COURT FILE NO.: FS-16-0219
DATE: 2020 06 12
CORRECTED: 2020 06 15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: EMUESIRI TEJIRI MEDU, Applicant
– and –
ERERE OHWOFASA MEDU, Respondent
BEFORE: McSweeney J.
COUNSEL: Hannah Kazman, for the Applicant
Respondent, Self-Represented
HEARD: Via Teleconference: May 21, 2020
endorsement – clarification of final order
CORRECTION NOTICE:
June 15, 2020: Typographical error in para. [57] which contained the Applicant’s name as opposed to the Respondent’s name.
[1] This is my final endorsement and order on the motion brought by the Applicant for return of the parties’ children and other relief.
[2] Earlier endorsements on this motion are reported as Medu v. Medu at 2020 ONSC 2465 (April 21 – finding of urgency), 2020 ONSC 2582 (April 24 – return of children), 2020 ONSC 3055 (May 15 – other relief), and 2020 ONSC 3159 (May 21 - costs).
[3] By teleconference hearing on May 21, 2020 I heard submissions confined to the matters set out in my endorsement of May 15, 2020 at paragraphs 20 (further remedy for Respondent’s overholding), 24 (any temporary changes needed to comply with final order during COVID-19 restrictions), and 29 (clarification of final order re pickup of children).
[4] Both parties attended the teleconference hearing. Ms Kazman represented the Applicant mother. Mr Medu, Respondent father, was self-represented.
Issue 1: Further remedy re: Respondent’s Overholding
[5] In my endorsement of May 15, 2020, I granted a partial remedy for the Respondent’s overholding of the children from the end of their 2020 March break until April 27, 2020. Specifically, the I ordered that the children remain in care of the Applicant mother from April 27, 2020 until Friday May 15, 2020.
[6] They have now done so, and subsequently spent the May long weekend with the Respondent. Ms. Kazman confirmed that the Respondent did the pickup and the return of the children to the Applicant as specified in my previous endorsement.
[7] As further remedy for the Respondent’s overholding, the Applicant requests that the number of overnights the children missed spending with her be made up by eliminating the Respondent’s mid-week access (two overnights every two weeks) until September 29, 2020. During this period, they would continue to spend every second weekend with the Respondent in accordance with the final order of Shaw J dated September 12, 2018 (“the final order”). The exception is the first four weeks of August, which the parties have agreed will be the children’s annual vacation with each parent (two weeks consecutive with Applicant, followed by two weeks consecutive with the Respondent).
[8] Applicant’s counsel advises that by September 29, 2020, the overnights missed by the children with the Applicant will have been made-up, and that their midweek access with their father should therefore not resume until that date.
[9] Respondent father asked that the court order resumption of the parties’ final order access schedule in August, and not wait until late September. He also pointed out that that the children had the first half of March break with their mother this year, because he did not pick them up until Thursday of that week.
[10] I have made no finding as to why the Respondent did not commence his March break time with the children as set out in the parties’ final order: each parent points a finger at the other. However, I note that, solely from the children’s point of view, the Respondent father’s delay meant that they spent approximately five unanticipated consecutive days with their mother before their March break time with their father began.
[11] I have considered the parties’ submission on the remedy and its duration. I also note that they have reached agreement on summer vacation, and have done so while this motion was ongoing, without further conflict, in the best interests of their children.
[12] For 2020 the parties agree that the children’s two weeks of vacation with each parent will be: with the Applicant mother from July 31 – August 14, 2020; and then with the Respondent father from August 14 – August 28, 2020.
[13] I agree with the Applicant’s proposed approach of temporarily suspending only the children’s midweek access, while still maintaining their alternate weekend access with their father. This is a balanced approach to the remedy for overholding in these circumstances. It is also important that, as the parties have agreed, the children have their planned two-week summer vacation with their father this summer as planned.
[14] I emphasize that the suspension of the children’s midweek access with the Respondent is not ordered lightly. It is not ordered as a punishment for either the Respondent or the children. However, I am mindful, in ordering this remedy, that both parties’ evidence referenced several occasions when the Respondent was not available at all for scheduled access. On those occasions he would notify the Applicant, sometimes on short notice, that he could not attend access that week. Such occasions are doubtless memorable to the children, particularly the older ones, who experienced the disappointment of learning that they would not see their father when they were told to expect time with him.
[15] Stability and predictability are essential ingredients in a parenting schedule. When a parent is reliably present during his or her access/parenting time with the children, security and trust develop between child and parent. I am hopeful that during the temporary suspension of midweek access, the Respondent will make what scheduling adjustments he is able in order to avoid missing the children’s scheduled time with him in the future.
