KINGSTON COURT FILE NO.: 436/21 DATE: 20220419

Superior Court of Justice - Ontario

RE: Caitlin Moore, Applicant AND Pierre Moore, Respondent

BEFORE: Madam Justice Tami L. Waters

COUNSEL: Whitney Donnelly, Counsel for the Applicant No counsel for the Respondent

HEARD: January 5, 2022

Endorsement on Motion

[1] This motion was brought by the Applicant mother, Caitlin Moore (“Applicant”). The Applicant seeks an order that she have interim decision-making responsibility for the children, namely, Lyla Moore (dob - March 18, 2012) (“Lyla”) and Madden Moore (dob - August 19, 2016) (“Madden”) (collectively “the children”). In the alternative, she seeks that she has interim decision-making for Lyla and Madden with respect to all medical and/or healthcare decisions. As it relates to communication between the parties, the Applicant is seeking that the parties utilize a parenting application and that the scope of the communication be directly related to only those issues that relate to the children.

[2] The Applicant also seeks that the Respondent be compelled to comply with all public health recommendations related to COVID-19 as prescribed by the Province of Ontario and KFL&A Public Health Unit and if the Respondent is so compelled, the Applicant has set out a shared parenting regime which she requests to be followed. If the Respondent does not comply with the COVID-19 health recommendations as prescribed by the Province of Ontario and KFL&A Public Health Unit, the Applicant requests that the Respondent not have in-person parenting time. Finally, the Applicant requests that the Respondent not post any pictures or videos on social media that depict the children and reference the COVID-19 pandemic or the family law litigation the parties currently find themselves in.

[3] The Applicant filed an amended 14B Motion dated December 7, 2021, and an amended Notice of Motion dated December 8, 2021. In support of the respective Notices of Motion, the Applicant filed two (2) affidavits, one dated December 7, 2021, and another dated December 22, 2021. The Applicant also filed a factum on December 29, 2021. The Respondent filed an affidavit dated December 13, 2021. For clarity, the document was entitled “Notice of Motion Response Letter” and had attachments, albeit not proper exhibits before the court. On December 30, 2021, the Respondent filed a factum.

[4] The Respondent’s factum contained a request for relief which was not properly before the court. Further, the factum contained information that was not properly before the court.

[5] On December 15, 2021, the Honourable Justice Minnema vetted the matter on a regular motions list and scheduled it for the motion date of January 5, 2022. On December 15, 2022, the parties entered into a Consent agreement wherein components of the Applicant’s December 8, 2021 Amended Motion were agreed to. The consent addressed the immediate issue of ensuring compliance with COVID-19 related protocol for the children. The Respondent, on consent, agreed to the following:

An Order that the Respondent, Pierre Moore, shall comply with all public health recommendations and protocols with respect to COVID-19 as may be prescribed by the Province of Ontario and/or the KFL&A Public Health Unit including, but not limited to, the following:

a. Ensuring that the children wear a face covering in all public spaces; b. Maintaining social distancing from people outside of the parties respective households; c. Adhering to the social gathering limits; d. Exercising frequent handwashing; and e. Cleaning and disinfecting high-touch surfaces frequently.

[6] Further, at this attendance, the Respondent indicated to Justice Minnema that he was not intending to file any additional materials nor was he planning to retain counsel.

Background

[7] The parties were married on September 13, 2014 and separated on December 24, 2019.

[8] Upon separation, the parties commenced a shared parenting regime wherein the parties divided the weekday time with the children evenly and alternated weekend time with the children. Given the nature of this schedule, there were frequent parenting exchanges. The parties made decisions on behalf of the children together during the marriage and post-separation. The parties have made decisions with respect to vaccination previously as they decided to vaccinate the children in accordance with the Ontario Routine Immunization Schedule.

