Ontario Superior Court of Justice
Court File No.: FC-19-1911 Address: 161 Elgin Street, OTTAWA ON K2P 2K1
Endorsement
Citation: Stewart v. Reid, 2020 ONSC 2262
Applicant: Sarah Jean Stewart Present Lawyer: Brad Yaegar
Respondent: Daniel Bruce Reid Present Lawyer: Sarah Kennedy
Heard: April 7, 2020, by teleconference
Before: Justice P. MacEachern
Endorsement
[1] This motion concerns the timesharing arrangements for the parties’ four children, ages 11, 10, 9, 7. This motion is being dealt with on an urgent basis, pursuant to the March 15, 2020 directive of the Chief Justice that suspends regular court operations except for urgent matters.
[2] The parties’ four children were in the Respondent father’s care for March break. The children were supposed to be returned to the Applicant mother on March 29, 2020, but the father refused to do so, for several reasons relating to the COVID-19 situation. In response, the mother brought this motion, which was scheduled due to urgency by Justice Mackinnon.
[3] The father returned the children to the mother on April 6, 2020. The father argues that, because he has returned the children, this motion is no longer “urgent.” I disagree. This matter remains urgent because the father has now, without notice, moved back to the Ottawa area. As a result, there is now a dispute regarding the children’s timesharing arrangement.
[4] The father moved to Mississauga in September of 2019 due to what he described as a one-year teaching contract. The father moved to Mississauga on little or no notice to the mother. The father now advises that his teaching contract has ended, and he has moved back to Embrun (near Ottawa). As a result, the father’s position is that the children should return to the alternating two-week timesharing arrangement provided for under the final consent order between the parties, dated December 20, 2018, even though this timesharing schedule has not been in place since August of 2019.
[5] The final order of December 20, 2018, provides that the children reside equally with the parties, on a two-week rotating schedule, except that during the school year, the children are to return to the mother’s care every weekday, from 8:30 A.M. to 5:00 P.M., for homeschooling. The father’s position is that the children should remain in his care for the entire two-week period, and not return to the mother’s for homeschooling. The father argues that this is how the existing order should be interpreted because Ontario schools are currently closed due to the COVID-19 suspension. If this is not how the order is interpreted, the father argues the order should be changed because, given the COVID-19 situation, it is not in the children’s best interests to be transported to and from the mother’s residence every day.
[6] The mother argues that the status quo that has been in place since September of 2019 is that the children primarily reside in her care with access to the father and that it is in the best interests of the children for this to continue. Before regular court operations were suspended, the mother commenced a motion to change the December 20, 2018 final order. Her motion to change was issued on February 4, 2020. The father has not filed a response to that motion and is in default. His response was due March 5, 2020, before the current suspension of the court’s regular operations. On March 20, 2020, an order was issued under the Emergency Management and Civil Protection Act that suspended the period for filing a response, but this is only retroactive to March 16, 2020, by which time the father was already in default.
[7] The mother also argues that the homeschooling schedule under the December 20, 2018 final order cannot be separated from the timesharing arrangement, but must be viewed as part and parcel of an overall timesharing arrangement negotiated for the children. The effect of the homeschooling provisions is that the children would be in the mother’s care 12 out of 14 days during the school year. She opposes the father’s attempt to change this on the basis that Ontario classrooms, whom the children do not attend in any event, are closed.
[8] For the following reasons, I am granting the temporary orders set out below to change the provisions of the December 20, 2018 order to provide that during the period that approximately correlates with the regular school year before the COVID-19 situation, the children shall remain in the primary residence of the Applicant mother, with access to the Respondent father on alternate weekends from Friday at noon to Monday at noon.
Material on this Motion
[9] I have reviewed the following documents for this motion:
a. The mother’s Notice of Motion dated April 2, 2020; b. The mother’s Affidavit sworn April 2, 2020; c. The Affidavit of Candice Minnaar (father’s counsel) sworn April 6, 2020; d. The mother’s reply affidavit sworn April 7, 2020.
