Court File and Parties

Court File No.: Toronto DFO-18-15265 Date: 2020-06-29 Ontario Court of Justice

Between:

M. R.-J. Applicant mother

— and —

K. J. Respondent father

Motion heard: June 11, 2020 Ruling on Motion: June 29, 2020

Counsel:

• M. R.-J. on her own behalf
• Domule Siziba, agent and counsel for K. J.

Before: O'Connell J.

Part One: Introduction

1The father sought leave to bring an urgent motion regarding the enforcement of the final custody and access order regarding the parties' son, age 4.5 years old, after the mother would not agree to follow the final parenting order due to pandemic related issues.

2The father seeks an order that his parenting time with the child be reinstated immediately in accordance with the parties' Final Order dated December 5, 2019, in addition to other relief, including a police enforcement clause, make-up parenting time, and costs.

3In her responding materials, the mother has also brought a motion seeking to restrict the father's parenting time with the child and seeks the following relief:

a. An order reducing the father's overnight parenting time to two overnights each week (on a week 1, week 2 schedule) until "the COVID-19 state of emergency and self-quarantine period is lifted and some form of normal public life is commenced where risk factor are stabilized… and complete quarantine risk is reduced" based on the above schedule or an alternate schedule;

b. An order that the father undergo "free COVID-19 testing to prove clear health to commence child access";

c. An order for financial disclosure and "proof of financial capacity to care for the child during the COVID-19 emergency period and the associated financial pressures;"

d. An order for "strict and clear communication guidelines with the child when in the care of the father";

e. An order for the temporary adjustment of child support and arrears based on the father's capacity to pay;

f. An order that the father "provide active job applications in pursuit of seeking employment"

g. Costs.

4The father has not exercised regular overnight parenting time with the child, pursuant to the final order, since March 13, 2020. During the past three months, he has had telephone and video contact with the child and several brief visits in public with the child as well as two visits at his home of approximately one hour each.

5The child who is the subject of this case is O. He will be 5 years old in September of this year.

6Due to the COVID-19 global pandemic, the Ontario Court of Justice issued a Practice Directive (updated June 17, 2020) that all non-urgent family court matters scheduled up to May 29, 2020 shall be adjourned for eight to twelve weeks, with the exception for certain urgent matters as specified in the Court's Practice Directive. This has now been extended to July 6, 2020.

7After reviewing the motion materials, served and filed electronically, I determined that the matter was urgent and scheduled a hearing date.

8The motions were heard before me on June 11, 2020. The hearing was conducted by telephone conference in accordance with the Court's Practice Directive. The parents and counsel for the father participated from their respective homes or office.

9Both parties filed extensive affidavit materials (with exhibits included) that well exceeded the ten-page limit under the Court's practice directive for urgent motions during the pandemic.

10The affidavits filed by the parents were unsworn due to the difficulty for counsel to commission the affidavits during the pandemic. At the outset of the hearing, both parents affirmed that the contents of their affidavits were true.

11The child was in the mother's care at the time that the motions were argued. The mother lives alone and there was no one available to care for the child. Before proceeding, the court requested that the mother place O. in another room wearing headphones while he watched a favorite video so that the mother could participate in the hearing.

12Although this is not ideal, while regular court operations are suspended this was the only solution to ensure that the child was not present during the hearing, given the conflict between his parents.

13This arrangement worked for most of the hearing. However, on occasions, there were interruptions when O. came into the mother's room looking for a snack or attention.

Part Two: Issues

14The main issue for the court to determine is whether there has been a material change in circumstances that affects or likely to affect the child's best interests which warrants the reduction of his parenting time with his father during the COVID-19 pandemic.

15The court must also consider whether it is in the child's best interests to order makeup time if the final order continues to remain in full force and effect, and to order a police enforcement clause.

