Court File and Parties

COURT FILE NO.: 841/16

DATE: 2021-01-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: I.L., Applicant

AND:

C.R., Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Self-Represented Applicant Self-Represented Respondent

HEARD: January 22, 2021

ENDORSEMENT

[1] Imagine a vacation from COVID. A temporary return to “normal”.

[2] Imagine business as usual. No restrictions. No lock downs. No curfews. No curbside pickups. No daily infection numbers. No death counts. No contagion.

[3] No constant fear.

[4] Imagine a place pretty much removed from the pandemic. Not a mythical place like Atlantis or Mayberry. But a real place with real healthy people, right here in Canada.

[5] That possibility – the chance to even briefly rescue children from this COVID nightmare – was the subject of this unusual motion where the facts might actually create a bit of envy.

[6] The Applicant father and the Respondent mother are both lawyers (wisely, not family law lawyers).

[7] I won’t use the real names for their three children, to avoid embarrassment. I’ll call them Mary (age 18), George (age 16), and John (age 13). It’s John we’re most worried about.

[8] The parents separated in September 2015. For a while they fought about everything, initially hiring lawyers; eventually (and currently) representing themselves.

[9] Their October 18, 2018 Divorce order (based on a Consent) settled parenting issues on a final basis:

a. The children reside primarily with the mother in Hamilton, in the former matrimonial home.

b. The children spend time with the father on alternate weekends from Friday at 4:00 pm. until Sunday at 4:00 pm. In addition, they stay with the father Tuesday overnight in one week and Tuesday and Wednesday overnight in the alternating week. In total they stay with the father five out of 14 overnights in a two week period. There is also a sharing of holidays, special occasions, etc.

c. (The father resides in Toronto with his new partner, but he also maintains rented accommodation in Hamilton where he stays when the children are with him.)

d. The parties are to retain a professional to facilitate and mediate resolution of parenting issues which may arise.

e. Important for this motion: The consent order provides that “The Children shall spend Christmas holidays with the (mother) who may take them on holiday, which holiday may commence after school on the Wednesday before school ends, or as otherwise agreed by the parties.”

[10] That annual Christmas holiday the mother takes with the children is to Newfoundland. In her affidavit she explained the significance:

a. The mother is originally from Newfoundland.

b. Her parents still live there. She has a large extended family in the Province.

c. She owns a house in St. John’s which she maintains as a second residence. Prior to separation the parties jointly owned this property and visited as a family at least twice a year.

d. The children travel to Newfoundland with the mother every Christmas. They have done so since they were born. They also travel to Newfoundland every summer.

e. The mother has always made it a priority to bring the children to Newfoundland regularly. They have formed and maintained close and meaningful relationships with their family in the Province.

f. The maternal grandmother is in long term care with advanced Parkinson’s disease. Her condition prevents her from travelling to Ontario to see the children, so the children have to travel to see her.

g. The mother is the maternal grandmother’s power of attorney for both property and personal care. She has decision making authority with respect to her mother’s complex medical issues. When illnesses have flared up, the mother has had to fly to Newfoundland to be with her mother and oversee her medical care directly.

[11] The mother says COVID greatly impacted their regular travel to Newfoundland:

a. Pandemic travel restrictions in the Province forced the mother and children to cancel their trip to Newfoundland last summer. By September 2020 those travel restrictions were lifted, but by then the children were back to school.

b. In November 2020 the mother advised the father she wanted to take the children for a longer Christmas trip to Newfoundland, to build in extra time for mandatory quarantines. The parties had a lot of disagreement about this. The father was concerned about his time away from the children, and the children’s time away from school.

c. Ultimately, they agreed on everything. The father would get make-up time before and after the trip. The mother made arrangements with schools to ensure the children didn’t fall behind.

[12] Pursuant to the agreement, the mother and children flew to Newfoundland on December 7, 2020.

[13] But they didn’t return on the agreed upon date: January 7, 2021.

[14] They’re still in Newfoundland.

[15] And that’s why the father brought this motion to bring the children back to Ontario.

[16] But this isn’t a mobility case. Not even a denial of access case, really. Even the father agrees, it’s more complicated than that.

[17] This is all about COVID and how families – and family courts – try to keep up with issues and factual situations none of us have dealt with before.