[9] The parties captured the terms of their separation by entering into a comprehensive Separation Agreement (fully executed on September 22, 2020) (“Separation Agreement”). The parties initially complied with the terms of the Separation Agreement. At the conclusion of the 2020/2021 academic year the parties agreed to a variation in the parenting regime. This regime remained in place as of the date of the motion. The schedule consists of the following:

Monday - The children are in the Applicant’s care (Lyla participates in gymnastics and Madden remains at the Applicant’s home in the maternal grandmother’s care) Tuesday and Thursday - The children are in the Respondent’s care Wednesday - The children are in the Applicant’s care Friday to Monday - The children alternate between the parties

COVID-19

[10] At the commencement of the COVID-19 pandemic, the parties were making decisions about the children in their normal course of parenting, that is, there was initially little disruption to the decision-making regime the parties had established post-separation. When the children’s schools were deemed to be closed to in-person learning the parties agreed to have the Applicant provide care for the children on most weekdays. This decision stemmed from the situation that the parties found themselves in with respect to their employment status. The Applicant was laid-off from her employment at the gymnastics centre and the Respondent remained employed in a full-time capacity. Given their respective employment situations, the parties agreed that the Applicant would provide care to the children during the weekdays and would assist with their on-line education.

[11] The Applicant asserts that the issues that have brought the parties before the court with respect to this motion commenced sometime in April 2021. The parties’ communication changed drastically in April 2021 where according to the Applicant, the Respondent started attending at the Applicant’s home uninvited or at unscheduled times. With these attendances came conflict. It was at this time that the deterioration of the parties’ successful parenting regime commenced.

[12] It was also during the pandemic that both parties entered new relationships. The Applicant takes the position that the Respondent interfered in her new relationship by contacting her new partner and causing a disruption. The Applicant also alleges that the Respondent attempted to include her in relationship issues he was having with his new partner. The Applicant advises that she attempted to set boundaries with the Respondent so that the only issues that they would communicate about are those issues directly related to the children. She indicated that the Respondent ignored her efforts to establish boundaries and continued to attempt to include her in inappropriate non-child related issues.

[13] In September 2021, the Respondent voiced his opposition to the children wearing masks at school. The pandemic commenced in or about March 2020 and until September 2021, as far as the Applicant was aware, the Respondent was compliant with all COVID-19 related public health recommendations, including the children wearing masks while in his care. The Applicant was contacted by Madden’s teacher, Ms. Bruder, to advise of the Respondent’s position taken with the school wherein the Respondent advised the school that Madden was not to wear a mask at school. Ultimately, the Applicant became involved, and the resolution of the issue was that Madden would wear a mask during the school day indoors but was able to not mask during the school day outdoors.

[14] The Respondent indicated that he has had a strong relationship with the Applicant until March 2021 when the Applicant took exception to the Respondent’s new girlfriend. He advises that he has provided support for the care of the Applicant’s dog and was provided with unfettered access to the Applicant’s home by use of a hidden key to the home.

[15] The Respondent’s affidavit dated December 13, 2021, does not refer to any COVID-19 related issue save for the uncertainty associated with the pandemic and the many changes that have impacted Canadians attempting to cope with the lockdowns.

[16] The Applicant has provided various examples of the Respondent’s blatant disregard for public health directives. The Respondent’s username on the social media platform “TikTok” is “@herosnvrdie.” Two (2) videos were provided by the Applicant with respect to the issue of the Respondent’s disregard for public health directives. It is imperative to set out the contents of the TikTok videos.

[17] The first video provided was retrieved by the Applicant on November 22, 2021. The video depicts the Respondent providing a stream of consciousness that contains the following messages:

a. It is his opinion that if you give your child this experimental gene therapy that is still in the experimental stages until 2023 you are a fucking idiot and a piece of shit. It is 100 percent child abuse. b. The Respondent references the on-going family law litigation. c. If anybody gives my child an experimental gene therapy, it is literally a death sentence for them, and he will go fucking berserk. It is absolutely fucking insanity. d. We need to stop the nonsense. You need to stop complying. e. I don’t wear a mask. I don’t have the vaccine. I go wherever I want and do whatever I want.

[18] The second video provided by the Applicant depicts the Respondent unmasked taking Madden who was also unmasked to the Metro grocery store. The video shows the Respondent shopping and contains the following messages:

a. The Respondent refers to him and Madden as “purebloods.” b. The Respondent prompts the child, Madden, to say “pureblood” on the video. Madden is prominently displayed on the video. c. The Respondent is wearing a hat with the label “pureblood” and leans into the camera and states “pureblood - like a boss.”

