Court File and Parties

Court File No.: Toronto DFO-13-10095 Date: 2020-06-11 Ontario Court of Justice

Between:

Mia Abbas, Applicant mother

— and —

Jabrail Downey, Respondent father

Before: Justice Sheilagh O'Connell

Heard on: June 5, 2020

Ruling and Reasons for Decision released on: June 11, 2020

Counsel:

• Aglaia Lowo, counsel for the applicant mother
• Ed Rice, counsel for the respondent father

O'CONNELL, J.:

Part One: Introduction

[1] The applicant mother sought leave to bring an urgent motion for an order that the respondent father's face to face access with the child of the parties' relationship be immediately suspended and facilitated through video conferencing during the COVID-19 pandemic.

[2] In the alternative, the mother seeks a detailed court order directing that the father and members of his household comply with all government directives, as well as several other terms and conditions to protect the child during the pandemic.

[3] The child, M., is seven and one-half years old and suffers from respiratory problems.

[4] The final court order in effect, dated April 5, 2016, provides that the father shall have access to the child every other Sunday, from 10:00 AM to 5:00 PM. The access "shall take place in front of the paternal grandmother" and access exchanges shall occur at an access centre or at a public place agreed upon by the parties.

[5] The father has not had face to face access since April 26, 2020, although he has had regular telephone contact.

[6] As a result of the Covid pandemic, only urgent motions are being heard in this court by teleconference, in accordance with the Court's COVID-19 Pandemic Scheduling Practice Direction.

[7] After reviewing the motion materials, served and filed electronically in accordance with the Court's Practice Direction, I determined that the matter was urgent based on the mother's materials, for the following reasons:

• The mother stated that the father failed to respect government health directives while exercising access to the child, including taking her to multiple stores while not wearing masks or gloves and failing to practice social distancing;

• The father failed to comply with the existing order for access by taking the child out in the community unsupervised;

• The child is medically compromised with asthma and severe allergies, thereby putting her at greater risk should she be exposed to the COVID-19 virus.

[8] An urgent motion was therefore scheduled, subject to the following directions by the court:

1. The motion and cross-motion, if any, will be conducted by telephone conference in accordance with the Court's COVID-19 Practice Direction.

2. All evidence and factums shall be filed with the court by delivering them as attachments to an email to the other parties and the Trial Coordinator at 311 Jarvis.ocj.family.trialcoordinator@ontario.ca in searchable PDF format. Any references to case law or statutory material can be made by hyperlinks to contained in the parties' factums or in a separate list of authorities.

3. Service by one party on the other of the materials to date by email is validated. Service by email is permitted so long as the suspension of regular court operations continues.

[9] The motion was heard before me on June 5, 2020. Both parents and counsel participated by telephone conference and the matter was heard on the record in the courtroom.

[10] Prior to the commencement of the hearing, the Court confirmed with the mother that M. and the mother's other children were in the living room of the mother's apartment watching a video. The mother was in her bedroom with the door closed. The mother stated that it was impossible for the children to hear anything that was being said during this hearing.

[11] Although this was not an ideal situation, the urgent hearing proceeded in these circumstances given the restrictions on members of the public coming into the court house at this time during the pandemic.

[12] I reviewed the following materials regarding the motion:

• the mother's supporting Affidavit and exhibits attached, dated May 26, 2020;
• the father's responding Affidavit and exhibits attached, dated June 2, 2020;
• the mother's reply Affidavit, dated June 3, 2020;
• the father's motion to change, dated February 20, 2020;
• the father's 35.1 Affidavit, dated February 21, 2020.

[13] The affidavits filed by the mother were unsworn due to the difficulty for counsel to commission the affidavits during the pandemic. At the outset of the hearing, the mother affirmed that the contents of her affidavits were true.

[14] This process was in accordance with the Court's COVID-19 Practice Directive that if an affidavit cannot be sworn or affirmed before a Commissioner for taking oaths (including any lawyer or paralegal licensed to practice in Ontario), the person making the affidavit must participate in the teleconference with the presiding judge and be prepared to swear or affirm the truth of its contents at that time.

Part Two: Issues

[15] The issues for the court to determine are:

• Has there been a material change in circumstances affecting or likely to affect the best interests of the child regarding the access that she should be having with the father?

• If so, in determining the best interests of the child, do the child's medical issues combined with any concerns about the father's ability to follow COVID-19 government health directives, warrant changing the existing access order at this time?

