COURT FILE NO.: FS-19-14506

DATE: 20201203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ashleigh Semkiw, Applicant

AND:

Austin Giles Sutherland, Respondent

BEFORE: Nishikawa J.

COUNSEL: Gary Joseph and Margarit Jo, for the Applicant

Ursula Cebulak, for the Respondent

HEARD: December 1, 2020 (By videoconference)

ENDORSEMENT

Overview and Procedural Background

[1] The Applicant, Ashleigh Semkiw, brings this motion for an order for parenting time with the parties’ three children, ages 7, 7 and 5, during the Christmas holidays.

[2] The Respondent, Austin Giles Sutherland, has brought a motion for summary judgment and, alternatively, for a stay of the Application for lack of jurisdiction.

[3] Both parties’ motions were heard at the same time. While the Respondent had raised a jurisdictional objection to the Applicant’s motion, at the hearing, Respondent’s counsel advised that the issue of jurisdiction was “conceded.” At the conclusion of the hearing, I advised the parties that given that the Christmas holidays are fast-approaching, I would render a decision on the Applicant’s motion first. The decision on the Respondent’s summary judgment motion will be rendered at a later date.

[4] The parties were married from 2006 to 2018. They were divorced on April 18, 2019.

[5] After their separation, on October 1, 2018, they entered into a Separation Agreement resolving all matters between them. The Agreement provided for joint custody of the children and equal parenting time. In the Agreement, both parties agreed to maintain a permanent residence for the children in Toronto for seven years.

[6] The Applicant commenced this Application in December 2019. In her Application, she seeks sole custody of the children and an order allowing her to move their permanent residence to Argyle, Texas, where she now resides with her current spouse.

[7] In July 2020, the Applicant brought a motion for an order allowing the children to travel to Texas during the summer for her parenting time. She wanted the children to be present for the birth of her baby, their half-sister, who was born on July 22, 2020. The Applicant’s motion was dismissed by Horkins J.: Semkiw v. Sutherland, 2020 ONSC 4088.

[8] The parties reached a resolution that permitted the children to travel to Texas for U.S. Thanksgiving. The children travelled to Texas from November 19 to 28, 2020 pursuant to a consent order made by Shore J. on November 19, 2020 (“Shore J.’s Order”.)

[9] Only the facts and legal issues relevant to the motion pertaining to the Christmas holidays will be dealt with here.

Analysis

The Parties’ Positions

[10] The Applicant seeks to have the children reside with her in Texas from December 26, 2020 to January 12, 2021 (“Option A”). Alternatively, she seeks to have the children reside with her in Texas from December 10 to 27, 2020 (“Option B”). The Applicant’s position is that since she relocated to Texas, she has had very limited parenting time with the children and that it would be in their best interests to have significant time with her over the holidays.

[11] The Respondent’s position is that the parties ought to adhere to the term regarding Christmas holidays in the Agreement and that the Applicant must exercise her holiday parenting time in Toronto. The Respondent opposes the children travelling to Texas again on the basis of pandemic-related health concerns and the 14-day quarantine period upon their return, which would require that they miss a significant amount of school.

How Should the Holiday Time Be Addressed?

[12] Section 4.3(k) of the Agreement addresses the Christmas holidays, and states as follows:

The parties will share equally the children's school Christmas break. The children will reside with Ashleigh for the first half of the Christmas break in odd-numbered years and the last half of the Christmas break in even-numbered years, and with Austin for the first half of the Christmas break in even-numbered years and the last half of the Christmas break in odd-numbered years. The first half will start after school on the children's last day of school in December and end at 5 p.m. on the date that is the half way point of the Christmas break the second half will start at 5 p.m. on the date that is the half way point of the Christmas break and end on the morning the children returned to school in January.

[13] Under the Agreement, the Respondent would have the children from after school on December 18, 2020 to 5 p.m. on December 26, 2020. The Applicant would have the children from December 26, 2020 at 5 p.m. until drop-off at school on January 4, 2021. Not surprisingly, the Agreement is silent as to travel over the Christmas holidays.

[14] In addition, in the context of their resolution regarding parenting time during American Thanksgiving, the parties consented to the following term, at paragraph 20 of Shore J.’s Order:

Except us specifically set out in this Order, and for so long as the global pandemic continues, the children shall not travel again outside of the country of Canada unless, as a precondition, the Applicant and/or the Respondent, secures an exemption on behalf of the three children, that the children's school confirms in writing is binding upon the school, that the three children, or either of them, shall not have to quarantine upon their return to Canada and they shall be permitted to immediately attend at school in their next regular class upon their return to Canada. Christmas parenting time shall be negotiated by the parties and, failing agreement, will be addressed at the December 1 motion, as set out in paragraph 5 above.

[15] The Applicant submits that while she is prepared to adhere to the s. 4.3(k) of the Agreement, she wants to exercise her holiday parenting time in Texas. She submits that she cannot come to Toronto for the holidays because she does not have a place to stay. She no longer has a residence in Toronto and is estranged from her extended family in the area. She states that it would be difficult to exercise her parenting time in a hotel, especially because she also has a five-month old baby.

[16] The Applicant further submits that it would be preferable for her to have the first half of the Christmas holidays (Option B) because this would minimize the amount of school the children would have to miss upon their return to Toronto.

