Court File and Parties

COURT FILE NO.: 369/17 DATE: 2020-10-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ATHENA HALL, Applicant AND: DAVE THOMAS, Respondent

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: N. Fortier, Counsel, for the Applicant J. Cootauco, Counsel, for the Respondent

HEARD: September 21, 2020

DECISION ON MOTIONS

[1] The parties are parents of two children, ST (age 7) and LT (age 4). By the order of Justice R. Lococo dated December 8, 2017 following an uncontested trial, the applicant was granted sole custody of the children who were to reside with her. The respondent was to have reasonable access on reasonable notice, to be exercised in the applicant’s discretion.

[2] The current application was begun by the applicant dated December 16, 2019 in which the applicant seeks permission for the children to relocate with the applicant to Watertown, New York, USA from St. Catharines, an order for child support, and monthly supervised access by the respondent to the children.

[3] Each party made a motion to deal with the situation pending their trial which has been set to be heard commencing November 16, 2020. The motions were heard by Zoom videoconference.

Orders requested:

[4] By motion dated July 29, 2020, the applicant sought an order that the children be permitted to temporarily reside with her in Watertown, New York or in the alternative that they reside with the respondent on a without prejudice basis until the end of the Canada-USA border restrictions or further court order, whichever comes first. In the latter case, the applicant sought specific videoconference access. In both alternatives, the applicant sought an ancillary order preventing the respondent from communicating with her except to facilitate video access.

[5] By his amended motion dated August 14, 2020, the respondent sought an order granting him interim sole custody of the children with their primary residence being with him. The respondent proposed that the applicant have interim access in a phased approach beginning with supervised access for three hours per week. Each phase was to have a duration of four weeks and access was to begin following 14 days of self isolation on the applicant’s return to Canada. Amongst others, ancillary terms were requested that the applicant not travel with the children to the United States without consent or further court order. The respondent also sought an order that the children be enrolled at Harriet Tubman Public School from September 2020 and be permitted to attend for schooling in person if available.

Background facts:

[6] The parties began living together in April 2012 and separated in February 2017. Prior to the separation, the parties lived in Prince Edward Island. On separation, the applicant moved with the children to St. Catharines followed about a month later by the respondent. The separation led to the initial court order of December 8, 2017.

[7] In 2019, the applicant married Michael Donnon who is an American citizen and resident of Watertown, New York.

[8] On February 26, 2020, the applicant proposed that she and the children move to Kingston, Ontario which is some 40 minutes from Watertown while she obtained a spousal visa and green card for the United States. She proposed a continuation of the respondent’s access according to the existing alternate weekend arrangement, but with pickup and drop-off in Hamilton.

[9] Faced with the prospect of the children being moved by the applicant out of St. Catharines without his consent, the respondent brought an emergency motion dated March 26, 2020 which resulted in a decision by Justice Lococo dated April 3, 2020.

[10] Justice Lococo did not consider it appropriate to permit the relocation of the children pending the court’s consideration of the mobility issue on a final basis. On an interim and without prejudice basis, he prohibited the applicant from moving the residence of the children outside St. Catharines without prior written consent or further court order.

[11] An order was made by Justice W. MacPherson dated July 8, 2020 on consent, permitting the respondent uninterrupted vacation time with the children from July 1 – 31, 2020 subject to scheduled video calls to the applicant. Thereafter, the order required a resumption of regular access to be exercised by the respondent on alternating weekends.

[12] Following the respondent’s vacation time with the children, he was asked to return them to the applicant’s mother, apparently since the applicant was by then residing in Watertown.

[13] The applicant has had no face to face contact with the children since July 1. It appears that she has moved to Watertown where she lives with her husband. She has had video contact with the children although with some difficulty. The difficulty, depending on whose version is accepted, relates to the children being upset with the applicant’s absence or the interference with the calls by the respondent.

[14] At the initial return of the respondent’s motion herein on August 20, 2020, the parties consented to an order enrolling the children at Harriet Tubman Public School in St. Catharines for the 2020/2021 school year. In addition, Justice Lococo made an interim, without prejudice order that the decision as to whether the children should attend school virtually or in person during the current pandemic is to be made by the applicant in the children’s best interest, taking into account their wishes. The subsequent decision of the applicant was that, as a matter of health and safety for the children, they should attend virtually although there is evidence from their exchange of messages with the applicant that the children prefer to attend school in person.

Discussion:

[15] The parties agree that my decision on their motions should be made based on the best interest of the children. The considerations for the court in considering best interests are set out in s. 24(2) of the Children’s Law Reform Act.

[16] The parties agree that the leading case for determining whether relocation should be permitted on an interim basis is a decision of this court in Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234, with principles more recently summarized in Kapoor v. Kapoor, 2015 ONSC 4000 at para. 19.