[18] The mother’s explanation of how we got here:

a. The mother and children have always followed strict COVID precautions. They have been guided by a relative who is a senior infectious disease specialist at McMaster University.

b. All three children are bright and very responsible. They have been scrupulous in embracing COVID safety protocols. They have remained in their “bubble”. They have refrained from social activities or gatherings. They have followed every precaution recommended by public health officials – and more.

c. The youngest child John, in particular, has been heavily impacted by the evolution of the COVID crisis. He has always been a very happy-go-lucky child. But during the past year he has developed anxiety related to the pandemic. As he became more informed on the topic, he became increasingly upset about other children at school not observing social distancing. As well, after hearing of a study that public washrooms are unsafe, when the mother would pick John up from school at the end of the day, he would ask to hurry home so he could use the washroom – he hadn’t gone all day, as a result of fear of COVID. The mother has serious concern about his COVID-related anxiety which has grown throughout the current school year.

d. When the mother and children arrived in Newfoundland on December 7, 2020, they went into quarantine for 14 days. These are not the type of children to bend the rules even slightly.

e. But when they emerged from quarantine in Newfoundland, it was to a very different quality of life than they had been experiencing in Ontario.

f. She says Newfoundland’s travel restrictions have been harsh but also very effective. As of mid-January there were only six active COVID cases in the entire province, and not a single new case on the day the mother signed her affidavit.

g. As a result, while people in Newfoundland adhere to basic COVID protocols – masks, social distancing in stores, etc. – in every other respect life is unrestricted due to the extremely low COVID case count.

h. Over Christmas the Chief Medical Officer of Health advised Newfoundlanders to limit their immediate contacts to 20 people. As a result, the children were able to enjoy normal Christmas family dinners and celebrations.

i. The mother says all of the children – particularly John – have responded extremely well to this freedom from COVID. After many months of isolation and deprivation in Ontario, their ability to have spontaneous interaction with family members in Newfoundland has been “healing”.

j. They are able to enjoy the normal activities of daily life because stores, restaurants, cinemas, museums, libraries, gyms, etc. are all open – subject to masks and social distancing. The boys have been able to resume their competitive swimming (banned in Ontario).

k. George plays violin. John plays saxophone. They were members of a youth orchestra in Hamilton which curtailed its activities as a result of COVID. They are excited about possibly being able to play with a youth orchestra in St. John’s. They are also rehearsing to bring their instruments into the nursing home to play for the maternal grandmother.

l. The mother listed many other examples of ordinary activities everyone took for granted in pre-COVID times – activities the children have been able to re-discover in COVID-free Newfoundland.

[19] The mother says during their stay in Newfoundland the children have come to be deeply affected by two counter-vailing emotions:

a. On the one hand they have experienced enormous stress-relief, being in a place where there is much less tension and restriction in relation to the pandemic. Newfoundlanders are still aware of safety protocols, but they are not preoccupied with the pandemic. The children love their temporary time in the eastern Province. It is reinvigorating them. They feel safe.

b. At the same time they are very much aware – and worried – that during their weeks in Newfoundland, the COVID situation in Ontario has become much worse. Daily “new cases” and deaths have more than doubled in Ontario since December 7, when they left. Projected future numbers are frightening. Following their departure southern Ontario was initially placed into a lockdown, and now there is a state of emergency with a stay-at-home order. All of the children – especially John – are frightened about leaving an environment where they feel safe, and returning to a very confined existence in Ontario which they perceive as unsafe.

[20] At the end of December the mother asked the father if they could extend their time in Newfoundland – and each of the children asked him the same thing. The father was reluctantly open to a few extra days. But now he wants the children returned immediately.

[21] The mother’s position:

a. She has no intention or desire to keep the children in Newfoundland permanently. They all want to return to Ontario when it’s safe – or safer – to do so.

b. She acknowledges the father is missing direct face-to-face time with the children. She knows that type of contact is important, and she agrees he should have make-up time as soon as they return to Ontario.

c. But all of the children – especially John – are adamant that they don’t want to return to Ontario right now. It’s not just a mild or frivolous preference. It’s not just “end of vacation blues.” To various degrees – and especially in John’s case – they are afraid to return. They are afraid of the COVID reports coming out of Ontario. John is terrified.

d. The mother has no specific timeline in mind. School is on-line until at least February 10, 2021, so they are able to keep up with their studies remotely, even from Newfoundland.

e. She acknowledges that if “in class” schooling actually resumes on February 10, 2021, that would probably be an appropriate time to return to Ontario. That way the children could have some reassurance that government officials have re-evaluated the situation and deemed things to be a bit safer.

f. But if the return to in-class studies is delayed beyond February 10, 2021 – as many people anticipate – then the mother isn’t sure exactly when the children will be emotionally ready to return.

g. She says during the past few weeks the children have become alienated from the father because they keep telling him how they feel and what they want – but the father absolutely refuses to listen. It’s reached the stage where after several heated Facetime and phone calls, the children are reluctant to even speak to the father. They are angry at him as a result of their perception that he is ignoring their feelings and fears.

h. The mother says she will obey any court order. She will ensure the children comply and get on the plane if that’s what a judge orders. But she has expressed serious concern about John’s fragile emotional state. She worries about his reaction if the 13 year old perceives that he and his loved ones are being forced into a situation of potential grave danger.

