Court File and Parties

COURT FILE NO.: 490-17 DATE: 2020 04 23 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Robert Boyd Manning Applicant – and – Natalia Ross Respondent

In Person In Person

HEARD: In Writing

Justice G.D. Lemon

Endorsement

The Issue

[1] The parties lived together for three months in 2014. Their daughter, Q, was born August 5, 2015.

[2] On October 21, 2019, Mossip J. ordered, on consent, that the parties would have joint custody of Q with her primary residence with Ms. Ross. A lengthy list of terms divided their times of care for the child. The order attempts to avoid the term “access.” Mr. Manning has care of Q on alternating weekends when the child is in school but otherwise, the remaining time is shared almost equally. Those terms ended with:

The parties shall when possible be flexible regarding scheduling of care periods with Q.

[3] The present COVID-19 pandemic has raised difficulties that the parties cannot resolve. In particular, while Q is in junior kindergarten, and school is now closed, what should be the plan for parenting time?

[4] Ms. Ross seeks an order to enforce the parties’ parenting schedule according to the present order. She submits that Q should visit with Mr. Manning every other weekend, starting April 24, 2020, from Friday to Sunday.

[5] She also asks for a number of amendments to the order:

(a) that Section 3. (d) of the Order be amended to read: "Access may be changed on consent by both parties, in writing, only in the event of work, medical, and/or extended travel related changes that may arise".

(b) "Should the Applicant/father and Respondent/mother disagree regarding the Order, as it pertains to custody/access, final decision shall rest with the Respondent/mother, who shall refer back to the court Order, exactly as it is written, to prevent any sudden disruption to Q's routine, stability and well-being".

(c) "The custody/access schedule herein, is police enforceable in instances where Q is being held back by either of the parties for more than 24hrs outside of the court ordered schedule.”

(d) "If parties continue to disagree and/or cannot reach an agreement pertaining to any area of the Order, the party that is seeking a change outside of the parameters set out in this Order shall initiate Mediation, prior to bringing any matter before the court, unless it is deemed an emergency.”

[6] Ms. Ross also asks that I should recommend that Mr. Manning seek psychological therapeutic help, provide a drug test, and take a parenting course.

[7] In response, Mr. Manning asks for an order that:

(a) The parties shall share equal time during this pandemic with their daughter. The child shall spend 7 days with her mother and then 7 days with her father until school and/or work resume at which time the Final Order schedule will continue.

(b) Neither parent will discuss with the child adult issues at any time. This includes not discussing access issues with her or using alienating language about the other parent.

(c) The parents will continue to facilitate liberal phone/video calls to the child. Neither parent will try to coach the child as to what to say during these calls. There can be generous amounts of calls 1-2 times per day during this Covid-19 lockdown.

(d) Neither parent will try to persuade or manipulate the child to want to leave to the other parents’ home by offering 'surprises' and goodies when the child is visiting with her other parent.

(e) The parents will refrain from using abusive or manipulative language with one another. This includes making false accusations concerning one another.

(f) The parents shall provide each other with information concerning the child’s education and health.

(g) Both parents will help to facilitate access including encouraging the child to spend time with the other parent and speaking kindly about the other parent.

(h) Ms. Ross shall attend class/sessions to attain a better understanding of co-parenting and what it involves and how to be a better co-parent.

(i) Both parties shall act responsibly and try simple problem solving and not refuse to communicate about access scheduling. This includes responding to email messages concerning access scheduling within 12 hours.

Background

[8] On April 8, 2020, when the matter first came to my attention, Ms. Ross alleged that Mr. Manning was refusing to return the child to her. As the courts are presently shut down except for emergencies, I was satisfied that this was an emergency. On April 8, 2020, I endorsed:

A signed copy of this endorsement will be filed when next I am in the court house.

I have read the letter from Ms. Ross of today’s date.

Ms. Ross shall serve Mr. Manning by email to his usual address. I presume that there is a usual address. If not, Ms. Ross shall provide further information as to how Mr. Manning may be served. Ms. Ross shall scan and send a copy of the present order to the court house.

Ms. Ross shall serve Mr. Manning with a copy of her letter and this endorsement by email within the next 24 hours. Mr. Manning shall return the child or respond to Ms. Ross’s letter (copy to both Ms. Ross and myself) within 24 hours. With that information, I anticipate arranging a conference call with both parties or their lawyers Tuesday April 14 at 2:00 p.m.

