Unilateral defiance of an existing final parenting order in the midst of the pandemic is not in the best interest of the child.
Kostyrko v Kostyrko 2020 ONSC 2190
The pandemic has resulted in loving parents having concerns for the safety of their children when they are in the care of the other parent. Many parents are concerned about what precautions the other may be exercising during their parenting time and who the child may be coming into contact with. Some may believe their former partner or spouse is not taking the pandemic serious enough. This has resulted in parents unilaterally defying existing parenting orders. Such an example is a recent Ontario Superior Court of Justice decision ordered by the Honorable Justice LeMay in Kostyrko v Kostyrko, 2020 ONSC 2190.
Here, the Respondent father unilaterally defied a final parenting order by overholding the parties’ children and not returning them to the Applicant mother who was the primary caregiver. This was done on the basis that he was concerned for the children’s safety when in the care of their mother as they were living in an apartment building in the city of Mississauga Ontario during the pandemic. Justice LeMay made numerous statements set out below regarding the need for the children to have regular contact with both parents for their health and addressed precautions the Applicant was taking sufficient for the children to be returned to her.
There is minimal guidance right now as to what precautions or protocols parents should be following to ensure that they are able to be with their children. This decision may provide some guidance moving forward as to what is required.
The issues:
Justice LeMay addressed two-issues whether this matter met the test for urgency under the Superior Court of Justice practice direction in Ontario, and if so, what access arrangement was in the best interests of the children.
Facts:
The parties were married in November of 2013 and separated in March 2016 after the Applicant raised allegations of domestic violence which led to criminal charges, later acquitted. There are two children of the marriage; a son who is currently aged 5 and a daughter who is aged 4 (‘the children’).
The parties had come to a Final custody and access order on August 20, 2018 (the ‘Final Order’). The Final Order provided the Applicant sole custody and primary residence, and the Respondent the following access:
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Six hours, twice a week, between Monday and Saturday as agreed by the parties;
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Alternate weekends from Saturday to 10 am to Sunday at 6 pm;
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Alternate holidays; and
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One week every summer.
The parties agreed the children would visit the Respondent at his farm in Midland Ontario for ten days from Match 13, 2020 to March 23, 2020. On March 22, 2020 the Respondent sent a detailed memo to the Applicant advising her that he would not be returning the children on the following day based on a prior agreement that the children would remain with him until the pandemic ended.
Overholding:
The Respondent stated his intention was to retain the children at his farm until the Applicant could guarantee the children’s safety and isolation could be guaranteed in the city of Mississauga Ontario and that their education would be continued at home. He stated this would continue until he received written confirmation of both the Applicant and her boyfriend that they had “taken appropriate precautions in the last 14 days” to deal with the pandemic, a confirmation of the boyfriend’s name, and a copy of his criminal record.
The Honorable Justice LeMay referenced the recent decision of Ribiero v Wright (2020 ONSC 1829) which appears to be the most commonly judicially reviewed case on the COVID-19 crisis. In citing this decision Justice LeMay goes on to that that “Parties are expected to act reasonably to attempt to solve problems before they resort to urgent Court proceedings.” Here, the Applicant originally sought the return of the children through counsel but was unsuccessful. This led to the Applicant bringing a motion on April 2, 2020 to have this matter heard on an urgent basis in Brampton Ontario. This matter was heard on April 7, 2020.
Urgency:
In addressing the issue of whether this matter was urgent, Justice LeMay stated at paragraphs 30 to 31,
“The Respondent has unilaterally changed the status quo by overholding the children. He then argues that his conduct is reasonable and, therefore, the Courts should not intervene to even consider whether that conduct is, in fact reasonable. The fatal flaw is that the Respondent has unilaterally made these changes in defiance of an existing Order.
In this case, the Respondent does not have the final say in whether his conduct is reasonable or in the best interests of the children. There is an existing order that governs the access arrangements, and where the parties cannot agree on changes to that order it is the Courts that must have the final say.”
Justice LeMay went on to state at paragraph 43
“A parent who unilaterally denies another parent access because of concerns about the COVID-19 crisis will be doing so indefinitely. This type of unilateral “self-help” remedy is always discouraged by the Courts.”
In ordering that this matter was urgent, Justice LeMay finds that the parties did not have an agreement for the children to remain with the Respondent during the pandemic. In doing so, the Justice stated at paragraph 37,
“While only urgent matters are being heard at this stage, a seemingly unilateral breach of a court order relating to custody and access of children, no matter how well intention, will likely rise to the level of urgency required by the practice direction.”
He continued at paragraph 48,
“…Relations between parents and children, especially young children, are built piece-by-piece through regular contact with both parties. This is why the maximum contact principle exists. Completely eliminating in-person access for an indefinite period, or substantially changing a child’s routine, is an immediate concern. It is a serious concern because part of the health of the children is achieved through regular relationships with their children.”
Best interest of the children:
In addressing whether it was in the children’s best interest to remain with the Respondent in Mainland Ontario during an ongoing pandemic, Justice LeMay stated these circumstances required a “different analysis” then simply stating that a final order was in place and therefore, should be obeyed with the children returning to the Applicant.
In deciding that it was not in the children’s best interest to change the current arrangements, Justice LeMay stated at paragraphs 56 to 58
“established routines are important for [the children’s] development, security and happiness”, and that the Respondent’s allegations that the Applicant was not taking the pandemic seriously were “argument and not fact…bald assertions, without any supporting evidence.”
Conclusion:
Ultimately, the children were ordered to be returned to the Applicant on April 8, 2020.
There is currently minimal guidance as to what precautions or protocols parents should be following. In this case the Respondent had no evidence to prove that the Applicant was not following those protocols suggested by our political leaders and health care professionals.
In determining that the Applicant has been engaging in appropriate social distancing and otherwise taking precautions which were “entirely reasonable…will ensure that the children are kept as safe as possible during the pandemic,” Justice LeMay noted the Applicant (as stated in her affidavit),
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Is only leaving her apartment when absolutely necessary;
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Has already purchased additional “groceries and supplies” before the onset of the pandemic;
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Has committed to having no physical contact with her boyfriend moving forward;
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Will have assistance from her mother and brother with necessary shopping, so that it is not necessary to leave the apartment.
