O. to be returned to the matrimonial home. The father could not locate the mother or O. He began proceedings in the Ontario Court of Justice and hired a skip tracer to find the mother and O. The mother was served on October 4, 2019.
[7] The sale agreement closed on August 28, 2019. The net proceeds of sale of almost $650,000 were held in the trust account of the real estate lawyer.
[8] On November 4, 2019 the mother started divorce proceedings in the Superior Court.
[9] On the first appearance date of November 14, 2019 at the OCJ, the parties agreed to a temporary and without prejudice arrangement to share parenting time: on one weekend, the children would both be with the mother and on the next weekend the children would both be with the father. The transfers occurred in a public place on Saturdays at 8:30 a.m. and on Sundays at 6:00 p.m. The parties agreed that the children would be with the father from 9:00 a.m. on December 24 to 6:00 p.m. on December 30 and with the mother from December 30 at 6:00 p.m. to January 5 at 6:00 p.m. The father consented to the withdrawal of his Application at the OCJ so that all matters could be addressed in this court. The parties also agreed that each would receive $250,000 from the proceeds of sale leaving approximately $150,00 in trust.
[10] The father first saw O. on November 30th.
[11] The father's Answer was filed December 4, 2019.
[12] The first case conference was held on January 8, 2020. One of the issues discussed was the father's insistence that he have primary care of and residency of both children and, if so, he would enroll O. in her former school.
[13] At the case conference, the parents did not reach any agreement as to the parenting of O. Diamond J. made a referral to the OCL. And he set a long motion date for March 17, 2020 to permit the parties to bring "motions for disclosure if necessary, support and school issues". March 17 was the earliest long motion date available.
[14] The parents each delivered a motion and affidavits in support. Each also delivered an Amended Notice of Motion and further affidavits. Counsel had properly confirmed the motions.
[15] On Sunday March 15, 2020, the Chief Justice of the Superior Court suspended regular court operations effective Tuesday March 17, 2020 "and until further notice". Court staff are postponing scheduled events to June 1, 2020 and thereafter. In the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, the Chief Justice directed that only urgent matters would be heard. In the case of family law, the Notice stated as follows:
Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
b. 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;
c. dire issues regarding the parties' financial circumstances including for example the need for a non-depletion order;
d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings. [Emphasis added]
[16] On Friday, March 13 I read the material that had been filed by each party which was assigned to me as a long motion scheduled to be heard on Tuesday March 17. On Monday March 16, as the Presiding Judge, I determined that the motions should proceed on March 17 because the parties had waited over 2 months for the long motion date and the father was, in effect, taking the position that the mother was wrongfully retaining O. On my direction, court staff contacted counsel and arranged for the motion and cross-motion to be heard by telephone conference call.
[17] In an amended confirmation form, counsel confirmed that they had agreed to some aspects of the motions. In particular, they had agreed to the child and spousal support that the father would pay depending on the success of the motions as to O.'s residence and school.
Interim Parenting Arrangements for O.
A. O.'s residence and school
[18] In his amended Notice of Motion, the father asked for a temporary order that he have primary care of and residency of both children with the mother having access on alternate weekends and other times on reasonable notice to the father. In the alternative, he asked for a temporary order that the parties alternate weekends with the children from Friday after school to Monday morning.
[19] In her amended Notice of Motion, the mother asked for an interim and without prejudice order maintaining the current parenting arrangement with O. having her primary residence with the mother and T. having his primary residence with the father until the OCL conducted an assessment, or alternatively, created a Voice of the Child Report.