In the meantime, Ms. Ross shall prepare to file her motion and affidavit electronically by Tuesday April 14, 2020.

[9] I then received a written response from Mr. Manning on April 9, 2020. That information allowed me to determine the process. On the same date, I endorsed:

Given Mr. Manning’s response, Q will be returned to Ms. Ross this Sunday April 12 at the usual transfer time and location. Ms. Ross will return the child to Mr. Manning, the following Sunday. I do not have a copy of the present order but I expect that the parties can work out the transfer time and place.

In the meantime, Ms. Ross will file her Motion and Affidavit by Tuesday April 14 and Mr. Ross will respond by Friday April 17,2020. Once I have reviewed those materials, I will provide the parties with my orders. I must have a copy of the present order in the materials filed by the parties.

Neither party will discuss any issues related to access with Q. Neither party will promise Q what the access arrangements might be. Both parties will cooperate with regular phone or video access with the child. All email correspondence will be responded to within 12 hours. All email correspondence will be saved by the parties.

There is no need for a conference call on April 14, 2020.

[10] I also attached a copy of Ribeiro v. Wright: Superior Court of Justice, Family Court (Hamilton) File #: 1199/19. Of significance to me was Pazaratz J.’s comments:

6 The health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19. This is an extremely difficult and stressful period for everyone.

7 On the one hand, in this case there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.

8 On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.

9 Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

10 None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that 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.

11 In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.

15 Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.

16 And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

17 Each family will have its own unique issues and complications. There will be no easy answers.

19 Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system. Despite extremely limited resources, we will always prioritize cases involving children. But parents and lawyers should be mindful of the practical limitations we are facing.

21 We will deal with COVID-19 parenting issues on a case-by-case basis.

27 Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day. a. The disruption of our lives is anxiety producing for everyone. b. It is even more confusing for children who may have a difficult time understanding. c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner. d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance. e. Right now, families need more cooperation. And less litigation.

30 None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.

[11] Those words were not helpful to resolve the issue, but they do appear to have framed the parties’ affidavits. Although those documents were not sworn, I am satisfied, in these unusual circumstances, that I can rely on what they have told me. Many of the concerns were confirmed with attached emails or otherwise not denied.

[12] Having received Ms. Ross’s affidavit and Mr. Manning’s response, I endorsed on April 17, 2020:

I have now read Ms. Ross’s materials and Mr. Manning’s response. Ms. Ross shall have until Monday April 20 to respond to anything new in Mr. Manning’s materials. That does not mean she needs to repeat or raise new issues. Rather, the right of reply allows the moving party to respond to anything in the reply that needs to be responded to or clarified.

There appears to be some confusion relating to my earlier endorsements.

Ms. Ross shall return the child to Mr. Manning on Sunday April 19 at 5:00 p.m. I expect that they can arrange the place of transfer. I will provide a decision with respect to on-going access before the next weekend.

In my earlier endorsement, I said:

Neither party will discuss any issues related to access with Q.

By that I meant that neither party will discuss these issues with Q. That it to say, Q does not need to be involved in any discussion about access. Not the times or duration. Not what occurred during access visits with the other parents. The parents, however, must discuss access and will do so by email.

Mr. Manning’s response is equivocal about his care for the child during the Covid outbreak. Both parties shall ensure that they comply with the present social distancing rules set out by the Province of Ontario. It appears that Mr. Manning may have been and continue to be in breach of those rules. Mr. Manning shall ensure that the child is not part of a group of more than five people. There may be more than that number in Mr. Manning’s home; however, neither Mr. Manning nor the child shall socialize with others outside of his home. If Mr. Manning cannot comply with that order throughout the full week, he shall not pick up the child on the 19th and the parties shall work out terms of electronic access.

[13] Ms. Ross then filed her reply affidavit along with two letters from witnesses.

[14] In brief, Ms. Ross raises four concerns that Mr. Manning:

(a) has failed to follow COVID-19 protocols while the child is with him;

(b) has failed to be transparent with her in responding to her concerns;

(c) may be under the influence of alcohol, drugs or some mental impairment while having care of the child;

(d) has been abusive, threatening and coercive in attempting to negotiate parenting time.

[15] Ms. Ross is also concerned that a week about schedule will be too abrupt and unsettling for the child and has come about too quickly for the best interests of the child.

