Court File and Parties

NEWMARKET COURT FILE NO.: FC-17-54699-00

DATE: 20200910

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shaun Hurley, Applicant

AND:

Caitlyn Casey, Respondent

BEFORE: A.J. Himel, J.

COUNSEL: Peter Cozzi, Counsel for the Applicant

Respondent, Self-Represented

HEARD: September 10, 2020, In Chambers

ENDORSEMENT

Relief Sought

[1] The Respondent Mother (the “Mother”) brings an urgent motion, on notice, suspending the Applicant’s (the “Father”) mid-week time with the child. In the alternative she seeks an order that the Applicant shall take the child (B. C.-H, age 3) to Upper Canada Childcare (the “Daycare”) on his mid-week time. She seeks a further order for permission to withhold the child from the Father if he fails to comply with any order to take the child to the Daycare.

Decision

[2] B. C.-H. will attend Upper Canada Childcare on a full-time basis.

[3] Either parent may pick up the child in accordance with the parenting time schedule just before or anytime after the Daycare’s nap/rest time, so long as the pick-up time does not interfere with the child’s full-time daycare status or subsidy.

Background Facts

[4] The child resides with each parent equally pursuant to Temporary Minutes of Settlement dated February 4, 2020, which were converted into the Sutherland, J. consent Order on April 7, 2020 (the “Order”). The Mother is taking steps to vary the parenting time schedule set out therein and a motion is scheduled to be heard on November 18, 2020.

[5] B.C.-H. has been enrolled at the Daycare since July 2019 and he commenced attending that program in September 2020. Following the onset of the Covid-19 pandemic (“Covid-19”), and the closure of the Daycare, he has been cared for in each parent’s home.

[6] Due to space limitations related to Covid-19, the Daycare can only accommodate children who attend on a full-time basis. The Mother requires daycare on her parenting days in order to work. The Father agrees with these statements.

[7] On August 27, 2020, the Mother informed the Father that the Daycare will re-commence on September 1, 2020. The Father responded that he does not feel comfortable with the child attending same on his parenting time.

[8] The Father does not require childcare (as his wife stays at home with their four other children). He believes that it is best for B. C.-N. to remain with his siblings. A return to the Daycare will be a disruption to his routine as he will be pulled from his home, where 50% of his residency and family life takes place.

[9] The Father proposes that the Mother enroll the child at another daycare, on a part-time basis.

[10] The Mother disagrees with both of these proposals and states that full-time daycare attendance is: (1) required by the Sutherland, J. Order; and (2) required by the Daycare.

[11] Th Mother attests her job will be in jeopardy if the child loses his spot at the Daycare. She is employed as a Child Youth Worker at the school board (which requires in-person attendance). Losing her job will cause extreme and severe financial harm for her and the child.

[12] It is only with the re-opening of the Daycare that the Father objects to the child attending on his parenting time.

The Law on Custody and Access

[13] Section 24 of the CLRA reads as follows:

Merits of application for custody or access

24(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Analysis

[14] The child’s attendance at daycare must be guided by his best interests. Recent caselaw sets out the relevant criteria for a determination as to whether it is best for a child to attend school on an in-person basis. (See for example, Chase v. Chase, 2020 ONSC 5083, Zinati v. Spence, 2020 ONSC 4231 and J.N. v. A.S., 2020 ONSC 5292).

[15] The requirement to take a child to daycare during a pandemic is a similar but different issue than school attendance, as daycare attendance is voluntary. I note that many Ontario children commence junior kindergarten without having attended daycare or nursery school programs.

[16] Full-time daycare attendance was not ordered by Sutherland, J. What the parties agreed to in the Minutes of Settlement is for parenting time exchanges to take place at daycare/school/camp. There is no reference to full-time attendance all-day, everyday. However, I conclude that it was contemplated and agreed to that the child would attend the Daycare (and in fact he was attending the Daycare when the parties executed the agreement).

[17] For the reasons that follow I find that it is in B. C.-H.’s best interests to attend the Daycare:

(a) The child has attended the Daycare since September 2019. The Sutherland, J. Order dated April 7, 2020 provides a parenting time schedule with the pick-up and drop-off at daycare/camp/school. I note that the terms were agreed to before the pandemic and the consent Order was taken out after.

(b) The Mother requires childcare to work and the Daycare requires full-time attendance.

(c) It is not in the child’s best interests to change his daycare (nor is there evidence that part-time subsidized spots are available) simply because the Father now regrets the decision made in September 2019.