[22] In family court, judges always know that there are at least two sides to the story (often more). And because children’s views and preferences are such an important part of any parenting analysis, almost invariably parents will present significantly different versions or perceptions about what children want and how they feel.

a. It’s why we often seek out neutral sources of information about children.

b. It’s why when this motion was set down for argument, there was discussion about the possibility of having the Office of the Children’s Lawyer (or some other professional) become involved, to ascertain the views of each child.

[23] But the most remarkable aspect of this motion is that the father actually agrees with just about all of the facts presented or alleged by the mother. He just disagrees with what we should do with those facts.

[24] The father’s position:

a. The mother has a long history of diminishing or disrespecting the father’s role in the lives of the children.

b. Since separation there have been multiple instances where the mother would make decisions or plans directly with the children. She would create inappropriate expectations by the children that those plans would prevail, even though the plans would interfere with the father’s time or involvement in their lives. This would set the stage for needless conflict between the father and the children. The mother would position the father as the “bad guy” if he opposed or thwarted a plan after the children got their hopes up.

c. In the present case, the father acknowledges that each of the children have told him that they want to remain temporarily in Newfoundland and that they don’t want to return to Ontario at this time. They have each requested his permission to allow them to extend their stay indefinitely. They have expressed to him all of the same things the mother has told the court. They are very happy and relieved being in a COVID-free/stress-free environment. They are very worried about what their lives will be like and what dangers they will face if they are forced to return to Ontario, where the COVID situation has significantly worsened.

d. The father’s primary objection is that – once again – he’s been told after the fact about very important discussions and decisions which obviously unfolded over an extended period of time.

i. If the children’s emotional health was changing after they arrived in Newfoundland, he should have been told about it.

ii. If they started experiencing anxiety about the prospect of returning to a worsening COVID situation in Ontario, he should have been told about it.

iii. As soon as it became apparent that the children were starting to worry about something, he should have been told about it.

iv. He should have been involved at every stage.

v. He could have helped.

vi. He could have reassured them.

vii. He could have contributed suggestions or alternatives.

viii. He could have been a parent.

ix. Instead, he was kept completely out of the loop until after the mother and the children had decided among themselves that they weren’t going to return to Ontario on January 7, 2021 despite the agreement.

e. At this point the father feels helpless. He is worried about the children, but he is unable to monitor or assist them because they refuse to talk to him, and they are so far away. They are mad at him for opposing the plan they worked out with the mother. So once again he’s the “bad guy”. He’s being shut out.

f. He acknowledges the children have expressed anxiety about returning to their lives in Hamilton – especially John. He’s not completely sure how much of this is “fear of Ontario” and how much is simply sadness about ending their stress-free vacation in Newfoundland.

g. He admits being in a place without COVID sounds quite nice. But he says hiding in Newfoundland is not the answer. COVID is part of our new reality. Families have to learn to deal with it safely.

h. The father says anxiety is a normal part of life, and the children’s current worry about COVID could be overcome if the parents simply worked together to reassure them. He feels parents have an obligation to cooperate to help their children deal with and resolve their fears – rather than surrender to them. He’s been excluded so far but if his children are hurting or upset he wants to be there for them. He wants to help them in person, in Ontario. Parenting by video is no substitute.

i. The mother’s vagueness about when the children might return also leaves him with no trust. He suspects COVID will remain a crisis for a very long time – and the mother could use the crisis as an excuse to remain in Newfoundland for an equally long time. Clearly, she loves Newfoundland. She has a vested interest in encouraging the children to want to remain.

[25] The mother disputes the father’s characterizations. She denies acting unilaterally or unfairly. She says the father has always taken an overly litigious approach to their problems, and this is just another one of his needless motions.

[26] Both parents acknowledge the real court dispute relates to 13 year old John.

a. At age 18, the court can’t force Mary to do anything.

b. At age 16, the court won’t force George to do anything.

c. George describes John as his best friend. All three siblings are close.

d. So whenever John returns to Ontario, they’ll all return to Ontario.