[17] The Respondent is opposed to the children travelling to Texas for the holidays and relies on paragraph 20 of Shore J.’s Order, which precludes the children from travelling outside of Canada again unless the school confirms that they will not be required to quarantine. The Applicant’s position is that when that term was consented to, the parties believed that the children’s school would follow a federal Order-in-Council, which exempts children who travel under a court order or custody agreement from having to quarantine. The school and the Toronto District School Board (“TDSB”) subsequently confirmed that they will still require that the children quarantine for 14 days.

[18] In my view, Shore J.’s Order, which states that unless the children’s school confirms in writing that they will not be required to quarantine upon their return, they shall not travel outside Canada during the pandemic, is conclusive on the issue on this motion. There is no dispute that the children’s school has confirmed that the children will be required to quarantine. The parties’ assumption that the school would not require the children to quarantine does not alter the Order, which has not been varied and remains in effect.

[19] In the event that Shore J.’s Order is not determinative, I would nonetheless find that it is not in the children’s best interests to travel to Texas over the Christmas holidays for the Applicant’s parenting time.

[20] In determining issues of custody and access, the best interests of the children govern. This includes the importance of the relationship between each parent and the children, and fostering of the parent-child bond. The children’s best interests also include their health, safety and well-being.

[21] In this case, it is undoubtedly in the children’s best interests to spend time with their mother during the holidays. As Pazaratz J. noted in Ribeiro v. Wright, 2020 ONSC 1829, at para. 18, during this pandemic “children need the love, guidance and emotional support of both parents, now more than ever.” This statement resonates in this case, where the children have not been able to spend significant time with their mother over the past six months. However, it is the Applicant’s decision to relocate to Texas in the midst of a pandemic that has caused the separation and absence. The consequences of her decision, including on the children, cannot be redressed by requiring three young children to travel long distances and cross a border that remains closed to non-essential travel during a global pandemic. On their recent trip to and from Texas, the children transited through six airports. The Applicant and the children had to stay in a hotel overnight when their flight was delayed. It is simply not in their best interests to put their health and safety at risk, repeatedly, and to this extent.

[22] The children were also required to quarantine upon their return, resulting in their missing two weeks of school, in addition to the time that they were away. They will not be back in school until December 14, 2020. Yet, under Option B, the Applicant seeks to have the children return to Texas on December 10, before the end of their quarantine. Under Option A, they would be back in school for one week before the holidays and not return to school again until January 27, 2021. While I recognize that the children are young, and the youngest is in senior kindergarten, missing lengthy periods of school would not be in any of their interests because it is disruptive to their learning. The Applicant suggests that the children could attend school remotely for a period. However, as the Respondent states, the TDSB has not permitted families to go back and forth between in-person and remote schooling.

[23] Moreover, based on the reasons given by the Applicant, it does not appear that she is unable to travel to Toronto to exercise her holiday parenting time. The Applicant’s reasons for wanting to exercise her parenting time in Texas show that it is difficult for her to travel to Toronto but not that it is impossible. The Applicant states that it would be extremely difficult for her to travel and quarantine with a five-month old baby, but minimizes the impact of travelling and quarantining on the children. In my view, the Applicant’s reasons are not a sufficient basis to require the children, whose best interests are paramount to this motion, to travel to Texas again, during a pandemic.

[24] I further note that if the Applicant exercises her holiday time during the first half of the Christmas holidays, contrary to the schedule provided for in the Agreement, the Respondent’s holiday time is entirely taken up by the quarantine period. This would also be inconsistent with the spirit of the parties’ agreement to share the holidays equally.

Conclusion

[25] The Applicant’s motion is dismissed.

[26] In order to avoid further disputes or the need for urgent court proceedings, I further order that if the Applicant decides to exercise her holiday parenting time in Toronto, the schedule provided in s. 4.3(k) of the Agreement shall apply.

Costs

[27] At the conclusion of the hearing, I directed counsel to exchange and file their bills of costs by Wednesday December 2, 2020. The Respondent’s full indemnity costs, including disbursements and HST total $4,957.88. The Applicant’s full indemnity costs, including disbursements and HST total $6,361.34.

[28] The Court of Appeal has identified the four fundamental purposes that modern cost rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[29] The exercise of judicial discretion in awarding costs is guided by Rule 24 of the Family Law Rules, both in terms of the entitlement of a party to an award of costs as well as to the quantum of that award. The considerations in determining the appropriate quantum of a costs award are found in Rule 24(12), which reads as follows:

24 (12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) and legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expense properly paid or payable; and

(b) any other relevant matter.

[30] Rule 24(8) of the Family Law Rules provides that the court “shall decide costs on a full recovery basis” if a party has acted in bad faith. Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made: Chomos v. Hamilton, at para. 43. Other than as provided in rr. 24(8) or 18(14), there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, at para 11.

[31] The Respondent was entirely successful on the motion and is entitled to costs. There is no basis for full indemnity costs. Accordingly, I fix costs of the motion at $2,750 on a partial indemnity basis, including disbursements and HST, to be paid by the Applicant to the Respondent.

Nishikawa J.

Date: December 3, 2020