Court File and Parties
Court File No.: FS-20-6874-0000 Date: 2020-05-01 Superior Court of Justice – Ontario
Re: Genna Lynn Thibodeau, Applicant And: Chad Marsden Moulder, Respondent
Before: Howard J.
Counsel: Sarah A. Weisman, for the Applicant No one else appearing
Heard: Considered in chambers
Endorsement
Overview
[1] This is further to my endorsement in this matter released Monday, April 27, 2020. [^1]
[2] The applicant mother, Genna Lynn Thibodeau, has brought a motion on an urgent basis, seeking the immediate return and interim custody of the two children of the parties’ relationship. It appears that the respondent father, Chad Marsden Moulder, has withheld the children from their mother since April 4, 2020.
[3] I note that the motion materials of the applicant mother were properly served on the respondent father by special service on Friday, April 24, 2020, as appears from the affidavit of service of Michael Lambert sworn April 27, 2020, filed. The father, having personally received the mother’s motion materials, has known since last Friday that a court proceeding is pending.
[4] The matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed. In my endorsement of April 27th, I made a presumptive finding that, on the materials then before me, the applicant mother had made out a case of urgency subject to the court’s discretion to re-visit that question once I had received materials from the applicant father.
[5] My April 27th endorsement also set out a litigation filing schedule to be observed by the parties: para. 16(a) of the endorsement directed the respondent father to file his responding materials by Wednesday, April 29, 2020, at 4:00 p.m., and para. 16(b) directed the applicant mother to file her reply materials, if any, by Thursday, April 30, at 4:00 p.m.
[6] Paragraph 26 of the endorsement ordered all parties to “comply with the schedule for delivery of material and other directives set out in this endorsement.”
[7] Further, in para. 24(a) of my endorsement, I directed the respondent father to acknowledge receipt of the endorsement by immediately sending a receipt confirmation email to the Trial Coordinator, and I specifically advised the respondent father that if he failed to do so, the court may deal with the case in his absence, in the following terms:
You are required to confirm, immediately, by e-mail that you have received a copy of this endorsement, by sending a confirmation e-mail to the Trial Coordinator (at Chatham.SCJ@ontario.ca), copied to the applicant mother. If you fail to do so, this matter may proceed, and the court may deal with the case in your absence. [Emphasis added.]
[8] In a similar vein, in para. 25(a) of my endorsement, I expressly advised both parties that if they failed to abide by the litigation schedule set out in the endorsement, the court may deal with the case in their absence, in the following terms:
If any party fails to comply with the schedule for delivery of materials, as set out above, or fails to participate in any scheduled telephone conference call, the court may deal with the case in your absence, and an order may be made against you. [Emphasis added.]
[9] Contrary to the directives and order set out in my April 27th endorsement, the respondent father failed to notify the Trial Coordinator that he had received the endorsement and failed to file any responding materials on the motion.
[10] The respondent father’s default in complying with the court’s directions and in participating with the court process must not be allowed to effectively stay this proceeding. As such, in accordance with the notice set out in paras. 24(a) and 25(a) of the endorsement, I proceed now to deal with the issues in the absence of the father’s input. In my view, given the urgent nature of the issues raised in the motion, it is imperative that the motion proceed and the troubling issues before the court be determined.
Factual background
[11] I have received and reviewed the applicant mother’s notice of motion dated April 23, 2020, and her affidavit sworn April 23, 2020. As I have said, the respondent father has not filed any responding affidavit, and the applicant mother filed no reply affidavit (there being nothing to reply to). As such, I proceed to determine the motion based on a consideration of the mother’s evidence only.
[12] The applicant mother and respondent father were never married. They began dating in July 2012, began residing together in the summer of 2013, and separated on December 24, 2018.
[13] There are two children of the relationship, being their daughter, Euriyah Rae Moulder, born January 4, 2017, and their son, Daylin Dee Moulder, born November 2, 2018.