Part Three: Background and Summary of Relevant Evidence

[16] The mother is 35 years old. The father is 42 years old.

[17] The mother has three children of a previous relationship. All four children live with her. In addition to M., one of the mother's other daughters, B., suffers from chronic respiratory conditions, including asthma. She also requires an inhaler.

[18] The father has one child of a previous relationship, who is now an adult. The father lives in the home of his friend or girlfriend. He rents a room from her in the home. It is uncertain if anyone else lives in the home.

[19] The father works as a drywaller and is currently working in the community. The mother was working, but has stopped during the pandemic and has remained at home with the children, who are all school age.

[20] The parties were in a brief dating relationship. They never lived together. The mother became pregnant and M. was born in 2012. The parties' relationship ended during the mother's pregnancy.

[21] The mother describes the relationship with the father as very emotionally and physically abusive. She states that the father assaulted her on two occasions, including when she was pregnant with M., and that he threatened to kill her.

[22] The father was criminally charged with five counts, including two counts of assault and uttering threats.

[23] On September 17, 2014, the father pled guilty to one count of assault against the mother. The other charges were withdrawn. The father was sentenced to two years probation, nine days in jail and 25 hours of community service.

[24] The father also has previous convictions regarding assaults against two other women. According to the father's evidence, these previous assault charges involved a previous girlfriend and her friend.

[25] The father states that the criminal charges involving the mother came about as a result of a verbal confrontation between them during the summer when she was visiting his home and told him that she was pregnant. According to the father, when he asked for a paternity test, the mother became very angry and went to the police and reported an assault.

[26] The father states that he told the mother about his previous assault charges while they were dating and believes that she used this knowledge to fabricate further assault charges against him.

[27] The father states that he has never been criminally charged or involved in the criminal system since that time, which was 2014.

[28] The mother is still very fearful of the father and does not want him to know where she lives, nor does she want to communicate directly with him. She had been communicating with the paternal grandmother to facilitate access.

[29] The mother commenced these proceedings in 2013, when M. was still an infant.

[30] On June 17, 2013, the mother was granted final custody of M., on consent of the father. Once paternity was confirmed, the father exercised supervised access to M. at a supervised access facility for a lengthy period of time, approximately two years.

[31] On April 5, 2016, after three years of litigation, the parties agreed to a Final Order for access every other Saturday from 10:00 AM to 5 PM. The order also provided that access exchanges shall occur at an access centre or at an agreed upon public place and that the father's access shall take place in front of the paternal grandmother. The parties also agreed that the paternal grandmother be the third party contact to arrange access.

[32] The mother states that the father did not comply with the final order for access and cancelled access on many occasions.

[33] The father states that the mother did not facilitate the access and would only permit access if he arranged it in advance with the mother (through the paternal grandmother) and the mother agreed.

The Father's Motion to Change

[34] On February 20, 2020, the father brought a motion to change the existing final order, seeking to expand the order to provide unsupervised alternating weekends on both Saturday and Sunday, as well as additional access time over the Christmas, Easter March break and summer holidays.

[35] In his motion to change, the father is not seeking overnight access. He is requesting that the two days on alternating weekends be non-consecutive because he is currently living in a single room in his friend's home and he is on the waiting list for community housing which he hopes to obtain soon.

[36] The mother states that between January 17, 2020 and March 26, 2020, the father chose not to exercise any access, and that the paternal grandmother, as the 3rd party contact, did not contact her about the father's access until March 26, 2020.

[37] The father disputes this and states that the mother "arbitrarily stopped" all access in January and refused to respond to the paternal grandmother's texts and messages about arranging access.

[38] The mother denies this and states that the text messages attached to the father's affidavit confirm that the father chose to stop exercising access until he got back to court. The mother did not hear from the grandmother again until March 26, 2020.

[39] After the father retained counsel and commenced his motion to change, the mother retained counsel and the parties started negotiating access terms through their respective counsel.

The Father's Access after COVID-19

[40] On April 12, 2020, after having no access for four months, the parties agreed to an access visit between the father and M. The father arrived at the access exchange and then stated that he was ill and did not want to exercise access. He left shortly thereafter and the access did not occur.