[10] The father has not filed his own Affidavit in this matter but relies on the Affidavit of his counsel, Candice Minnaar.
Background
[11] The parties separated on October 25, 2016. They have four children. Although there has been significant conflict between the parties since their separation, they were able to negotiate a resolution of the parenting issues arising from their separation, which was incorporated into a final consent order granted by Justice Pelletier, dated December 20, 2018.
[12] The December 20, 2018 final order includes provisions that the parties have joint custody of the children and that they co-parent with the assistance of a parenting coordinator. The order provides for an equal timesharing arrangement for the children, alternating on a two-week basis, but that during the father’s weeks, the children be dropped off at the mother’s home every weekday during the school year, between 8:30 A.M. and 5:00 P.M., for homeschooling.
[13] This homeschooling schedule is in place for the period between the first day following Labour Day and the last day of school as set out by the OCDSB (the Ottawa Carleton District School Board). Exceptions are provided for regularly scheduled school holidays, when the father is not required to deliver the children to the mother’s home for homeschooling.
[14] This timesharing schedule is subject to adjustment when the father obtains new employment. There is recognition of the need for the parties to be flexible, taking into account the father’s teaching schedule.
[15] In August of 2019, the father advised the mother than he would be residing in Mississauga, with his parents, for the duration of a one-year teaching contract. The father moved to Mississauga with little or no notice to the mother.
[16] Since September of 2019, the children have primarily resided with the mother in Ottawa with access to the father.
[17] On February 4, 2020, the mother commenced a motion to change the December 20, 2018 final order to have the children primarily reside with her, following the status quo that has been in place since September of 2019.
[18] The father has not filed a response to the mother’s motion to change and is in default. His response was due March 5, 2020, before the current suspension of the court’s regular operations.
[19] The children were transferred to the father’s care on March 13, 2020, for the March 2020 break. The children were supposed to return to the mother’s care on March 29, 2020.
[20] The father planned to take the children to Florida on March 14, 2020, to visit his parents but cancelled these plans. The children remained in Mississauga. The father’s parents returned from Florida to Mississauga on March 14, 2020, into the same residence as the father and the children.
[21] On March 24, 2020, Ms. Minnaar, the father’s counsel, advised Mr. Yaegar, the mother’s counsel, that the father’s parents had begun to experience flu-like symptoms, that the family was advised to self-isolate for a further 14-day period, and that therefore the father could not return the children to the mother’s care until April 6, 2020.
[22] Ms. Minnaar also advised that the father’s parents were self-isolating from the rest of the family. The mother’s evidence, which is not contested, is that this was not the case.
[23] In response, Mr. Yaegar sent several communications to the father’s lawyer seeking further information related to safeguards for the children’s health, asking for the children’s return on March 29, 2020, and communicating the mother’s offer to drive to Mississauga to pick up the children. As no response was received, on March 28, 2020, Mr. Yeager wrote directly to the father.
[24] On the evening of March 28, 2020, the father responded, reiterating his position that the children are required to quarantine until April 6, 2020. The father advised that when the quarantine period passed, as long as travel was not banned, he would be returning to reside in his home in Embrun (near Ottawa), as his teaching contract had ended. This is the first evidence before me that the father advised the mother than he was moving back to the Ottawa area.
[25] On March 29, 2020, Ms. Kennedy, the father’s counsel with Ms. Minnaar, wrote to the Mr. Yaegar advising “On April 6, we will re-evaluate the status of this and, barring any unforeseen developments, anticipate arranging for a safe transition at that that time if at all possible”.
[26] On March 31, 2020, Mr. Yaegar requested confirmation from Ms. Kennedy by the following day at noon that the mother could collect the children from the father’s residence in Mississauga at noon on April 6, 2020, failing which he would seek an urgent motion. No response was received.
