Court File and Parties

COURT FILE NO.: 46/17 DATE: 20200424 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stacey Frances McCumber, Applicant AND Jon Bradley Barnes, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Jennifer Blackwood, for the Applicant Stephen Zap, for the Respondent

HEARD: April 24, 2020

Endorsement

[1] This is the applicant mother Ms. McCumber’s motion to have the children returned to her care, heard by way of teleconference given that in-person hearings of the court are suspended until further notice as a result of the COVID-19 pandemic. A finding of urgency was previously made by me on April 21, 2020. That decision also addressed the process, referring to the relevant Notices to the Profession.

[2] I have reviewed the mother’s affidavit sworn April 15, 2020, the respondent father Mr. Barnes’ affidavit sworn April 22, 2020, and the mother’s reply affidavit sworn April 23, 2020, as well as heard submissions from counsel. The mother inappropriately submitted an Offer to Settle, but I was alerted to that in advance and did not read it.

Background Facts

[3] The parties lived together between 2006 and 2011. They have two children, both boys, Tucker age 12 and Ryder age 10, who have been in the primary care of the mother throughout.

[4] At some point the parties became involved in litigation in this court. The case settled, and Justice Pedlar made a Final Order on consent on March 11, 2019, granting custody and primary residence of the children to the mother. Just prior to that the parties had received a Clinical Assessment from the Office of the Children’s Lawyer authored by Dr. Keith Adamson. The father takes the position now, over a year later, that the report was not properly conducted.

[5] While the father did not bring this urgent motion, the underlying proceeding is his Motion to Change which seeks sole custody and access to the mother, which is essentially the reverse of the existing order.

[6] At the case conference on February 10, 2020 an interim order was made on consent which gave the father additional access, and a Voice of the Child (“VOC”) report was also ordered.

Facts and Positions Related to the Current Situation

[7] The boys went to the father’s home for the March break. Given the COVID-19 pandemic and the fact that there was no school, the mother let them stay longer. After two weeks she said they had to return home. Tucker told her he did not want to go home. Supposedly on his own, this 12-year-old child then contacted the Ontario Provincial Police (“OPP”) and Children’s Aid Society (“CAS”) alleging the mother had physically abused him and his brother.

[8] The CAS investigated. Its letter to the mother’s lawyer dated April 6, 2020, copied to the father and his lawyer, contains the following excerpts:

I can advise you that the Society is supporting an ongoing relationship between [the mother] and the children, including the children being in [the mother’s] care according to the current order.

Tucker … contacted the … OPP to report his concerns at the direction of his father who advised Tucker that if he did not want to return to his mother’s home, he would have to call CAS and police himself as no one listens to his father’s concerns.

The allegations did not meet a threshold for any charges and appeared historical in nature and lacking details of intent to harm.

The police confirmed that they would not be forcing the boys to return to their mother’s home and the Society will also not be intervening and forcing the children to return to their mother’s home. The Society does not have any imminent child protection concerns at either home that would warrant intervention in this family court custody/access matter and the Society’s file will now close. I have encouraged [the parties] to consult with their family law lawyers to resolve this issue. It is noted that the boys are of an age that they are able to speak with their appointed OCL to express their wishes and currently they are stating that they do not wish to leave their father’s home.

[9] With a clear indication that neither agency will force a return of the children, the father has continued to withhold them notwithstanding the current orders. Since March 13, 2020, the start of the March break, the mother has had limited contact with the children, a minimum of two videocalls and one voice conversation, although the number of interactions is disputed.

[10] The father says “[i]f the child protection authorities and the police cannot protect my sons, then I as their father must take necessary steps to protect my sons from the misguided and inappropriate behaviour of the mother.” With no formal motion he asks the court to “exercise its jurisdiction” to place the children in his care.

Law

[11] The parties never married. This case is therefore governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Section 72 allows the court to make an interim order “as the court considers appropriate”. I apply the test found in section 24(1) which indicates that the merits of the application itself shall be determined on the basis of the best interests of the children in accordance with subsections 24(2), (3), and (4). Subsection 24(2) directs me to consider all of the children’s needs and circumstances with specific items mentioned; not all are applicable to access although that list is not exhaustive.

Analysis

[12] At times children might say to the parent that they are with what they think that parent wants to hear. In this case there is a suggestion of active encouragement by the father in that regard. He says “I asked the boys if they wanted to go back to their mother’s residence and they both said no …” The father claims that “Ryder has always stated that he wanted to move in with me for the past 5 years” but that does not appear to be consistent with the OCL Clinical Report and the consent Final Order both from March 2019.

[13] Even when the pending VOC report is available, if the parties cannot reach an agreement the court must still decide what parenting arrangement is in the children’s best interests. Their views and preferences are only one factor and not necessarily determinative given their ages.

[14] As the one who wants to change the very recent consent interim order, the obligation was on the father to bring the urgent motion. While he suggests he was planning to and that the mother “beat him to it”, on these facts in view of the COVID-19 caselaw it would have had little chance of success. He cannot be put in a better position by simply withholding the children. His claim for custody needs to be determined in an orderly manner by way of a judicial determination through the court process he started, not by, as he himself put it, “this self-help remedy”. It goes without saying that self-help and unilateral action are the antithesis to the rule of law. I cannot see his actions helping his custody claim in the main proceeding. Despite past domestic violence by the father on the mother (assault conviction in August of 2011), the evidence of both parties establishes that she has been generous and accommodating with his access. However, with the shoe now having been briefly on the other foot, he has significantly limited her contact.

Decision

[15] I grant the mother’s motion for an immediate return of the children in its entirety, including the modest request for costs.

[16] The mother may bring a 14B motion without notice to my attention for the inclusion of a police enforcement clause if it becomes necessary, although I hope for the children’s sake that it will not.

[17] I thank counsel for their assistance in the orderly hearing of this matter in all the circumstances.

Mr. Justice Timothy Minnema Date: April 24, 2020