[19] In addition to the TikTok videos, the Applicant provided messages from the Respondent’s Facebook page. The posts are not dated. Spelling and grammar are verbatim as posted. Some of the excerpts are as follows:

a. Giving a child from 5-11 a jab. Is 100% child abuse. They literally have a 99.997-99.999% survival rate. They can do nothing but harm them. FACT/SCIENCE. If you are in favour of giving children in this age group the jab please unfriend me because I think you’re the most disgusting vile person on the planet. b. You force the students to take an experimental gene therapy. Or you deny them admittance do university or college! Threaten to destroy or ruin their lives. You treat them like animals (Lab rats an Guinea pigs). Then Shame them for acting like animals. I say shame on you!!! This isn’t there fault. They’re kids tomorrow isn’t promised to anyone. Don’t blame them blame the government that’s making record-breaking profits, politicians becoming multi millionaires overnight over a fake pandemic. You want to be mad at something how about a record high gas prices when it’s only $82 a barrel. Last time gas prices were this high it was $150 a barrel. Be mad the the government is trying to divide us. I think they forget that they work for us. FUCK TRUDEAU!!! THAT YOU SHOULD BE AT THE F@&$ING COMMIE POF! c. Here we go! I hope that you are all ready for this chief medical officer Dr. Moore and Doug Ford announced they’re gonna have to postpone the reopening on November 15 for 28 days as precautionary measures. This is an absolute joke. Lie after lie after lie. Time to bend over, winter months are coming and y’all gonna be taking it hard. Wake the F@&K UP! This will never end till we make it end! That POS Trudeau says 85% of the country’s full jabbed but cases going up everyday. Don’t worry though the booster is available for everyone! Like the great Don Cherry once said “You people can’t be this fucking Stupid.”

Issues

[20] The issues in front of the court are as follows:

A. Should the Applicant be granted decision-making responsibility for the children? If not, what order with respect to decision-making responsibility will ensure that important decision including medical decisions, for the children can be made in the interim? B. What parenting regime for the children ensures that their best interests are met? Further, what protocols should be implemented for the Respondent’s parenting time to ensure the children’s health and safety needs are being met? C. Should the Respondent be provided with an opportunity to post the children on social media? If so, in what circumstances?

Legal Framework

[21] This is an interim motion wherein the key issue is the requested change in decision-making as it relates to the children, and to the children’s medical and/or healthcare decisions. The issue of parenting time is also an issue to be considered.

[22] The Divorce Act provides the statutory framework with respect to the determination of the issues of decision-making and parenting time. In particular, the assessment of the best interests of the children is set out at subsection 16(3) of the Divorce Act:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s needs for stability; (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[23] The decisions to be made with respect to the issues before me are governed by the best interests of the child: A.C. v. L.L. 2021 ONSC 6530. The decisions are required to be based on findings of fact made from admissible evidence before the court: Saint-Phard v. Saint Phard, 2021 ONSC 6910.

[24] There has been an entire line of cases developed to address COVID-19 and the many issues evolving because of the pandemic and its impact on family law. Many of these cases shall be considered with respect to the legal analysis applied to this matter.

Legal Analysis

A. Should the Applicant be granted decision-making responsibility for the children? If not, what order with respect to decision-making responsibility will ensure that important decision including medical decisions, for the children can be made in the interim?

[25] The consent agreement entered by the parties on December 15, 2021, effectively decreased the immediate high level of concern as it related directly to the children and their healthcare needs. The consent did not address the Respondent’s behaviour and the impact that it could potentially have on the children’s health. Further, it also did not address the potential impact that the Respondent’s behaviour could have on the children’s extended family. The maternal grandparents and, in particular, the maternal grandfather play a prominent role in the children’s lives and is immunocompromised because of cancer treatments.