[16] I must determine the duration of suspension of midweek access. Respondent asked that it resume in August, which is now the parties’ vacation time. He will have August 14-28 with the children and then Labour Day weekend after that this year. The Applicant asks that midweek access resume September 29, 2020 as previously stated.
[17] In my view it is in the children’s best interests that once school resumes, the children return to the full Access Schedule in the parties’ final order. Doing so will re-establish their familiar schedule with each parent at the beginning of the school year.
[18] The two older boys will be starting Grades 5 and 6 this September. The youngest boy will be starting Grade 1. Both parents have referenced the importance of school for their children, and of supporting them with their homework and other schoolwork.
[19] In 2020 it is particularly important that both parents spend time with the children during the period of re-opening of the schools. I say this because the return to school may involve new routines for safety and precautions arising from the COVID-19 pandemic. September start of school is typically both exciting and stressful for children, especially when a child is progressing from kindergarten to the start of the “grades”, as the parties’ youngest son will be doing.
[20] Accordingly, I order that the resumption of the Respondent’s full access with the parties’ children effective September 15, 2020.
Issue 2: COVID-necessitated temporary change
[21] The parties advised that the location of access exchanges was the only adjustment required to enable them to comply with their final order during the current period of school closures and public facility access restrictions related to the COVID-19 pandemic.
[22] I have made previous interim orders during adjournments of this motion regarding the location for all pickup and drop-off exchanges between the parties.
[23] I hereby confirm and order, on consent of the parties, as a temporary variation of the order of Justice Shaw of September 12, 2018, that until resumption of the children’s in-person attendance at school, the location for all pickup and drop-off exchanges will be the parking lot of the YMCA located at 20 Union Street, Brampton, ON L6V 1R2.
Issue 3: Clarification of parties’ final order
[24] In my endorsement of May 15, 2020, I observed as follows:
“On the issue of who can pick up or drop-off the children as required by the parties’ access schedule, the Respondent has emphasized his difficulty in doing exchanges in person when his work schedule conflicts.
The parties are advised that in the absence of a restriction in the parties’ final order prohibiting them doing so, it is generally reasonable for both parents to each designate a relative, friend or partner who is known to the children, to be able to pick them up at the scheduled times when the parent is unable to do so. As a courtesy to the other parent, it is appropriate to advise the other parent in advance of who will be picking up or dropping off the children.
I would further observe to the parties that by designating someone to do the transfers they cannot attend in person; children’s’ schedules are often less interrupted than where the releasing parent does not permit the children to go with a designated person authorized by the other parent.”
[25] Both parties gave evidence of the Respondent’s difficulties with personally attending to pick up the children right after school at the time specified in the final order, both at the commencement of midweek access and on Fridays at the beginning of their weekends with him.
[26] The Respondent confirmed that his work as a relief pharmacist means he often cannot forecast his work hours very far in advance, and that if he gets work which overlaps with scheduled pickup times, it can be hard for him to leave midafternoon to pick them up at school at 3:15 pm. As a result, he is sometimes running late for pickup or unable to make the specific time at all.
[27] I find on the evidence that the result of these difficulties has been serious schedule unpredictability, confusion and disappointment for the children. It has also meant inconvenience to the Applicant, who is frequently unable to count on the children’s access with their father starting on time. Presumably this makes it harder for the Applicant to make commitments and plans in advance for the time the children are scheduled to be with their father.
[28] To address this concern, the Respondent has proposed to the Applicant that his common-law partner, Patricia Dzambic, pick them up on his behalf. The children know Ms. Dzambic well, and call her “Auntie Rose”.
[29] The Respondent advises that he and Ms. Dzambic live together, with her young son “A”, less than 10 minutes’ walk from both the children’s school and from the designated YMCA exchange location. Ms. Dzambic’s son “A” plays with and goes to the same school as the parties’ children. She already drops off and picks up “A” at school on school days. She is ready, willing and able to assist the Respondent by doing pickups and drop offs at the start and end of scheduled access.
[30] To date, the Applicant has refused to release the children to Ms. Dzambic or permit the school to do so. When the Respondent cannot do pickup in person, the Applicant has taken them home again and kept them until whatever time the Respondent is able to come and get them himself. This has meant that instead of after school pickup, the children may not be picked up by the Respondent until 8pm or sometimes much later in the evening.
[31] Applicant counsel argued initially that the Applicant did not have information about Ms. Dzambic. I then directed the Respondent to provide more information, which he did. The information was both descriptive with respect to Ms. Dzambic’s background and role in his life, and also included her legal name and birthdate.
