COURT FILE NO.: F1266/18-02
DATE: 20201009
Ontario Superior Court of Justice, Family Court (London)
Applicant: Jennifer Rafeiro (formerly Bolhuis)
Respondent: Matthew Bolhuis
THIS MOTION HAVING BEEN HEARD BY VIDEO CONFERENCE, PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.
DATE HEARD: October 6, 2020
DATE OF ENDORSEMENT: October 9, 2020
APPEARANCES:
Stephanie Ouellette, for the Applicant
Salim Khot, for the Respondent
ENDORSEMENT
Overview
Before me are a motion brought by the Applicant and a cross-motion brought by the Respondent.
The nature of the relief formally sought in the motions, and how the dispute between the parties effectively narrowed significantly during the course of the hearing before me, are described in more detail below.
Broadly speaking, however, the two motions focus on issues relating to parenting time in relation to the parties’ two children, and access to information relating to the children.
On September 11, 2020, Justice Mitrow made an endorsement finding that the intended motion of the Applicant mother regarding the Respondent’s alleged denial of child access was presumptively urgent, (within the meaning contemplated by the Consolidated Notice to the Public and Profession issued by the Chief Justice on May 19, 2020), warranting a hearing notwithstanding the ongoing suspension of regular court operations brought about by the COVID-19 pandemic.
The Respondent’s cross-motion did not undergo a similar triage process, and accordingly was not the subject of a similar triage endorsement. However, as I indicated during the course of the video hearing before me, the relief sought by the cross-motion essentially put forward modified positions to address the same issues raised by the Applicant’s motion; i.e., reflecting submissions the Respondent would have been permitted to raise in any event.
Having reviewed the motion material filed by each party, I found that both motions required an urgent hearing and determination. There clearly were mounting and unresolved parenting time and communication issues that called out for the certainty and stability of an objective determination and court order, for the benefit of the children.
Background
I certainly do not intend to provide an exhaustive summary of all the information set forth in the parties’ motion material. However, some further background is necessary to provide context for the determinations that follow.
In that regard, I start by noting that the parties had a relationship that endured for approximately 18 years; i.e., beginning in 2000, progressing to a marriage in 2007, and ending with their final separation in September of 2018. They were divorced in 2019.
In their respective motion material, the parties provided a good deal of information about their apparently troubled and tumultuous relationship, much of which frankly seemed irrelevant to the issues I was being called upon to decide on an interim without prejudice basis.
Suffice it to say that the parties have very different perspectives on what transpired during their relationship. At the risk of vast over-simplification:
a. The Applicant says the Respondent was physically, verbally, emotionally and financially abusive for many years, and that such abuse included falsely and repeatedly accusing her of infidelity, disrupting her employment, (which was integral to the family’s financial survival as the Respondent has not worked outside the home since 2012), and causing the Applicant to suffer from stress that eventually became overwhelming, in turn requiring her to leave the matrimonial home. The Applicant vehemently denies the Respondent’s allegations that she suffered or suffers from any addictions, or any problems related to the abuse of drugs or alcohol.
b. The Respondent firmly denies all allegations of misconduct on his part, and contends that he remained supportive and conciliatory throughout the parties’ relationship while the Applicant engaged in mounting unstable and self-centred behaviour, including infidelity, abuse of drugs and alcohol, and repeated unexplained absences. He contends that it was the Applicant who physically, emotionally and financially abused the Respondent.
- As noted above, the parties had two children during the course of their relationship; i.e., two daughters who currently are nine and seven years old. By way of additional general information about the children:
a. It is not disputed that both girls suffer from asthma.
b. It also is not disputed that both children were home schooled for a time – although the parties dispute who took primary responsibility for that home schooling prior to the parties’ separation, and the extent to which that home schooling was successful after the parties separated.
c. In disputed circumstances and/or for disputed reasons, (noted in more detail below), the girls nevertheless were registered for “in person” learning at a school here in London, starting in September of this year, and to date have been continuing in that program.[^1]
In or around October of 2018, (i.e., within a month of the final separation), the Applicant initiated formal proceedings to address outstanding issues of custody, access and child support.
In March of 2019, the parties entered into Final Minutes of Settlement. In that regard:
a. In her material, the Applicant provides evidence essentially raising issues as to whether her agreement in that regard should be regarded as informed, free and voluntary, as she was unrepresented at the time and was anxious to placate the Respondent and facilitate access with her children.
b. However, there is no dispute that the parties formally agreed that they would have joint custody over their two children, in an arrangement whereby the girls would retain their primary residence with the Respondent while the Applicant enjoyed access with them at least three days a week.
c. There was also an agreement reached in relation to child support; i.e., whereby the Applicant would pay specified child support to the Respondent, for the benefit of the children.
Despite the broader nature of the formal agreement reached by the parties, it seems that their child support arrangement was the only aspect of their arrangement that was made the subject of a formal court order. In particular, it seems there currently is no formal court order expressly addressing custody and access.
It is not disputed that, since separation, the children have continued to reside primarily with their father here in London, while having periodic in-person and electronic access with their mother.
