COURT FILE NO.: 20-00055591-0000 DATE: 2020-07-02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Heather Townsend, Applicant AND Tyler Townsend, Respondent
BEFORE: Madam Justice Breithaupt Smith
COUNSEL: Filomena Andrade, Counsel for the Applicant Lorrie Stojni - Kassik, Counsel for the Respondent
ENDORSEMENT -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 15, 2020, and supplemental Notice to the Profession dated April 2, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
[2] In accordance with the consolidated Regional Notice to the Profession issued on May 12, 2020 effective May 19, 2020 (and amended May 26, 2020) and the Protocol for Central South dated April 7, 2020, electronic materials were filed through the Courthouse email address: Kitchener.Courthouse@ontario.ca.
[3] The Respondent, Tyler Townsend (moving party) (“Father”), seeks a procedural order allowing the hearing of this Motion in advance of a Case Conference on grounds of urgency and a substantive order prohibiting either party from travelling outside of Canada with their daughter, V. (age 5). He seeks certain alternate relief in the event that travel is permitted. The request for a travel prohibition arises in the context of travel proposed by the Applicant, Heather Townsend (“Mother”), with the child to San Antonio, Texas.
[4] The following documents were provided:
- Notice of Motion, dated June 30, 2020;
- Affidavit General of Tyler Townsend, dated June 30, 2020;
- Affidavit of Service, dated June 30, 2020; and
- Covering email from Ms. Lisa O’Drowsky, assistant to Respondent’s counsel.
[5] Not surprisingly, having regard to the extremely short timeline in this matter, no materials have been filed by Mother in response. Mother’s counsel was served on Tuesday, June 30, 2020 at 2:34 p.m. As will become plain through the balance of this Endorsement, the extremely short timeline was caused by Mother’s own unilateral action.
[6] I would first comment that, although undoubtedly the COVID-19 situation causes significant concern for Father vis-à-vis the possibility of V. being exposed to the virus, this is in fact simply a case of inappropriate unilateral decision-making by one parent to the detriment of the other, and by extension of the child. Without intending to minimize Father’s concerns about V.’s health, I therefore focus on the facts as relevant to the attempt by one parent to remove a child from Canada over the other parent’s objections. COVID-19 adds a layer of desperation to the matter, but, other than the obvious and specific fact that many governments (including both Canada and the United States of America) have restricted international travel, Mother must receive the clear message that her actions would not be tolerated even if COVID-19 were not a factor.
[7] In brief, the relevant facts, admittedly untested and without the benefit of the Mother’s perspective, are as follows:
a) The parties are married, although no date of marriage or cohabitation was set out in the documents provided. b) The parties have one child, V., who is now 5 years of age and will turn 6 in 2020. c) There is no Agreement or Order governing decision-making or other parenting arrangements for V. d) The parties separated on or about November 15, 2018. Father says at that time, Mother moved with V. to Waterloo without advising him of her intentions in that regard. e) V. has some gastro-intestinal medical issues which may be related to diet (as described in Mother’s Form 35.1 Affidavit, attached as an Exhibit to Father’s Affidavit in support of his Motion). V. sees a naturopath regarding her diet. Father’s evidence is that he was not consulted regarding this course of treatment. f) The parties made some attempts at settlement of the issues, including a meeting in the presence of their lawyers which addressed aspects of Summer parenting time (as described in their text message exchange dated June 24, 2020). g) Generally-speaking, V. resides primarily with her Mother and spends alternate weekends with her Father. h) The parties argued about V.’s attendance at “horse camp” which was not agreed upon prior to the expense being incurred, but as of June 30, 2020, Father had paid his proportionate share of such expense. i) Mother is in a relationship with a resident of Texas, and no information regarding that individual, other than his name, has been provided by Mother to Father. j) On June 24, 2020, in an exchange that appears to be started by Mother in response to Father advising V. that he wished to spend more time with her, and in the context of a recent letter from Father’s lawyer to Mother’s lawyer regarding Summer parenting time for 2020, Mother gives Father the following schedule for V.:
Things coming up with [V.]: Leaving for Muskoka Friday June 26, returning to Waterloo the 28. Horse camp at Conestoga horseback June 29, 30, July 2, 3. Camp ends at 4pm so we will have to push back our meeting time. We can adjust for Sunday as well if you’d like. [V.] and I are leaving for San Antonio on Monday, July 6, returning on Wednesday, July 15. Flying YYZ to SAT.
k) The tone of the text messages gets nasty and shows high conflict between the parties. [1] There is no doubt that they hold one another in the highest contempt. The following aspects of Mother’s texts show her view of her legal position [sic throughout, underlining emphasis is mine]:
June 24 - Father: I am her father. I make 50% of the decisions for her including the time she spends with me and you. Mother: lol Father: You think this is a laughing matter Mother: A judge will decide what is right for [V.] June 29/30 Father: You have put [V.] in a very bad situation because of your personal needs. Mother: lol. Well since it’s a pandemic I guess she’ll have to isolate with me until it’s over. Thank you goodbye. Horse camp was $293.80. You can send your 70% anytime Father: Money sent. I will reiterate that all section 7 expenses be discussed and agreed upon before [V.] is signed up for any camps, Daycare’s, or extra curricular activities going forward. Mother: you are not her custodial parent. I make those decisions. All you’re doing right now is fucking with [V.], like you do EVERY TIME she’s with you and EVERY TIME you call her. Which I have evidence of. I’d hate to be you. We’ll be issuing a court order for permission to travel. You wont have a say in this anymore. You and your lawyer are clearly just out for revenge. It’s very apparent. Your main concern isn’t [V.]. It’s ‘winning’. So good luck with that.
