introduction

[1] The parties were married on July 8, 2006, separated on January 1, 2018 and divorced on April 18, 2019. They have three children who were born in Canada. The twins are 7 years old and the third child is 4 years old.

[2] The parties settled the issues arising from their separation. With the benefit of independent legal advice, they signed a Separation Agreement on October 1, 2018. Pursuant to this agreement, the parties have joint custody of the children and equal parenting time. As well, they each agreed to maintain a permanent residence for the children in Toronto for seven years (until October 1, 2025).

[3] On December 6, 2019, the applicant mother issued an application in this court. She seeks various orders: sole custody of the children and allowing her to move the children’s permanent residence to Argyle, Texas where she and her new husband, Colin, have purchased a home. They are moving to Texas on June 29, 2020, where the mother will give birth to a child with her new partner in August. She no longer owns or rents a home in Toronto. This application has not proceeded beyond the pleading stage.

[4] The mother brings an urgent motion for an order allowing the parties’ three children to travel to Texas between July 16, 2020 and August 17, 2020. The mother wishes to spend her residential summer time with the children in Texas.

[5] The respondent father responded with his motion. He seeks various orders: that the children not be permitted to travel to the United States of America until such time as the global health pandemic has been lifted and the Government of Canada, particularly Health Canada, endorse and the Federal Government legally permit the non-essential cross-border travel of Canadian citizens to the United States of America; setting the summer schedule for the children in Canada; and terms and conditions if this Court allows the mother’s motion.

[6] Justice Shore triaged the mother’s motion and ordered that it be heard because “the issue of the children’s summer residential schedule” needs to be determined.

Separation Agreement

[7] The Separation Agreement is relevant to the motions. Pursuant to this agreement, the parties have joint custody and equal parenting time. As well, the geographic location of their residence is fixed for seven years.

[8] During the negotiations leading to the Separation Agreement, the mother advised the father that she wanted to move with the children to live in Texas. The father was adamantly opposed to this move and for this reason he insisted on the residential restrictions set out in paragraphs 4.13 and 4.14 of the Separation Agreement.

[9] Paragraph 4.13 of the Separation Agreement states that the parties shall “live near each other so that the children will have frequent contact with both parties”. Each party is to “maintain the children’s permanent residence” within 35 kilometers of the intersection of the QEW and Islington Avenue in Toronto, Ontario for a period of seven (7) years from the date of the Separation Agreement. The seven years will expire as of October 1, 2025. A change in residence during the seven year period requires written consent or a court order.

[10] Paragraph 4.14 states that the residential restriction “is not intended to limit the parties’ ability to travel with the children”. The mother is permitted to travel with the children to visit Colin in Texas “but the children’s residence”, while in the mother’s care “shall not be moved to Texas or elsewhere in violation of sub-paragraph 4.13 regardless of whether Ashleigh and Colin Parrish ever marry.”

[11] The Separation Agreement includes a dispute resolution clause that covers parenting disputes. The parties are required to try and negotiate a resolution of the dispute. If unsuccessful, the Separation Agreement provides that they will mediate the dispute and if that fails, move to binding arbitration.

[12] The parties’ attempt to negotiate a solution failed. The mother refused to comply with the Separation Agreement unless the father agreed to allow the children to travel to Texas this summer. Not surprisingly, the father refused to agree to this condition. Travel to Texas during the COVID-19 pandemic was at the core of their parenting dispute.

[13] Instead of moving to mediation, as the Separation Agreement requires, the mother brought her motion. The father objected to the mother’s motion being heard and continued to ask that they follow the Separation Agreement. At the hearing of this motion, the father advised the court that he was prepared to consent to the motion being heard, to avoid further delay in resolving the summer schedule.

The Parenting Dispute

[14] The parenting dispute that is the subject of this motion is the children’s summer schedule. Looming large in the background of this motion is the mother’s application in which she seeks sole custody and an order permitting her to move with the children to Texas. The mother does not challenge the Separation Agreement and is not seeking to set it aside.

[15] The Separation Agreement specifically deals with the summer schedule. Paragraph 4.3(f) states that the children will reside with their mother for five weeks and with their father for four weeks. In odd years, the mother has first choice of her summer weeks and in even years the father has first choice. The father has first choice of summer weeks in 2020.

[16] The Separation Agreement states that the parents “recognize and agree that the children shall not be away from either parent for any period in excess of 17 days”. By April 1 each year, the parents must advise each other of the weeks requested. Both parents mistakenly thought that the deadline was May 1st.

[17] When the father proposed his summer schedule to the mother on April 28, 2020, he was still optimistic that the circumstances concerning the COVID-19 virus would improve by summer. His schedule divided the summer weeks according to the Separation Agreement. During his weeks, he was planning to take the children to New Hampshire on a vacation. In the schedule, he proposed weeks for the mother.