Over time, however, the exercise of that in-person and electronic access has been challenging for numerous reasons, including the following:
a. Following separation of the parties in September of 2018, the Applicant left London for reasons she attributes to economic necessity; i.e., an inability to find sufficiently remunerative employment in London. In particular, she relocated to the Barrie/Alliston area, where she had found employment with the Honda organization; employment which also required her to work mandatory overtime shifts.
b. The Applicant then committed to full time service in the Canadian Armed Forces; a career that formally began with her swearing in on August 1, 2019, and thereafter inherently sacrificed control over many of the decisions made in relation to her personal schedule and physical/residential location. For example:
i. from August of 2019 to February of 2020, the Applicant was required to participate in basic training in St Jean, Quebec;
ii. from February to March of 2020, the Applicant was stationed in Camp Borden, Ontario, to receive additional technical training as an Avionics System Technician;
iii. in March of 2020, the Applicant was stationed to Greenwood, Nova Scotia, to work with the Royal Canadian Air Force; and
iv. while the Applicant has returned temporarily to Camp Borden in Ontario for further training, (from September 28, 2020, to November 9, 2020), she is obliged to thereafter report back to her permanent station in Greenwood, Nova Scotia, where she now resides in a three-bedroom townhouse with her new partner.
c. The geographic distances created by the above moves, and restrictions created by the Applicant’s military service, clearly have made her exercise of in-person access challenging. However, the affidavit evidence is conflicting in relation to how regular and successful the Applicant was in exercising such in-person access.
d. Beyond in-person access, the Applicant also has been attempting to maintain electronic/telecommunication access with her daughters. However, the affidavits I received were replete with conflicting evidence in that regard. In particular:
i. The Applicant contends that the Respondent essentially has been undermining and/or actively interfering with such access:
by discouraging it, through disparaging comments about the Applicant made to the children;
by frustrating it, through not making reasonable efforts to ensure it occurs in a regular and stable fashion;
by disrupting it, through conduct such as speaking to the girls, distracting the girls with incentives or “bribes” to engage in other activities, and/or by making loud and disruptive noise in the background by singing or using electronic devices and instruments;
by inappropriately monitoring conversations, and interjecting when the Respondent finds the content of conversations objectionable; and/or
by otherwise interrupting, and using up the Applicant’s limited conversation time with the girls, when the Respondent wishes to discuss other matters with the Applicant.
ii. The Respondent firmly denies that he has been engaging in the conduct alleged by the Applicant. In that regard:
He emphasizes that many of the Applicant’s complaints relate to his simply and inevitably engaging in the regular activities associated with his living in the same household as his children.
He says he is not responsible for certain technical/connection failures that the Applicant may have experienced from time to time.
In his view, the girls are simply not very interested in such communications, or do not wish to have them, in part because the Applicant is said to have been abusing such communications by “interrogating” the girls inappropriately; e.g., in what the Respondent perceives to be an effort by the Applicant to elicit potentially damaging information about the manner in which the Respondent may or may not have been caring for the girls.
In recent months, there has been mounting disagreement relating to the Applicant’s requests for parenting time, particularly in relation to the scheduling of in-person access; e.g., with disagreements about the timing and location of such access while the Applicant is temporarily back in Ontario, and the Applicant’s desire for the girls to spend time with her in Nova Scotia in November and/or over their winter/Christmas holidays.
However, as reflected in the above comments, there also have been growing disputes about the Applicant’s electronic/telecommunication access with the children.
A review of the motion material makes it abundantly clear that there is significant lingering conflict and/or hostility between the parties, (for which each blames the other), making it difficult for them to resolve their disputes by discussion.
However, notwithstanding that hostility, the issues in dispute narrowed remarkably during the video hearing before me.
Agreed matters – Initial interim, interim, without prejudice order
In particular, many of the issues formally raised by the Applicant’s motion and Respondent’s cross-motion turned out to be the subject of agreement or non-opposition, and I accordingly will not dwell at length on those initial disputes or the reasons for them.
For present purposes, I think it sufficient to begin by making the following order on an interim without prejudice, reflecting the consent and/or non-opposition expressed by the parties during the course of the video-conference hearing, subject to some minor additions or “tweaking” I consider appropriate in the circumstances, as far as precise details of arrangements are concerned:
a. This court declares and confirms that the parties have joint custody over their two children with all rights incidental thereto, including the ability to make inquiries and receive verbal and documentary information relating to the children from school teachers and other school officials, and from doctors, dentists and other health care providers. In that regard:
i. Within five days of this order, the Respondent shall provide the Applicant with a list of the children’s regular educational and health care service providers.
ii. Each parent shall, within 24 hours of either child meeting with or receiving treatment from any health care provider while the child is in that parent’s care, provide the other parent with written notice of the meeting or treatment, including the name and contact information of the relevant health care provider, and a brief indication of the reason for the meeting or treatment.
iii. Each parent shall, at the written request of the other, execute any authorization, release or similar documentation required by third parties to permit access to educational or health care records relating to the children.
b. Neither party shall speak negatively about the other in the children’s presence, and each party shall make every effort to prevent any other person from speaking negatively about the other party in the children’s presence. Each party also shall refrain from having any discussion with the children about issues relating to this litigation, or other disputes between the parties.
