Court File and Parties

PETERBOROUGH COURT FILE NO.: FC-20-00000041

DATE: 20210525

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Taryn Elizabeth Grieder, Applicant

AND:

Stephen Charles Zabinski, Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Kady McCourt, Counsel for the Applicant

Stephen Zabinski, Self-Represented

HEARD: May 21, 2021

ENDORSEMENT

Introduction

[1] The applicant mother, Taryn Grieder, brings this motion for a temporary Order suspending paragraph 8 of the Final Order of Justice Hughes dated May 13, 2019 (the Consent Order). Paragraph 8 of the Consent Order requires the applicant to travel to Las Vegas with her now 3-year-old son in either May or June so that the respondent father, Stephen Zabinski, may have 4 days/3 nights parenting time with their son.

[2] The mother seeks to suspend this travel requirement while the Government of Canada’s travel advisory to avoid non-essential travel outside of Canada remains in effect. She raises both health concerns and financial concerns in support of her position.

[3] The respondent father opposes the motion.

Facts

[4] I have very little information in the material before me about the parties’ relationship prior to the signing of the Consent Order on May 13, 2019. The little information that I have is derived from the Endorsement of Ingram J. dated March 2, 2021. That Endorsement relates to a motion brought by the mother to have an assessment prepared by the Kawartha Family Court Assessment Service pursuant to s. 30 of the Children’s Law Reform Act R.S.O. 1990, c. C.12 (CLRA) to seek recommendations as to the parenting time between the parties and their child.

[5] In granting the mother’s motion, Ingram J. stated:

At present the child resides with the mother in Peterborough. The father resides in Las Vegas. His time with the child is up to 96 hours per month over a six-day period pursuant to the consent order…of May 13, 2019. The father seeks to have the child with him for at least 50% of the time in Las Vegas. The mother seeks to reduce the father’s access to supervised access.

The parties have been in conflict for most of the child’s life, making serious allegations against the other relating to violence, mental health, criminal activity and drugs. Clinical issues have been raised. There have been multiple involvements of the police and the Children’s Aid Society. Emergency court motions have been brought. No doubt COVID-19 and the resultant government restrictions and changing directives have had a serious impact upon the cross-border ease of visitation. The continuing conflict is not in the interests of this child.

The Consent Order

[6] The Consent Order currently provides that the child shall reside with the mother. The father has access to the child for up to 96 hours per month over a six day period “from 10:00 a.m. on Day 1 until 12:00 p.m. on Day 3 and from 4:00 p.m. on Day 4 until 2:00 p.m. on Day 6”.

[7] Paragraph 8 of the Consent Order requires the mother to travel to Las Vegas with the child twice per year:

a. Once in either May or June;

b. For a period that will include American Thanksgiving;

[8] When the mother travels to Las Vegas, the father has access to the child over 4 days/3 nights, with one three hour visit by the mother each day the child is in the father’s care in Las Vegas.

[9] All expenses incurred for the child to travel to Las Vegas are divided equally by the parties. The father is responsible for paying up to a maximum of $400 USD for one of the mother’s return trips to Las Vegas per year. The mother is responsible for all other travel expenses associated with taking the child to Las Vegas (for example her hotel).

[10] The Consent Order also gives the father the right to have video chats with the child 3 days a week.

[11] The applicant mother’s claim for child support was not addressed in this Consent Order, but was left to be determined in the future.

Government Travel Advisories

[12] The Government of Canada currently advises all persons to avoid non-essential travel outside Canada until further notice, and has put in place an Emergency Order under the Quarantine Act that applies to all travellers arriving in Canada. This Order requires all travellers arriving in Canada to check into government-authorized accommodation upon arrival for 3 nights and remain there until they receive a negative COVID-19 test. All persons (including persons who have been vaccinated) arriving in Canada must quarantine for a minimum of 14 days.

[13] The Centers for Disease Control and Prevention (CDC) in the United States advises all travellers to the United States to get tested for COVID 3-5 days after travel and, for unvaccinated travellers, to self-quarantine for 7 days even if they test negative.

Position of the Parties

[14] The mother has not yet been vaccinated against COVID-19, but is scheduled to receive her first vaccination on June 10, 2021. She will likely receive her second vaccination around 12 weeks later.