[18] On May 1, 2020, the mother replied. In her email, she told the father that as of June 25, 2020 she could no longer travel by air because of her pregnancy and so they needed to consider how to shuttle the kids to and from Texas during the summer. She did not respond to the schedule that the father proposed, except to say that she had previously provided a schedule. On May 2, 2020, Colin emailed the father the schedule they wanted.

[19] On May 14, 2020, the father emailed the mother again asking for her response to his schedule. It was his year to choose but the May 2 reply ignored this right. The father once again expressed his concern about the mother’s move to Texas and the restrictions on travel with the closure of the Canada/US border. He told her that they needed to “talk through a lot of details on summer plans (and beyond)” because the children would be living full time with him, when she moved to Texas.

[20] The mother responded the same day and stated, “I don’t intend to have the kids live primarily with you or attend [a Toronto school] … my expectation is that you will …allow them to attend [a Texas school] and live primarily with me through the school year”. The mother told the father that in her view “travel poses no material risk to the kids’ health or safety”. As an American citizen, she told the father that there was nothing to prevent her and the children from crossing the border.

[21] In mid-May, the father canceled the family vacation to New Hampshire because of the growing concern about the COVID-19 pandemic and the resulting closure of the border to all non-essential travel.

[22] On May 20, 2020, the father emailed the mother and expressed concern with a schedule that would have the children travelling back and forth between Toronto and Texas. While he had never objected to the mother travelling with the children for vacation before, the summer of 2020 was different, and he urged the mother to be “realistic about that”:

They (and us) will be required to self-quarantine for 14 days after crossing the border … The back and forth cross-border travel puts their health and safety at unnecessary risk and just won’t be practical when followed by a 14 day quarantine every time …it is time for you to accept that it is best for you to spend your time with the kids here in Toronto this summer.

[23] The mother did not change her mind. It was her plan to have the children present for the birth of their half-sibling. She had decided to give birth in Texas in early August 2020. Once this happened, she would not be able to travel until she had a passport for the baby. The mother proposed that the children be with the father from June 29 to July 17 and with her in Texas from July 17 to August 16, 2020. On their return to Toronto, she told the father that the children could self-isolate with him.

[24] The father’s efforts to secure an agreement to mediate under the Separation Agreement failed. Instead the mother brought this motion. The father became concerned that the mother was involving the children in their dispute.

[25] On June 4, 2020, father’s counsel sent mother’s counsel a lengthy seven-page letter explaining the father’s concerns. It was hoped that this would avoid the expense of the motion. A summary of the father’s requests and concerns follows.

• He urged the mother to give birth in Toronto, a safer option for the family and, in particular, the children.

• The mother had no obligations, professional, familial or otherwise to necessitate and justify her move to Texas, a move that was prohibited under the Separation Agreement.

• Choosing to intentionally travel during the COVID-19 pandemic is ill-advised, dangerous and puts the entire family’s health and safety at risk.

• The mother is placing her own interests above the children’s interests.

• The Canadian government has issued an Official Global Travel Advisory directing all Canadians to avoid non-essential travel.

• If the children fly to Texas there is a significant risk that they will be exposed to the virus while in airports and planes. They would have to self-isolate on arrival in Texas (the mother denies that this is required).

• On their return to Toronto the children and, of necessity, the father would all have to self-isolate for 14 days.

• It is unclear who will accompany the children on a flight to Texas.

• There is no proof that the mother has obtained travel/medical insurance for the children that covers COVID-19 medical issues.

• The mother and Colin do not have any family support in Texas to help care for the children while the mother gives birth and recovers from a C-section.

• There is a risk that the children will not be returned to Canada because the mother told the father in her email that she intends the children to live with her in Texas and attend school there. The father is concerned with the mother’s “continued attempts to unilaterally act with a blatant disregard” for the Separation Agreement. He is concerned that she will use the COVID-19 pandemic as an excuse not to send the children back to Toronto after her summer weeks.

• The children are very young and have never spent more than 2.5 weeks away from their father. It is not in the children’s best interests to be away from their father for a full month. It is also contrary to the Separation Agreement.

• The father is concerned with the mother’s “campaign” to convince the children that they should move to Texas. She is trying to uproot the children from their home, family, school and friends in Toronto.

• The father will not agree to have the children travel to Texas while a travel advisory is in place and in any event not for a month.

• The father proposed a schedule that would work if the mother agreed to remain in Toronto for the summer.

[26] The mother argues that the children will be safer in Argyle, Texas because it is a rural area. She adds that the children will not have to quarantine on arrival in Texas and they will enjoy the expansive home and pool.

[27] The mother says that the children will fly to Texas on Air Canada that uses a CleanCare+ program on its planes. This program outlines Air Canada’s safety precautions. There is no evidence that Air Canada currently flies to Texas, and if so whether the flight is non-stop and how much travel would be required to go from the airport to the home in Argyle. Such information is readily available and ought to have been provided.