[41] On April 26, 2020, a further access visit was arranged through counsel. The mother states that she learned after this visit that the father took M. to Dollarama, Basket Robbins and a convenience store without practicing COVID-19 measures. The father also purchased fast food for M. which she ate in the father's car without washing her hands, nor was she wearing a mask or gloves.

[42] The mother states that the father was also not wearing a mask or gloves and that he failed to practice COVID-19 government protocols.

[43] The father acknowledges that he took M. to a number of different places during his April 26 access visit. He further acknowledges that the paternal grandmother was not with him, contrary to the final court order.

[44] However, the father denies that he was not following COVID-19 protocols. The father states that he follows all COVID-19 restrictions and not only does he wear a mask when he leaves his home, he also carries a bottle of Clorox and a bottle of Lysol with him. He states that he also carries a bottle of hand sanitizer that he used frequently.

[45] Following the April 26 access visit, the mother states that M., herself and the mother's other children became ill and experienced a fever and Covid like symptoms. They all self-isolated for fourteen days.

[46] The mother, through her previous counsel, requested detailed information regarding the father's adherence as well as other family member's adherence to government protocols, and information regarding the paternal family's home, where the father planned to exercise access, as well as his own home.

M.'s Medical Condition

[47] The mother, through her former counsel, also provided two medical reports from Dr. Robert Saito, M.'s family doctor, to the father's counsel. These reports are dated April 28, 2020 and April 30, 2020.

[48] Dr. Saito's report dated April 28, 2020, states the following:

"This is to inform you that M. is a patient at my clinic. ..M. has a medical condition, she suffers from asthma and severe allergies. She exhibits symptoms of difficulty breathing and coughing due to her asthma.

Her immune system is weak and it is not advisable for her to be outside among crowds. She needs to maintain social distancing an always wear a mask and gloves. She cannot go out for shopping sprees and have fast foods without taking extreme precautions such as proper washing and sterilizing her hands.

If M. continues to be outdoors among crowds without maintaining social distancing, her immune system may be compromised, causing her health to be at risk."

[49] Dr. Saito's report dated April 30, 2020, states the following:

"..M. began showing symptoms of COVID-19 after returning home from her father's on the weekend of April 26, 2020. Her symptoms began on Monday, April 27, 2020 with sore throat and fever. M.'s symptoms then progressed to shortness of breath and wheezing. She has been relying on inhalers to help her with her breathing.

Unfortunately, M.'s siblings.. and mother all began showing symptoms of the COVID-19 virus as the week progressed…Ms Abbas is kindly requesting that her child be quarantined for fourteen days as required by public health and as suggested by myself.."

[50] The father's counsel responded on May 15, 2020 and provided some information to the mother's former counsel regarding the father's adherence to government protocols.

[51] The father's counsel requested that the father be provided with a consent to speak to M.'s doctor directly and stated that the father "is prepared to work with Ms Abbas to develop a list of COVID-19 protocols and safety factors necessary for the protection of his daughter in both homes."

[52] On May 19, 2020, the mother became unrepresented before retaining her current counsel. She contacted the father's counsel to facilitate telephone access between the father and M.

[53] The mother also subsequently requested further information regarding what, if any, COVID-19 measures the father would be practicing during his access with M.

[54] On May 22, 2020, the mother requested that the father's access be restricted to video access during the pandemic due to the child's medical vulnerability.

[55] On May 26, 2020, after not reaching an agreement with the father, the mother sought leave to bring this urgent motion to restrict the father's access.

[56] The father has not had any face to face access with M. since April 26, 2020.

Part Four: Legal Considerations

[57] The issues in this case are governed by Ontario's Children's Law Reform Act, R.S.O., 1990, c. C.12 ("the CLRA") and the Family Law Rules, O. Reg. 114/99, as amended.

The Test to Change Custody and Access Orders

[58] Section 29 of the Children's Law Reform Act states that the court shall not make an order that varies an order in respect of custody or access made by a court unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. This includes suspending an order on terms as sought by the mother.

[59] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that "if known at the time, would likely have resulted in a different order." The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.

[60] On a motion to change, the court has the option of changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, [2017] ONCA 58.

The Best Interests of the Child

[61] If the court finds that there has been a material change in circumstances that affects or is likely to affect the best interests of the child, it must then make an order in the best interests of the child.

[62] Sub-sections 24(1) and 24(2) of the Children's Law Reform Act set out the best interest test and the factors that a court must consider when determining what is in a child's best interests.