[16] In response, Mr. Manning submits that the present order has equal parenting time for each parent when the child is not in school. He points out that the parties had already agreed to a week with him and the child before this litigation commenced. Ms. Ross had proposed to split the initial school closure of three weeks.

[17] Mr. Manning says that Ms. Ross has refused to negotiate further access in light of these changed conditions.

[18] Mr. Manning points to his email to Ms. Ross that he will return the child on Friday April 10 at 3:00. Yet despite this, Ms. Ross did not respond and proceeded to court.

Analysis

Procedure

[19] I did not hear argument from the parties. That was for three reasons. First, the materials were comprehensive and detailed. In argument, they would not have been able to tell me anything else. Second, arranging that step would have created more delay. From their materials, I can ascertain that this is a pressing matter for both. Ms. Ross required further time to deliver her reply. Any further time to arrange submissions would have required a further week to determine the issues. Third, with the courts closed, a conference call would add little to what I already had before me.

Applicable Starting Principles

[20] Q is four years old and in junior kindergarten. The present order determines that Mr. Manning has care of Q on alternating weekends “if Q is in school that day.” School is now closed for the foreseeable future.

[21] While Ms. Ross is concerned whether Mr. Manning is following proper COVID-19 protocols, she has no evidence to confirm that he is not. Mr. Manning says that he is.

[22] This order applies only to the time that all schools are closed, or the parties are not working. Once the local school board reopens or Mr. Manning returns to work, this order is rescinded, and the present order remains in place. The parties will need to keep track of the every-other weekend schedule to be sure that it is maintained when the order returns to be in effect.

[23] Except as set out below, the balance of the outstanding order otherwise remains in effect.

[24] The parties were able to work out a comprehensive agreement late last year. They should be commended for putting their differences behind them at the time. Some of the material on this motion relates to what occurred in their relationship before that time. That is unhelpful for two reasons. First, the order is deemed in law to be correct; what happened before is irrelevant. Second, even if I could rely on those allegations, I cannot tell who is telling the truth solely from affidavits.

[25] While the parties share joint custody, that does not, necessarily, mean equal sharing of parenting time. The term “joint custody” refers to parenting rights and obligations, not time with the child. The balance of the terms of the order determine parenting time.

[26] The witness letters that Ms. Ross filed in reply were unhelpful. They did not reply to Mr. Manning’s materials but added other complaints along with their own opinions of how the case should be determined. Mr. Manning was unable to properly respond to them. The complaints those witnesses raised were somewhat different than those raised by Ms. Ross. If Ms. Ross thought that there were such concerns, she would have raised them in her own affidavits. Some of what the witnesses said appears to be inadmissible hearsay. I did not rely upon them for this decision.

[27] The witnesses say that the child does not want to visit with Mr. Manning; however, that is not raised by Ms. Ross. While it may be that Q is homesick with Mr. Manning, the suggestion that Q is unhappy visiting Mr. Manning conflicts with Ms. Ross’s proposal that Q share the school break when it was first announced as three weeks.

[28] I do not fault Ms. Ross for filing those letters; she was unrepresented. I simply wish to confirm what I had and what I could rely upon.

Variation of the Order

[29] While the issue of parenting time during the general community shut down is a matter of urgency in this case, the wholesale variation of the present order is not. The parties agreed to joint custody and I see no reason to change that or to give Ms. Ross an overriding authority to make decisions as a result of the pandemic.

[30] Any variation of the order must be dealt with as a Motion to Change which is an entirely different proceeding than what I have here. If the parties wish, that Motion to Change can be brought in the usual fashion once the courts reopen. Any requests by either of the parties to vary the order are dismissed.

[31] Ms. Ross’s witnesses raise many concerns that I cannot deal with at this time; they are topics for a Motion to Change and can be determined in that process.

Counselling

[32] I do not see that either party has a monopoly on bad behaviour here. Both perceive that the other has been unreasonable and I agree with them. Their behaviour is not surprising given these stressful times and their love of the child. I suspect that this behaviour is as extraordinary as the times. I dismiss their requests to require the other to take some form of counselling to change their behaviour. They each need to change their behaviour on their own.