[20] The mother and father have provided significantly different evidence on many issues including the following:
(a) who was the primary caregiver before the father took the job in October 2014; while he lived in Ottawa during the week and returned home on weekends; after he moved back to Toronto; after the mother obtained a job at a spa;
(b) whether the mother or the father was more attentive to and involved in addressing T.'s special needs;
(c) what happened on July 24, 2019 and in particular, which parent assaulted the other;
(d) whether, before the events on July 24, it was agreed that both children would go to China for a visit with the paternal grandparents or, after July 24, 2019, the father wanted them to go to China because he was unable to work full time and care for the children who were on summer holiday;
(e) whether the mother withheld her consent to travel and refused to let T. go to China unless O. stayed with her; and whether, since O. did not express an interest in going to China, the father agreed that O. would stay with the mother;
(f) whether the mother deceived the father into letting O. stay with the mother while T. was in China as a ruse to keep her indefinitely;
(g) why in September 2019, the mother unilaterally and without consulting the father, registered O. in an English language school in Markham so far away from the French immersion school she had attended in the Beaches starting in kindergarten;
(h) whether, in the fall of 2019, the mother or father obstructed establishing appropriate parenting arrangements through the agreed upon third party;
(i) whether the mother is "mentally unstable" and has a history of "violent behaviour"
[21] As a result of their attendance on July 24, the police contacted the CAS. The CAS has been involved and, based on the evidence of both parents, has not intervened in the care that mother has provided for O. and that the father has provided for T. Based on the absence of intervention by the CAS and based on the mother's evidence about her thyroid condition and the letter from the family doctor dated February 26, 2020, I am satisfied that the mother is not "mentally unstable" and does not have a history of "violent behaviour". At this point, she is presumed innocent of the assault charge.
[22] On the contradictory evidence before me on all of the other issues listed in paragraph 20, I am not in a position to make findings of fact with respect to those issues. But I need not do so. As indicated below, the core evidence about the children on which I rely is largely uncontradicted.
[23] O. and her brother were in a bilingual day care in Toronto when they were toddlers (O. was 1.5 years old and T. was about 4 years old). Both children were registered at a bilingual public school from kindergarten. In contrast, as a result of steps taken by the mother, O. is in grade 3 at a standard English program in Markham.
[24] T. has continued in the same school where he is in grade 6. He has an Individual Education Plan and has been assessed and treated at CAMH in the Mood Anxiety by Children Youth Service for self-control and emotional regulation.
[25] While living in the matrimonial home, the children had been involved in after school programs in Toronto including sports programs at the school and soccer and dance. O. had many friends in her area and was closely bonded to her brother. Prior to September 2019, O. had consistently received report cards indicating that she was doing well and, by the time she was 3 years old, her vocabulary and comprehension in French was ranked "outstanding" for her level.
[26] The father takes the position that the mother unilaterally changed a long-standing status quo; that O. had been doing well at her former bilingual school; that O. should return to that school for the balance of the year where T. is registered and continue there in September 2020; that bilingual education is an important asset and that the mother does not appreciate the advantages the children would have by being bilingual; that if O. is not returned to her former school, her French language skills will deteriorate; and that the former school is ranked much higher in publicized school rankings. The father has provided confirmation from the Vice-Principal at the former school that O. could be registered immediately. The father asserts that the mother's unilateral action has made a shared parenting arrangement impossible and that the mother is acting so as to reduce her time with her father.
[27] In Cosentino v. Cosentino, 2016 ONSC 5621, the court cautioned parents against trying to move a child to another city in the middle of a custody dispute and emphasized that motions judges must be mindful of both short-term and long-term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral action of either party. The court noted that on a temporary choice-of-school motion, particularly one with mobility consequences, a cautious approach is necessary to safeguard the best interests of the child and avoid manipulation of the process.
[28] The travel distance between where the father lives (in the same general area as before the house sold) and where the mother lives in Markham means that it is not possible for O. to return to her former school while she lives in Markham. As a result of the distance, the father says that the mother has breached the "maximum contact principle".
[29] The father takes the position that the mother's self-help tactic in moving O. without the father's knowledge or consent to gain a tactical advantage in the application demonstrates that her parenting judgment cannot be trusted. He asserts that she ought not to benefit from the passage of time due to limited court dates (for the long motion) in claiming a new status quo.