[63] These sub-sections state as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

(3) A person's past conduct shall be considered only,

a) in accordance with subsection (4); or

b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

a) his or her spouse;

b) a parent of the child to whom the application relates;

c) a member of the person's household; or

d) any child.

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[64] The best interests of the child must be ascertained from the lens of the child rather than from the parents' perspective. Parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. See: Young v. Young, [1993] 4 S.C.R. 3, at paragraph 74; Gordon v. Goertz, [1996] 2 S.C.R. 27, at paragraphs 50 and 54.

[65] The best interests of the child have also been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. See: Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. General Division).

[66] A child should have maximum contact with both parents so long as it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[67] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.

General Principles Arising from COVID-19 Family Law Cases in Ontario

[68] The COVID-19 pandemic is unprecedented. As Justice W.L. MacPherson stated in Douglas v. Douglas, "There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. It is certainly expected that parents would act in the best interests of their own child which consideration must include not only the child's physical well-being, but also their emotional wellbeing."

[69] There have been over one hundred reported custody and access cases arising as a result of concerns about a child's safety when exercising access or navigating between two homes during the pandemic.

[70] Some important general legal principles have emerged.

[71] In Ribeiro v. Wright, 2020 ONSC 1829, Justice Alex Pazaratz set out the following considerations when considering whether face to face contact with a parent should be suspended during the pandemic:

1. In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.

2. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

3. In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

4. In some cases, a parent's lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. 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.

5. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

6. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

7. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.

8. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

[72] There is a presumption that all orders should be respected and complied with. The onus, therefore, is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID 19 protocols and expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886.

[73] A parent is not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time. If the parent fears that the current routine may compromise their child's well-being, or the health of a person in the home; then the parent must provide specifics and bring a motion to change the order. See: Almadi v. Kalashi, 2020 ONSC 2047.

[74] In Lee v. Lee, 2020 ONSC 2044, the court stated that in the face of anxious and distressing times, any child will most benefit from the love, connection and support shared with both parents so long as it is all done safely.

[75] Medical evidence is important on these COVID-19 motions. If someone is seeking to suspend a person's face-to-face contact with a child due to the child's medical vulnerability, a medical report should be provided setting out the child's medical condition, any increased vulnerability the child has with respect to the COVID-19 virus and specific recommendations about additional precautions that are required to protect the child from the virus. See C.L.B. v. A.J.N., 2020 ONCJ 213 at paragraph 31, per Justice Stanley B. Sherr.

[76] In determining a suspension of face-to-face contact, the court must assess the medical vulnerabilities of children in the home, the ability of the parents to follow COVID health protocols and the risk to the child of diminishing their relationship with one parent. See: C.L.B. v. A.J.N., supra. The court must balance the harm of COVID-19 exposure with the harm to children being denied face-to-face contact with a parent. See: Pollard v. Joshi, 2020 ONSC 2701.

Part Five: Analysis

[77] The parties filed conflicting affidavit evidence on some, but not all, of the material issues. The evidence has not been tested by cross-examination and the court recognizes that on urgent and temporary motions, the court has to make decisions on the evidence only available at the time.

[78] Nevertheless, there were a number of important material facts that were not in dispute between the parties which will be relied upon in making findings of fact.

Issue One: Has there been a material change in circumstances?

[79] Since the final order was made, I find that there has been a material change in circumstances affecting or likely to affect the best interests of M. for the following reasons:

1. The COVID-19 pandemic has created a need for additional safety measures and health protocols to protect the safety of the child and other children and the community.

2. There is undisputed evidence that M., and her sister with whom she lives, have medical conditions that could make them more vulnerable during the pandemic.

3. The father has not complied with the existing final order. The father acknowledged that during his last visit with M. on April 26, 2020, the paternal grandmother was not present to supervise the access, as required by paragraph one of the final order.

4. M., her sisters and the mother had to self-isolate for fourteen days following the last access visit between M. and her father. They were all ill and experiencing Covid-like symptoms, although it is not certain, nor is it at all conclusive that this was related to M.'s access visit with her father.

Issue Two: What access order is in M.'s best interests at this time?

[80] Having found that there has been a material change in circumstances since the final order was made, the issue that the court must now determine is whether it is in M.'s best interests to suspend her face to face contact with the father or maintain the existing access order, pending the father's motion to change, which will be proceeding once regular court operations resume.