[32] It is obvious that Ms. Dzambic’s role in the Respondent’s life, and therefore in the children’s lives, is a “friction point” for the Applicant. The Applicant says she will agree that other people could help the Respondent drop off and pick up the children, but not Ms. Dzambic.
[33] The Applicant asserted that Ms. Dzambic has dropped off the children at school too early in the past, and that she took a child to school who was sick and in the Applicant’s view, should have stayed home. This Court emphasizes to both parties that it is their responsibility to ensure that anyone they authorize to assist with access transfers or with care for the children during their parenting time, will behave as responsibly as they themselves would do.
[34] The Respondent acknowledged that Ms Dzambic assisted him in caring for the children when the Respondent took them to Sioux Lookout during the overholding period. She and the Respondent have been a couple for more than a year. The children know her well at this point.
[35] It is manifestly not in these children’s best interests to be uncertain as to whether or when they will start their parenting time with the Respondent. As the children get older and become more aware of this negative dynamic between their parents, they risk being drawn further into adult conflict. This would be further detrimental to their emotional well-being.
[36] I find that it is in the children’s interest that Ms. Dzambic assist the Respondent in picking them up and dropping them off when he cannot do so. On the evidence referenced in this and my earlier endorsements, I find that if the Respondent had Ms. Dzambic’s help in this way, the children would experience less of the stress and upset that has occurred when their schedule has changed without warning or nobody comes at the end of the school day to pick them up.
Does the parties’ final order require all pick-ups to be done in person by the parents?
[37] The Applicant argues that because she will not consent to Ms. Dzambic assisting the Respondent with access transfers, he must bring a motion to vary the final order.
[38] In order to assess whether the final order is restrictive in the manner suggested by the Applicant, the specific wording in the final order must be considered.
[39] In the final order section called “Access Schedule”, paragraphs 13 and contain the following wording [emphasis added]:
a. “Every other weekend from Friday, pick-up from the children’s school or daycare or a location mutually agreeable between the parties at 3:15 p.m. and drop-off Monday at 8:00 a.m. to the children’s school, daycare or a location mutually agreeable between the parties”; (Final order, para 13(a))
b. “During the week when the Respondent does not have access to the children that coming weekend, pick-up from the children’s school or daycare every Tuesday at 3:15 p.m. and drop-off at the children’s school or daycare Thursday at 8:00 a.m.” (Final order, para 13(b))
c. The pick-up and drop-off for the children shall be at the children’s school or daycare. When the children are not in school, the children shall be picked-up and or dropped-off at the YMCA Downtown Brampton location or other public location mutually agreeable to the parties. (Final order, para 15)
[40] The parties agreed that the order does not state that only the parent parties can do the access transfers. Respondent takes the position that he should be able to delegate pickup to another adult. He pointed to the Applicant’s admission that she has occasionally sought help from two friends to pick up the children on occasions when she is not able to do so. The Respondent did not object to her doing so and submits that both parents need such assistance from others in order to comply with the Access Schedule in the final order.
[41] Applicant argues that although, as a matter of interpretation, the final order does not specify who is permitted to pick-up and drop off the children, the order could equally be interpreted to read to mean that only the parents or agreed delegates can do so. She cited no case law in support of this position.
[42] I do not accept the Applicant’s position. The final order stipulates only when the children will have access with their father, and where drop-off and pick-up will occur. The final order is careful in its language that the children “shall be picked up” but provides no direction or restriction as to who can or cannot pick them up in addition to their parents. Clearly some adult must do the “picking” or “dropping”, but the order gives no guidance on this point.
[43] I find that the wording of the final order does not prohibit the parties from authorizing others, including their partners, to do the pick-up and drop-off access transfers.
[44] Applicant counsel argued that the court should require a motion to vary before helping the parties to resolve their disagreement as to whether the final order permits them to authorize another person to assist with pick-up and drop-offs required by the Access Schedule.
[45] I do not agree. To require a further motion to vary in these circumstances, where the Court gave the parties notice and opportunity to be heard on this specific issue, would have been to create further process without purpose, causing further delay, cost and time to the parties and their children.
[46] In my view, assisting the parties in this way is consistent with, if not required by, the primary objective identified in Rule 2(2) of Family Law Rules. The Ontario Court of Appeal in A.A. v. Z.G., 2020 ONCA 192 recently described “dealing with cases justly” to mean “ensuring that the procedure is fair to all parties, saving time and expense and dealing with the case in the way that is most appropriate to its importance and complexity”. In order to achieve fair and expeditious resolutions, Rule 2 “specifically grants judges some procedural freedom” (at para 24).