[30] The father also takes the position that the mother does not have the temperament nor the patience to care for T. with his special needs. He noted that the mother had restricted communication between him and O. and that if both children were with him, he would facilitate reasonable access. He urged that the children not continue to be separated.
[31] The mother takes the position that she moved to Markham because, in July, she had few financial options. Her form 13.1 discloses significant RRSP funds that were not accessible. She found rental accommodation and registered O. in the neighbourhood school. It was not until November that the father agreed to allocate significant funds from the proceeds of sale of the matrimonial home to each of them. The mother provided school records that indicate that O. is doing well and is successful in her school. The mother points out that T. will only be in the former school until the end of this school year and then he will move to a different school for grade 7. As a result, the time the children could spend in the same school will be limited.
[32] The mother asserts that O. has said that she likes living with her mother and is happy with her new school and she argues that O. should live primarily with her and remain in the current school until the OCL has reported on the needs of the children or the OCL has provided a Voice of the Child Report so that her views and preferences will be known.
B. Analysis
[33] I will consider these interim motions in the framework of the amendments to the Divorce Act that take effect on July 1, 2020. The terms "custody" and "access" have been replaced by orders with respect to parenting time and decision-making responsibilities. Parenting time means the period during which an individual is primarily responsible for the child including when the child is in school or daycare.
[34] Pursuant to s. 16(3) the Court is required to consider enumerated factors including family violence which is expanded in s. 16(4). Pursuant to s. 16(5), the over-arching factor is the best interests of the children. Pursuant to s. 16 (6) the court must make an order for as much parenting time as is consistent with the best interests of the children.
[35] There are three factors that are key to the decision on these interim motions.
[36] The first is that neither parent alleges that the other is unable to meet the day to day needs of the child with whom s/he resides. As indicated above, the father raises issues of violence but I am satisfied that the evidence does not support that concern. I am satisfied that, regardless of whether the mother was the primary parent prior to July 24, 2019 as the mother alleges, both parents had been involved in the day to day care of the children. There is no issue with respect to the capacity of each parent to meet the day to day needs of the children.
[37] The second is that the father's primary objection is that the mother failed to respond to O.'s best interests by making the abrupt change in August and September, namely moving the child's residence to Markham and registering the child in an English only school. Father insists that there was a status quo as to residence that the mother disrupted when she did not return O. to her father after his trip to China. He also argues that there was a status quo as to choice of school that the mother disrupted when she did not return O. to the French immersion school that T is also attending.
[38] The parties agree that they separated in January 2018 and agree that separation in the matrimonial home had subsisted from January 2018 to July 24, 2019. On July 24 the mother was compelled to leave the matrimonial home. On August 5, O. was taken to her mother's residence. On August 6, T. went to China with his father and returned late August or early September. A status quo as to the parenting regime was not created in the two weeks between July 24 and August 5. There was a status quo with respect to registration in a French immersion program.
[39] In the best of all worlds, a child experiencing family breakdown ought not to be suddenly moved geographically, academically and socially. I am satisfied with the reasons for doing so advanced by the mother, including the lack of resources that informed her rental decision and that the rental decision informed the school decision. The father has been to O.'s school and has been in touch with educators there. Other than his general comments about the lack of French immersion and the lower rating of the new school, the father has not expressed any concern about the quality of O.'s education. Her school records demonstrate that she is succeeding. I am satisfied that the mother has met the onus in establishing that the change of school was in O.'s best interests. At almost 9 years old, it is likely that O. has expressed a preference to remain in the current school. I do not rely on that evidence of the mother because there is a possibility that mother has influenced that preference.
[40] The third is the evidence about T. In her affidavit sworn February 20, the mother provided an explanation about how T.'s special needs developed, how she had taken initiative to respond before July 24, and how she was unable to participate in addressing his special needs because of the terms of the Undertaking to Appear included not being in the presence of the father. In paragraph 44, she said the following:
In fact, given our family's unique history and background and T.'s special needs, neither Mr. Hao nor I would be able to take care of both children. I ask to continue to [sic] current parenting arrangement, which is in the children's best interest.