[81] In determining this issue, I must consider M.'s medical condition, the father's ability to properly practice COVID-19 health protocols, and a number of other factors affecting M.'s best interests.

M.'s Medical Condition

[82] The court received two medical reports from Dr. Saito, the child's treating family doctor, dated April 28 and 30, 2020. Dr. Saito wrote the following:

1. M. is a patient at his clinic.

2. M. suffers from asthma and severe allergies. She exhibits symptoms of difficulty breathing and coughing due to her asthma.

3. M.'s immune system is weakened and it is not advisable for her to be outside among crowds. She needs to maintain social distancing and wear a mask and gloves in the community.

4. M. began showing symptoms of Covid-19, including shortness of breath and wheezing, sore throat and fever, after returning from her father's home on the weekend of April 26, 2020.

[83] This evidence was not seriously disputed by the father, although he states that he was never informed by the mother that M. had asthma, nor did the mother provide a puffer or inhaler for M. during past access visits.

[84] The mother denies this and states that the father was aware of M.'s condition. In the past, when M.'s asthma was bad, she would provide the inhaler to the father during access visits.

[85] The father has asked to speak directly to M.'s family doctor, to which the mother has readily consented.

[86] I find that M.'s medical condition is an important factor to consider when determining what access order at this time, during a pandemic, is in her best interests.

The father's ability to comply with COVID-19 health directives

[87] I have some serious concerns about the father's ability to comply with COVID-19 health directives at this time for the following reasons:

1. The father has exercised poor judgment. The father attended the April 12, 2020 access visit exchange even though he was feeling unwell and possibly experiencing COVID-19 symptoms. To his credit, the father told M. that he was cancelling the visit because he was unwell. However, the father should never have attended in the first place. The father could have easily cancelled the visit through his lawyer or the paternal grandmother. This placed M. at risk, particularly given her compromised respiratory system. Government health directives have been very clear that if a person is unwell and exhibiting Covid-like symptoms, then they should stay home and isolate.

2. The father deposed in his affidavit that during the April 12 access exchange, M. remained in her mother's car and that he told the mother he was unwell while he was standing "at a distance of 20 to 25 feet away." This is untrue. The photo the mother took at the access exchange clearly shows M. and her sister outside, returning to the mother's car. The mother deposed that the father was only three feet away from M. and her sister when he told the child that he was cancelling the visit because he was unwell.

3. On the April 26 access visit, the father took M. into the Dollarama, Baskin Robbins, and a convenience store, and provided her fast food in his car, even though she was not wearing mask and gloves and has a compromised immune system. The father should not have taken M. into these stores given his knowledge of her underlying health conditions, or at the very least without a mask and gloves.

4. The father does not dispute this, but states that the mother never provided him with a mask and gloves for M. on the April 26 access visit. The mother states she would have ensured that M. had her own personal protective equipment had she known that the father was not immediately going to his home with M. and that he was taking her into the community. It was her understanding that the father was taking M. directly home. Whether or not the mother provided personal protective equipment for the child does not change the fact that the father should have done so if he was taking M. into multiple stores.

5. The father has also clearly breached the existing court order by exercising access on April 26 without the supervision of the paternal grandmother. He knowingly failed to comply with an existing court order.

6. Given this breach, the court has some concerns about the father's ability to comply with a court order directing the father to comply with government health directives.

7. There is also very little or no information in the father's affidavit regarding who else, other than his girlfriend, lives in his home or comes in and out of his home, and whether his girlfriend is working and complying with COVID-19 directives, all factors that could increase the child's exposure to the virus. The father states that he would exercise access in the paternal grandmother's home. Again, there is very little evidence about that home, other than that at least three people live there, including the grandfather who works at Shoppers Drug Mart, and the father's brother, whose work situation is unclear.

8. Finally, the court has some concerns with the father's credibility. The father failed to include his entire criminal record history, including his conviction and sentences for assaults against his previous girlfriend as well as the conviction and sentence for the assault against the mother in his 35.1 Affidavit. I was also concerned that the father gave evidence that he did not believe that he had assaulted the mother, even though he pled guilty to assaulting her, and received jail time and a two year probation order.

9. Further, the father states that the mother "arbitrarily refused" all access between he and M. from January of 2020 until April of 2020. According to the father's own evidence, this is untrue. In the text message exchanges attached to the father's affidavit as an exhibit, it is undisputed that the paternal grandmother texted the mother on Friday, January 17, 2020 and stated the following: "Mia, Jabrail said he is not taking M. til you guys go back to court because he is tired of you accusing him of talking about you, also he never gets her on holidays so it needs to be talked about in the courts."