l) No flight or accommodation details have been provided to Father by Mother. Mother has provided no evidence of out-of-Province medical insurance purchased for V. m) Having regard to the enforcement of the Quarantine Act, if V. returns to Canada on July 15, she will be required to self-isolate for fourteen (14) days. This will result in further periods of missed parenting time between Father and V. V. will effectively be denied parenting time with her Father for the full month of July. n) This is not the first time Mother has travelled to the United States of America with V. without Father’s advance consent. o) Ms. O’Drowsky attempted to arrange a Case Conference but was told by Mother’s counsel that “due to holidays she and her client are not available until August.”
[8] Regarding the procedural request, I am satisfied that the situation in this case meets the test in Rosen v. Rosen. In that case, Wildman, J. set out a two-step process for demonstrating urgency: (1) the moving party must inquire as to the availability of case conference dates; and (2) settlement discussions must be attempted. At paragraph 12, Her Honour wrote:
Absent canvassing case conference dates and showing attempts to resolve matters until the available case conference date, it is difficult to understand how urgency can be established. However, it is possible that the situation could still be so extreme that the court must intervene immediately…
[9] It does not surprise me to learn that a Case Conference could not be arranged in the four business days between the date upon which Father was notified of the travel and today. An attempt was made, and based upon the content of the text messages, it seems that some correspondence was exchanged between counsel in the period from June 24 – June 30. Even if I were not satisfied under the first two branches of Justice Wildman’s analysis in Rosen, I find that the situation is “so extreme that the court must intervene immediately” under the final part of the analysis.
[10] Regarding the substantive relief sought, the emphasized portions of the text messages above show Mother’s approach to decision-making for V. They also show her clear understanding that, as V.’s parents are unable to reach a collaborative and negotiated parenting plan, a judge will decide the outcome. She specifically references obtaining a court order to dispense with Father’s consent to travel, and yet it is Father presenting himself to the court on this issue.
[11] There is no governing document which provides Mother with sole decision-making. International travel is a major decision, unless otherwise specified in a Separation Agreement/Parenting Plan or Order. International travel removes the child from her place of habitual residence. It involves a myriad of attendant issues and decisions which cannot be said to be “day-to-day,” such as ensuring access to medical treatment and adjusting existing parenting schedules. Agreement between two parents regarding one parent’s travel plans with the child(ren) is the expectation unless a pre-existing governing document specifically confirms that one parent is free to travel with the child without the other’s consent. International travel during a period of closed or uncertain border controls between a child’s habitual residence and the country being visited requires unequivocal agreement of both parents based upon a clear and collaborative plan. It is not a decision that can be unilaterally made by one parent over the other’s objections, particularly where all parenting issues are the subject of active litigation. As Madsen, J. wrote in addressing a motion regarding proposed travel for children in Onuoha v. Onuoha, 2020 ONSC 1815 at paragraphs 8 and 9: “There is currently a global pandemic underway which has resulted in wide-spread travel restrictions, including the current international Travel Advisory of the Government of Canada. … It would be foolhardy to expose the children to international travel in the face of the Travel Advisory, risking the restrictions and complications adverted to therein.”
[12] As of today, the Government of Canada’s Official Global Travel Advisory [2] reads, in part:
As foreign governments implement strict travel restrictions and as fewer international transportation options are available, you may have difficulty returning to Canada or may have to remain abroad for an indefinite period.
If you choose to travel despite these advisories, be aware that commercial airspace closures and movement restrictions can occur without warning and could prevent your return to Canada.
[13] Particularly if you are a parent in a high-conflict custody case, now is not the time to attempt to vacation outside of Canada with a child.
[14] Based on the foregoing, Temporary Order to go (per draft signed today):
- The requirement for a case conference in advance of the hearing of this motion is dispensed with on the basis of urgency.
- The time for service and filing of this motion is abridged.
- Neither party shall be permitted to remove the child, V., out of Canada without the written consent of the other or further Order of the court.
- The child’s Passport shall be deposited with the office of counsel for the Respondent Father by 4:00 p.m. on Friday, July 3, 2020 and shall be retained there until it is released upon the written consent of the parties or further Order of the court.
- Costs of this motion shall be reserved to the judge hearing the Case Conference.
[15] Court Staff shall ensure that a copy of this endorsement is provided to counsel for the Respondent Father by email, and to counsel for the Applicant Mother by fax at the addresses listed on the materials.
[16] Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.
J. Breithaupt Smith, J. DATE: July 2, 2020
[1] I would underscore that there may well be other text messages, telephone calls and emails between the parties to which I am not privy and which likely display further vitriol on the part of both of V.’s parents. [2] https://travel.gc.ca/destinations/united-states retrieved on July 2, 2020.