Court File and Parties
COURT FILE NO.: FC-20-337 DATE: 20200416 CORRECTED DATE: 20200417 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Justin Michael Cole, Applicant AND: Andrea Jane Barrett, Respondent
BEFORE: McDermot J.
COUNSEL: Ashley H. McInnis, for the Applicant Trevor B. Owen, for the Respondent
HEARD: April 15, 2020
Corrected Endorsement: The text of the original Endorsement was corrected on April 17, 2020 and the description of the correction is appended.
Endorsement
[1] This was a motion brought by the Applicant Father concerning care of the only child of the parties, Logan, who is 10.
[2] Mr. Cole says that there has been, to date, a long-standing status quo wherein Logan was shared, largely equally, between the parties. The parties agreed that Logan would be in the Applicant’s home from Friday night at 6:00 p.m. to 9:00 a.m. on the following Thursday when Logan would be dropped off at school. Mr. Cole says that the parties agreed to this in September, 2019. Ms. Barrett agrees that there is presently a status quo involving that shared parenting arrangement between the parties, but that it began only in November, 2019.
[3] Prior to the week about arrangement, Logan lived with the Respondent and saw his father every second weekend, as well as overnights during the week when the Respondent was working. Although this worked out to roughly the same number of overnights as the shared arrangement (five overnights every 14 days as opposed to the status quo of six overnights every 14 days), Mr. Cole says that the previous arrangement was abandoned because Logan was bouncing back and forth a lot and could not figure out where he would be staying on a particular night. Ms. Barrett says that the shared arrangement was only on a trial basis when Mr. Cole was not busy at his landscaping business during the winter, and it was not working out for Logan.
[4] Prior to that arrangement, from separation in 2017 on, access was every second weekend to Mr. Cole.
[5] Ms. Barrett complains that Mr. Cole never paid support or any share of her day care costs.
[6] On March 19, 2020, Mr. Cole’s partner and her children arrived back from a trip to the United States. As recommended by government authorities, the entire household self-quarantined for 14 days during which Mr. Cole did not see Logan. When he contacted Ms. Barrett on April 1 to resume his time sharing, his phone calls were not returned. When he texted Ms. Barrett, she responded by stating that Mr. Cole could not see Logan until the end of the Covid-19 crisis, and he was limited to telephone access. Later Ms. Barrett relented to some extent, allowing Mr. Cole a birthday visit while staying six feet away from Logan on her front lawn.
[7] Because the affidavit evidence confirmed that the Respondent was withholding care of the child from the other parent contrary to a status quo, I determined as triage judge that the matter had sufficient urgency to be heard by way of urgent motion pursuant to the Covid-19 protocols as issued by the chief justice. Those protocols permit motions addressing “wrongful removal or retention of a child” by a party and, considering the status quo, this appeared to be such a motion.
[8] There have been no court orders or written agreements. However, Ms. McInnis requests a temporary order returning Logan to the status quo that was in place prior to Mr. Cole’s self-quarantine, from Fridays to Thursdays every second week. Mr. Owen on behalf of Ms. Barrett seeks an order returning to the arrangement that was previously in place, which was that Mr. Cole had every second weekend plus overnights during the week when she was working.
[9] At the moment, when Ms. Barrett is working, Logan spends time with his long term child care worker, Angel, who has been caring for Logan for a number of years now. Ms. McInnis also seeks an order that Logan be cared for by Mr. Cole instead of going to Angel’s residence.
Time Sharing Arrangement
[10] As pointed out by Mr. Owen, the primary goal in making an order concerning time sharing between two parents is the best interests of the child. He argued that the best interests of Logan would be best met by returning to the pre-2019 arrangement where Logan was cared for by Mr. Cole according to Ms. Barrett’s work schedule.
[11] However, the most reliable evidence of what the parties thought to be in the best interests of a child is usually dictated by the time sharing that parties may have agreed to prior to court involvement. If this was the case, then the shared arrangement that the parties had prior to Mr. Cole’s self-isolation is a good indication of what the parties thought was in Logan’s best interests prior to Ms. Barrett changing her mind after the end of Mr. Cole’s quarantine.