Part Three: The Position of the Parties

The Mother's Position

16It is the mother's position that it is not in the child's best interests to resume regular parenting time with the father in accordance with the operative final order during the COVID-19 pandemic for the following main reasons:

1. The mother and child were very ill from March 13, 2020 to mid-April with COVID-19 like symptoms and they were self-isolating and quarantined in accordance with medical recommendations. The regular parenting scheduled could not continue;

2. On April 14, 2020, the father took the child to his home without notice to the mother and against her will. The child visited with the father in his home, thereby putting the child at risk and demonstrating that the father's conduct is not child-focused;

3. The father is not following the recommended health and safety guidelines during the pandemic. On April 27, 2020, she asked the father to sign a "COVID-19 Recommended Child Access Clauses" agreement prior to re-commencing "reduced overnight Child Access", not the regular parenting time set out in the Final Order;

4. The father refused to sign the above agreement that the mother prepared (which included a reduced "Child Access Schedule");

5. The father lost his employment in the early spring and is actively looking for employment. Because the father is currently unemployed, he should "currently be under tremendous stress due to the impact of the pandemic on potential job opportunities" and that these added pressures are affecting his mental health and alcohol use during the pandemic, which will impact his ability to care for the child and meet the child's needs during the pandemic.

6. The mother is concerned that the child will be at risk in the father's care during the pandemic as a result of "the father's mental health state and associated heavier drinking and not having anyone to hold him accountable" during the pandemic.

7. Given the father's job loss, he will not have sufficient funds to maintain his housing and purchase the appropriate personal protective equipment to ensure that the child is safe during the pandemic, thereby placing the child at risk.

8. Like most children during the pandemic, "the child has been needing a lot of attention and is struggling with the new reality that we are living". According to the mother, "it is not in his best interests to have a disrupted home life schedule requiring him to be shuffled back and forth, which will cause him further mental health and separation anxiety and disruptions to his established routine"

9. Finally, the "two households back and forth nature of the regular court ordered schedule during the pandemic would put the child at further risk of COVID-19,"

17In order to address all of the associated risks above, the mother has proposed a parenting schedule which reduce the father's parenting time with the child to two overnights each week, not to be exercised consecutively (Monday and Thursday overnights on Week One and Monday and Friday overnights on Week Two) to replace the parenting schedule in the final order.

The Father's Position

18It is the father's position that the mother's claims are completely baseless and that she is using the pandemic to reduce his parenting time with the child because she is unhappy with the current order.

19The father further submits that he takes the pandemic very seriously and he follows all medical and government directives.

20When the mother advised him that she and the child were sick, he respected the need for the mother and child to self-isolate, and indeed, offered to buy food and necessities for them (which he did do) so that the mother would not have to leave the home during the period of self-isolation.

21After the fourteen-day period expired, it became apparent to the father that the mother was simply refusing to go back to the regular parenting schedule unless the father agreed to significantly reduce his parenting time.

22The father disputes that the mother and child continued to be very sick after the period of self-isolation ended on March 27, 2020. The mother permitted the father to see the child for brief periods of time at a park in their neighbourhood and the child appeared very healthy, energetic and playful on each occasion. He was very happy to see his father and asked when he would be able to go back to the father's home.

23The father further disputes the mother's claims that he somehow absconded with the child on April 14, 2020. The mother knew that they were going to visit the father's home, which is within walking distance of the mother's home. The father and child started to walk towards his home and waited for the mother to catch up with them after she returned to her home briefly to put away a laptop that the father had given to the child for his online education.

24The father is actively seeking new employment and continues to work as a freelance journalist and earn some income. He continues to pay child support at the same level set out in the final order despite the reduction in his income.

Part Four: Background and Summary of the Relevant Evidence

25The mother is an academic and researcher. The father is a journalist and educator. Both parties live in Toronto and their homes are within walking distance of each other.

26This case is what is appropriately described as a "high conflict" case. There have been multiple court appearances and motions in this case since it started in 2018. The case was transferred to our Integrated Domestic Violence Court (IDVC) soon after it commenced because the mother alleged that the father had assaulted her. The father was charged with assault. The family and criminal cases proceeded concurrently in IDVC.

27The criminal case was resolved after the IDVC Crown agreed to withdraw the criminal charge. The father entered into a peace bond for a period of twelve months.

28The custody and access issues continued and the parties were headed to a lengthy trial in the winter of 2019, however, they reached final minutes of settlement on the eve of trial. I have been the case management judge since the summer of 2018, following the retirement of Justice Ellen Murray, who was the previous case management judge.

29The parties were in a relationship and began cohabiting in July or August of 2013. They married in September of 2014. O. is their only child.

30The father has one other child, V., born in 2011, of a previous relationship. V. is almost 8 years old and has regular parenting time with her father, which has continued throughout the pandemic. The mother has no other children.

