sept. 28. 2020

“Changing Johnny’s School” – Part Two

A.T.W. v. K.A.W., 2020 ONSC 4894 (CanLII)

We recently wrote about a recent ruling by Ontario Court Justice Pazaratz, in which he lamented that each September brings with it a spike in last-minute, urgent Family Law motions brought by separated parents, who are in dispute over where their child should go to school. Justice Pazaratz called this the “pre-Labour-Day ‘Let’s Change Johnny’s School’ urgent motion”, and in characteristic fashion decried attempts by parents (and their lawyers) to use it strategically, to gain advantage in the broader litigation between them.

As promised, this week we revisit the ruling to look briefly at the substantive elements of the case, which involved the separated parents of three children.

Since splitting up in 2013 the parents had negotiated a custody/access agreement – later incorporated into a comprehensive court order – in which they agreed to share custody, but have the children live with the mother. Both parents would still have an equal voice in decision-making on major items, including education. They also committed to working out any differences between them, starting with mediation or collaborative law, and using the court “only as a last resort” when there was a change in material circumstances.

Both parents had moved on to new partners; the mother had remarried and moved with the children to St. Louis where her new spouse lived. The father, who lived in Hamilton, saw the children several times a year, including for most of each summer.

This summer was no exception, and the children joined the father in Hamilton at the end of June 2020 for their annual 7-week visit. However, at the end of August (when they were due to return to the mother’s home in St. Louis) the father brought an urgent motion to have the children’s custody arrangements changed. Specifically, he wanted them to stay with him in Hamilton, and be registered for and attend school there.

The father claimed the three children all wanted to stay in Hamilton, but the evidence on this point was mixed. He also presented the court with a litany of complaints about the mother: For example, he noted that he had a large 5-bedroom home, while the mother in St. Louis had a crowded rental duplex. He also took issue with certain aspects of the mother’s care of the children while they were with her, and raised concerns over her approach to COVID-19 safety, especially in light of the higher U.S. infection rates as compared to Canada.

After looking at the established legal test for changing a final order relating to custody, Justice Pazaratz wrote:

…[T]he father’s materials do not nearly establish that the dramatic changes he is asking for would be in the best interests of the children – let alone that there is any element of urgency which would justify hurriedly imposing such sweeping changes on a temporary basis.

To a large extent the father has simply assembled a collection of issues he has known about for years: homeschooling; dental care; crowded housing; etc. Each of those issues may require consideration. But none of those issues – either individually or cumulatively – justify sudden, dramatic upheaval in the children’s lives. A parent can’t save up a list of complaints over a number of years, and then select a self-serving moment to declare an emergency.

In a sensitive, lengthy, and contemplative ruling that examined the various factual elements in detail, Justice Pazaratz homed in on what were the father’s apparent pandemic-related concerns, writing:

  1. These are good people. Good parents. Both of them.
  2. I may not agree with the father’s decision to bring this motion.
  3. But historically and consistently, these parents have shown mutual respect, trust, maturity, cooperation, and exemplary parenting skills. Both of them.
  4. Within weeks of separation in 2013 the father demonstrated enough confidence and faith in the mother that he consented to her relocating their three young children to another country. That’s an undeniable vote of confidence in her parental judgment and responsibility.
  5. And despite the pot-shots he has taken in this proceeding, he also acknowledges that she’s got a lot of strengths and done a lot of things right. Just as she has always trusted him to be a responsible parent when the children come to Canada.
  6. These are good kids. And these parents deserve a lot of credit. Both of them.
  7. I accept the father’s concern and hope that the mother should be as COVID-safe as possible.
  8. I also accept the mother’s reassurance that she is just as COVID-safe as he is.
  9. We can’t let children get caught in the cross-fire as parents engage in a self-serving competition to show which of them is more COVID-safe.
  10. And we certainly can’t make decisions about specific children and specific parents, based on media reports of ever changing international COVID numbers and trends. We haven’t reached the stage where an American parent automatically loses custody to a Canadian parent. It just doesn’t work that way.

Ultimately, Justice Pazaratz declined to grant the father’s motion to allow the three children to stay in Ontario with him.

Among many other reasons, he emphasized that parents have a duty – especially in these uncertain times – to maintain stability in their children’s lives. To grant the father’s motion would work contrary to that objective. As Justice Pazaratz said:

But if one of the priorities during this health crisis is to try to keep children’s lives as “normal” as possible, how could that possibly be promoted by suddenly uprooting them from everything they have known for the past seven years? A new primary parent. A new home. A new city. A new country. New schools. New friends. New activities. New everything and a loss of everything they know.

Make no mistake: The court will have little tolerance for parents who either ignore or exploit the pandemic.

But how could we possibly risk life-changing upheaval for these children on the basis of bald and uncorroborated allegations that the mother won’t wear masks or engage in social distancing? Particularly where the mother categorically denies these allegations, and there is no evidence that she has ever been reckless in any aspect of her life.

For the full text of the decision, see:

A.T.W. v. K.A.W., 2020 ONSC 4894

[This post by Russell Alexander first appeared on FamilyLLB.com on September 24, 2020]