[26] It is imperative to note that neither party provided the court with evidence direct from medical professionals about the impact of public health recommendations and their resulting impact on the children. The Respondent, in his materials and in submissions, made many statements, but the legitimacy of these statements as fact was not verified. The Applicant referred to case law wherein judicial notice had been taken but did not specifically ask this court to take judicial notice of asserted information. As a result of the reference to A.G. v. M.A., 2021 ONCJ 531 which followed the decision in B.C.J.B. v. E.R.R.R., 2020 ONCJ 438 (which was affirmed on appeal, 2021 ONSC 6294) judicial notice is taken that the harm to a child flowing from contracting a vaccine-preventable disease may include death. The Applicant did attach as an exhibit to her December 22, 2021, Affidavit a Government of Canada document entitled “COVID-19: Making vaccination decisions for children 5 to 11 years of age”.

[27] Upon a review of the various factors as they relate to the best interests of the children, as set out in the Divorce Act, the parties require effective communication to ensure decisions can be made with input from both parents. A communication application will assist with this issue. The Respondent has not demonstrated by his behaviours associated with the pandemic that he can care for and meet the needs of the child, Madden, with respect to decision-making. The parties shall continue to make joint decisions with respect to the children, and after mandatory consultation, if the parties cannot agree on decisions related to the healthcare of the children, the Applicant shall have final decision-making authority on this issue. For absolute clarity, health-related decisions include vaccination decisions.

B. What parenting regime for the children ensures that their best interests are met? Further, what protocols should be implemented for the Respondent’s parenting time to ensure the children’s health and safety needs are being met?

[28] The shared parenting of the children is seemingly in their best interest. Neither party provided evidence that indicated that the current schedule was not in the children’s best interest. The Applicant raised various issues such as not agreeing with the early drop-off time of the children to her during the Respondent’s parenting time. The intricacy of the schedule is not an issue I am addressing. The shared parenting regime works for Madden and Lyla. It shall remain in place. There is a strong bond between the children with both the Applicant and Respondent.

[29] In the event that the Order as set out herein is not followed, the protocol to be implemented is for the parties to return to the court in a timely manner to address the situation as it relates to compliance with public health recommendations. If the social media component of this Order is not complied with there shall be an immediate cessation of parenting time. It shall be crystal clear to the parties as to what the consequences are if this Order is not followed.

[30] The various factors as set out in the Divorce Act, relating to the best interest factors, have been considered.

C. Should the Respondent be provided with an opportunity to post the children on social media? If so, in what circumstances?

[31] A review of the Respondent’s social media posts clearly shows that the Respondent displays disdain toward the government and governmental policies associated with COVID-19. While the Respondent is certainly entitled to his opinions, his opinions cannot lead to actions that detrimentally affect the children. The parading of an unmasked Madden into the Metro store while being filmed is a true indicator of the Respondent placing his beliefs ahead of the children’s well-being. The Respondent has exhibited a true lack of appreciation of how his actions can adversely impact the children.

[32] The Respondent posed a direct threat to the Applicant in the TikTok video in which he stated: “If anybody gives my child an experimental gene therapy it is literally a death sentence for them, and he will go fucking berserk. It is absolutely fucking insanity.” While the Applicant advised that she did contact the authorities because of this threat and the Respondent did note that he apologized and did overstep, the threat was still made. Again, the consideration for the children’s best interests was cast aside in favour of the Respondent’s TikTok upload.

[33] The Respondent must cease from posting the children in any manner that they are associated with the COVID-19 pandemic or any other health-related issue. In particular, the children should not be put in any position to convey the Respondent’s beliefs. Madden was five years old at the time the TikTok video was made. This behaviour is highly inappropriate. Again, I reiterate that the posting of the children on social media with any type of connection to the COVID-19 pandemic is not in the children’s best interests.

[34] In Burrell v. Burrell, 2021 ONSC 681, Justice King held that the father was not only opposed to wearing a mask but was boastful online about his anti-masking behaviour, was putting his own behaviour in front of the children’s well-being. Justice King, in Burrell, reiterated the zero-tolerance policy that was set out in Ribeiro v. Wright, 2020 ONSC 1829, wherein Justice Pazaratz stated that “There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.” The Respondent, in the case before me, must understand that there will be zero tolerance for engaging children in actions that fly in the face of public health recommendations and are posted on social media.