[28] Counsel agree that the Court should and can take judicial notice of the official COVID-19 pandemic information. The official data shows that due to the COVID-19 pandemic the Canada-US border remains closed. The Centers for Disease Control and Prevention (“CDC”) records that Texas is among the states with the highest number of COVID-19 cases.

[29] There is no evidence that COVID-19 is under control in Texas. To the contrary, the public information shows that cases are increasing in Texas. As a result, the Governor of Texas issued Executive Order GA 28 on June 26, 2020 limiting the reopening of businesses in the State. The Order states that this is necessary because of the “recent substantial increases in COVID 19 positive cases and increases in the COVID 19 positivity rate and hospitalizations resulting from COVID 19” in Texas.

analysis

[30] In Ribeiro v. Wright, 2020 ONSC 1829, Pazaratz J. gave some helpful guidance on regulating parenting differences in the time of COVID-19. Considering the extraordinary circumstances of our society today, Pazaratz J. highlighted the need for children to remain connected to their parents, at para. 10: “In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever”.

[31] Consistent with the maximum contact principle, Pazaratz J. went on to say, at para. 18, “… no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.” [Emphasis in original.] At para. 14, having noted the seriousness of the COVID-19 crisis, Pazaratz stated that “[t]here will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.”

[32] If there is an urgency to the mother’s motion, she is responsible for making it so. For the following reasons her motion is dismissed.

[33] The parties spent considerable time, money and effort to resolve their differences and finalize a Separation Agreement. The validity of this Separation Agreement is not challenged. The mother’s conduct reveals a complete disregard for the Separation Agreement that is binding on the parties. By moving to Texas, she has breached the agreement to remain in Toronto for a period of 7 years. In her May 14, 2020 email, she told the father that the children would live primarily with her in Texas through school year, where they would attend school. Her conduct has caused this summer parenting dispute.

[34] In the mother’s reply affidavit, she tries to pull back on her plan to keep the children in Texas. She states that she will not enroll the children in a school in Texas unless there is a Court order, arbitration award or a written agreement between the parties. I find this evidence that is offered in the midst of a motion to be contrived and lacking in sincerity.

[35] The father has good reason to be concerned that the mother will not return the children to Toronto when her summer weeks are over. The father is understandably concerned about the mother’s intentions. He fears that she will use the COVID-19 pandemic as an excuse not to return the children to Toronto.

[36] The children have in the past travelled to Texas with the mother and have enjoyed their time there. Now is a different time and decisions about the children’s travel must take into consideration the COVID-19 pandemic and where the children are going. The air travel that the mother proposes involves crossing a border that is closed to non-essential travel due to the pandemic and arriving and travelling through the State of Texas that is experiencing a surge in COVID-19 cases and hospitalizations. After the summer weeks are over, the children would travel back home. On return, the children would have to self-isolate for three weeks with their father.

[37] The mother has chosen to move to Texas and give birth in this State. She is not entitled to have the children join her in Texas during this pandemic. This proposed travel is non-essential and would recklessly expose the children to the risk of infection. This would not be in the best interests of the children.

[38] The father has proposed a summer schedule in his notice of motion. It is his year to choose the weeks and so this schedule shall apply. If the mother chooses not to return to Toronto, then the children shall reside with the father during the mother’s summer weeks.

[39] I make the following orders:

(1) The Applicant’s motion is dismissed.

(2) If the Applicant decides to return to Toronto, the following schedule shall apply:

(a) From June 22, 2020 to June 30, 2020, the children shall reside with the Applicant (9 days);

(b) From June 30, 2020 to July 14, 2020, the children shall reside with the Respondent (15 days);

(d) From July 30, 2020 to August 10, 2020, the children shall reside with the Respondent (12 days);

(e) From August 10, 2020 to August 23, 2020, the children shall reside with the Applicant (14 days)

(f) From August 23, 2020 to August 31, 2020, the children shall reside with the Respondent (9 days); and

(g) From August 31, 2020 to September 9, 2020, the children shall reside with the Applicant (10 days).

(3) During her 2020 summer weeks, the Applicant shall not remove the children from Canada, and she shall provide the Respondent with full details of where she will be located with the children during her summer weeks.

(4) If the Applicant does not return to Toronto to live, as set out in the Separation Agreement, the children shall reside with the Respondent pending a further court order in this Application.

(5) If either party seeks costs of the motions and if they cannot reach an agreement on costs, they shall exchange brief cost submissions and file them with the Court by July 20, 2020.

C. Horkins J.

Date: July 2, 2020

Semkiw v. Sutherland, 2020 ONSC 4088

Case Summary

introduction

Separation Agreement

The Parenting Dispute

analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues