Court File and Parties
COURT FILE NO.: 1206/12 DATE: 2020-04-08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tyler McNeil, Applicant AND: Jennifer McGuinness, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Mr. S. Seaton, Counsel, for the Applicant Self-Represented Respondent
HEARD: April 8, 2020 – No appearances – Triage Endorsement
Endorsement
[1] AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
[2] For the moment, the court is prioritizing “urgent” matters. A supplemental Notice to the Profession dated April 2, 2020 sets out a narrow list of less urgent matters the court will attempt to deal with, as time and resources permit. (Further information is available in the April 7, 2020 “Protocol Regarding Family and Child Protection Matters in Central South Region”.)
[3] This motion was referred to me as Triage Judge for a preliminary determination of urgency and of how this matter should proceed. Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself.
[4] Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca. Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.
[5] I have received and reviewed the following materials: a. Applicant’s 14B Notice of Motion dated April 7, 2020 (no return date/time set out). b. Applicant’s Affidavit dated April 7, 2020. c. Respondent’s Affidavit dated April 8, 2020
[6] The Applicant father’s motion seeks to deal with timesharing in relation to the parties’ 11 year old daughter, on both an immediate and long-term basis. His position briefly: a. There has been a long history of conflict and litigation since the parties separated on May 27, 2012. b. Following a trial, on May 14, 2015 Justice Lafrenière made a final order granting the father sole custody. The mother’s access includes every Monday from after school until Wednesday morning before school; and alternate weekends from Friday after school until Monday before school. c. Paragraph 7 of the final order states: “If the parties cannot agree on how to accommodate holiday plans and special events, in even-numbered years the Respondent shall have the first choice and in odd-numbered years the Applicant shall have the first choice. The guiding principle is that (the child’s) time is to be shared equally between the parties.” (emphasis added) d. The immediate issue relates to Easter weekend which starts in two days. e. The father says in each year between 2016 and 2019 the parties agreed to divide Easter weekend, with the father to have the first portion (Thursday after school until Easter Sunday at 10 a.m.) and the mother to have the remainder of the weekend (until Tuesday morning before school). f. The father says in February 2020 the mother announced she would no longer agree to share holiday weekends. Since the final order allows her “first choice” in even numbered years, in 2020 she was choosing to have the child with her for the whole of the Easter and Thanksgiving weekends. He says she offered to give him Easter Monday, if he subtracts the day from a future holiday.
[7] The father seeks an order on an urgent basis: a. For the upcoming Easter weekend, one party to have the child from Friday 9:00 a.m. until Sunday 9:00 a.m., and the other party to have the child for the remainder of the weekend until Tuesday 9:00 a.m. b. For future holiday plans, if the parties are unable to agree, the father is to have first choice in every year.
[8] The mother says the father’s motion is not urgent, and the court should make no order. Her position briefly: a. The parties are talking about Easter. She has offered certain times which the father has rejected. (She attached numerous e-mail exchanges back and forth, many of which are acrimonious and unproductive.) b. The father fails to communicate properly and uses court proceedings to pressure her. c. The father lacks insight into the emotional impact on the child of court battles, particularly in the context of COVID-19 stressors. d. The father has a history of eroding the mother’s time and involvement with the child. e. The father is abusing the court process by bringing an “urgent” motion at the last minute. The parties have been discussing this issue for a long time. By serving the mother with an Easter access motion on the Tuesday before Good Friday, the father knew he was not giving the mother a reasonable opportunity to respond. f. The mother will not attend court to deal with this matter, as it would needlessly expose the mother (and the child) to COVID-19 risks.
[9] I remember this file. a. On June 28, 2019 at a contested motion I found that the mother had acted inappropriately in attempting to secure an extra week with the child by characterizing it as a private “camp” that she was operating. The father was successful on that motion and I ordered $3,000.00 costs against the mother. b. On December 14, 2016 Justice Lafrenière dealt with cross-motions with respect to access issues. The mother’s motion was dismissed. The father’s motion was granted.