[14] It appears the parties had a tumultuous relationship. The applicant mother calls the relationship “extremely dysfunctional” with many break-ups and reconciliations. The mother alleges that the respondent father was “verbally and physically abusive.” The evidence of the applicant mother is that she was and continues to be afraid of the respondent father.
[15] The evidence of the applicant mother is that the respondent father has “an ongoing problem with cocaine and other controlled substances.” Those allegations would appear to be consistent with certain circumstances allegedly described by the sister of the respondent father and the uncle of the applicant mother, as described below.
[16] The evidence of the applicant mother is that during the relationship, she was the children’s primary caregiver. She worked out of the home, operating a hairdressing salon at the home, which enabled her to care for the children and accommodate the respondent father’s work schedule. The father was employed at R.S. Industrial in Tilbury, Ontario.
[17] Following separation, the residency schedule, which the mother describes as “extremely confusing,” worked around the father’s employment hours. The evidence of the mother was that she tried to be accommodating and agreeable with respect to access in order to avoid conflict and violence with the father, and that she was willing to work around his shift schedule and was responsible for most of the pick-ups and drop-offs of the children. Her evidence is that she also provided the father with furniture, toys, diapers, meals, baby food, formula, bottles, medicine, clothing, blankets, plates, silverware, etc.
[18] The evidence of the applicant mother is that, in or about September 2019, the father’s abusive behaviours began to escalate; she perceived that he displayed mood swings that were extremely severe, he appeared to want to argue with the mother “over nothing,” and he called the mother a variety of derogatory and abusive names.
[19] The evidence of the applicant mother is that the behaviour of the respondent father negatively affected his basic care of the children. The mother describes instances where the father did not bathe the children; the children’s hair and teeth were not brushed; he did not put sheets on their daughter’s bed; and when he dropped the children off at her house, they were wearing their pyjamas or the clothes they had been sent in the previous day.
[20] The mother alleges that it was in that same period, in or about September 2019, that her uncle – who then worked with the respondent father – advised her that the father was getting into trouble at work, showing up late, calling in sick, falling asleep at work, and yelling at coworkers.
[21] In October 2019, the applicant mother confronted the respondent father about her concerns regarding his behaviour, and she asked him directly if he was taking drugs. The father denied using drugs, saying he was “exhausted from work and the kids.”
[22] The evidence of the applicant mother is that, in or about January 2020, the sister of the respondent father attended at the home of her brother/the respondent father and found him sleeping on the sofa, with the parties’ daughter Euriyah playing by herself in the kitchen and their son Daylin eating crackers in his crib upstairs. The evidence of the applicant mother is that the sister advised her, and she believes, that the sister had concerns that her brother was taking drugs and that his drug use was interfering with his ability to care for the parties’ children.
[23] Further, the applicant mother was advised by the sister that on March 7, 2020, the sister attended at the respondent father’s home to talk to him again about his drug use. Apparently, the sister found what she believed to be crack-cocaine in his garage. When the sister confronted her brother about the drugs, he kicked her off his property.
[24] The evidence of the applicant mother is that the following week, on March 13, 2020, she received a telephone call from the respondent father’s employer, who advised her that the respondent father had posted a “deeply disturbing video” on the previous evening of March 12, 2020. The mother says that the employer asked her where her children were. She advised the employer that she had picked up the children the night before and they were in her care. The evidence of the mother is that the employer then “advised me that he was going to report the video to the police because [the respondent father] appeared to be high and was brandishing a gun in the video.” The applicant mother is not aware of whether the police investigated the situation.
[25] Two days later, on March 15, 2020, the applicant mother and the sister of the respondent father again went to talk to him about getting help. He denied he had a drug problem.
[26] The evidence of the applicant mother is that at that point, she felt it was necessary to curtail the respondent father’s access to the children. On March 18, 2020, she allowed the respondent father to attend at her home to visit with the children, supervised by the applicant’s father, i.e., the maternal grandfather.
