Court File and Parties
COURT FILE NO.: 539/16 DATE: 20200526
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Brooke Joy Hollinrake, Applicant - and - Michael Andrew Orticello, Respondent
BEFORE: The Honourable Mr. Justice R. A. Lococo
COUNSEL: Lauren Angle, for the Applicant Michael Orticello, Respondent, appearing on his own behalf
HEARD: May 26, 2020, by teleconference
ENDORSEMENT
[1] The Applicant Brooke Joy Hollinrake brings a motion on an urgent basis for an order requesting (i) the re-instatement of parenting time in accordance with the final order of Reid J. dated January 15, 2018, (ii) make-up time for the parenting time denied to her by the Respondent Michael Andrew Orticello, and (iii) police enforcement.
[2] By endorsement dated May 15, 2020 (reported at 2020 ONSC 3096), MacPherson J., acting as triage judge for family matters during the suspension of regular court operations during the COVID-19 health emergency, permitted this motion to proceed on an urgent basis. In that endorsement, MacPherson J. made the preliminary determination that this motion is urgent and should be referred to a judge for a hearing by teleconference.
[3] The parenting schedule for the parties’ three children (aged 11, nine and six years) is set out in Justice Reid’s final order issued on consent on January 15, 2018. The final order provides for a shared parenting arrangement, on a “two-two-three” day rotation. The parenting schedule is varied for holiday periods, including school summer vacation.
[4] On March 25, 2020, the Applicant mother returned the children to the Respondent father’s care, in accordance with the regular parenting schedule. The children were due to return to the Applicant mother’s care on March 27, 2020. On that day, when the Applicant mother was on her way to pick up the children, the Respondent father called her to advise that he would not be returning the children to her care. He expressed concern that the children, when in her care, were exposed to the risk of infection with COVID-19 from her current boyfriend, who is a police officer. The Applicant mother has not had any in-person parenting time with the children during the two months since that time, although she has been in contact with them by telephone.
[5] On April 20, 2020, the Applicant mother sought the court’s permission to bring a contempt motion against the Respondent father for breach of Justice Reid’s final order. She was also seeking make-up parenting time as well as a police enforcement order. By endorsement dated April 21, 2020 (reported at 2020 ONSC 2468), MacPherson J. determined that the proposed motion was not urgent at that time.
[6] In declining to find urgency in the request for a contempt finding and police enforcement, MacPherson J. noted (at para. 16 of her endorsement) that those remedies would undoubtedly add to the conflict between the parties and heighten any emotional turmoil for the children. She also stated (at para. 18) that the parties urgently needed to resolve the differences about the parenting schedule under the existing final order, which continued to govern, without any presumption that COVID-19 permits either parent to terminate the children’s time with the other parent. However, in the absence of evidence of any attempt to resolve or mediate the parties’ differences, MacPherson J. declined to find that it was urgent to address the denial of parenting time at that time. She urged the parties (at para. 19) to engage in mediation “to help develop a plan that maintains the children’s relationship with both parents during this time and succeeds in putting the children’s safety at the forefront.” She also noted (at para. 21) that her non-urgency determination was without prejudice to either party’s seeking a new determination if circumstances changed.
[7] In Applicant mother’s affidavit filed with the current motion, she deposes that after the April 21 endorsement, her counsel wrote to the Respondent father on two occasions, suggesting reinstatement of the Applicant’s mother parenting time and mediation to resolve their differences. The Respondent father did not respond, leading to the Applicant mother’s second request for permission to bring an urgent motion, this time successfully. In Justice MacPherson’s endorsement dated May 15, 2020, Her Honour agreed that there was an urgent need to resolve the parenting time issue, given the absence of in-person parenting time for the Applicant mother for the previous two months and the Respondent father’s lack of cooperation in resolving the issue.
[8] In the current motion, the Applicant mother is no longer seeking a finding of contempt but continues to request a reinstatement of in-person parenting time for her in accordance with the Justice Reid’s final order. She also seeks make-up parenting time and an order for police enforcement, given the Respondent father’s denial of in-person access to date.
[9] In his responding affidavit, the Respondent father continues to express concern about the children’s potential exposure to COVID-19 while in the Applicant mother’s care, notwithstanding her assurances that she is taking all recommended measures relating to their health and well-being. Despite his stated concerns, the Respondent father expresses his willingness to reinstate in-person access, referring to offers he made to the Applicant mother, including to provide her with make-up parenting time of seven weeks, during which the children would be in her continuous care.
[10] In her reply affidavit, the Applicant mother notes that the Respondent father’s offers of make-up time were made only after she brought the second request for the hearing of an urgent motion. She also questioned whether it was in the children’s best interests for her to have make-up parenting time for a continuous period of as long as seven weeks, without seeing their father. She now suggests make-up parenting time for her of two weeks, following which the existing parenting schedule would be reinstated.