Decision

[35] I note that the Respondent only raised the issue of Madden and the issue of masking and there was no reference to Lyla and the issue of masking. I further note that Madden is the only child in the video released. The Respondent specifically noted in submissions that he didn’t want Lyla to have to deal with the issue of not wearing a mask and Madden was in kindergarten and it wouldn’t impact him as much. The Respondent was referring to the issue of not wearing a mask and the peer pressure exerted by children of different ages.

[36] In submissions, the Respondent advised that he had complied with the December 15, 2022, Consent Order of Justice Minnema. The Applicant did not dispute this assertion. The Respondent’s children are very important to the Respondent and the Consent document was not entered into lightly.

[37] The COVID-19 pandemic continues to enter various phases with new variants and ever-changing recommendations at the local, provincial, national, and international level. The Respondent is entitled to his opinion. However, he is not entitled to actions stemming from these opinions that ultimately place the children in harms way. The December 15, 2021, Consent Order served as notice to the Respondent that the situation brought before the court had to be addressed. It was addressed.

Order

Order to go as follows:

1. All non-emergency communications between the parties shall be in writing via the use of a parenting application such as Our Family Wizard. Communications between the parties shall be restricted in scope to only those matters that relate to the children, namely Lyla Moore born March 18, 2012, and Madden Moore born August 19, 2016. The parties shall review the parenting communication application once every twenty-four (24) hours. The parties shall both subscribe to the parenting communication application agreed upon by the parties no later than seven (7) days from the release of this decision.

2. The parties shall have joint decision-making authority as it relates to all decisions related to the children, namely Lyla Moore born March 18, 2012, and Madden Moore born August 19, 2016. There is a mandatory consultation provision associated with any decision made. That is, the parties shall consult with one another on the parenting communication application with respect to any decision that is required to be made. If the parties cannot agree on a decision related to the children, namely Lyla Moore born March 18, 2012, and Madden Moore born August 19, 2016, specifically with respect to the issue of medical and/or healthcare decisions then the Applicant shall have the final decision-making authority on this issue.

3. An Order that the Respondent, Pierre Moore, shall comply with all public health recommendations and protocols with respect to COVID-19 as may be prescribed by the Province of Ontario and/or the KFL&A Public Health Unit.

4. An Order that, provided that the Respondent complies with the public health recommendations and protocols with respect to COVID-19 as may be prescribed by the Province of Ontario and/or the KFL&A Public Health Unit, then the parenting schedule for the children shall be as follows:

   Monday and Wednesday - The children are in the Applicant’s care Tuesday and Thursday - The children are in the Respondent’s care Friday to Monday - The children alternate between the parties.

5. An Order that all parenting exchanges occur at the children’s school and if the children (Lyla Moore born March 18, 2012, and Madden Moore born August 19, 2016) are not in school, then the parenting exchange shall occur at the home of the parent receiving the children. The parent dropping off the children shall remain in their vehicle during the parenting exchange.

6. An Order that if the Respondent should fail to comply with the public health recommendations and protocols with respect to COVID-19 as may be prescribed by the Province of Ontario and/or the KFL&A Public Health Unit, the Applicant may bring the matter back before the court on a regular motions list on an expedited basis. If a timely motion cannot be secured, the matter may be brought back before me via 14B Motion.

7. An Order that the Respondent shall not post any pictures or videos or any other likeness of the children, namely Lyla Moore born March 18, 2012, and Madden Moore born August 19, 2016, on social media that include the children and reference this litigation or reference the COVID-19 pandemic. Further, any existing posts of this nature on the social media platforms that the Respondent has care and control over are to be removed forthwith.

8. An Order that if the Respondent shall fail to comply with paragraph 7, there shall be an immediate cessation of parenting time.

9. If the parties cannot agree on the issue of costs, each party shall submit three-page maximum costs submissions with an attached Bill of Costs no later than April 26, 2022. If a party fails to submit their submissions by April 26, 2022, they will be deemed to have forfeited their right to submit such submissions.

10. Approval of the Order as to form and content associated with this endorsement by the Respondent is dispensed with.

Madam Justice Tami L. Waters Date: April 19, 2022