[12] Because of this, the caselaw has always been consistent that to change a status quo on an interim motion requires urgent or compelling circumstances. In Miranda v. Miranda, 2013 ONSC 4704, Mitrow J. stated that the party seeking to change a status quo has a very high onus, clarifying at para. 26 that a “party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14.” In Elliott v. Filipova, 2019 ONSC 4506, B. Abrams J. confirmed that, in an interim motion, custody and access should be dictated by the child’s best interests, but, citing Miranda, that “[t]o disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child's best interests” [para. 25].
[13] There is good reason for this. On an interim motion, the court is dealing with conflicting affidavits and there is little ability to make credibility findings on those affidavits. The evidence is uncertain and unclear other than the status quo itself. For example, in the present case I am unable to determine whether the present shared custody was a trial time sharing arrangement and whether it began in September or November of 2019. The only thing that I have is that there was an almost equal time-sharing arrangement as of the middle of March, 2020 which the Respondent attempted to arbitrarily resile from.
[14] As well, if the court changes time sharing on a temporary basis and then the court at trial changes it again, the child has gone through two changes in custody rather than one. It is evident that this cannot be in the best interests of any child especially where, as in the present case, there have already been two previous changes in time sharing agreed to between the parties.
[15] In my view, the Respondent has not established compelling evidence warranting a change in the status quo. Firstly, the reason given to change the status quo by the Respondent were initially the Covid-19 concerns. She initially refused anything other than telephone access, but then allowed a short visit on her front lawn with Logan and his father socially distancing themselves. She deposed in her affidavit that Mr. Cole “simply does not have a history of frequently washing his hands and face after meeting people” and that his “lifestyle and nature of work puts the child at greater risk than does the Mother even though she is a personal support worker.” [1] It is to be noted that she criticizes the Applicant’s lifestyle but does not provide any detailed evidence as to the precautions she is taking in her own household to keep Logan safe.
[16] However, the mother’s concerns now appear to have evaporated. Mr. Cole had access last weekend, and the Respondent is now willing to consent to an order that involves Logan going back and forth between her home and the father’s home at least four times every 14 days. The safety issues initially utilized by her to withhold Logan from Mr. Cole now no longer appear to be a major factor for the Respondent.
[17] Apart from all of this, there is case law that states that Covid-19 is not, in and of itself, a basis for changing time sharing or withholding a child from another parent: See Ribeiro v. Wright, 2020 ONSC 1829. There is no evidence that either parent is putting the child at risk from this virus.
[18] Are there any other compelling circumstances which would warrant a change in the status quo? Ms. Barrett complains that Mr. Cole works at his landscaping business “from sun up to sun down” [2] and that he was never really that interested in Logan. She notes that she was always the primary caregiver to Logan and that has never changed. She says that the Applicant will just leave Logan with his girlfriend while he works at his business.
[19] None of these issues are sufficient changes in circumstances warranting a change in the status quo. None of these indicate risk to the child or are compelling. They constitute long standing complaints of the Respondent and do not represent anything new; they were grievances long before the parties agreed to shared custody.
[20] In any event, Mr. Cole’s business is not an essential service and is not presently operating. His hours of work are not presently a concern.
[21] Ms. Barrett also says that Logan does not want to go to his father’s. Mr. Cole has no way to respond to this as Logan has not been with him since mid-March, 2020.
[22] Logan’s views and preferences are important to the court, but he just turned 10 years of age and his wishes do not drive the bus. He has expressed fear of going to the Applicant’s home, but not because of anything that the Applicant has done; it is because of Covid-19 and I would expect that the Respondent would explain that she and the court consider it safe for Logan to go to the Applicant’s home. The views and preferences of the child are more in line with a complaint from the child such as, ‘Do I have to go to Dads till Thursday?’ [3] That type of statement is not sufficiently compelling to change the status quo in this matter.
[23] The Respondent has not met the onus of demonstrating serious or compelling evidence warranting a change in this status quo. The parties will return to the time sharing agreed upon during the fall of 2019, which is every second Friday from 6:00 p.m. to Thursday. As school is no longer in operation, the child shall be returned at 4:00 p.m. on Thursdays. When school resumes, the child will be dropped off at school by the Applicant at 9:00 a.m. or when school commences on Thursdays.
[24] The Respondent’s motion to return to the prior care arrangement is dismissed.
Care of Child While Respondent is Working
[25] In addition to a return to the time sharing prior to mid-March, 2020, Mr. Cole further requests that he be entitled to provide child care services for Ms. Barrett when she is working during her week with the child.
