Ontario Superior Court of Justice
FC-19-367-2
161 Elgin Street, OTTAWA ON K2P 2K1
Endorsement
Applicant: Amanda Purdy Present Lawyer: self-rep Present Duty Counsel
Respondent: Jake Purdy Present Lawyer: self-rep Present Duty Counsel
HEARD: Urgent motion November 20, 2020 by Zoom
BEFORE: Justice P. MacEachern
E N D O R S E M E N T
1This is the Respondent father’s urgent motion for the return of the children to his care. This motion was scheduled on an urgent basis by Justice Audet’s endorsement dated November 17, 2020.
2The parties have two children, C.A.P., born September, 2010 and J.L.P., born February, 2013.
3Both parties appeared before me today and made submissions on this motion. Both parties filed affidavit material which was not sworn. I have advised both parties that affidavits may now be commissioned virtually. They should not expect that in the future the court will accept unsworn affidavits. For today’s motion, the Respondent affirmed the contents of his affidavit dated November 16, 2020, on the record. The Applicant affirmed the contents of her affidavit dated November 19, 2020, on the record.
4The Respondent filed a second affidavit dated November 19, 2020. This affidavit was also not sworn or affirmed. Given that this affidavit was submitted after the Applicant had responded to the Respondent’s November 16, 2020 affidavit, that it contains significant information that would have been in the Respondent’s knowledge at the time that he provided his November 16, 2020 affidavit, and because the Applicant did not have an opportunity to respond to this second affidavit, I did not admit the Respondent’s affidavit dated November 19, 2020 for this motion. The Respondent’s affidavit dated November 19, 2020 remains unsworn or affirmed.
5A significant issue in dispute in this Application are the parenting arrangements for the children. This matter is scheduled to proceed to trial during the Ottawa family trial sittings scheduled to commence in January of 2021.
6The children are currently supposed to be in an equal week-on week-off timesharing arrangement pursuant to the temporary order of Justice Audet dated March 4, 2020, made on consent.
7Since March 4, 2020, the parties have frequently been back in court. There are endorsements from court appearances on May 1, May 8, May 12, August 5, August 21, August 25, August 31, September 8, and September 11, September 30, November 4, and November 17, 2020.
8Notably, on March 4, 2020, Justice Audet ordered that neither party is permitted to bring any further motions without leave from the court, urgent or not. On May 8, 2020, Justice Engelking, in response to the mother withholding the children during the period from April 13, 2020 to May 4, 2020, included the following in her endorsement:
“The law is clear that the children are to have as much time with each parent as is in their best interests, and that the parent who was most able to accommodate the time with the other parent would be the most suitable to have primary care of the children. By her continual unilateral actions, Ms. Purdy is demonstrating to this court but she may not be capable of ensuring that children have a positive consistent relationship with their father. Consequently, any further failure by her to comply with Justice Audet’s order may result in the children being placed in the primary care of Mr. Purdy, with limited access to Ms. Purdy.”
9On September 8, 2020, this matter was before me on an urgent motion, scheduled by Justice Audet’s endorsement of August 31, 2020, to deal with:
a. whether the children will begin attending school in-person or virtually;
b. orders related to the parent’s positive obligation to ensure the children’s attendance at school (either in person or virtually).
10These issues (and others) were also the subject of a case conference before Justice Audet on August 25, 2020.
11The father brought the September 8, 2020 motion to have the children attend school in-person. On August 24, 2020, the Applicant mother had registered the children to attend school on-line.
12The mother was represented by counsel on the September 8, 2020 motion. The father was not represented by counsel. The parties were able to reach a consent on the issues in that motion which provided for the children to attend school in-person.
13The September 8, 2020 Order provides for temporary orders as follows:
a. the children shall attend school in-person;
b. neither party shall change the children’s schooling from in-person to online without written consent from the other party;
c. the children shall not miss more than five days of school throughout the school year, unless a doctor’s note indicates the contrary, or there is a snow day;
d. should the children’s school or classroom be closed due to an outbreak, the parties shall ensure that the children complete at least 90% of their assignments.
14On November 16, 2020, the mother advised the school that she was withdrawing the children from in-person learning. This was done without the consent of the father and despite the terms of the September 8, 2020 Order.
15Also, on November 16, 2020, the mother advised the father that she would not be returning the children to his care.
16As of the date of this motion, the children have not been returned to the father or to school.
17The father seeks the children’s immediate return to his care and return to in-person learning in school. The father argues that the children should be in his temporary primary care so that he can ensure that they attend school on a regular basis given the mother’s history of not abiding by court orders and acting unilaterally. The father also seeks sole interim custody for the same reasons.
18The mother’s position is that the children should be homeschooled by her. She appears to also take the position that the children should primarily reside with her due to being homeschooled by her, or at least until they have completed 8 sessions with Dr. Weinberger. She argues that this is necessary because the father is failing to take public health precautions related to COVID-19, and the increase in COVID-19 infections.
19I make the following temporary orders, which I find are in the children’s best interests:
a. The children shall be immediately returned to the Respondent father’s care. The children shall be returned to the father’s care by 5:00 PM on November 20, 2020.
b. On a temporary basis, pending trial, the children shall primarily reside with the Respondent father.
c. On a temporary basis, pending trial, the Respondent father shall have sole custodial decision-making for the children.
d. On a temporary basis, pending trial, the Applicant mother shall have access to the children on alternate weekends from Friday at 5:00 PM to Sunday at 5:00 PM, commencing on Friday November 27, 2020.
e. The Ottawa Police Services shall be authorized to enforce the terms of this order, subject to their organizational discretion and priorities.
f. The terms of the September 8, 2020 Order that provide for the children to attend school in-person, and the conditions in the Order attached to that attendance, shall continue.