c. Commencing immediately, whenever the children are in the care of one party, the other party shall be entitled to 30 minutes of uninterrupted video access, (or other telecommunication access when video access is not possible for technical reasons), with the two children, between 8:00pm and 8:30pm each day. In that regard:
i. The parent having immediate care of the children shall be responsible for initiating the video conference or telephone call on behalf of the children, from a device located in a room with a door capable of being closed.
ii. The parent having care of the children and initiating the call shall ensure that there are no other electronic devices in the room from which the call will be placed, and/or that such devices have been turned off. All musical instruments also shall be removed from the room, so that they are not available to the children during the relevant 30 minute period.
iii. Immediately after initiating the call, and without speaking to the other parent, the parent initiating the call shall then leave the room and close the door to the room, and thereafter not re-open the door or re-enter the room during the 30 minutes of call access between the children and their other parent, except in cases of genuine emergency.
iv. During the 30 minutes of call access, the parent having care of the children shall make every reasonable effort to ensure that he or she, and others in the particular residence or other location where the children happen to be, shall not make any loud noises capable of being heard through the closed door of the room in which the children are located, including but not limited to singing, shouting, the playing of musical instruments, or the playing of loud recorded music or video programming.
d. Commencing immediately, and until the Applicant is required to return to Nova Scotia, (on or about November 9, 2020), the Applicant shall enjoy access with the children every weekend from 8:00am on Saturday to 6:00pm on Sunday, including corresponding overnight access. In that regard:
i. The Applicant shall have responsibility for all associated transportation arrangements, including all necessary picking up and dropping off of the children.
ii. The Applicant shall ensure that the overnight hotel or other accommodation she employs when exercising her access with the children shall be “pet free” and “smoke free”, in order to avoid any complications associated with the children’s asthma.
iii. In the event the Applicant cannot attend any such access with the children, she shall make all reasonable efforts to provide the Respondent with a minimum 24 hours of notice in that regard.
Remaining issues
- The remaining issues raised by the motions relate to the Applicant’s desire to have the children spend time with her in Nova Scotia, on the understanding and condition that the Applicant would be responsible for all necessary travel arrangements and associated expense. In that regard, the Applicant’s request is two-fold:
i. First, the Applicant would like the children to be in her care for a two-week period, from November 9 to November 23, 2020, inclusive, enabling the children to travel with the Applicant for an extended access visit when the Applicant necessarily relocates from Camp Borden back to her current permanent station and home in Greenwood, Nova Scotia, with arrangements being made to ensure that the children are thereafter returned to the Respondent’s care in Ontario;[^2] and
ii. Second, the Applicant would like the children to visit and stay with her in Nova Scotia for approximately two consecutive weeks over their winter school break, (i.e., the school break including the Christmas and New Year’s Day holidays), at precise times to be agreed upon by the parties.
- However, further discussion during the video hearing before me resulted in a consensus that consideration of the latter request by the Applicant, (i.e., her request for two additional weeks of access between the Applicant and the children over the winter school break), should be deferred and formally advanced/argued, if necessary, at a later date. In particular:
a. The Applicant has not yet received confirmation of her formal work assignments over the relevant December/January period when such “winter break” access would be exercised, making it difficult to formulate a specific proposal for consideration by the Respondent or the court.
b. The travel arrangements contemplated by the Applicant in relation to such a winter break access visit are likely to require the involvement and assistance of third parties, and a need to accommodate the schedules of those third parties. Such matters realistically cannot be addressed and finalized until further information is obtained in relation to the Applicant’s work schedule, and there have been further discussions with such third parties.
c. The Applicant acknowledges the importance of taking into consideration the importance of the children having time with their father over that winter break period, particularly in relation to Christmas and/or New Year holiday celebrations. However, such matters admittedly will require further discussion and consideration if the winter break access visit is to proceed.
d. There will be greater certainty, closer to the time of such contemplated “winter break” access, as to whether, when and how the children’s schooling will be continuing, having regard to the evolving implications of the pandemic.
- In the circumstances, it was agreed that the advisable course of action was to have the Applicant’s request for such “winter break” access formally argued and determined on a later date, closer to the time on which any such access would be exercised. In that regard, (after consulting with the parties and ensuring the availability of a suitable hearing date closer in time to that anticipated “winter break”), I accordingly make the following additional interim order:
a. The relief requested by the Applicant in sub-paragraph 4(c)(iii) of the Applicant’s Notice of Motion dated September 16, 2020, is hereby severed from the existing motion, (i.e., such that I am not seized of that aspect of the current motion), and shall instead be argued on December 9, 2020, at 10:45am.
b. The Applicant’s request for relief in that regard shall continue to be regarded as presumptively urgent.
c. The Applicant and the Respondent may, in relation to that severed portion of the Applicant’s motion and request for relief, continue to rely on their respective motion material filed to date.
d. The parties nevertheless may file supplemental material for consideration according to the following schedule, and subject to the following limitations, subject to the discretion of the presiding judge:
i. the Applicant’s supplemental material shall be filed no later than November 25, 2020, and shall be limited to five pages of supplementary affidavit material and five pages of further exhibit material, with no third-party affidavits;
ii. the Respondent’s supplemental material shall be filed no later than December 2, 2020, and similarly shall be limited to five pages of supplementary affidavit material and five pages of further exhibit material; and
iii. the Applicant may file a short supplemental reply affidavit, limited to two pages, no later than December 4, 2020.