Police Assist

[33] A police assist clause (Children’s Law Reform Act, s. 36) requires that the moving party show that the responding party is unlawfully withholding the child. That is to say, the respondent must be withholding at the time of the order. The section is not meant to give relief in advance. Here, the materials show that Mr. Manning and Ms. Ross were attempting to navigate the terms of the order and the unusual circumstance in which they found themselves. On this record, I cannot find that Mr. Manning refused to return the child. On that basis, this request is dismissed.

Conduct of the Parents

[34] Mr. Manning asks for an order that:

a. Neither parent will discuss with the child adult issues at any time. This includes not discussing access issues with her or using alienating language about the other parent.

b. The parents will continue to facilitate liberal phone/video calls to the child. Neither parent will try to coach the child as to what to say during these calls. There can be generous amounts of calls 1-2 times per day during this Covid-19 lockdown.

[35] However, the present order already says:

There shall be liberal and generous telephone and electronic communication between the Applicant/father and Q when Q is in the Respondent/mother’s care, and between Q and the Respondent/mother when Q is in the Applicant/father’s care to take place a minimum every other evening.

Neither party shall denigrate or insult the other in front of the child, Q, or in their dealings with each other.

The parties shall limit their communication to issues to Q only.

[36] From the many texts in evidence, the parties would be wise to agree on a schedule for daily contact between the child and the parent who is not in care. They could also agree that they will contact each other, if necessary, perhaps once per day and agree to respond to that contact within 24 hours. Much of their correspondence would be eliminated if such a schedule were arranged, particularly now when schedules are easy to determine. Those terms may need to be enshrined in an order in due course, but such a change is not an emergency now. Mr. Manning’s request is unnecessary.

[37] Mr. Manning also asks that:

Neither parent will try to persuade or manipulate the child to want to leave to the other parents’ home by offering 'surprises' and goodies when the child is visiting with her other parent.

The parents will refrain from using abusive or manipulative language with one another. This includes making false accusations concerning one another.

The parents shall provide each other with information concerning the child’s education and health.

Both parents will help to facilitate access including encouraging the child to spend time with the other parent and speaking kindly about the other parent.

Both parties shall act responsibly and try simple problem solving and not refuse to communicate about access scheduling. This includes responding to email messages concerning access scheduling within 12 hours.

[38] All of those requests are simple good manners for all separated parents. They should not require an order. To that end, I note that In Anderson v. Moran, 2017 ONSC 2112, Hood J. said:

[94] At some point the parties have to take some responsibility rather than relying upon the court to do what they should be able to do themselves. . . . . The court can only go so far in giving direction. It is an impossible task for the court to delve into the minutiae of day-to-day living and to tell parties how to behave and in effect make orders compelling grown-ups to act as such. At some point the court has to become less of a crutch for the parties. There is also the risk that the more the court is asked to make detailed orders the more the parties will find a way to have something else to fight over and to cast blame on the other.

[39] I cannot say that better. I expect both parties to co-operate better than they are now. Accordingly, those requests are dismissed.

Ms. Ross’s Concerns

[40] As set out above, Ms. Ross is concerned that Mr. Manning:

(a) has failed to follow COVID-19 protocols while the child is with him;

(b) has failed to be transparent with her in responding to her concerns;

(c) may be under the influence of alcohol, drugs or some mental impairment while having the care of the child;

(d) has been abusive, threatening and coercive in attempting to negotiate parenting time.

[41] I agree that Mr. Manning should have been clearer with Ms. Ross as to how he was dealing with the COVID-19 issues. There is no excuse for his vagueness. What, in the past, may have been intrusive questioning by a separated spouse is now proper concern for the safety of the child in both houses. Mr. Manning should have been more transparent and open. He should have volunteered information of his household before being asked. Both parties should do that going forward.

[42] However, on review of the materials and the extensive text correspondence, I am satisfied that both parties are properly dealing with the current crisis.

[43] There is nothing in the text messages or the affidavits to suggest any conduct of Mr. Manning that may have been under the influence of alcohol, drugs or some mental impairment while having the care of the child. Ms. Ross may have had those concerns but there is nothing here to support those concerns.

[44] There are certainly a lot of texts between the parties, but they do not show Mr. Manning to be abusive, threatening or coercive. Both parties have written to each other and not received answers or responses that they were happy with. That, I am sure, added to their stress and upset. But it appears to be a two-way street.