31The parties separated in 2016 (there is a dispute between the parties regarding which month), but they remained living separate and apart in the same residence until the mother left the residence with the child on or about January 9, 2018. The mother commenced this application for custody on January 18, 2018.

32On April 23, 2018, following a contested motion, Justice Murray, for written reasons, ordered that the parties have temporary joint custody and that the father exercise parenting time with the child on a "Week one, Week two" schedule, among other parenting provisions, with the child's primary residence to be with the mother.

33The parties agreed to refer their case to the Office of the Children's Lawyer ("OCL") for a clinical investigation and report of the custody and access issues. On December 31, 2018, the OCL clinical investigator, Dawn Tracz, released her report and recommendations to the parties.

34Ms Tracz recommended that the mother have sole custody of O. She stated at page 15 of her Report that "the dynamic that exists between these two parties is such that successful, constructive co-parenting seems unlikely."

35Ms Tracz recommended that the mother's home be the primary residence for the child and that the child's regular parenting time with the father would be:

1. Week 1: Tuesday 9:00 AM to Wednesday 9:00 AM and Friday 9:00 AM to 6:00 PM;

2. Week 2: Tuesday 9:00 AM to Wednesday 9:00 AM and Friday from 9:00 AM to Saturday at 12 noon, with a view to moving to every other weekend from Friday to Monday as O. gets older.

36Ms Tracz also made the following findings in her Report:

1. O. is an exuberant child who is highly verbal and active. He appears to be a typical pre-schooler. He is a health boy who is receiving adequate care from both parents. He is a boy who tests limits of his caregivers and needs to know that firm boundaries are in place;

2. Both parents are able to meet O.'s needs. O.'s family doctor, the child protection worker voluntarily involved with the family due to conflict, and the child's daycare staff did not report any concerns about the father's ability to parent O. and that he appears to be actively involved;

3. O. has a significant relationship with both parents and it is important to maintain the relationship with each parent through meaningful contact;

4. Both parents have a strong ability to engage their son and meet his needs;

5. O. does react to the change in living arrangements but with appropriate support and consistent routines, he will manage the transition;

6. Both parents have different parenting styles and can disagree on appropriate expectations for a child of O.'s developmental stage.

37Both parties disagreed with different parts of the OCL Report. The matter was set down for trial.

38However, as noted, following lengthy negotiations, the parties reached a final agreement, which became the basis of a final consent order on the issues of custody and access.

The Final Order dated December 2, 2019

39The final order, on consent, is comprehensive. It is approximately eight single-spaced pages in length. It provides for a shared custody and a "parallel parenting" order regarding decisions for the child and very detailed parenting provisions.

40Regarding decision making, the father shall have the authority to make the final decisions regarding O.'s education so long as the choice of school remains in O.s catchment area. The mother shall have the final authority to make decisions on O.'s religion and non-emergency health and dental care. Both parents are fully consulted before any final decisions are made in accordance with the protocol n the final order.

41The relevant parenting provisions in the final order are as follows:

1. The child shall reside with both parents, with his primary residence being with his mother.

2. The child shall reside with his father based on the Week I and Week 2 alternating schedule below:

   A. Week One:

   • Monday after school at 3:00 PM to Tuesday at 8:30 AM;
   • Thursday after school at 3:00 PM to Friday at 7:00 PM;

   B. Week Two:

   • Monday after school at 3:00 PM to Tuesday at 8:30 AM;
   • Friday after school at 3:00 PM to Monday morning drop off at school (effective December 2, 2019);

   March Break: Commencing 2020, the father shall have five overnights with the child from March 14 to March 19, 2020, and the mother shall have four overnights with the child from March 19, 2020 to March 23, 2020. This schedule shall alternate each year.

   Summer Holidays: During the summer each year, the parents shall share parenting time with the child on a week on/week off basis, from Sunday at 6:00 PM to Sunday at 6:00 PM. In 2020, the father shall have the child during the first week and the mother shall have the child in the second week, alternating thereafter.

42After the final Minutes of Settlement, were executed by the parties on December 2, 2019, as amended and endorsed by the court with the parties' agreement, the father's counsel (acting as agent) arranged for the Consent to be typed and forwarded the draft order to the mother for her approval.

43The mother expressed her unhappiness with the draft order and would not approve the draft, as she believed that there was a handwritten mistake by the court regarding the parenting schedule in the court's endorsement approving the Minutes.