[11] On the record before me and as agreed by both parties, I have concluded that in-person parenting time for the Applicant mother should be reinstated. The Applicant mother should be provided with make-up parenting time, as set out further below. Variation in the terms of the final order would need to be pursuant to a motion to change brought by one of the parties (or on consent of both parties) once regular court operations resume. I am also confirming Justice MacPherson’s preliminary determination of urgency with respect to the parenting issue and the request for police enforcement.
[12] As MacPherson J. noted in her endorsement, the rotating parenting schedule set out in the 2018 final order continues to govern – there is no presumption that COVID-19 permits either parent to terminate the children’s time with the other parent. Notwithstanding the Respondent father’s expressed concerns, he does not have the right to unilaterally terminate the Applicant mother’s in-person parenting time with the children. I accept her assurances that she is taking reasonable steps to ensure the children’s health and safety in these difficult times and will do so in the future. I find the Respondent father’s protestations to the contrary to be suspect, given his recent offer to have the children in the Applicant mother’s care as make-up time for a continuous period of seven weeks. On the evidence, I see no valid basis for the Respondent father’s unilateral denial of in-person parenting time for the Applicant mother for the past two months or for his lack of co-operation in mediating or otherwise making any real attempt to resolve the issue until after the second urgent motion was brought.
[13] In my oral remarks following the motion hearing, I indicated that I am granting the Applicant mother’s request for make-up parenting time of two weeks, and invited comment on when the make-up time should commence. As agreed by both parties, the children shall be in the Applicant mother’s care commencing at 5:00 p.m. today, May 26, 2020, and shall remain in her care until 9:00 a.m. on Friday, June 12, 2020. At that time the children shall return to the Respondent father’s care, in accordance with the rotation set out in the 2018 final order. That schedule will apply during the rest of June until the summer school parenting schedule takes effect.
[14] As I indicated in my oral remarks, I am including a police enforcement clause, as the Applicant mother requests. I am normally hesitant to include police enforcement in a custody or access order, for the reasons expressed in Justice MacPherson’s April 21 endorsement, that is, the concern that doing so may exacerbate parental conflict and heighten emotional turmoil for the children. However, during the motion hearing, the Respondent father would not commit to following the requirements of an order he did not agree with, indicating he intended to appeal in those circumstances. While he is of course entitled to appeal (if the court grants leave), in all the circumstances, I decided to include the police enforcement clause as a necessary measure to ensure his compliance, given his conduct to date.
[15] In doing so, I have taken into account the fact that he acted unilaterally in denying the Applicant mother in-person access and would not engage with her counsel to resolve their differences even after receiving Justice MacPherson’s April 21 endorsement, only doing so on a limited basis after the current urgent motion was brought. Belatedly, he expressed a willingness to reinstate in-person parenting time for the Applicant mother and to provide her with make-up time, but the parties have been unable to agree on what happens after that. Justice MacPherson suggested mediation as means of settling that parties’ differences cooperatively, and I am renewing that suggestion.
[16] For the future, should the Respondent father not cooperate in providing in-person parenting time to the Applicant mother and again act unilaterally to address his concerns, he can expect his conduct would count against him (including on the issue of costs) in any future proceedings. Once regular court operations resume, such proceedings may include a contempt motion or a motion to change the existing final order by varying the allocation of parenting time between the parties.
[17] After providing my decision orally and inviting costs submissions, the Applicant mother’s counsel requested substantial indemnity costs fixed at the all-inclusive amount of $1,000, calculated using Legal Aid billing rates. In support of that request, counsel noted the Respondent father’s lack of cooperation in resolving the parties’ differences and his refusal to consider offers of settlement on terms similar to the order being made today.
[18] It would be open to me to make such an order under rule 18 of the Family Law Rules, O. Reg. 114/99. However, I am exercising my discretion not to do so at this time in order to avoid exacerbating the conflict between the parties and to encourage them to resolve their differences outside the court process. I would instead reserve the issue of the Applicant mother’s costs of this motion to the judge in future proceedings where the parenting schedule for the children is in issue. Doing so would allow the judge to take into account the subsequent conduct of the parties and whether their actions are consistent with the children’s best interests.
[19] An order will therefore issue in the following terms:
- As make-up parenting time, the children shall be returned to the Applicant mother’s care at 5:00 p.m. on May 26, 2020, and remain in her care until 9:00 a.m. on June 12, 2020. At that time, the children shall return to the Respondent father’s care, and the parenting schedule set out in Justice Reid’s final order dated January 15, 2018, shall resume.
- The Niagara Regional Police Service or other police service having jurisdiction is directed to enforce the terms of the parenting schedule set out in this order and Justice Reid’s final order dated January 15, 2018, by returning the children (or any of them) to the Applicant mother’s care if the Respondent father fails to return them when required to do so.
- The Applicant mother’s costs of this motion are reserved to the judge in future proceedings in which the parenting schedule for the children is in issue.