[27] Between March 23, 2020, and April 3, 2020, the parties spoke a few times, and the applicant mother offered the respondent father further periods of supervised access at her home. She says the father “abusively rejected my offer.”
[28] On April 3, 2020, the applicant mother made further arrangements with the respondent father to drop the children off for an access visit on April 4, 2020. The mother’s expectation, communicated to the father, was that the children would be returned to her by the children’s bedtime on April 4th.
[29] The respondent father did not return the children on April 4, 2020.
[30] The applicant mother attended twice at the home of the respondent father on the night of April 4, 2020, to pick up the children.
[31] The first time she attended, at 7:40 p.m., it appeared no one was home. That said, the applicant mother recognized the motor vehicle belonging to the girlfriend of the respondent father parked in the driveway.
[32] The applicant mother then attempted to telephone the respondent father a number of times, but there was no answer. At one point, the father did answer, and the mother asked him where he was, in response to which the father allegedly replied that it was not the children’s “bedtime,” and he then hung up on the mother.
[33] Subsequently, the mother returned to the father’s premises at 8:05 p.m. that same night. The mother knocked on the door and asked if the children were ready to go. Her evidence is that the father replied that the children were “not going anywhere.” The mother stepped into the home and, she says, the father then physically assaulted her, throwing her into a wall, throwing her to the ground, and choking her to the point where she yelled that she could not breathe.
[34] The evidence of the applicant mother is that she called out for help to the girlfriend of the respondent father, who apparently was in the basement of the home with the parties’ two children and her own children. The applicant mother says that the girlfriend did not come to her aid, but she could hear her daughter and the other children screaming and crying in the basement. At one point, the daughter Euriyah made her way to the top of the stairs and then witnessed the altercation between her father and her mother, and the little girl called out to her mother. Apparently, the girlfriend retrieved Euriyah and brought her back down to the basement.
[35] At the respondent father’s urging, the girlfriend called the police, and officers with the Chatham-Kent Police Service subsequently attended at the home. After speaking with both parties, as well as the father’s girlfriend, and with the girlfriend apparently confirming the father’s version of event, the police advised the mother to leave the premises, which she did. No charges were laid over the incident.
[36] The applicant mother remains convinced that respondent father has a serious drug problem. Among other things, she points to the fact that, apparently, after 12 years of employment, the respondent father has now been fired by his employer.
[37] In any event, it remains the case that the last time the applicant mother saw her children was April 4, 2020. The respondent father has withheld the children from their mother since that time.
[38] There is no doubt that the mother’s motion is urgent. As I said in my April 27th endorsement, on its face, the apparent wrongful retention of the children falls squarely within the express terms of the description of urgent family law events, as set out in para. 2(b) of the Notice to the Profession.
[39] Moreover, for the purposes of subrule 14(4.2) of the Family Law Rules [^2], which allows a party to avoid a case conference before bringing a motion, I note the oft-cited decision of Hood v. Hood [^3], where Belch J. held that an urgent motion “contemplates issues such as abduction, threats of harm, dire financial circumstances, …” I consider the circumstances of the instant case to be akin to child abduction, and I would grant leave pursuant to subrule 14(4.2) to hear and determine the motion before the court.
Analysis
The caselaw in family law matters during the COVID-19 pandemic: cases involving multiple claims for relief
[40] There has now been a sufficient number of judicial decisions released in family law cases during the COVID-19 pandemic so as to permit one to extract certain general principles.
[41] I note that a variety of relief is claimed in the applicant’s notice of motion. Given the current suspension of all regular court operations except for those emergency matters that are urgent, the court is directed to deal with only those issues deemed to be urgent.