[27] In other circumstances, a case like this might seem relatively straightforward.

a. Had this been a pre-COVID case where mother and children went on vacation to a cottage, for example, the court would have little tolerance if the mother announced at the last moment that she was unilaterally extending the vacation, thereby denying the father his scheduled time.

b. Even COVID hasn’t change the rules. It’s just made them more complicated.

c. Many cases during the past year – including this court’s decision in Ribeiro v Wright 2020 ONSC 1829 – have emphasized that there is a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure COVID precautions. Parents have an obligation to cooperate and to demonstrate creativity and flexibility to address the unique challenges and health issues created by the pandemic.

[28] Most of the COVID-related caselaw has focused on physical protection of children, parents and others with respect to exposure to the coronavirus.

[29] As the pandemic has dragged on, however, there has been increasing community recognition of the impact all of this is having on our mental health. And if adults are having trouble coping with life-threatening dangers, just imagine what it’s like for children.

[30] At the outset of this case I was told by both parents that none of the children want to return to Ontario right now, because they’re afraid of returning to a COVID hotspot.

a. The mother wants me to respect those wishes.

b. The father wants me to put those verbalizations in perspective. He says if adults reasonably conclude that the children should return – and if adults put up a united front in explaining and supporting that decision – the children will be fine with it.

c. The mother’s response: no matter what anyone says, John won’t be fine with it. She says he’ll react very badly if forced to do something he’s afraid of.

[31] As often happens during argument of sensitive family court motions, I encouraged the parents to keep talking; to explore more options; to keep trying to work out their own solution and regain control of their lives.

[32] So much of this case turns on the children’s views and preferences.

a. On one level both parents agree on what the children are saying.

b. But on another level they disagree dramatically as to the strength and emotion to be attributed to those verbalizations. They disagree about the weight to be placed on stated preferences, John’s in particular.

[33] Since the father acknowledged he hadn’t spoken to any of the children about this in many days, when this matter was argued on January 22, 2021, I stood the matter down over the lunch hour. I asked him to have a private telephone discussion with each of Mary, George and John, individually.

[34] When we resumed in the afternoon the mother had no objection to the father providing a brief verbal update after speaking to each of the children. (Obviously we were bending the rules, but I allowed both parents to bend the rules – I was just trying desperately to get a better sense of what’s going on.)

a. The father candidly acknowledged he was “still trying to process” what he had heard from his children.

b. He said John told him he wants to stay in Newfoundland as long as he can. He reported that John was afraid. And then to his credit the father added “Actually he said he was terrified.” But John reassured him he would live with whatever a judge decides.

c. Mary told him she wants to stay in Newfoundland as long as possible. But she seemed to be under the impression that they would likely be returning in time for the February 10 resumption of school.

d. George also stated he wants to remain in Newfoundland until he feels safe to return to Ontario. He wasn’t sure how long that would be.

e. (The mother then reported that George and John were very upset after their phone calls with the father.)

[35] Parenting disputes like this must be determined based upon the best interests of the child. At age 13 a child’s views, preferences and emotional comfort level are not necessarily determinative – but they are certainly an important consideration.

[36] In many cases – in less unusual cases – family court judges can often make determinations as to how much weight to be attributed to a child’s stated preferences based on a lot of predictable factors. Age. Maturity. Clarity. Context. Consistency. Potential alienation or influence. The strength of the expressed view, and the thinking behind it.

[37] But truthfully, nothing in this job has prepared me for how to respond when a 13 year old youth says he is “terrified” about returning to Ontario because of COVID. If his own father tells me he has “trouble processing” this information, then I have trouble processing it too.

[38] I’m not going to do nothing. But I need better information before I do something.

[39] The mother candidly acknowledged that if in-class school in Hamilton actually resumes on February 10, 2021 – or whenever it resumes – that would likely be an appropriate time by which the children should return to Ontario.

a. I’m not going to order it at this stage.

b. But she said it.

c. So I’m going to presume she has some level of confidence that if in-class learning resumes, she could reassure the children (including John) that returning would be appropriate.

[40] Beyond that, we can’t just sit back and say that a 13 year old boy is terrified about COVID without doing something about it.

a. We need to better understand what he’s experiencing. How much is regret about his COVID vacation ending? How much is “terror” about returning to his daily life in Hamilton?

b. We need to help him get through this.

c. This isn’t a legal issue. It’s a mental health issue. And it’s not unique to this family.

d. Perhaps in addition to all the masks and hand-sanitizers, we need to pay a bit more attention to how children are coping emotionally with COVID fatigue.

[41] Let’s go back one step.