That effectively leaves, for immediate consideration and determination, the Applicant’s disputed current request for extended access with the children over a two-week period from November 9 to November 23, 2020, so that the children are able to travel with the Applicant, and visit with her for a time, when the Applicant relocates from Camp Borden back to her permanent station and home in Greenwood, Nova Scotia.
In that regard, the position of the Applicant generally may be summarized as follows:
a. For reasons largely beyond the control of the Applicant, (given the nature and demands of her employment, and corresponding lack of independence regarding decisions concerning her availability and residence locations), she has not enjoyed meaningful extended and uninterrupted access with her children for quite some time.
b. The same considerations, coupled with the geographic distance between Camp Borden and the city of London, prevent the Applicant from enjoying more than the above Saturday to Sunday access noted above while the Applicant remains stationed temporarily back in Camp Borden, Ontario. They also effectively will continue to prevent the Applicant from remaining in Ontario after her current time at Camp Borden, when she will be required to report again, shortly thereafter, to her permanent station in Greenwood, Nova Scotia. The Applicant similarly will then be obliged to remain in Greenwood for an extended period, after her return to Nova Scotia. In the circumstances:
i. Having the children visit the Applicant in Nova Scotia is the only realistic means of enabling the children to spend extended time with their mother.
ii. Moreover, as the Respondent necessarily will be driving from Ontario back to Nova Scotia, (given the relocation of her belongings), a two-week period of access, (with the children driving back to Nova Scotia with the Applicant before they fly back to Ontario), realistically and reasonably will be required to provide the children with quality time with their mother in Nova Scotia.
c. As the Respondent indicated his consent from the outset to the children enjoying access with their mother, (including successive days with overnight access in between), the Applicant’s ability to care adequately for the children is not really a concern. In that regard, the Applicant emphasized, (and it was not really disputed, apart from the possible COVID-19 considerations addressed in further detail below), that the children will be in a stable and safe environment while they are staying with their mother in Nova Scotia, in a townhouse home where they each will have their own bedroom.
d. The Applicant acknowledges the importance of minimizing disruptions to the children’s education and schooling program, and that it probably will not be possible to have the children temporarily switch into a “remote learning” program for the time they are with the Applicant. However:
i. the Applicant emphasizes that she has “home schooled” the children in the past;
ii. the Applicant undertakes to obtain work assignments for the children from their respective teachers, in advance of their travel to Nova Scotia, and to thereafter work with the children in that regard during their time with the Applicant so that the children do not fall behind in their studies; and
iii. the Applicant notes that the children are at a relatively young age, (i.e., nine and seven, and therefore in grades four and two respectively), such that their removal from school for two weeks is unlikely to cause a significant disruption to their education in any event, but particularly if they are continuing to work on school assignments in the meantime.
e. The Applicant acknowledges the importance of taking the ongoing pandemic seriously. However, she notes that government and health authorities do not feel the situation currently warrants restrictions on interprovincial travel that would prevent movement between Ontario and Nova Scotia, and that Nova Scotia currently has a very low incidence of COVID-19 cases; i.e., such that it arguably may be safer than Ontario in that regard. Moreover, it is well known that significant testing and safety protocols have been implemented since the onset of the pandemic, particularly in relation to air travel, in order to minimize the risk of COVID-19 transmission.
- The position of the Respondent generally may be summarized as follows:
a. He does not agree with the children travelling to Nova Scotia.
b. He feels that such travel would cause an unnecessary disruption to the children’s education.
c. He feels that any such travel at this time potentially would expose the girls to COVID-19, and that the girls “should not be leaving the city, let alone the province, during a pandemic”.
d. He feels strongly that the Applicant should be required to travel to London to see the girls, as it was the Applicant “who moved to a different province”.
General principles
Pursuant to s.16(8) of the Divorce Act, R.S.C. 1985, c.3 (2d Supp.), as amended, courts making orders in relation to child access are to take into consideration only the best interests of a child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.
Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, emphasizes a similar approach, (albeit perhaps in more detail), by indicating that disputes concerning child access are to be determined on the basis of the best interests of the child, having regard to all the child’s needs and circumstances, including the numerous considerations particularized in that section of the legislation, which I have in mind but will not reproduce here.
That child-focused approach has also been repeatedly confirmed and emphasized by our courts, including decisions to that effect by the Supreme Court of Canada and our Court of Appeal.[^3]
The court is then given wide powers and latitude, (e.g., by section 28 of the Children’s Law Reform Act, supra), to fashion an appropriate order tailoring access to the circumstances, and to promote the child’s best interests in that regard. The ability to make interim access orders is confirmed in section 72 of the Children’s Law Reform Act, supra.