[42] A number of decisions released during the court’s suspension of regular operations in reaction to the COVID-19 pandemic have involved cases where a variety of different claims for relief were presented to the court. The approach of the court in such cases has been to consider whether each claim for relief is urgent within the meaning of the Notice to the Profession in its own right. The court has distinguished between those claims that are truly urgent and should proceed to swift determination and those claims that present no real urgency and no legitimate claim to the court’s extremely limited resources during this extraordinary period of the suspension of the court’s regular operations.
[43] In other words, it is not the case that where, for example, a moving party raises six different claims for relief and only one such claim is considered to be urgent that the court will proceed to determine the other five non-urgent requests just because they arise out of the same factual circumstances and/or are advanced within the same motion. A non-urgent claim for relief cannot bypass the urgency requirement just because it is “piggy-backed” onto a genuinely urgent issue. Each claim is to be separately considered on its own merits to determine whether it meets the urgency threshold.
[44] Thus, for example, in Hadley v. Hadley [^4], the father brought an urgent motion asking the court to grant him sole custody and primary residence of the parties’ three-month-old infant and to restrict the mother to supervised access only on the grounds that, as the father alleged, the mother suffered from serious mental health issues. In distinguishing between the various claims, Madsen J. held that the “determination, on a temporary basis, of the residency of the child” and the “determination of parenting time for the mother and, if so, any conditions which may be appropriate to ensure the safety and well-being of this infant” were potentially urgent issues at the triage stage but that the “determination of the ‘custody’ of the child is not required on an urgent basis.”
[45] In the same vein, in Tessier v. Rick [^5], the mother refused to let the father have his court-ordered access with the parties’ three-year-old child because the mother was concerned that “the father’s household [was] not abiding by the social isolation directives of public health authorities [and was] minimizing the risks posed by COVID-19.” MacEachern J. held that the father’s motion to require the mother to comply with the access order was urgent but that the father’s companion request for make-up access was not urgent. [^6]
Appropriate interim parenting arrangements for the children
[46] I am very concerned about the unilateral decision of the respondent father to withhold the children from seeing their mother for what is now approaching a month. Both children are very young. It is difficult to imagine what children of that young age must be thinking, having not seen their primary caregiver and mother for close to a month.
[47] The parties’ daughter Euriyah is three years of age. The evidence of the applicant mother is that Euriyah had never been away from her mother for longer than five days. Their son Daylin is some 18 months old. The evidence of the mother is that Daylin had never been away from his mother for longer than three days.
[48] Moreover, I am troubled by the prospect of young Euriyah apparently witnessing the altercation between her parents on April 4th last – presumably observing her father choke and physically assault her mother – and then not seeing her mother again for close to a month. I would think the child must be feeling bewildered and terrified.
[49] There is no doubt in my mind that in these described circumstances, and in the absence of any explanation from the respondent father, the children should be returned to their mother’s care immediately.
[50] I am also extremely disturbed by the evidence indicating the father’s erratic and assaultive behaviour, the evidence suggestive of his substance abuse, and the evidence surrounding the “deeply disturbing video” posted by the father online, in which he is allegedly seen brandishing a gun, which images were apparently so troubling to the father’s (former) employer that the employer went to the home of the applicant mother to warn her of the disturbing behaviour of her estranged former partner and to inquire of her about the children’s safety.
[51] I appreciate that those concerns are based on hearsay evidence. I appreciate that there is no evidence that those concerns were verified by the police. At the same time, in the absence of any input from the respondent father, the court simply cannot ignore those concerns. The safety of the children is at stake. One must err on the side of safety.
