Court File and Parties
COURT FILE NO.: FC-20-79
DATE: 2020/05/06
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Anne Perreault, Applicant
AND
Charles Marleau, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Roger Trudel, for the Applicant
Emma Dupuis, for the Respondent
HEARD: May 4, 2020
ENDORSEMENT
[1] The respondent father is seeking the immediate return to Ottawa of the parties nine-year-old daughter so that he can resume in person access to her. He also seeks police enforcement of the order. The motion proceeds pursuant to a determination of urgency after a case conference did not result in a resolution. The only issue is whether the mother should return to Ottawa now, or at some other date.
[2] This is the second urgent motion the father has brought for the return of the child.
[3] The father’s first urgent motion was heard on January 23, 2020. On December 20, 2019 the mother had moved the child to Tiny Township, enrolling her in school there, without the father’s consent. Swartz J. ordered the child to be returned here by February 9. She ordered that the mother was not to remove the child from Ottawa or two other named counties in close proximity to Ottawa without the father’s written consent or court order. Her order also provided for the father’s in person access to resume on the basis of a midweek visit and alternate Sundays from 10 a.m. to 4 p.m.
[4] Tiny Township is located in the southern Georgian Bay area of Ontario. It is clear that the mother wishes to relocate there to reside with her partner. Her cross-motion on January 23 for sole custody and to “change the child’s jurisdiction” to that location was dismissed. A case conference was scheduled at which she would have canvassed her wish to relocate with the child on a temporary basis, but it was cancelled when the court’s COVID-19 scheduling protocol was announced.
[5] The mother did return the child to Ottawa on February 8. The father’s access did resume. Based on information he received, his lawyer inquired of the mother’s lawyer on March 4 whether the mother had taken the child back to Tiny Township since the January 23 order. Her lawyer responded on March 11 that the question was not relevant and would not be replied to.
[6] During the current motion the mother admitted that she had taken the child back to Tiny Township a few times subsequent to the January 23 order. This motion was precipitated by the mother’s action in taking the child there again on March 14 without the father’s knowledge or consent. Shortly after their arrival in Tiny Township, Ontario instituted various measures to respond to the COVID-19 pandemic. As a result, the mother decided it was best to stay where she was. Electronic contact has been arranged between father and daughter. There has been no in person access since March 11.
[7] The mother submitted the order did not prevent her from travelling out of Ottawa and the designated counties with the child, rather it meant she could not change the child’s place of residence beyond the permissible scope without the father’s agreement or permission by court order. I disagree. Had the court intended only that the mother should not change the child’s place of residence again it would have said so. Had the court intended that the mother could travel outside of the permissible area without the father’s consent it would have said that.
[8] In my view the mother contravened the January 23 order when she removed the child from the permissible area without the father’s consent or a court order.
[9] The mother submits she should be permitted to remain in Tiny Township indefinitely with the child based on the ongoing public health emergency and because the child will be happier and better off there. She submitted that Swartz J had referred to her as the custodial parent and had ensured that this would not be litigated in the future. This is not accurate. The transcript of the motion was tendered by her lawyer. Swartz J dismissed the mother’s motion for interim custody and noted that the father agreed that the child’s primary care would continue to be with the mother. In context the father had not even delivered his Answer when the motion was heard, and his counsel had already Swartz J that he would be seeking joint legal custody.
[10] There was some confusion about the mother’s proposal for the father to have in person access with their daughter. Her lawyer proposed that she would return to Ottawa with the child on the last weekend of every month so that they could visit for a number of hours on the Saturday and Sunday. The mother then texted him and he advised court that she was proposing they meet in Oshawa once a month for a visit there.
[11] The mother maintains that she should not be required to return to Ottawa because she would encounter housing difficulties. She has sold the house where she and the child lived. She took the position that Swartz J. gave her permission to sell her house. That is not the case. The transcript of the motion shows that Swartz J. simply stated that it is up to the mother to decide where she resides in Ottawa. After the sale of the house mother and daughter resided with the mother’s parents in their home. The mother submits she should not return there with the child because so doing could expose her elderly parents to infection. She made this submission to Audet J. on the urgency determination. In her endorsement Audet J noted she did not have sufficient evidence before her to assess the risk from the point of view of compromising the well-being of the elderly parents.
[12] The motion record still does not assist in this regard. There is no description of the grandparents’ home or its suitability for the 14-day quarantine that would be necessary. Nothing is stated as to any underlying conditions that might place the grandparents at greater risk. Nothing is stated that would suggest the mother or child might have been exposed to the virus.
[13] In comparison to returning to Ottawa into temporary accommodations, the mother submits the child would be happier and better off remaining in the home where she is until the COVID-19 crisis is over, whenever that might be. Accepting this submission would be tantamount to granting the mother the permission to relocate with the child before that issue has been litigated and at great detriment to the father’s relationship with their daughter.
[14] The mother makes numerous allegations against the father including that his relationship with the child is not strong and should not be an impediment to her move. The father in turn alleges that the mother does not support his relationship with the child and actively influences her against him. An order requesting the involvement of the OCL was made at the case conference. Whether or not the OCL becomes involved, this file should be assigned a case management judge. A copy of my endorsement shall be forwarded to the Administrative Judge for the Family Court in Ottawa for this purpose.
[15] In light of her history of unilateral self-help remedies the mother’s attempt to capitalize on the public health emergency has the ring of a self-serving excuse. She and her daughter are facing a 14-day self-isolation in her parent’s home because of the mother’s breach of the January 23 order on March 14 and every day thereafter. It should be trite to state that court orders are to be complied with. A litigant is not free to substitute her own interpretation of an order or act on her own belief of what is in the child’s best interests. The return from Tiny Township can be accomplished without exposing the child to harm from the virus. The mother and child can complete the 14-day self-isolation at her parents’ home without exposing them to harm if properly conducted. No doubt it will be challenging and inconvenient. Challenge and inconvenience do not override compliance with a court order.
[16] Of course, the mother is not required to return to her parents’ home. She can take any accommodation of her choice as long as it is in Ottawa or one of the two counties designated in the January 23 order.
[17] The father’s motion is granted. The mother shall return the child to Ottawa or one of the two counties designated in the January 23 order no later than on May 10, 2020. This short delay is allowed so that she can make any arrangements necessary for the return. The father’s in person access will commence immediately after her return or at the conclusion of a required self-isolation period of 14 days. The mother shall notify the father through counsel on May 10 of the address where she and the child shall be residing and whether a period of self-isolation is required.
[18] Police enforcement of the return order is in effect immediately. Police enforcement of the in-person access shall be delayed for 14 days after May 10, if self-isolation is required. In that event the father’s electronic access with the child shall occur twice per week for a minimum of 30 minutes each occasion. If the parties cannot agree on the timing, these visits shall take place on Wednesdays and Sundays at 4 p.m.
Costs
[19] The father is entitled to costs of the urgency determination, the case conference and this motion. If counsel are unable to agree on the amount of costs, I will receive written submissions from them. These are not to exceed 3 pages plus attached Bills of Costs and Offers to Settle, if any were exchanged. The father shall deliver his submissions by May 22, the mother by June 5, and the father’s brief reply if necessary, by June 10.
J. Mackinnon J.
Date: May 6, 2020
COURT FILE NO.: FC-20-79
DATE: 2020/05/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Anne Perreault, Applicant
AND
Charles Marleau, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Roger Trudel, for the Applicant
Emma Dupuis, for the Respondent
ENDORSEMENT
J. Mackinnon J.
Released: May 6, 2020