Additional relevant principles include the following:
a. Maximum contact between a child and both of his or her parents, and the opportunity to develop and maintain a relationship with both parents, is presumed to be beneficial and in a child’s best interests, barring persuasive evidence to the contrary. As a general rule, contact between separated parents and their child should be maximized, if it is consistent with the child’s best interests.[^4]
b. When making interim custody and access orders, the court must be cognizant of the reality that such orders are significant, insofar as they give rise to settled patterns which may be prolonged, in turn creating a situation where a desire for stability in the child’s life may militate against later significant deviations; i.e., insofar as stability may become the dominant consideration in determining what may be in the child’s best interest.[^5]
c. For similar reasons, the court should be wary of direct or indirect efforts by one parent to create what essentially is a new status quo through possible manipulation, exaggeration or deception.[^6]
d. Although a child’s views and preferences are a factor in the required “best interests” analysis, and are given greater weight in relation to older children, a child’s best interests are not necessarily synonymous with a child’s wishes.[^7]
Assessment
Having regard to the above principles and the evidence before me, I think the Respondent’s request for extended time with the children between November 9th and November 23rd of this year, and her ability to have the children travel with her to Nova Scotia during that period, should be granted subject to certain terms and conditions.
My reasons in that regard include the following:
a. In my view, the evidence before me contains little or nothing to rebut the presumption that increased contact between the Applicant and the children would be in the children’s best interests. Without limiting the generality of the foregoing, I agree with Applicant counsel’s submission that the circumstances do not suggest any reason to think that the Applicant is not perfectly capable of looking after the children properly, ensuring the children’s safety, and promoting their happiness, while they are in the Applicant’s care. In particular:
i. Even if there previously was a basis for the Respondent’s professed concerns about the Applicant’s stability and abuse of substances in the period prior to separation, (which is very much in dispute), the Applicant’s current status in the Canadian Armed Forces strongly suggests that such concerns no longer exist. The Applicant’s current life inherently now has an elevated and above average level of stability, reinforced by a literally regimented lifestyle. Moreover, I accept the Applicant’s uncontradicted assertion that the Canadian Armed Forces has strict protocols in place to ensure that substance abuse within its ranks is detected and not tolerated.
ii. In my view, the Respondent’s indicated willingness to have the children routinely in the Applicant’s unsupervised care over the course of regular weekend access visits, (e.g., from Friday after school to Sunday evenings, if only on an alternating weekend basis), is not consistent with the Respondent having any significant ongoing concern about the Applicant’s ability to care for the children.
b. Conversely, it seems to me that promotion of the children’s best interest has been suffering from their inability to spend meaningful, regular and sustained in-person time with their mother, for reasons primarily associated with employment demands, geography and other restrictions on the Applicant’s movements. In that regard, it seems to me that, on any view of the evidence, the relationship between the children and their mother has become increasingly strained, challenging and tenuous in the absence of meaningful in-person access. In my view, it would be in the best interest of the children to have the bond with their mother reinforced and/or restored by one or more periods of extended access.
c. Although the Respondent seems inclined to blame the Applicant for the realities making it difficult for her to exercise access with the children, (e.g., emphasizing his view that it was the Applicant’s decision to leave the family home, leave London, and join the Canadian Armed Forces), I do not think that is the appropriate approach to this situation. Without limiting the generality of the foregoing:
i. In my view, the reasons for the breakdown of the relationship between the parties and corresponding departure from the matrimonial home have little or no relevance to the issues I currently have to decide, if there realistically are no concerns about the Applicant’s current ability to care for the children and that otherwise would be in the best interests of the children.
ii. There obviously may be situations where a parent makes entirely voluntary decisions to reside in a location or locations distant from his or her children, suggesting a lack of interest or commitment when it comes to spending sustained time with his or her children. However, that is not my impression of what has been happening here. The Applicant’s evidence instead presents a compelling and somewhat unusual case of necessity for her residential moves, and her corresponding inability to exercise in-person access with her daughters on a regular and sustained basis. In that regard:
It was undisputed that continued financial support of the parties and their children depended substantially if not entirely on the Applicant continuing to work hard before and after the parties’ separation. Nor was it seriously disputed that, following separation, the Applicant initially was obliged to relocate to the Barrie/Alliston area to pursue employment sufficient to continue her financial support of the parties and their children.
Perhaps it goes without saying, but serving Canada in its armed forces carries atypical obligations and restrictions necessary to make that service dependable and effective. In particular, for the benefit of all Canadians, it is not a form of employment that readily lends itself to the sort of flexibility and accommodations enjoyed by many if not most other forms of employment in this country. Having regard to such realities, I do not think the Applicant should be faulted directly or indirectly for the logistical complications resulting from such service; e.g., because she is obliged to follow orders stationing her in another province, or to report at various locations on specified dates, in a manner that limits her ability to travel to and remain in the city of London for extended periods of time.
iii. More generally, I think it needs to be remembered that child access determinations are guided by what is in a child’s best interests, rather than assessment of parental fault or blame. If continued contact with both parents is in a child’s best interests, and one parent becomes geographically distant from his or her children for reasons of economic necessity or some other form of compulsion, the court is directed by legislation to focus on how best to address the situation from the child’s perspective, and not on how the situation came about.
