Court File and Parties

COURT FILE NO.: FC-21-0000015 DATE: 2021 0209 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J .G., Applicant AND: L.G., Respondent

BEFORE: M.S. James J.

COUNSEL: Cynthia Squire, for the Applicant Jessica Margeit Pineda, for the Respondent

HEARD: January 29, 2021

Endorsement

Introduction

[1] This is a motion brought on an urgent basis by the Applicant for the return of T.G.M.C. to the primary care of the Applicant. At the time of the hearing, I ordered that T.G.M.C. be returned to the care of the Applicant with reasons to follow. These are the reasons for my decision.

[2] T.G.M.C. turned 18 years old on [omitted for publishing]. She was born prematurely and has a condition called [omitted for publishing] and developmental challenges. She has the capabilities of a child between the ages of [omitted for publishing] and [omitted for publishing], depending on the task involved.

[3] Pursuant to an order made in 2011, the Applicant has sole custody of T.G.M.C. and the Respondent has biweekly and holiday access.

[4] During the COVID-19 pandemic, and particularly between the months of June and November 2020, T.G.M.C. spent extended periods of time in the care of the Respondent with the agreement of the Applicant, partly due to the Applicant’s employment demands. The Respondent took an unpaid leave of absence from his employment to care for T.G.M.C. The parties do not agree on how the parenting time has been allocated over the last several months but suffice to say that T.G.M.C. has been in the Respondent’s care extensively. The evidence suggests that T.G.M.C. enjoys the time she spends at the Respondent’s home.

[5] The parties agree that during the autumn of 2020 T.G.M.C. returned to spending more time at the Applicant’s home but again, the parties disagree on the split of parenting time.

[6] Prior to the pandemic, T.G.M.C. attended the [omitted for publishing] program at the [omitted for publishing]. In September 2020, the Applicant registered T.G.M.C. as an at home/online participant in the program. According to the Applicant, T.G.M.C. struggled with remote learning and the isolation of being away from school and she thought that T.G.M.C. would benefit from a return to school. The Applicant decided that T.G.M.C. should return to in-class learning in November. This decision was preceded by a consultation with Dr. T. K., a pediatric respirologist at the [omitted for publishing]. In a note to Dr. J.M. on October 30, 2020, Dr. K. reported that T.G.M.C. was doing well within the context of her condition. He was aware that she may be returning to a “very small class” at school and the note did not comment on whether he thought that was a good idea or not. The Applicant says that in their discussion about the advisability of a return to school, Dr. K. told her that he thought it was safe for her to return to school and that she would benefit from the social interaction inherent in in-class learning.

[7] The Applicant advised the Respondent of her decision that T.G.M.C. ought to return to school in mid-November, around the time that T.G.M.C. resumed in-class learning. He does not support this decision.

[8] The Respondent had an access weekend commencing December 11, 2020. The Respondent did not return T.G.M.C. to the Applicant at the end of the access visit and he has kept T.G.M.C. in his care at his home since that time, including over the Christmas holidays, purportedly because of his health concerns for T.G.M.C. He says that T.G.M.C. should not be back at school, especially with the recent developments regarding a provincial lockdown, because of her heightened risk factors.

[9] The Applicant has attempted to enforce T.G.M.C.’s return to her care via the police but this was not successful, apparently due to the lack of a police enforcement clause in the order.

[10] The Applicant’s request for leave to bring an urgent motion was turned down on December 18, 2020, but a subsequent request with additional evidence was successful.

[11] At present a provincial lockdown remains in effect but certain school districts have returned to in-class learning. Students in the [omitted for publishing] program were given the option to return to in-class learning beginning January 11, 2021. There are five other students in the class. The principal of T.G.M.C.’s school is aware of T.G.M.C.’s condition and wrote a supportive letter on January 11, 2020, that indicated only the [omitted for publishing] students and their teachers and support staff would be physically present in the school. This may change as pandemic conditions evolve and it would not be surprising if the school opened up to more students in the near future, if it has not already done so.

[12] The Respondent remains opposed to T.G.M.C. returning to school and has refused to return T.G.M.C. to the Applicant in defiance of the order granting the Applicant sole custody.

[13] The Respondent seeks to justify his actions in part because T.G.M.C. turned 18 years old on [omitted for publishing]. In my view, this fact does not assist the Respondent.

Issue

[14] Does this Court have jurisdiction to order who is to provide care and make decisions for T.G.M.C. after she turns 18 years of age, and if so, who ought to be empowered to do so?

Positions of the Parties

[15] The position of the Applicant is quite simple. She is the sole custodial parent and the Respondent does not have the authority to impose his will about what is best for T.G.M.C.

[16] The position of the Respondent is that the custody order will become unenforceable when T.G.M.C. turns 18 years old and therefore this Court should not enforce the order. He also says that the parties have not followed the order for some time and by implication they mutually agreed to abandon compliance with it. Also, he does not think that it is in T.G.M.C.’s best interests to return to in-class learning at this time.

Discussion

[17] As the Respondent correctly points out, the definition of a child in subsection 18(2) of the Children’s Law Reform Act (“CLRA”) is limited to persons who have not achieved the age of majority, whereas the definition contained in subsection 2(1) of the Divorce Act includes a person who, at the material time, is the age of majority or over but who is unable, by reason of illness, disability or other cause, to withdraw from the charge of a parent or parents or to obtain the necessaries of life. These parties were not married so the CLRA applies.