[15] Due to the pandemic the mother did not travelled to Las Vegas in 2020.

[16] The mother takes the position that requiring her and the child to travel to Las Vegas would expose both her and the child to a significant health risk.

[17] In addition, the quarantine requirements when she arrives in Las Vegas and when she returns to Ontario will greatly increase the cost of travel for her. She estimates this increased cost to be an additional $7,000 - $10,000.

[18] Moreover, the applicant has another child (age 9) from a previous relationship, and the quarantine period would interfere with her ability to care for that child.

[19] The applicant notes that since the onset of the pandemic, the father has exercised his right to come to Ontario for access only twice – in March 2020 and December 2020. The father cites travel restrictions and the increased costs associated with a two week quarantine in Canada as his reasons for not coming every month as permitted by the Consent Order.

[20] Finally, the mother has raised concerns for her personal safety if she is required to travel to Las Vegas. She alleges that since agreeing to the Consent Order, the respondent’s behaviour towards her has become increasingly abusive and he has been charged with both criminal harassment and with publication of intimate images without consent. The respondent’s behaviour was the basis of the applicant’s successful motion for a s. 30 assessment. The respondent is currently subject to an undertaking not to contact the applicant except in accordance with a valid Family Court Order, and not to come within 100 metres of the applicant’s residence or place of employment except in accordance with a valid Family Court Order. The applicant is concerned that this undertaking will not protect her if she is in Las Vegas.

[21] The father received his first COVID-19 vaccination on May 18, 2021, just days before this motion was heard.

[22] The respondent takes the position that the child will be safer in Las Vegas than in Ontario. Indeed, most of the respondent’s affidavit evidence relates to his claim that the child’s primary residence should be moved from Ontario to Las Vegas. The father has even set out details relating to the private school he intends to send the child to in 2022 when the child moves to live with him.

[23] With regard to the mother’s concerns for the COVID-19 pandemic, the respondent takes the position that the pandemic is “virtually over” in the United States. Moreover, there have been no deaths from COVID-19 for children under 18 years of age in Nevada. He argues that thousands of passengers fly from Toronto to Las Vegas on a daily basis without any health or safety concerns.

[24] The respondent proposes that, in order to address the several concerns raised by the applicant in her affidavit, the Court should order the applicant fly with the child to Las Vegas by June 15, 2021, and give the respondent the child’s passport so that the child can remain in Las Vegas until June 1, 2022. The applicant will be permitted to visit the child once a month for four days in any month.

Analysis

[25] As a general principle, the courts have been reluctant to suspend access or parenting time as a result of the COVID-19 pandemic. Numerous cases since the advent of the COVID-19 pandemic have recognized that while parenting and access rights must be exercised in a manner that follows the protective precautions contained within public health directives, there is a presumption that all court orders, including existing parenting arrangements and schedules, should be complied with. This reflects the principle that meaningful personal contact with both parents is in the best interests of the child. See: Ribeiro v. Wright, 2020 ONSC 1829, at paras. 7-21; J.F. v. L.K., 2020 ONSC 5766, at para. 20.

[26] That said, courts have been reluctant to require children to travel outside of Canada in the face of government protocols directing that non-essential travel outside of Canada be avoided. For example, in Semkiw v. Sutherland, 2020 ONSC 4088, at paras. 36-37, Horkins J. stated:

The children have in the past travelled to Texas with the mother and have enjoyed their time there. Now is a different time and decisions about the children’s travel must take into consideration the COVID-19 pandemic and where the children are going. The air travel that the mother proposes involves crossing a border that is closed to non-essential travel due to the pandemic and arriving and travelling through the State of Texas that is experiencing a surge in COVID-19 cases and hospitalizations. After the summer weeks are over, the children would travel back home. On return, the children would have to self-isolate for three weeks with their father.

The mother has chosen to move to Texas and give birth in this State. She is not entitled to have the children join her in Texas during this pandemic. This proposed travel is non-essential and would recklessly expose the children to the risk of infection. This would not be in the best interests of the children.