d. Were the Applicant resident in or near London, (e.g., had the Canadian Armed Forces decided to station the Applicant somewhere near to London, following her basic training), it seems to me that there would be no reason to hesitate in granting, as soon as possible, her request for a sustained and restorative two-week period of parenting time with her daughters, provided that could be done without raising other significant concerns, such as the other two matters specifically raised and relied upon by the Respondent; i.e., the possibility of such extended access seriously disrupting the girls’ education, and the possibility of such access seriously jeopardizing the girls’ health because of potentially increased exposure of the girls to the novel coronavirus.
e. In relation to concerns about the girls’ education being disrupted, I am not persuaded that the Applicant’s request for two sustained weeks of time with the girls this November would be detrimental in any significant way, or not in their best interests. Without limiting the generality of the foregoing:
i. The girls have sustained experience with “home schooling” and have been able to learn in that manner in the past.
ii. The Applicant has corresponding experience in that regard, and is committed to making adequate preparations in advance of the requested two-week access period, (e.g., by working with the girls’ teachers to obtain appropriate work for completion while the girls are with the Applicant), to ensure that the girls will not be disadvantaged scholastically by the contemplated time away from their classrooms.
iii. While all levels of schooling are important, I am inclined to agree with Applicant counsel that missing two weeks of class attendance in grades 4 and 2 is likely to have less of an impact that missing two weeks of class attendance in higher grades, where information generally is imparted in a more concentrated and intense manner.
iv. At the risk of stating the obvious, not all forms of beneficial education take place within the confines of a classroom. In my view, occasional travel to other parts of Canada is inherently beneficial and educational, and children usually gain important and remembered insights from such experience. Indeed, such travel frequently is the subject of class trips organized by our public schools.
v. Moreover, in the case of these two particular children, and this particular access request, I think the relationship between the girls and their mother would benefit greatly from the girls having an opportunity to see where and how their mother lives, and gain greater understanding of what their mother is doing through her military service to Canada.
f. The possible impact of COVID-19 on the health of the girls is inherently a serious concern, particularly insofar as their asthmatic condition gives rise to a degree of elevated risk in that regard. However, the situation requires a meaningful assessment of whether the Applicant’s proposed two weeks of access with the girls, and their contemplated travel to and from Nova Scotia, poses risks that are inordinate. In that regard:
i. Throughout the pandemic, our courts have emphasized the importance of adherence to current safety restrictions, protocols and guidance provided by our various levels of government and public health agencies.
ii. I think I am permitted to take a degree of judicial notice of the following realities:
In the course of the pandemic, numerous related prohibitions and restrictions on interprovincial travel have been instituted and then relaxed, having regard to ongoing monitoring and risk assessment by government health agencies and advisors. If the current state of such monitoring and risk assessment is such that the contemplated travel of the girls between Ontario and Nova Scotia is permissible, and remains permissible at the time of travel, in my view that permits an inference that such health care professionals generally do not view such travel as posing inordinate risks.
Circumstances change, and the pandemic obviously has been evolving, but experience to date suggests that the girls currently would not be placed at greater risk by spending time in Nova Scotia compared to spending time in Ontario. According to the Public Health Agency of Canada, Ontario so far has experienced 422 cases per 100,000 residents, while Nova Scotia has experienced only 118 cases per 100,000 residents. Moreover, in the past seven days, Ontario has experienced 4,494 new cases, while Nova Scotia has had just one.[^8]
Currently, the children are attending a public school in London where elementary school students below a certain age are not required to wear masks. The ability of children to carry and transmit the virus, (regardless of whether they are symptomatic), is now generally recognized and accepted. While travelling and staying with the Applicant and her partner, the children therefore may be exposed to far fewer vectors of potential virus transmission than they would be while remaining in their London classrooms. The same is likely to be true while the children are travelling in relative isolation from others; i.e., in a vehicle, alone with their mother.
Since the onset of the pandemic in Canada, considerable attention and care have been devoted to minimizing the risks of COVID-19 being transmitted by and between those travelling by air. Without limiting the generality of the foregoing:
a. Since March of 2020, all airline passengers in Canada have been subjected to a health check prior to boarding any aircraft. They have not been permitted to board if they show any symptoms of COVID-19, have been subject to a provincial or local public health order, and/or have been refused boarding in the previous 14 days due to medical reasons related to COVID-19.
b. On August 20, 2020, the Government of Canada, through the federal Ministry of Transportation, reinforced those initial safety practices by implementing further measures designed to reduce the risk of COVID-19 transmission during air travel; measures collectively described as “Canada’s Flight Plan for Navigating COVID-19”, or “Canada’s Flight Plan”. That action plan put in place a multi-layered system of safety measures to support public health; i.e., by protecting air travelers and air industry workers from the virus. Key changes applied to all aspects of air travel, including airports and aircraft. They included:
i. travel restrictions;
ii. mandatory use of face masks for passengers and crew;
iii. mandatory health checks by air carriers prior to passenger boarding;
iv. temperature screening at Canada’s busiest airports and at points of origin for all incoming flights to Canada;
v. restricted services and passenger movement during flights; and
vi. enhanced cleaning and sanitation protocols and practices.