[27] On April 2, 2020, Mr. Yaegar filed motion material seeking an urgent motion for the children’s return. Justice Mackinnon granted the urgency on April 3, 2020, and the motion was scheduled for April 7, 2020. Justice Mackinnon’s Endorsement states: “If the children are not delivered to the mother on April 5, 2020, then the motion will proceed on April 6, 2020.” The motion was scheduled for April 7, 2020, and the parties seem to agree that Justice Mackinnon’s Endorsement required the return of the children by April 6, 2020, rather than April 5, 2020.
[28] On April 6, 2020, the children were returned to the mother’s care.
[29] The father had returned to his residence in Embrun with the children on April 4, 2020, but refused to allow the children to return to the mother until April 6, 2020. In an email exchange on April 4, 2020, the father indicated his position that, given his return to the Ottawa area, the alternating two-week parenting schedule was now in place.
[30] Through the exchange of further correspondence, it became apparent that the father’s view was that a return to the alternating two-week schedule would also mean that the children would remain in his care and not return to the mother’s during the week for homeschooling. His view is that the school closure means that the children’s schedule should be the same as if it is the summer school break or a school holiday.
Analysis
[31] The father argues that the reason that he did not file a response to the mother’s motion to change is that he was going to bring a motion for summary judgement instead. He argues that this matter should not be before the court because of the provision in the December 20, 2018 final order for the parties to use a parenting coordinator. I reject this argument for the following reasons:
a. Even if a party wishes to proceed by bringing a motion for summary judgement, they still must file a response so that they are not in default. b. At no time before this motion did the father advise the mother’s counsel that the reason he was not filing a response was because he wanted to bring a motion for summary judgement. c. The terms of the December 20, 2018 final order do not include any terms that define what the parties mean by “parenting coordinator” nor that stipulate a binding agreement to arbitrate disputes. When asked at the motion, counsel advised that there were no other executed agreements between the parties that required them to arbitrate disputes. The evidence before me was that the mother had repeatedly asked the father to execute a parenting coordinator agreement, which presumably may have included an agreement to arbitrate specific issues, but he refused to do so. Also, the father’s current position that the court does not have jurisdiction to determine parenting issues because of an alleged agreement to arbitrate is entirely inconsistent with the father’s motion to the court in the fall of 2019. That motion was rejected because neither party had started a motion to change, and therefore the matter was not properly constituted. That is not the case now.
[32] I find that the father is in default of the mother’s motion to change the order of Justice Pelletier dated December 20, 2018.
[33] The father argues that the December 20, 2018 final order should be interpreted to mean that, because schools are closed, the summer and other school holiday schedule should apply. I disagree for the following reasons:
a. I find that the December 20, 2018 final order is interpreted to provide a timesharing schedule that provides for the children to be homeschooled by the mother during the regular school year running from September through June. This interpretation does not change due to unforeseen and unexpected emergencies caused by the COVID-19 virus. I agree with the mother that the provisions for the children to be with the mother during weekdays from the beginning of September to the end of June cannot be separated from the overall timesharing schedule set out for the children therein. b. I also question how the fact that other students are not attending physical classrooms is relevant to these children, who are homeschooled. In any event, I disagree with the father’s characterization of the current situation as one in which schools are closed. On March 31, 2020, the OCDSB announced that effective April 6, 2020, it was moving into its second phase of “Learning At Home”, which includes re-establishing teacher-led learning. Schools are not closed; they are just not taking place in the regular physical classroom.
[34] I find that the December 20, 2018 final order requires that the children be returned to the mother during the weekdays for homeschooling even though school boards have closed their physical classrooms and are now engaged in remote learning.
[35] Lastly, the father argues that it is in the children’s best interests not to travel back and forth to the mother’s residence due to the COVID-19 protocols that urge people not to travel for non-essential reasons. By this argument, the father is seeking to change the final order of December 20, 2018, even while taking the position that the mother should not be allowed to change the same order on an interim basis, when he is in default.