[52] The applicant mother has requested an order for interim custody of the children. The merits of that request must be determined on the basis of the best interests of the children, as required by s. 24(1) of the Children’s Law Reform Act [^7]. I have considered all of the factors enumerated in s. 24(2) of that Act and, in these circumstances, I am satisfied that it is in the best interests of the children to make the requested order. While I have considered all the relevant factors, I highlight only a select few here:
a. The unchallenged evidence before me is that the mother has been the children’s primary caregiver throughout their lives. b. I am troubled by the evidence that indicates or is consistent with the respondent father’s drug use. That evidence comes not only from the applicant mother but also from the sister of the respondent father, and it is consistent with the evidence of the behaviour of the father at work from the uncle of the applicant mother. Again, I appreciate that the two latter sources are hearsay evidence. c. The evidence of the applicant mother is that the father’s drug use has impacted his ability to provide basic care and appropriate supervision for the children. Whatever the cause – whether the mother’s belief is correct that it is the father’s drug use or whether it is no more than the father’s explanation that he is “exhausted from work and the kids” – the evidence before the court indicates there has been lapses in the father’s care and supervision of the children. d. As I have already expressed, there is evidence of a “deeply disturbing” video posted by the father in which he brandishes a dangerous firearm. e. I note the stark contrast between each parent’s attitude towards facilitating access to the children for the other parent. The approach of the applicant mother has been to facilitate access for the respondent father provided that appropriate safeguards are in place to ensure the children’s well-being. The approach of the respondent father has been to deny all access of the children to their mother for close to a month. f. On the basis of the evidence before me, I have serious concerns about the judgment of the father and his ability to consider the best interests of his children in the context of his decision, made unilaterally, that he should deprive two very young children from all contact with their mother for close to a month. It is not clear to me whether the father simply fails to appreciate that it would be traumatic for such young children to be deprived of all contact with the person who has been their primary caregiver for what would be a very long period from a child’s perspective, or whether he well appreciates the impact on the children but decided to withhold them anyway. Both prospects are deeply troubling.
[53] Given that the respondent father has not filed any responding affidavit, I would make the order for custody of the children on an interim interim and without prejudice basis.
[54] The applicant mother’s notice of motion seeks police enforcement clauses pursuant to s. 36(2) of the Children’s Law Reform Act. Our courts have said that the police enforcement order is a measure of last resort, to be made sparingly and only in exceptional circumstances. [^8] Generally speaking, it should be only in the exceptional situation that parenting and police should be associated in a child’s mind. [^9] That said, I am satisfied that the circumstances of the instant case require such exceptional relief. The evidence of the deeply disturbing video of the respondent father and the firearm cannot be ignored.
[55] Subsection 36(7) requires that any order made pursuant to s. 36(2) shall designate an expiration date. In my view, the police enforcement clause is an issue that should be revisited at a case conference. I would make the current order expire at the end of six months. It may be that, depending on the outcome of the case conference, there may emerge a consensus that police enforcement is no longer needed; in that event, the parties may apply for a consent order terminating the police enforcement provision. On the other hand, future circumstances may indicate that the applicant mother should apply to extend the police enforcement measure.
[56] The applicant mother has indicated a willingness to provide for the respondent father’s access with the children provided appropriate measures are in place to safeguard the children’s well-being. I agree with that approach. However, given the failure of the respondent father to deliver any responding affidavit, I have neither a complete picture of the family’s circumstances nor sufficient information to craft appropriate access provisions responsive to the children’s best interests, safety, and well-being. In my view, the issue of the father’s access is best addressed at a case conference. For the time being, I would make no access order. Ideally, this access hiatus will be temporary.
Other
[57] The motion materials of the applicant mother seek an order requiring the respondent father obtain a 5-Panel Hair Follicle Drug Test to screen for the presence of cocaine or other controlled substances. Paragraph 61 of the mother’s affidavit suggests that the father’s access should be supervised until it can be determined whether the father is using such illicit substances through the completion of such a test. As I have said, the issue of the father’s access should be addressed at a case conference. I am not prepared to make an access order at this time. As such, the request for an order for drug-testing is not urgent at this time, but is something, again, that can be part of the discussion at the case conference.
[58] The applicant mother’s notice of motion also seeks a declaration as to the respondent father’s “biological and legal” paternity of the children. I do not regard that issue to be urgent for present purposes.