c. In relation to airports, the specific designs and measures mandated by “Canada’s Flight Plan” include enhanced air conditioning and filtration systems, frequent cleaning of “high touch” areas, new touchless technologies to scan boarding passes, and physical distancing measures.
d. In relation to aircraft, “Canada’s Flight Plan” also emphasizes that modern passenger aircraft offer a unique environment that is markedly different from most enclosed spaces. In particular, they have design characteristics that significantly reduce the risk of virus transmission; e.g., because air is exchanged at a very high rate, with high efficiency particulate absorbing (“HEPA”) filtration in most larger commercial aircraft. Moreover, the potential spread of the virus between rows of seating, within aircraft, is reduced by high seatbacks and the fact that almost all passengers are seated in the same direction.
e. When announcing implementation of “Canada’s Flight Plan” on August 20, 2020, (more than six months into the general pandemic experience here in Canada), the Government of Canada also emphasized that it was not aware of any cases of COVID-19 attributable to passenger-to-passenger transmission on any flights to or from Canada. In that regard, I note that such flights frequently, (although perhaps not always), are significantly longer than the duration of direct flights between London, Ontario, and Halifax, Nova Scotia.
- Since the pandemic’s arrival in Canada, considerable care and attention also has been devoted to the safety of those using public hotels and restaurants. In that regard:
a. Such hotels and restaurants are subject to provincial rather than federal regulation, which accordingly varies to some extent from province to province. However, in order to comply with such public health regulations, and remain competitive by satisfying public demand for assurances regarding risk minimization, such businesses also have adopted and openly advertise compliance with numerous COVID-19 safety protocols and practices.
b. Such measures now frequently include preventing or limiting entry by members of the public; the temporary closure of certain areas and restriction of certain services; the erection of protective plexiglass barriers between staff and/or customers; requiring the wearing of masks and social distancing; enhanced cleaning protocols; mandated time intervals between the use of rooms and/or tables; and recording of attendance to facilitate any necessary contact tracing.
c. To the extent the Applicant and the children would require the use of hotels and restaurants while driving from Ontario to Nova Scotia, the risk of exposure to COVID-19 would be reduced accordingly.
iii. The evidence before me makes it abundantly clear that the Applicant is well aware of her daughters’ asthma, and the heightened risks her daughters may face in that regard because of COVID-19. (It was a principal reason why the Applicant did not favour the girls being enrolled in a school program involving “in person” class instruction; a decision taken by the Respondent.) Moreover, the litigious efforts being made by the Applicant to secure more parenting time with her daughters speaks clearly to the love the Applicant obviously has for her children. Having regard to such considerations, I am satisfied that the Applicant will take extraordinary care to ensure that the risk of her daughters being exposed to the coronavirus is minimized at all times while the girls are in her care.
iv. I have no doubt that the Respondent loves his children dearly as well, and his raising of possible COVID-19 concerns makes it clear that he too is clearly aware of potential risks posed by the virus. However, notwithstanding such concerns and awareness, the Respondent himself apparently feels that a certain level of risk in that regard is acceptable, and something that reasonably should be incurred in service of the girls’ best interests; e.g., in deciding that the girls should attend “in person” classes, instead of “remote learning” programs that arguably would reduce the risk of their possible exposure to COVID-19. For the reasons noted above, it seems to me that the risks involved in that regard are arguably greater than those associated with the girls visiting with their mother in Nova Scotia.
v. Clearly, the nature of the pandemic is such that there can be no guarantees against virus transmission so long as people, (including the parties’ children), do not remain in strict isolation, avoiding all contact and interaction with others. However, based on prevailing conditions at least, the cumulative impression left by the above considerations is that the Applicant’s proposal does not raise any inordinate health risks or concerns from a COVID-19 perspective.
- In the circumstances, and for the above reasons, a further interim order will go whereby:
a. The Applicant shall be permitted to have the parties’ two children in her care from November 9, 2020, to November 23, 2020, after which time they shall be returned to the care of the Respondent.
b. If particular travel and attendance requirements imposed on the Applicant by the Canadian Armed Forces are varied, necessitating a corresponding modification of the precise dates on which the contemplated two-week period of extended access between the Applicant and the children should begin and end, the Respondent shall provide reasonable co-operation in relation to the necessary modification of those dates, failing which the Applicant may seek further direction from the court on notice to the Respondent.
c. Prior to that contemplated two-week period of extended access between the Applicant and the children, the Applicant shall take appropriate steps to consult with each child’s teacher and obtain school work assignments, (to be completed by the children during their extended access visit with the Applicant), sufficient to ensure that the children’s educational progress is not interrupted. The Applicant thereafter shall work with the children, during the extended access visit, to ensure completion of those assignments before the children are returned to the care of the Respondent.
d. During the contemplated two-week period of extended access between the Applicant and the children, the children may travel between Ontario and Nova Scotia to visit with the Applicant at her home in Nova Scotia, to the extent such travel is permitted by federal and provincial health restrictions associated with the COVID-19 pandemic. Without limiting the generality of the foregoing, the children may travel by land or by air. The Applicant alone shall be responsible for the costs associated with the children travelling between Ontario and Nova Scotia, and the making of all associated travel arrangements.
e. Prior to the children embarking on any travel outside of the city of London, the Applicant shall provide the Respondent with a written itinerary of the children’s contemplated travel, including but not limited to details of where the children are expected to be on each day of the extended access visit, as well as details of any flights, and emergency contact information.
f. At all times during the extended access visit, the Applicant shall ensure compliance with applicable and prevailing federal, provincial and/or local public health directives and safety protocols relating to the COVID-19 virus, including but not limited to the wearing of masks, social distancing and hand-washing.