[41] In paragraph 8 of his affidavit sworn March 3, the father deposed as follows:
. . In paragraph 44 of the Applicant's Affidavit, she admits that she is unable to care for both children due to T.'s special needs and falsely alleges that I am unable to do the same. This demonstrates that the Applicant is unable and unwilling to care for our son for extended periods. The Applicant has been restricting my time with O. based on the limited time she is seeking to care for T., which is unreasonable.
[42] The parents disagree as to how each has responded although it is clear that the mother has not been able to participate in T.'s care since July 24. The father disagrees with the evidence of the mother that neither parent can care for both children. The parents agree that T. has special needs. In the circumstances of this case where, because of the terms of release, the mother cannot actively participate in T's care, it is reasonable that the father be primarily responsible for responding to his special needs. In other words, having been satisfied as to the mother's care of O. and father's care of T., it is reasonable that each child's needs be primarily met by one parent and the usual principle of keeping siblings together ought not to apply.
[43] For those reasons, I am satisfied that the decisions by the mother as to residence and school is, on a temporary basis, in the best interests of O. I grant the mother's motion that she have parenting time and decision-making responsibilities with O. and the father's motion that he have parenting time and decision-making responsibilities with T. The decision with respect to T. in September 2020 has been made. In respect of O., decision-making includes the school that each child attends until the end of this school year. As indicated below, the mother is not authorized to make a decision as to the school that O., will attend in September 2020.
C. O's parenting time with her father
[44] On November 14, 2019 when the interim consent was signed, the parents agreed to a schedule that had the children being together on all weekends, alternating between the home of the mother and the home of the father.
[45] The father takes the position that, in November, he had no alternative but to agree to that schedule because he had not seen O. since August 5. He asserts that he would facilitate the mother's expanded parenting time with both children but that the mother is resisting a more comprehensive arrangement with O. He also asserts that the children are closely bonded and should be spending more time together. If the court makes an order that continues the status quo as to residence and school, the father asks that the weekends be expanded, which I will deal with below.
[46] I agree that the parenting time of each parent should be expanded. The children are 12 and almost 9. In the November consent, the parents agreed to split Christmas school vacation almost equally which confirms their recognition that extended time with each parent is in the best interests of the children.
[47] The challenge is how to expand the parenting time.
[48] On Wednesday March 11, the World Health Organization declared that COVID-19 is a pandemic. On Thursday March 12, the Government of Ontario closed all public schools for the duration of the March break (the week of March 16) and two subsequent weeks (the weeks of March 23 and March 26). Since then, colleges and universities and their residences have been closed. People who have travelled are expected to self-isolate for 14 days. All others are expected to practice "social distancing". As mentioned above, regular court operations are suspended effective March 17. Hundreds of thousands of people have been laid off of work. Without considering whether those are facts warranting "judicial notice", the circumstances are such that I infer that it is unlikely that children will return to public school education at the end of the three week period, namely on April 6 or 7.
[49] The evidence of the parents on expanding the alternate weekends and March break preceded the evidence that began to unfold on March 11. In her affidavit, the mother deposed that she had stopped working and had expected to attend adult education. That is not likely to happen in the near future.
[50] In his affidavit, the father deposed that he is working full time. I have little information about the nature of his employment. I do not know whether he continues to go to work, is working remotely, or has been laid off. That information has an impact on his availability to have parenting time with both children. To the extent that he is more available, the maximum contact principle must be applied. I do know that expecting O. to be returned on Monday morning to school, once school resumes, is unrealistic.
[51] As indicated above, according to her Undertaking to Appear, the mother was expected to attend at the Ontario Court of Justice on March 11. I have no information what happened on that occasion. I assume that if the conditions of her Undertaking had changed, counsel would have agreed that was information I should have. The Ontario Court of Justice regular operation has also been suspended which means that there will not be an early resolution of the assault charge. The conditions of release will continue to apply. That means that the parenting schedule must respect the no contact term of her Undertaking.