[27] The courts have expressed concerns with the potential health risks to the children as well as the requirement that children quarantine upon their return to Canada: Semkiw v. Sutherland, 2020 ONSC 7477, at paras. 20-23.

[28] In Onuoha v. Onuoha, 2020 ONSC 1815 Madsen J. stated, at para. 10:

It would be foolhardy to expose the children to international travel in the face of the Travel Advisory, risking the restrictions and complications adverted to therein.

[29] In Yohannes v. Boni, 2020 ONSC 4756, Nishikawa J. suspended a court order granting the father, who resided in France, six weeks parenting time with his 10 year old child in France. She held, at para. 20:

I am satisfied that the current COVID-19 pandemic is a material change in circumstances that affects or is likely to affect the best interests of the child such that the Parenting Order should be varied on an interim, without prejudice basis.

[30] Nishikawa J. stated, at paras. 26-27:

My finding that it is not in Selyana’s best interests to travel to France during the pandemic does not in any way minimize the importance of the relationship between her and the Respondent, or her time with him, her grandparents, and her extended family in France. The global pandemic is an unprecedented event that has unfortunately compounded the difficulty that arises from the Respondent and Selyana living in different countries…

In the current circumstances, where the COVID-19 pandemic continues and the Travel Advisory remains in place, Selyana’s health and safety cannot be put at risk... While I recognize that requiring that the Respondent exercise his parenting time in Toronto is not ideal, it is the best interests of the child that govern.

[31] See also: Saini v. Tuli, 2021 ONSC 3413, at para. 29:

In this context, the children’s safety is a critical consideration. The COVID-19 protocols clearly direct that non-essential travel outside of Canada be avoided. I do not accept the Respondent’s speculation regarding the children’s relative risks of contracting COVID-19 if they remain with the Applicant while she is in California. Further, while the Applicant’s travel to the United States may be essential for her in order to maintain her employment, I am unable to find that the children’s travel to the United States is essential for them.

[32] See also Bourke v. Davis, 2021 ONCA 97, at paras. 69-72, where the Court of Appeal recognizes that government travel restrictions may legitimately affect the ability of parties to comply with an order for parenting time that requires the children to travel to the United States.

[33] The Consent Order was agreed to almost one year before the COVID-19 pandemic became a reality. The pandemic, together with the related travel advisories, are a material change in circumstances. International travel presents a health risk, and the requirement to quarantine - upon arrival to the United States and return to Canada - makes the costs, in terms of both time and money, far greater than either party could have anticipated. The fact that the respondent father has rarely exercised his right to visit the child in Ontario since the pandemic began is testament to this additional cost and inconvenience.

[34] The father’s proposed solution – that the applicant mother leave the child in Las Vegas for one year – is an unacceptable departure from the terms of the Consent Order. It is not an effort to implement the Consent Order, but an attempt to use the pandemic as an opportunity to make fundamental changes to the terms of the Consent Order.

[35] In my view, the mother’s concerns with international travel are, at this time, entirely legitimate. The travel to the United States is non-essential and is not in the child’s best interest at this time.

[36] The requirement that the mother and child quarantine for 7 days in the United States and 14 days upon their return to Canada is an unacceptable imposition on both of them, and would not be in the child’s best interest.

[37] An issue does arise as to whether the father should be given some make-up time to compensate him for these cancelled visits to Las Vegas. Given the March 2, 2021 Order of Ingram J. granting a s. 30 assessment, it would not, in my view, be appropriate to make any such order at this time. This issue of make-up time can be revisited once the s. 30 assessment is completed.

Conclusion

[38] The applicant’s motion for an Order temporarily suspending para. 8 of the Final Order of Hughes J. dated May 13, 2019 is granted. The Order remains suspended until the Government of Canada repeals the current travel advisory to avoid non-essential travel outside Canada, further written agreement of the parties, or further Court Order.

[39] Rule 24(1) of the Family Law Rules provides that the successful party is presumptively entitled to costs. As the successful party, the applicant is presumptively entitled to the costs of this motion. If the parties are not able to reach an agreement on costs, the applicant may serve and file costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 15 days of the release of this decision, and the respondent may serve and file responding submissions on the same terms within a further 10 days.

Justice R.E. Charney

Date: May 25, 2021