[17] Not surprisingly, courts should be reluctant to permit temporary relocation, thereby creating a disruption for the children, where there is a potential for further disruption to occur as a result of a trial decision. In this case, it is significant that the trial is scheduled to take place in less than two months from the date the motions were argued.

[18] The applicant’s proposal that the children relocate to her home in Watertown, New York pending trial in less than two months is unrealistic. The effect of her proposal would be to change the children’s residence, school, and their network of friends and family in the hope that after trial, she would be successful in achieving that same result. If not, of course, the children would then be bounced back to their current situation. How could that short term change be in their best interest? She has clearly made the choice, at least at this point, that she will be living with her husband in Watertown, with or without the children.

[19] Despite the applicant’s submission that her new living situation is materially and emotionally superior to that in St. Catharines, her success at trial is far from assured. There are no immediate benefits for the children that would occur as a result of a move now that would not be available later. There was no evidence that the children are in danger or that they are not being well-cared for by the respondent at his home in St. Catharines. In short, the matter of mobility is a genuine issue for trial.

[20] Therefore, the applicant’s motion to permit the interim relocation of the children to Watertown is dismissed. I will deal with her alternative requests below.

[21] The respondent seeks a temporary custody order, pending trial, because he is concerned that he will be legally unable to care for the children properly in such matters as their medical or academic needs. He states that as a non-custodial parent, he cannot secure a new doctor for the children. He does not state why the children need a new doctor, and his concerns are more theoretical than actual in the short term. The children, however, are entitled to security in their current situation pending trial.

[22] The proposal made by the respondent as to access is not realistic. In fact, it shows his position in this conflict in a negative light. There is no reason why, if the applicant returned to St. Catharines (apart from any necessary COVID-19 self-isolation) she would be unable to care for the children on a full-time basis. The respondent himself admits that the children miss their mother and want her to return to them. The proposal for supervised access for minimal periods followed by a very gradual increase over time is not warranted and is not consistent with the children’s best interest. They are entitled to maximum time with both parents, assuming proper care.

[23] Not unlike the applicable law as regards mobility, courts should be very reluctant to upset existing custody orders pending trial, especially where the trial date is imminent. There are no compelling circumstances here which justify such a change. Therefore, the respondent’s request for interim custody pending trial is dismissed.

[24] I acknowledge that there may be situations, even in the short term, when the respondent will need the legal authority to deal with the children. There will be an order that the interim primary residence of the children will be with the respondent. Likewise, there will be an order that the respondent has the authority to deal with third parties when the children’s welfare requires it, including matters of their health and education.

[25] There is no dispute that, assuming the children remain in St. Catharines, they should continue attending Harriet Tubman Public School. No variation of Justice Lococo’s order of August 20, 2020 is required. Dealing specifically with the location of the children’s schooling – either at home or in class – I note that Justice Lococo’s order was made shortly before the release of the decision in Chase v. Chase, 2020 ONSC 5083. The Chase decision was to the effect that the provincial government and medical authorities are in a better position than the courts to determine the health risk to children in attending school.

[26] Although the long-term viability of in-class education during the pandemic is far from clear, it makes sense to allow the respondent to determine, pending trial, whether the children continue to attend virtually or in person. Therefore, and pending trial, the respondent’s authority to deal with third parties will include liaison with the school to determine the children’s mode of attendance. While there should be no rush to make what may be a short-term change in the status quo, I acknowledge that there is a practical benefit to linking the responsibility for choice of educational venue with the person who bears responsibility for ensuring that they receive proper schooling, whether at home or in school.

[27] While the applicant is out of the country and not able to exercise significant direct sharing of parenting time with the children, she should continue to have ample virtual time with them. There will be an order, as per the applicant’s alternative request, that she have access to the children by private video-conference calls to be facilitated by the respondent every Monday, Wednesday, and Saturday at 7:00 p.m. for no less than 60 minutes. Those times may be changed by agreement in writing between the parties. The foregoing should be considered the minimum period of access, and subject to increase by agreement between the parties.

[28] There will be no order restricting the geographical location of any in-person access exercised by the applicant.

[29] As a result of the conflict between the parties, there will be an order that neither contact the other directly, except as regards the children’s needs and interests. That communication is to be by electronic means unless telephone or face to face contact is required in the circumstances.

[30] The parties are encouraged to resolve the issue of costs of the motions between themselves. If they are unable to do so, they may submit a Bill of Costs and make written submissions, including costs of the August 20, 2020 hearing before Justice Lococo, consisting of not more than three pages in length according to the following timetable:

a. The respondent is to serve his Bill of Costs and submissions by October 16, 2020;

b. The applicant is to serve her Bill of Costs and submissions by October 23, 2020;

c. The respondent is to serve his reply submissions, if any, by October 30, 2020;

d. All submissions are to be filed with the court by November 6, 2020.

[31] If no submissions are received by the court by November 6, 2020, the matter of costs will be deemed to have been settled.

Reid J.

Date: October 9, 2020