[52] The Office of Children's Lawyer accepted the referral made by Diamond J. It is unclear whether the OCL will do a clinical investigation (as the father prefers) or a Voice of the Child Report (as the mother prefers). In any event, I doubt that anything will come from the OCL in the immediate future.
[53] The issue of O. attending an immersion school has not informed this interim decision. For September 2020, whether O. returns to the prior school, is registered in a French immersion program in Markham or is registered in an English program remains an issue. As indicated below, the mother's decision-making as to school in September 2020 is not included in this order.
[54] On the basis of so much uncertainty, I am making the interim order below with as much specificity as the circumstances allow. I am assuming that the third party will continue to assist in making the arrangements. I will not be available to provide any further orders. Unless the parents agree as to O.'s school in September 2020, I am making an order requiring that the parties attend a case conference that will be sufficiently timely as to allow a decision for the next school year. In my view, it is "urgent" within the meeting of the Notice to the Profession, the Public and the Media that that decision be made in a sufficiently timely manner so as to secure the school registration for September 2020 most in O.'s best interests.
[55] Given that the interim decision as to O.'s residence and school has been made, I am optimistic that the parties will be able to reach consensus as to O.'s school in September 2020 and parenting time over the summer of 2020.
[56] Because of the suspension of regular court operations, it is uncertain when formal orders will be issued and entered. As indicated below, I expect that the orders I make take effect immediately.
Costs of the Motion
[57] I did not hear submissions as to costs. This was an important motion to both parents. Each acted responsibly in asserting a position that each thought was in the best interests of O. As indicated above, the parents did settle the child and spousal support issues without the court hearing submissions. Under those circumstances, I will not call for written submissions as to costs and will order that neither party pay or recover costs of these motions.
Interim Order to Go as Follows:
[58] In accordance with the consent signed by the parties. Support Deduction Order to issue.
[59] Father shall have interim parenting time and decision-making with respect to the child T.
[60] Mother shall have interim parenting time and decision-making with respect to the child O., provided that she does not have decision-making as to the school O. will attend in September 2020.
[61] Neither parent shall register O. for school in September 2020 without the written consent of the other parent or court order.
[62] As long as the public schools remain closed, the interim parenting schedule will be as follows:
(a) On one weekend, both children will be with the father from Friday afternoon at about 3:00 p.m., assuming the father is available at that time, to Monday morning at 9:00 a.m. assuming the father is available at that time.
(b) On the next weekend, both children will be with the mother from Friday afternoon at about 3:00 p.m. to Monday morning at 9:00 a.m.
(c) In addition, in the period between March 23 and April 5, O. and T shall spend up to a maximum of 4 continuous days and 3 nights each with the father (assuming the father is available) and with the mother.
(d) On April 7, 2020 father shall have both children for dinner from approximately 3:00 to 6:00 p.m. for O.'s birthday.
(e) Unless the parties agree otherwise through the third party, pick up and return shall be in the same public spaces as currently, unless those public spaces become unavailable due to social distancing.
[63] If the public schools resume operation before June 30, 2020, the schedule will be as follows:
(a) On one weekend, both children will be with the father from school on Friday afternoon to Sunday evening at 7:00 p.m.
(b) On the next weekend, both children will be with the mother from school on Friday afternoon to Sunday evening at 7:00 p.m.
(c) if the weekend includes a statutory holiday or professional development day, the weekend shall be extended to include those days.
[64] Neither party shall pay or recover costs of these motions.
[65] In the week of April 6, 2020, counsel shall jointly contact the Trial Co-Ordinator through the email: FamilyTrialOffice-SCJ-Toronto@ontario.ca and obtain a date for a case conference, before me if available, during the week of June 22, 2020 for purposes of considering the options for O.'s public school in September 2020 and of considering what position, if any, the OCL has taken.
Kiteley J.