[42] As mentioned, on October 18, 2018 the parties consented to a final parenting order which included – in the very first paragraph – a requirement that the parties retain a professional “to facilitate and mediate resolution of parenting issues which may arise”, with the cost being shared as a special or extraordinary expense.

a. In this motion we’re dealing with a pretty significant parenting issue. Pretty significant children’s mental health issues.

b. And yet neither party has yet sought to utilize this dispute resolution section of the order.

c. When I raised the topic with the parents, the mother indicated she was now prepared to retain a someone like a parenting co-ordinator to help mediate this dispute.

d. The father said in 2018 (in relation to another issue) he investigated and found that a parenting co-ordinator was unavailable and/or unaffordable. In any event, the father said it would now take too long to arrange a parenting co-ordinator or mediator to deal with the issue on this motion which requires immediate resolution.

e. While I generally commend both parties as being excellent parents, their failure to utilize the dispute resolution mechanism specifically set out in their court order is extremely disappointing.

f. When a final order requires parents to arrange and promote a therapeutic response to future children’s issues, this is not merely a suggestion or option. It’s a court order intended specifically to benefit children. Parents don’t have the right to pick and choose which parts of a court order they are going to obey and which parts it would be more convenient to ignore.

g. Judges often include in final orders terms requiring parents to pursue a therapeutic approach to future disputes, because we better than anyone know that family court is not the right place to raise children. The family court process is inherently adversarial, inflammatory, polarizing and draining (both financially and emotionally). Family court should be a place of absolute last resort – rather than the “go to” destination for parents unwilling to put the required effort into raising their own children.

h. The father tells me the mother has been shutting him out of children’s decisions for years.

i. The mother tells me as far back as November there was a serious dispute about the Newfoundland trip. And through December she observed that the children were experiencing significant emotional issues.

j. Apart from sniping at each other, why did they both wait until January 2021 to do something? And why was their first instinct to immediately rush to family court to tell a complete stranger like me horrible things about one another?

k. Both parents now tell me their three children are hurting. If they were hurting physically, the parents would rush to a doctor. Instead they’re hurting mentally, and the parents have rushed to a judge. They’ve picked the wrong professional.

[43] During submissions, we discussed counselling for the children:

a. The father advised that prior to this Newfoundland issue arising he had arranged counselling in Hamilton for the older two children Mary and George, but that 13 year old John wasn’t interested.

b. He said during his lunch-hour phone call with John on the motion date, he again mentioned the option of arranging a counsellor (which could be Hamilton-based, by video) but John again declined.

c. The parents can’t have it both ways. And neither can John.

d. You can’t tell me that there’s an extremely serious problem here – that John is “terrified” about something – but nobody is prepared to actually do anything about it. That ineffectual approach is what led to this motion in the first place.

[44] Today’s order:

a. The father’s motion is adjourned to February 12, 2021 at 9:30 a.m., to be spoken to, before me, by Zoom.

b. Both parents shall forthwith arrange for Hamilton-based counselling for the child John (to be conducted by video at least for the period until John returns to Hamilton). The parents shall give priority to arranging and coordinating such counselling, to commence on an urgent basis. It will not be acceptable for the parties to reach an impasse as to the selection of a counsellor. To the extent that the parents cannot agree, they shall continue their discussions and investigations on a daily basis, and they shall continue to explore counselling options. The immediate purpose of the counselling shall be to address the issue of the timeline for John’s return to Hamilton. Preferably the counselling will deal with broader issues, and it may be coordinated with counselling involving the parties’ older two children Mary and George.

c. Pending further order, and until the mother and the children return to Hamilton, the parents shall communicate with one another on a daily basis by email (even if, as hoped, they also have verbal communications with one another) in relation to children’s issues. The father shall have telephone or Facetime communication with each child on a daily basis.

d. If the motion has to be returned for further argument, both parties will be required to file updating affidavit materials setting out what efforts they have made to arrange therapeutic assistance for any child who is said to be reluctant to return to Ontario from Newfoundland.

e. Both parents shall be required to do all things necessary to alleviate any concerns that any of the children may have about returning to Ontario, so that the return can be arranged as quickly as possible, while safeguarding against any significant emotional upset for the children.

[45] For clarity:

a. Both parents have stated it is their intention that the children return to Ontario as soon as possible.

b. The father says it should be immediately. The mother says the children aren’t ready to return.

c. I’m prepared to proceed cautiously while therapeutic assistance and safeguards are put in place.

d. But everyone – including the children – should understand that this matter is not going to be adjourned indefinitely.

e. At some point this court is going to determine a specific date by which the children must be back in Ontario. To the extent that the mother will be seeking to further delay that date, the onus will be on her to establish better evidence as to the necessity of further delay.

Pazaratz J.

Date: January 25, 2021