[18] The Respondent says that in recognition of this important distinction, the Ministry of the Attorney General is currently seeking public input on whether the definition in the CLRA should be expanded to align with the Divorce Act.

[19] The Respondent says that upon T.G.M.C. turning 18 years old, decisions about who will be legally empowered to act on T.G.M.C.’s behalf will be governed by the Substitute Decisions Act. He intends to have T.G.M.C. assessed and bring an application to become T.G.M.C.’s legal guardian.

[20] In Lafrance v. Thomas, 2012 ONCJ 737 Kukurin J. dealt with the definition of “child” under the CLRA in a case where the mother sought to amend her claim from joint to sole custody for two children who were ages 18 and 15 respectively. The father opposed the request on the grounds that the court did not have jurisdiction to grant the amendment to the mother’s claim for the 18-year old. Justice Kukurin said at para. 24:

To accede to the father’s argument would lead to some unusual and undesirable situations. Simply because a child who is under the age of 18 years, becomes age 18 does not, for that reason alone move the child from dependence to independence. In fact, in our society, children are increasingly delaying their transition to independence, often because they are pursuing post-secondary education, but for myriad other reasons as well. These individuals retain their definition as “children” of their parents. In many cases, there are good reasons why some kind of judicial order relating to custody and/or access to such adult children is desirable. The one that immediately springs to mind is that where the biological parents of the child are separated and disagree with some aspects related to the upbringing of the child. Not uncommon is the family in which some children are minors and some are adults. It makes little sense to interpret s. 18(2) of the Act in such a way as to restrict a parent to obtaining a custody or access order with respect to less than all the children, especially if they are still economically dependent.

[21] Justice Kukurin’s observations make sense to me and I adopt his comments.

[22] The Respondent contends that “any order made at (this) motion will be unenforceable after T.G.M.C. turns 18 years old.” I note as well that the existing order is an order of the Ontario Court of Justice which is a court created by statute and its jurisdictional scope is less than that of the Superior Court of Justice. In May 2019, the Family Court branch of the Superior Court of Justice was extended to [omitted for publishing] County with the result that this Court now exercises exclusive jurisdiction in family law matters in this county, including enforcement of orders previously issued by the Ontario Court of Justice. Although the CLRA defines a child as a minor, this Court has a broad inherent jurisdiction to protect not only children, but also vulnerable adults who are unable to live independently. In this case, “protection” includes resolving who ought to be making decisions for T.G.M.C. in circumstances where she is not able to make them for herself. As noted on the court’s website, the Superior Court of Justice in Ontario has inherent jurisdiction over criminal, civil, and family cases, arising from Ontario’s common law traditions. The Court’s inherent jurisdiction gives it authority to hear any matter that is not specifically assigned to another level of court or a tribunal. The Court also has authority over matters granted to it by federal and provincial statutes.

[23] No one suggests that T.G.M.C. can live on her own. It makes sense the person who has legal custody by court order, and who has not been shown to be neglectful of T.G.M.C.’s best interests, is the person who should continue in a decision-making capacity pending a further order or some other appropriate disposition. While consultation is usually desirable when there are two parents who actively involved in their child’s upbringing, if they are unable to agree and there are decisions that need to be made, on the evidentiary record before me, the Applicant is the person who ought to make them. The Respondent does not have the right or authority to assert his opinion about what is best for T.G.M.C. over the wishes of the custodial parent. This shouldn’t change just because T.G.M.C. has turned 18 years old. It is not necessary in this case to say how long the decision-making capacity of the Applicant can be exercised. It is enough to say that at a minimum, the power subsists for at least a reasonable time until a permanent solution respecting guardianship can be implemented.

[24] While the Respondent believes that T.G.M.C.’s return to school is not in her best interests, he has not presented evidence showing that the Applicant’s decisions are unreasonable.

[25] The Respondent says that the parties have not followed the order in significant ways for an extended period of time. This is not uncommon. Separated parents who have an agreement or a court order setting out parenting times or other matters may mutually agree to adjustments on a case by case basis. For example, a parent may be limited by an order to two weeks of summer access. Both parents may informally agree to adjustments, either more or less access time, for whatever reason. Should a disagreement arise, however, the terms of the order ought to prevail. If there has been a material change of circumstances from the time of the last order, either parent may apply to vary the terms of the order. To the extent that it may be possible to waive or abandon an order, I am not persuaded that such a claim is warranted here.

[26] Also, the Respondent should not benefit from his own non-compliance. T.G.M.C. ought to have been returned to the Applicant’s care six weeks ago. The fact that the Respondent has refused to do so in breach of the existing order, should not operate to enhance his position on this motion.

Disposition

[27] The Respondent is ordered to return T.G.M.C. to the primary care of the Applicant, forthwith.

[28] The existing order shall remain in full force and effect.

[29] The Respondent must comply with the existing order unless and until it is amended, varied or replaced by another order.

[30] If the Applicant is seeking a costs order against the Respondent, she shall deliver her costs submissions (not more than 4 pages) and a draft bill of costs within 15 days and the Respondent shall have 15 days to respond. The costs submissions may be filed electronically at [omitted for publishing].

“M.S. James, J.” Justice Martin James Date: February 9, 2021