10. Not only does this evidence directly undermine the father's credibility, it also demonstrates poor judgment. The father chose to forfeit access with his daughter for three months, which is not a child focused position, nor is it in his daughter's best interests.

Part Six: Conclusion and Order

[88] Based on the evidentiary record before me, I am concerned that the father will not or may not be able to properly follow COVID-19 protocols at this time. Out of an abundance of caution, given M.'s medical vulnerabilities, which include significant respiratory issues, as well as the medical vulnerability of her sister, I find that it is in M.'s best interests to temporarily suspend her physical access with her father at this time and replace it with more frequent and regular video access.

[89] In making this determination, I have also considered that although the father no doubt loves M., he has recently chosen not to see her for approximately three months, and his current access is very limited and supervised.

[90] The transition to more regular and frequent weekly video contact rather than twice monthly supervised day visits may not be as difficult for M. than if her father was far more involved in her parenting and her life and poses a smaller risk in diminishing the father-child relationship.

[91] I also stress that this is a temporary measure. In balancing the harm of COVID-19 exposure to M. with harm to her being denied face to face contact with the father, I find that it is in her best interests to temporarily suspend the father's face to face access at this time.

[92] I recognize that this decision will be disappointing for the father. The father loves M. and want to spend more time with her. I have included a number of terms in the following temporary order to hopefully ensure a safe transition towards the reinstatement of face to face access. This will be reviewed at the case conference scheduled in the father's motion to change on July 29, 2020.

[93] I therefore make the following temporary Court Order, varying the Final Order dated April 5, 2016, as follows:

1. Commencing Sunday, June 14, 2020, the father's physical or face to face access with the child, as set out in paragraph one of the Final Order, shall be suspended and replaced with the following access:

a. Commencing Sunday June 14, 2020, the father shall have video access with the child on every Sunday at 1:00 PM and every Tuesday and Thursday at 3:00 PM for a period of up to thirty minutes for each visit.

b. The mother shall facilitate the video access through Zoom or Skype. The mother shall provide the Zoom invitation details or Skype instructions to the father through counsel.

c. The mother shall ensure that the child has a quiet place to enjoy the video access with her father.

d. The father does need to be supervised by the paternal grandmother for the video access, although the paternal grandmother and other family members can participate in the video calls.

e. Any other telephone or video access as agreed upon by the parties.

2. Neither parent will denigrate or disparage the other parent or members of their extended family either overtly or covertly, in any communications with the child or in the child's presence.

3. The mother shall sign the appropriate authorization or consent to allow the father or his counsel to contact the child's family doctor(s), including Dr. Saito, directly to obtain whatever information requested regarding the child's health, treatments and recommendations, including medical records or further medical reports.

4. The father shall provide more detailed information regarding the members of his household and the paternal grandmother's household, and the health protocols being followed during Covid-19, including how many members are in each household, how many visitors, if any, social distancing and health directives being practiced, and whether any member of either household has tested positive for Covid-19.

5. The parties shall use "Our Family Wizard" to communicate about the child. Both parties will be responsible for their own costs in setting up the program. The mother shall keep the child informed of all important information regarding the child's welfare, including medical and educational information. The father shall be given permission to speak to service providers for the child directly to seek further information, if necessary, regarding the child's welfare.

6. Both parents shall ensure that their comments and questions in the Our Family Wizard communication log are positive, civil and child-focused. The communication log shall be evidence in this proceeding, if necessary.

7. The parties will return before me for a case conference on July 29, 2020 at 10:00 AM to review this order.

8. Once regular court operations resume, counsel shall ensure that all motion materials electronically served shall be properly filed in the continuing record and the endorsement record shall be updated accordingly.

9. In the circumstances of the COVID-19 emergency, this endorsement shall be deemed to be an order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.

[94] The parties and counsel are encouraged to resolve the issue of costs. If not, then any party seeking costs shall serve and file written submissions electronically no later than June 30, 2020. The other party will then have until July 20, 2020 to respond. Submissions are not to exceed three pages, excluding any offers to settle or bills of costs.

Released: June 11, 2020

Signed electronically: Justice Sheilagh O'Connell