[47] Such freedom, elsewhere referred to by the Ontario Court of Appeal as “great latitude”, enables a court, particularly in cases involving unrepresented litigants, to make such substantive orders, whether requested or not, as are needed to effect a just and fair result between the parties: Titova v Titov, 2012 ONCA 864 (at para 48); see also Rule 25(19)(c).
[48] The clarification I have provided in this endorsement was necessary to assist the parties in making the Access Schedule ordered by Justice Shaw workable for themselves and their children.
No make-up time provisions
[49] The Applicant has asked this Court to address the issue of “make-up” access time. The Respondent has and continues to take the position that he has an entitlement to have additional time with the children if he is not available to care for them during the time period specified in the final order.
[50] In my view this is not an issue which requires judicial clarification of the final order. However, the Court is aware that the Respondent was self-represented at trial, and also on this motion. For the benefit of the parties, let me therefore state for their assistance: the final order gives sole custody to the Applicant, and very clearly specified parenting time to both parties. The order sets out the time periods which the Respondent and the children will spend together each year. The order does not contain a provision for make-up access.
[51] To be clear, therefore: if the Respondent is not available for access during the time periods specified in the Access Schedule in the final order, he is not entitled to have additional or “make up” parenting time with them.
Summer vacation two weeks with each parent
[52] The Respondent asked me to comment on whether the summer vacation provisions of the parties’ final order entitle him to more than two weeks under the “summer vacation” section of the order. They do not. The order is clear that the children are to have two weeks of summer vacation with each parent each year. Whether phrased as “two weeks during summer holidays from school” or “two weeks’ vacation”, the meaning is the same: two weeks per parent.
ORDERS:
ON AN INTERIM BASIS THE COURT ORDERS THAT:
[53] Until the resumption of in-person school attendance by the parties’ children, paragraph 15 of the parties’ final order of Shaw J dated September 12, 2018 is varied as necessary to require that all access exchanges to take place at the parking lot of the YMCA located at 20 Union Street, Brampton, ON L6V 1R2.
[54] The Respondent’s regular (non-vacation) mid-week access with the children (per subparagraph 13(b) of the final order) is currently suspended for reasons given earlier. This temporary suspension shall continue until September 14, 2020. The children will resume midweek access with the Respondent Father on Tuesday September 15, 2020.
ON A FINAL BASIS, this court orders the following clarifications to the parties’ final order of September 12, 2018:
Access transfers and drop-off and pick-up of children from school (paras 13 and 14 of final order):
[55] Both parties may in writing authorize others, on his or her behalf, to pick up and drop off the children Anomioghene Medu born May 13, 2010; Eferodecha Medu born August 16, 2011; and Ometevwe Medu born April 1, 2014 (“the children”) when they are transferred between the care of the parties pursuant to the Access Schedule set out in paragraphs 13 and 14 of the final order.
[56] For greater clarification, the Respondent may in his discretion authorize Patricia Rose Marie Dzambic, date of birth 10 December 1975, to pick-up and drop off the children on his behalf at school, and at access exchanges, when he is unable to do so himself.
[57] This order authorizes the Principal of the children’s school, and his or her designates, upon receipt of written direction from the Respondent Erere Ohwofasa Medu, to release the parties’ children, namely Anomioghene Medu born May 13, 2010; Eferodecha Medu born August 16, 2011; and Ometevwe Medu born April 1, 2014, into the care of Patricia Rose Marie Dzambic at the commencement of the Respondent’s access time.
No entitlement to “make-up” access
[58] The final order does not entitle the Respondent to “make-up” missed access time with the children. Any adjustment to the court-ordered schedule must be agreed to by the parties or pursued by way of a motion to vary.
Two weeks summer vacation each year (sub-para 14(j) of final order)
[59] The final order specifies that each parent will have two weeks of summer vacation with the children each year.
Other terms:
[60] There will be no additional costs ordered for participation on the final teleconference hearing on May 21, 2020. None were requested and none are ordered. This is appropriate as the time spent on the final teleconference was necessitated by inflexible positions taken by both parents.
[61] When the courthouse is re-opened to the public, each party shall file with the SCJ Brampton Trial Office a copy of all the material he or she delivered electronically for this motion, with proof of service, and pay the appropriate fees.
[62] This endorsement is effective as an order of the court when it is made. No other or formal order is required.
McSweeney J.
Released: June 12, 2020
Corrected: June 15, 2020
COURT FILE NO.: FS-16-0219
DATE: 2020 06 12
CORRECTED: 2020 06 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EMUESIRI TEJIRI MEDU
Applicant
- and -
ERERE OHWOFASA MEDU
Respondent
endorsement – CLARIFICATION OF FINAL order
MCSWEENEY J.
Released: June 12, 2020
Corrected: June 15, 2020