Costs
Because my decision was reserved, the parties were unable to make any cost submissions, having regard to the substantive outcome of the motions.
In the circumstances, I indicated that I would make provision in my endorsement for written cost submissions, if the parties could reach no agreement in that regard. To that end, if the parties are unable to resolve cost issues associated those aspects of the Applicant’s motion and the Respondent’s cross-motion addressed by my substantive decision:
a. the Applicant may deliver written cost submissions, not exceeding five pages, (not including any written settlement offers), within one week of receiving this endorsement;
b. the Respondent may deliver written responding cost submissions, also not exceeding five pages, (not including any written settlement offers), within one week of the time for delivery of the Applicant’s cost submissions; and
c. the Applicant may deliver written reply cost submissions, (if any), not exceeding two pages, within one week of receiving the Respondent’s written responding cost submissions.
- If no written cost submission are received within two weeks of the release of this endorsement, no costs shall be awarded in relation to either motion.
Settlement of order and further return date
The parties hopefully will be able to agree on the form and content of a formal order incorporating and reflecting the relief granted and directed herein, allowing the formal order to be processed through the Family Court office.
However, if the parties are unable to reach an agreement in that regard, they may schedule a further teleconference appointment before me, through the trial coordinator, to settle the formal order.
For the reasons outlined above, the balance of the relief sought by the Applicant’s motion, (i.e., seeking a further period of access between the Applicant and the children over the children’s winter school break encompassing the Christmas and New Year’s Day holidays), has been severed, and is now returnable on December 9, 2020, at 10:45am.
Ian F. Leach
Justice I.F. Leach
[^1]: The Applicant contends that the Respondent took that step unilaterally, shortly after being served with the Applicant’s material, in a deliberate effort to complicate frustrate the Applicant’s desire to have the children visit with her in Nova Scotia. The Respondent says that timing was mere coincidence, and that he made the decision to register the girls for “in person” school instruction after being satisfied that pandemic-related safety protocols at the school would be sufficient to minimize risks.
[^2]: The Applicant initially indicated an alternative request to have the children visit with her in Nova Scotia for three weeks, (i.e., from November 9 to December 4, 2020), but that was premised on the children not attending school in person; i.e., participating instead in “home schooling”, or “remote learning” programs instituted during the pandemic. That request nevertheless was withdrawn once it had been confirmed that the children have been enrolled in an in-person schooling program this year. Although that enrollment and the manner in which it happened are the subject of disagreement, the parties did not formally raise such matters as issues to be addressed by their motions. For the time being, I simply note the following:
* The Applicant felt and feels that in-person schooling is not advisable at the present time because of the ongoing COVID-19 pandemic, the girls’ pre-existing asthma condition, (making them more susceptible to adverse effects of the virus), and the current pandemic-related policies of Ontario public schools which do not require the wearing of masks by elementary school children below a certain age. The Applicant also contends that the Respondent unilaterally enrolled the girls for “in person” schooling shortly after being served with the Applicant’s material, in a deliberate effort to complicate and/or frustrate the Applicant’s desire to have the children visit with her in Nova Scotia.
* The Respondent emphasizes that his decision to sign the girls up for “in person” school instruction was made independently, without regard to this litigation and in the best interest of the girls, once the Respondent received satisfactory indications that the relevant school would be implementing health and safety protocols to address the risks created by the pandemic. In effect, the Respondent says the timing of the steps he took to enroll the girls in their current school program was simply a matter of coincidence.
[^3]: See, for example: Young v. Young (1993), 1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27; and Papp v. Papp, 1969 CanLII 517 (ON SC), [1970] 1 O.R. 31 (C.A.).
[^4]: See, for example: Berry v. Berry, 2011 ONCA 705; Duthie v. Junker, 2011 ONCJ 298; and Guillemand v. Geurts, 2019 ONSC 1734.
[^5]: See, for example, C.T. v. S.T., 2019 ONSC 1463.
[^6]: See, for example, Izyuk v. Bilousov, 2011 ONSC 6451.
[^7]: See, for example: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.); and Mattina v. Mattina, [2018] O.J. No. 3790 (C.A.).
[^8]: If anything, such data suggests that the girls travelling from Ontario to Nova Scotia may raise greater concern about the girls spreading rather than contracting the virus. However, it seems the federal and provincial health agencies monitoring such matters, and making such assessments, currently do not regard any such risks as significant, at least in terms of reinstating previous restrictions on such interprovincial travel.