(d) The Father does not submit that the child’s attendance at the Daycare will cause an unacceptable risk of harm to himself or to anyone in his household. The Father acknowledges that the child will continue to attend the Daycare, irrespective of this decision. He will continue to pick-up and drop-off the child at Daycare.

(e) While the parties advise that the Daycare requires a minimum attendance of one hour per day for the child to retain his full-time attendance and daycare subsidy (which seems unusual to me), I accept the Mother’s arguments that one hour of daycare is disruptive and interferes with the experience:

i. It is disruptive to the regular daycare routine (as confirmed by the Father’s recent attempt to pick up the child while he was on a walk with his class);

ii. The daycare program is full-time;

iii. B. C.-H. will have fewer opportunities for socialization, which is a learning experience for a three year-old child;

iv. He will miss various educational components to the program; and,

v. A longer day will ease the child’s transition to junior kindergarten in 2021.

[18] It is unclear what type of enrichment or activities the child will be engaged in while being cared for by the step-mother, as she is also caring for two toddlers and two school-age children (who are enrolled for school online and may have special health or other needs).

[19] Moreover, the Father’s plan (staying at home with four other children and one caregiver), is the polar-opposite of Mother’s plan (a class-based program taught by several educators with structured opportunities for play, routines and educational components). There is no evidence before the Court as to how the child may respond to these diverse experiences, particularly given the frequency of the transitions between the two homes.

[20] The child has attended daycare since September 2019, and is likely familiar with the structure, programming and routine benefits. Since B. C.-H. previously adjusted to daycare (which I conclude as neither party raised this as an issue), the benefits to daycare attendance may be similar to those of junior kindergarten. These include opportunities to engage with peers, and to participate in a play-based program with a focus on social skills and communication. To the extent that the Father intends to rely on online programming, (if that is part of his plan), I query how a three year-old child can be taught effectively on a computer. (J.N. v. A.S., supra at para. 38).

[21] The benefits described above, however, can be achieved without the child needing to be present all day (i.e. 8:30 a.m. to 5:30 p.m.). So long as the child’s full-time status is not affected by leaving early, I see no reason why he cannot be dropped off at the start of the day (likely by 9:00 a.m. or as directed by the Daycare), and why he cannot be picked up before or after rest/nap time. This approach provides the benefits of the programming and addresses the Father’s request that the child spend more time with his siblings at home.

[22] I note that the Father recently contacted the police for assistance. This is not an appropriate use of their services and merely causes the current conflict between the parties to be further inflamed. The parties need to find a way to co-parent this child (irrespective of the schedule and the arrangements for major decision-making).

[23] The parties need to put their love for B. C.-H. ahead of their animosity towards each other. One step in that direction is for the parents to engage in mediation, which the parties previously agreed to do until the Father withdrew from the process. The specific issues that should be mediated include: (1) The parties’ poor communication and the implementation of communication protocols; (2) The identification of areas that are creating the most conflict; (3) The issues to be addressed at the motion scheduled for November 18, 2020. As I see the potential benefits of mediation, I am ordering the parties to either return to mediation with whomever they agreed to engage or complete new intake forms. I encourage the parents to follow through with mediation if the case is screened as appropriate for that service.

[24] The Mother was successful on the motion. Costs payable by the Father in the amount of $750 inclusive of H.S.T. The Mother’s motion was reasonable, and the motion was required. This amount is reasonable based on the materials provided and given that no court attendance was required. The lengthy affidavit will likely be relied upon at the November 2018 motion unless that is resolved.

Order to Go as Follows:

(1) B. C.-H. will attend Upper Canada Childcare on a full-time basis.

(2) Either parent may pick up the child in accordance with the parenting time schedule of B. C.-H. just before or anytime after nap/rest time, so long as the pick up time does not interfere with the child’s full-time daycare status or subsidy.

(3) The parties are directed to return to the previous mediator or to complete mediation intake forms with the on-site/off-site subsidized mediation program provided by York Hills Child and Family Services.

(4) This temporary Order shall continue until otherwise ordered by the Court or agreed to by the parties.

(5) The Father shall pay costs in the amount of $750, inclusive of H.S.T., within 45 days.

(6) In the circumstances of the Covid-19 emergency, this Endorsement is deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval of this Order is dispensed with: either party may submit a formal Order for signing before me.

Justice Andrea Himel

Date: September 10, 2020