20These orders are made for the reasons set out below.
21The parties agreed on September 8, 2020 that the children would attend in-person schooling. They also specifically agreed that neither party would change the children’s schooling from in-person to online without written consent from the other party. The mother’s conduct in purporting to withdraw the children from in-person schooling, unilaterally and without written consent from the father, is in breach of the September 8, 2020 Order.
22The mother’s conduct is also in breach of the interim parenting schedule ordered under the March 4, 2020 consent order, because she has refused to return the children to the father’s care.
23The mother’s unilateral “self-help” is not in the children’s best interests and must not be condoned. The mother’s conduct is even more egregious given the previous direction from Justice Engelking, and that on November 2, 2020, the mother sought leave to bring an urgent motion based on many of the same allegations she now relies upon to justify her conduct. Justice Audet did not allow the mother to bring her motion dated November 2, 2020. The mother has now filed, in her responding material, the same November 2, 2020 notice of motion, but dated November 20, 2020, and modified slightly to also seek that the children remain in her primary care. The mother is attempting to do unilaterally what the court did not allow her to do under her November 2, 2020 request for a motion.
24I do not accept the mother’s argument that the spread of the COVID-19 virus since the September 8, 2020 Order justifies her unilateral withdrawal of the children from school. The public schools are still open with the support of public health authorities. The mother is effectively attempting to reargue the September 8, 2020 motion and withdraw her consent to the children’s attendance at in-person schooling. She is not permitted to do so.
25The mother’s conduct raises significant concern that she will not comply with further court orders requiring the children to attend school in-person. It is very concerning to this court that the mother has acted in the manner that she has in the face of the September 8, 2020 Order, in the face of the previous cautions from the court, and in the face of Justice Audet’s endorsement denying her leave to bring her November 2, 2020 motion.
26The mother is also not justified in failing to return the children to the father’s care. She is in breach of the existing interim order with respect to the children’s timesharing arrangement. The mother argues that her conduct is justified because of several allegations she makes against the father. Many of the allegations made in her submissions on the motion relate to events that took place before the March 4, 2020 agreement to equal timesharing. Many of these allegations also pre-date the September 8, 2020 court appearance. These allegations warrant little weight on this motion.
27In terms of new allegations made by the mother, she relies on an affidavit from Luc van Der Leeden, sworn November 19, 2020, in support of her position that she was justified in not returning the children to the father’s care because of the risk that a child in the father’s household had COVID (being Mr. van Der Leeden’s child). But Mr. van Der Leeden is inconsistent in this regard. Mr. van Der Leeden states that his two children were sick for over three weeks, and there is a suggestion that the Respondent acted unreasonably because he did not ensure that the child, L., had a COVID test. But Mr. van Der Leeden’s affidavit states that the other child had a COVID test and tested negative. He does not state why, if he was concerned L. had COVID, he did not take steps to have Luca tested. He does not state why, if he was concerned that L. had COVID, he did not keep both children home from school (there is only evidence that they missed 5 days of school in the three week period) and take steps to isolate the entire household (there is no evidence of steps taken to isolate his household). The evidence is not sufficient to support the allegations made.
28The mother also filed an affidavit from Alexandra Nagerl in support of her allegations that the father is not taking reasonable public health precautions. This affidavit is unsworn. Ms. Nagerl did not attend court to swear or affirm the affidavit. Therefore, this affidavit is not admissible as evidence before me. In any event, the information set out in the affidavit does not support the mother’s allegations. Ms. Nagerl refers to an incident on October 13, 2020 where she was with the children at a hospital1, and she became aware that father had proposed taking the children to a mall. The mother argues this is an example of the father acting unreasonably and unsafely, but there is no evidence before me that attending a mall cannot be done in a safe manner. Malls are currently open in the Ottawa area. In addition, it is inconsistent to argue that the children could attend a hospital with Ms. Nagerl in a socially distanced and safe manner, but they cannot attend a mall with the father in a socially distanced and safe manner. This incident also took place on October 13, 2020, before the mother’s November 2, 2020 motion request, which was refused.
29I find that it is necessary to change the existing interim timesharing arrangement to provide for the children to be in the primary care of the father in order to ensure that the mother does not continue to act unilaterally in a self-help manner, in contravention of agreed upon court orders, and the terms of this order. The orders granted today are intended to ensure that the children continue in-person schooling which, at this time, continues to be in their best interests.
30There may be interruptions in the children’s in-person schooling due to public health directives or local school closures. The terms of the September 8, 2020 order, which continue, makes provision for this. But there is a risk that the mother may attempt to use such opportunities to again attempt to defeat existing court orders, and for this reason, I find that it is necessary to grant interim sole custody to the father.
31I also find it necessary to make an Order authorizing the police to enforce the terms of this Order. This Order for police enforcement is not made lightly. It is a rare situation that warrants such an order. The parties should not view this order as an invitation for them to call the police at the slightest concern or complaint against the other. That is not in the children’s best interests. I echo the concerns on this point raised in the OCL report. But I am concerned that the mother’s conduct demonstrates an unwillingness to respect the authority of the court’s orders and therefore I find it is necessary to make this order for police enforcement. This order for police enforcement is intended to ensure that the children are returned to the father’s care, that the children remain in the father’s primary care on an interim basis, with alternate weekend access to the mother, and the children attend in-person school as provided for under the September 8, 2020 order.
Costs
32The father does not seek costs of this motion. Given this, there shall be no order for costs.
Dated: November 20, 2020
Justice P. MacEachern