[36] Assuming the father is permitted to file a response to the mother’s motion to change, this matter should proceed in the ordinary course to a case conference, then to a temporary motion if needed, and ultimately a final hearing to determine whether and how the order should be changed. A case conference has not been held in this matter. A case conference should be held – because it is required under the rules and will benefit the parties to narrow the issues and give direction on how this manner should proceed in a fair and just manner to resolution.
[37] But these are not ordinary times. I cannot allow the father to effectively change a status quo that has been in place since September of 2019, when he is default of the mother’s motion to change and has unexpectantly altered his plans to return to the Ottawa area earlier than expected, due to the interruption of the regular court operations.
[38] I will allow the father a further period to serve and file a response to the mother’s motion to change. But in the interim, in all of the circumstances before me, I find that it is in the children’s best interests to remain in the primary residence of the mother on a temporary basis during the regular school months of September through to the end of June in each year. I find that the father’s move to Mississauga in August of 2019 constitutes a material change in circumstances that warrants this change, on a temporary basis. This change reflects the status quo that has been in place since September of 2019. Given the current uncertainty, I find that it is in the children’s best interests for this status quo to continue on a temporary basis, pending further order of the court.
[39] I am making this order, changing the timesharing schedule set out in the December 20, 2018 final order on a temporary basis, because the father is in default of the mother’s motion to change. Given the father’s default, the Family Law Rules permit the mother to proceed without further notice to the father. The mother has, however, given notice to the father. The father is now saying that he opposes the mother’s motion to change, and presumably wishes to file a response. I will allow the father time to file a proper response. However, on a temporary basis, in the face of evidence upon which I find that it is in the children’s best interests to remain in primary care of the mother during the regular school months of September through June, I make the orders set out below.
[40] Given these reasons, I order:
a. On a temporary basis, the Order of Justice Pelletier dated December 20, 2018, is changed to provide as follows:
i. Paragraph 14 is changed to provide:
“14 a. From the first Monday in September, at 9 am, through to the last Friday in June at noon, the children shall primarily reside with the mother. The father shall have access to the children on alternate weekends from Friday at noon to Monday at noon. The father’s alternate weekend access shall begin on Friday, April 17, 2020, at noon, which will be his weekend with the children.
14 b. From the last Friday in June, at noon, through to the first Monday in September, at 9 am, the children shall reside equally with both parties on a two-week rotating schedule.
14 c. On a temporary basis, the schedules above shall not be extended for long weekends, unless the parties otherwise agree in writing.”
ii. Paragraph 16 shall not apply.
iii. The holiday schedule set out in paragraph 18 shall continue to apply, except that paragraph 18.j. (summer holidays) shall not apply.
iv. Paragraph 26 shall not apply.
v. The Respondent father shall be responsible for picking up and delivering the children to and from the Applicant mother’s residence.
b. The Respondent father shall be permitted to serve and file his response to the Applicant mother’s motion to change on or before May 15, 2020. This order shall permit the Respondent’s response to be filed within this timeframe, during the suspension of regular court operations.
c. If the Respondent father fails to serve and file his response on or before May 15, 2020, the Applicant mother may proceed to an uncontested hearing of her motion to change upon the resumption of the court scheduling such matters.
d. If the Respondent father does file a response to the motion to change on or before May 15, 2020, the next step shall be a case conference. This order shall permit a case conference to be scheduled under the Ontario Superior Court of Justice’s East Region expansion of family court matters being heard, announced on April 2, 2020. Subject to further order of the Court, the only issue to be dealt with at a case conference held during the suspension of the Court’s regular operations shall be the children’s timesharing arrangement.
e. If the parties are unable to agree on the costs of this motion, the Applicant may file submissions concerning costs on or before June 19, 2020. The Respondent may file submissions concerning costs on or before July 3, 2020. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
f. This endorsement is an Order of the Court enforceable by law from the moment it is released.
Dated: April 14, 2020
Justice P. MacEachern