[45] I see no reason for much of the back and forth between the parties. Questions or requests should be made. Those questions or requests should be responded to in a timely and full fashion. That would complete the topic. Neither would then feel disrespected, harassed or ignored.

Interpretation of the Order

[46] The real issue between the parties is the interpretation of the present order that determines that Mr. Manning has care of Q on alternating weekends “if Q is in school that day.” Is Q in school at the present time and, if not, what should the parenting time be for Mr. Manning?

[47] The cases to date confirm that barring a COVID-19 risk to the child, outstanding custody and access orders should be complied with. Both parties here say that the other is not complying with the outstanding order.

[48] In normal circumstances, the order speaks for itself and must be followed unless the parties agree otherwise. For instance, in this case, if Q was attending school, there would be no issue. In the future, without agreement, the parties must follow the terms of the order. But these are not normal circumstances.

[49] It cannot be said that the child is “in school” when she will not be in such a building for the foreseeable future. While I have no evidence on the point, I do not expect that junior kindergarten will have a schedule of classes or homework that might apply to an older student.

[50] In this case, the parties have worked out a comprehensive parenting schedule that is essentially equal except while the child is in school and during the summer months.

[51] During the summer months, the order says that “Each party shall have two (2) non-consecutive weeks of holidays with Q during the summer holidays (July and August).” I do not read that term as two weeks a month but rather two weeks over July and August. Accordingly, there is a gap in what the parenting time should be during the summer months when Q is not in school. That will require a resolution at some time as well.

[52] However, as set out above, the agreement wisely adds assistance for any unforeseen difficulties:

The parties shall when possible be flexible regarding scheduling of care periods with Q.

[53] Understandably, each thinks the other is inflexible and both think they are correct. Considering all of the above, I find that both are incorrect in their view of the present order and the present circumstances.

[54] The child is not in school and the present every other weekend schedule unduly restricts the child from having time with her father.

[55] Although Q has now alternated a week about over the last three weeks, those lengthy times away from each parent cannot continue indefinitely. Shorter time intervals away from each parent are in her best interests. Given Q’s age and the change from the regular pattern, I find that four days are appropriate.

[56] There is no reason that the present situation cannot be used to share the time the child spends with each parent.

[57] Given that neither parent is working, I need not concern myself with weekdays and weekends; for now, they are all the same.

Result

[58] For those reasons, until school reopens, or Mr. Manning returns to work, paragraph 3(a) of the order dated October 21, 2019 is suspended.

[59] In its place, commencing Monday April 27, 2020, the child shall spend 4 days with Ms. Ross followed by 4 days with Mr. Manning.

[60] When school and/or work resume, the October 21, 2019 parenting order schedule will continue.

[61] Mr. Manning shall return Q to Ms. Ross on Sunday April 26, 2020 at 5:00 or such other hour as they can agree. To be clear, the above noted schedule will commence April 27, 2020. Although Q will be with Ms. Ross from the 26th, she will return Q to Mr. Manning on Thursday April the 30th at 5:00 p.m. or such other hour as they can agree. Q will then be with Mr. Manning until Monday May 4 at 5:00 p.m. Parenting time will alternate every four days thereafter.

[62] Each party shall ensure that the child completes any assignments provided by the school while in their care.

[63] Both parties shall ensure that they comply with social distancing rules set out by the Province of Ontario. If either party cannot comply with those rules throughout their parenting time, they shall not pick up the child and the parties shall work out terms of electronic access.

[64] Ms. Ross’s requests to enforce the every-other weekend schedule is dismissed without prejudice to any further application by Motion to Change.

[65] Ms. Ross’s requests to amend the order are dismissed without prejudice to any further application by Motion to Change.

[66] Mr. Manning’s requests to amend the order are dismissed without prejudice to any further application by Motion to Change.

[67] If necessary, paragraphs 4(b), (c), (d), (i), and (j) of the October 21, 2019 order are suspended for the duration of this order unless the parties agree in writing.

[68] Upon the resumption of court operations, both parties shall ensure that the materials they have electronically filed for this motion will be properly filed in the physical record at the courthouse. If any government fees are required, they shall be paid by the party.

Costs

[69] Both parties have been unsuccessful. Neither can be faulted for their inability to solve this difficulty. Accordingly, I make no order for costs against either.

“Justice Lemon”

Justice G.D. Lemon

Released: April 23, 2020