[10] My motion endorsement of June 28, 2019 was disapproving of the mother’s behaviour, and included the following:
4 The context for this file is important. This has been a high conflict parenting dispute, and ever since the May 14, 2015 final order (following a trial) there have been ongoing disputes including repeated disagreements about summer plans for the child. 5 On the one hand we always encourage flexibility and creativity when dealing with children, because the paramount objective is the best interests of the child. We are completely open to unique experiences if they will benefit the child. 6 However, perpetual litigation is not in the best interests of the child. And on this file these parties have reached the tipping point where unfortunately we have to treat them as a high conflict file. In situations like that, the court needs to impose clear guidelines to minimize opportunities for parental conflict and uncertainty or confusion by the child. 11 Mr. Seaton seeks costs of $3,000.00 which he says represents close to full indemnity. He acknowledges that this is at the higher end for a single-appearance motion. But he notes correctly that today’s motion is similar to previous court determinations that the mother has been inappropriate with respect to the positions she has advanced with respect to summer time-sharing. The Applicant was entirely successful on this one-issue motion. While I would not go so far as to accept Mr. Seaton’s characterization of “bad faith”, I do consider the mother’s behaviour and position to be completely unreasonable. She not only caused the father to incur needless legal fees, but she also created needless confusion and potential disappointment for the child by conveying the impression that this Girl’s Club was going to take place, in circumstances in which it was clear that the mother had no legal authority to make those plans… 12 I must attribute an above average amount of emphasis on deterrence. The mother needs to understand that self-help and repeated unreasonable positions with respect to time-sharing arrangements will not be tolerated. 13 The Respondent shall pay to the Applicant costs fixed in the sum of $3,000.00 which I consider to be a very reasonable amount.
[11] It is incomprehensible to me that after all this time, and after all these court battles, the mother and father are still unable to resolve something as simple as Easter weekend timesharing.
[12] Nonetheless, even if I were to accept the entirety of the father’s evidence, I would have to agree with the mother that this matter is not “urgent.” I will not authorize the matter proceeding.
[13] In Ribeiro v. Wright 2020 ONSC 1829 this court attempted to provide some guidance on two related and timely topics: a. The need for parents to be mature, fair-minded, and cooperative in ensuring that existing parental relationships and routines are maintained – subject to reasonable modification for health and safety considerations relating to the COVID-19 crisis. b. The need for parents to be more cooperative and less litigious during these extraordinary times. Family stress is higher than ever. Court resources are lower than ever. Judges simply aren’t currently available to solve every problem that comes along.
[14] The immediate issue which the father characterizes as “urgent” is basically that he wants two days with his child during the upcoming four-day Easter weekend, and he says the mother is only offering him one day. a. I make no determination as to whether the father’s position should prevail. The mother says she has made a proposal which the father rejected. Her affidavit does not clearly identify her proposal. (The many e-mails she attaches do not fully clarify her position – and judges should not be required to parse lengthy, nasty e-mail exchanges.) b. In general terms, I can say that courts typically divide Easter weekend equally, along the lines suggested by the father. c. More specifically, the existing order mandates this approach: “ The guiding principle is that (the child’s) time is to be shared equally between the parties.” d. I also note that on a number of occasions the court has concluded that the mother’s proposals in relation to time-sharing and parental responsibility have been inappropriate and not child-focussed. e. But I do not find a 24-hour dispute about Easter weekend to be “urgent.” f. And I certainly don’t find that the possibility of a similar dispute in relation to Thanksgiving weekend is a matter which requires urgent attention at this time.
[15] For all of these reasons, I would strongly recommend – without ordering – that the parties continue their discussions to reach a fair, child-focussed resolution of this very narrow issue.
[16] I have no idea if a mere recommendation will have much impact.
[17] So perhaps I can go one step further. Perhaps I can give high conflict parents a bit of a warning. a. Just because a Triage judge decides an issue isn’t urgent, it doesn’t mean the issue isn’t important. It simply means we have to prioritize which issues we currently have the resources to deal with. b. The suspension of most court activities during the COVID-19 crisis means that – temporarily -- separated parents are largely going to be on “the honour system.” c. We’re counting on parents to be fair and helpful with one another. To rise to the challenge and act in good faith. d. Because now more than ever, children need parents to be mature, cooperative, and mutually respectful. In these times of unspeakable stress and anxiety, children need emotional reassurance from both parents that everything is going to be okay. e. How parents conduct themselves during this time of crisis will speak volumes about parental insight and trustworthiness. f. Your reputation will outlast COVID-19. g. So please don’t try to take advantage of the current situation. h. In the long run, self-help will turn out to be a big mistake.
[18] Today’s order: a. The father’s motion in relation to Easter weekend access is not urgent, and will not be heard. b. The balance of the father’s motion is adjourned without a return date, and may be returned on notice, after the resumption of normal court operations. Since he has brought a motion to change a final order, a case conference will eventually be required. c. Costs in relation to all issues – including Easter weekend – are reserved, to be addressed after the resumption of normal court operations.
[19] Court staff are to e-mail a copy of this endorsement to the father’s counsel and to the mother.
[20] The mother would be well-advised to quickly get some legal advice. The Court has been advised that legal information may be available to individuals who qualify, through the Law Society of Ontario at the following phone numbers: Toll-free: 1-800-268-7568; General: 416-947-3310. If the mother qualifies, she may also wish to contact the Client Service Centre of Legal Aid Ontario at 1-800-668-8258.
[21] Both parties would be well-advised to retain the services of a parenting co-ordinator, a mediator, or some other child-focussed professional to assist them in resolving parenting issues in a more productive and therapeutic manner.