[59] The same considerations apply to the applicant mother’s request for her full-recovery costs of this motion. The question of costs of the motion is not an urgent matter. As indicated above, the practice established by such cases as Hadley v. Hadley and Tessier v. Rick indicates that simply because one aspect of a motion may be determined to be urgent, that does not mean that all other necessarily entailed aspects of that same motion are also urgent. The applicant mother’s claim for costs can be dealt with in due course and should be discussed at the case conference.
[60] During this suspension of the court’s regular operations, I typically include a provision dispensing with the need for the issue and entry of a formal order, and I do so now with respect to this endorsement. As I stated in my April 27th endorsement, the determination of the motion, whether by oral decision or, as here, written endorsement, is an order of the court enforceable by law and, in accordance with rule 25(18) of the Family Law Rules, effective from the date on which it is made, regardless of whether a signed formal order is prepared, signed, and entered with the court in accordance with the provisions of Rule 25. That said, if counsel for the applicant mother wishes to take out a formal order, she may file a draft order with the Trial Coordinator for my review and signature, and as I will review the form and content of the draft order, the approval of the respondent father shall not be required.
[61] This matter should proceed to a case conference.
Order
[62] For all of these reasons, I make the following order.
[63] The applicant mother shall have leave, pursuant to subrule 14(4) of the Family Law Rules, to have this motion heard and determined before the completion of a case conference.
[64] This court orders, on an interim interim and without prejudice basis, that the applicant mother, Genna Lynn Thibodeau, shall have sole custody of the children of the relationship, being Euriyah Rae Moulder, born January 4, 2017, and Daylin Dee Moulder, born November 2, 2018.
[65] This court orders that the respondent father, Chad Marsden Moulder, shall immediately return the children of the relationship, being Euriyah Rae Moulder, born January 4, 2017, and Daylin Dee Moulder, born November 2, 2018, to the care of the applicant mother, Genna Lynn Thibodeau.
[66] This court orders, pursuant to s. 36(2) of the Children’s Law Reform Act, that the Chatham-Kent Police Service shall forthwith do all things reasonably able to be done to locate, apprehend, and deliver the children of the relationship, being Euriyah Rae Moulder, born January 4, 2017, and Daylin Dee Moulder, born November 2, 2018, to the applicant mother, Genna Lynn Thibodeau, at 25 Superior Avenue, Tilbury, Ontario, N0P 2L0.
[67] This court orders that for the purpose of locating and apprehending the said children of the relationship, being Euriyah Rae Moulder, born January 4, 2017, and Daylin Dee Moulder, born November 2, 2018, or either of them, a member of the Chatham-Kent Police Service may enter and search any place where he or she has reasonable and probable grounds for believing that the said children, or either of them, may be with such assistance and such force as are reasonable in the circumstances.
[68] For the purposes of exercising their duties under this order and s. 36(5) of the Children’s Law Reform Act, members of the Chatham-Kent Police Service shall have regard for the information set out in para. 24 of this endorsement, above.
[69] This court orders, pursuant to s. 36(7) of the Children’s Law Reform Act, that the police enforcement provisions of this order shall expire on November 1, 2020, subject to further order of the court.
[70] This matter shall proceed to a case conference.
[71] If the parties are both of the view that this matter falls within the parameters for holding a case conference as set out in the Notice to the Profession – Expansion of Matters to be heard in the Southwest Region, issued April 2, 2020, they may request through the Trial Coordinator that a case conference be scheduled, failing which the matter is adjourned to Monday, June 8, 2020, at 10:00 a.m. to be spoken to in order to set a date for a case conference.
[72] The issue of costs of this motion and the triage motion is adjourned to the case conference judge.
[73] The preparation, signing, and entry of a formal order in respect of this endorsement is hereby dispensed with.
J. Paul R. Howard Local Administrative Justice – Chatham Released: May 1, 2020