[26] In a sense, this is a hybrid of both the relief that Mr. Cole requested, maintenance of the week about arrangement, and the relief requested by Ms. Barrett, which was that Mr. Cole have weekend access plus a right to care for Logan when Ms. Barrett is working. To some extent, Mr. Cole wants to have his cake and eat it too.
[27] Mr. Cole argued this motion on the basis that the status quo should stand and that he should have care of Logan as before, on a largely week about basis. Yet he seems to be also asking for a change in the status quo in removing Logan from his long standing child care provider and having Logan stay with him when Ms. Barrett is working. He cannot have it both ways; he cannot claim that the status quo should govern in one aspect and then ask that the court depart from it in another. I agree with Ms. McInnis that the status quo should remain in place, and so it should, including the child care arrangements made by the parties over the past four to six months.
[28] Mr. Cole submits that Ms. Barrett has not provided Covid-19 details concerning Angel, who is Logan’s child care provider when he is with his mother. In fact, Mr. Cole was provided with this information in a text message which is part of his own materials; on April 3, she texted him that “As it stands I have him isolating at my house only and his daycare lady which only takes him and has been isolating herself for weeks now. As I have made sure to follow every possible way to protect him from this virus.” [4] From this text and the materials filed, I understand that Logan is the only daycare child at Angel’s home, that Ms. Barrett is satisfied that Angel is taking all necessary precautions arising from Covid-19 and that Logan is comfortable going to his long term child care provider when Ms. Barrett works.
[29] Finally, I do not believe that it is beneficial in a shared arrangement for either parent to interfere with the other’s care for the child or to involve themselves in child care during the other’s time with the child. Each party’s time with the child is his or hers alone, and, as pointed out by Mr. Cole, it is confusing for the child to bounce back and forth during that time with the child. If Mr. Cole works as hard as the Respondent says he does, would he be content with Ms. Barrett caring for the child when he was at work for long hours during the summer? I think not.
[30] Mr. Cole’s motion to care for the child during Ms. Barrett’s working hours is therefore dismissed.
Office of the Children’s Lawyer
[31] Ms. Barrett requests a Voice of the Child Report from the Office of the Children’s Lawyer. Alternatively, she requests an order for a social work investigation.
[32] The OCL is not involving itself in Voice of the Child reports during the Covid-19 shut down. However, Logan’s views and preferences are important for the court to determine as is the issue of Logan’s connection with both parents and households. These are worthwhile issues to be reviewed, if possible, through the OCL through either appointment of counsel or a social work investigation.
[33] There shall be an order requesting OCL involvement. The parties will have to provide me with a copy of the order in Word format if they wish me to provide judicial comments in the body of the order.
Order
[34] There shall therefore be a temporary order as follows:
a. On a temporary basis, without prejudice, the parties shall share care of the child Logan as follows: 1. The Applicant shall have the child in his care from every second Friday from 6:00 p.m. to Thursday at 4:00 p.m. commencing tomorrow. When school resumes, the child will be dropped off at his school by the Applicant at 9:00 a.m. or when school commences on Thursdays. 2. The child shall reside with the Respondent at all other times. b. The Applicant’s motion to care for the child when the Respondent is working is dismissed. c. The Office of the Children’s Lawyer shall be requested to provide service in this custody and access dispute. d. The Respondent’s motion is otherwise dismissed.
[35] The parties may make written submissions as to costs, the Applicant first and then the Respondent on a ten day turnaround. Submissions are to be made through the judicial secretary and may be filed online. Costs submissions to be no more than three pages in length not including offers to settle and bills of costs.
[36] Because of the Covid 19 emergency this order is being issued under my electronic signature. This order is enforceable without the present need for a signed or entered formal order/judgement. Once the Court resumes normal operations a copy of this order shall be filed with the court. This order is an effective and binding order through its issuance under my electronic signature and I am directing that the judicial assistant email a copy of this to the parties.
[37] It is unclear as to whether the Applicant has issued an application in this matter. Assuming that counsel are willing to waive first appearance, this matter to be adjourned to a case conference on a date to be set through the trial coordinator.
McDermot J.
Corrected Date: April 17, 2020
Correction
[38] 1. Para. 37 added: It is unclear as to whether the Applicant has issued an application in this matter. Assuming that counsel are willing to waive first appearance, this matter to be adjourned to a case conference on a date to be set through the trial coordinator.