44The parties and the father's agent exchanged correspondence with the trial coordinator regarding their dispute.

45On December 5, 2019, after a careful review of the executed Minutes, the court sent an endorsement through the trial coordinator advising that there was no mistake in the handwritten changes made by the court to the final Minutes, as requested by the parties.

46The court further endorsed that if there continued to be a dispute between the parties regarding the draft order, then a hearing before me should be scheduled by way of a 14b motion.

47The parties did not seek a motion date to settle the draft order. However, the court learned at this hearing that mother continues to dispute the parenting provisions in the final order. In particular, the mother states that she did not agree with the expansion of the father's parenting time in the executed Minutes.

48Notwithstanding the mother's disagreement, it is not disputed that the parties have been following the parenting provisions in the final consent since December of 2019, that is, until March 13, 2020.

Events since March 9, 2020

49It is the mother's evidence that on March 9, 2020, "the child became very ill during an overnight visit with his father, with a high temperature, heavy coughing and breathing, as well as a bad runny noise." Both parents took the child to a walk-in clinic together. The child was diagnosed with having a cold virus, and according to the mother's affidavit, the parents were told to monitor him.

50The mother states that the child was "quite sick" on March 11, 2020, so the mother kept the child home from school on March 13, 2020. The mother and the child then became quite sick.

51On March 13, 2020, the mother contacted Telehealth and she was advised that she and the child should self-isolate and monitor symptoms for fourteen days. As this was the beginning of serious concerns about the pandemic in Canada, the mother was understandably worried and very concerned.

52The fourteen-day period of self-isolation ended on March 27, 2020.

53However, the mother states that she and the child continued to be very ill for "four weeks" and that they "were very unwell until mid-April when both the child and the mother were finally symptom free."

54During this time, according to the mother, she permitted the father "unlimited access to call and communicate with the child through Facetime video chats and phone calls." She also took the child outside on several occasions for walks in the park and the father was permitted to join them there for brief visits while social distancing.

55On April 14, 2020, the mother deposed that the parties met for a walk again with the child. The father brought a laptop for the child to continue with his homeschooling. The mother deposes that "as the father was cooperating and taking a child-centred approach", the mother left the child with the father while she went upstairs to her apartment to drop off the laptop so that she did not have to carry it around with her. According to the mother, when she returned three minutes later, the father had "walked away with the child".

56The mother states that she was in extreme distress and texted the father multiple times "while running around crying on the streets towards the father's residence". The mother then saw the child and the father walking towards his apartment building and as she screamed "wait/wait", the father waited for the mother to catch up with the father and child.

57It is not disputed that the child and the father then visited for a short time in the father's apartment while the mother waited in the backyard.

58It is the father's evidence that at the beginning of the pandemic, when the mother advised him on March 13 th that she and the child were very sick, he respected the need for mother and child to self-isolate. He bought groceries and other items for them so that the mother did not need to leave her home.

59During this time, the father had regular telephone and Facetime chats with the child. As well, on a number of occasions during this time, the father would meet the mother and child at a neighbourhood park for brief visits while practicing social distancing.

60After the 14-day quarantine period ended, the father asserts that he made numerous attempts to negotiate a return to the regular parenting schedule with the mother or to suggest an alternative parenting schedule that would reduce the number of transitions that the child would make between their two households. Some of the parties' voluminous email and text exchanges is attached as exhibits to his affidavit.

61The father asserts that other than the brief visits at the park, his parenting time was reduced to virtual parenting. The father states that when he did visit with the child in the park, it was very clear that he was not sick. He was very energetic and playful and was smiling and running around the entire time. According to the father, the child exhibited no symptoms of sickness. Each time they met at the park, the child would run towards him and give him a big hug.

62The father disputes the mother's version of the events of April 14, 2020. He states that previously, on April 10, 2020, the parties met at the park with the child and the mother agreed that the father could take the child to his home for a visit while she waited outside.

63On April 12, 2020, the father went to the mother's home and dropped off an Easter gift for O. The father and O. spent some time together in the mother's lobby. O. was happy to see him.

64On April 14, 2020, the father went to the mother's residence to drop off a laptop for the child for his online schooling. They met in the lobby again. O. was happy to see the father and wanted to go back to the father's home to play. The father told the mother that he would take O. to his home. The mother did not object. The father and child went ahead of the mother because she was going upstairs to put the laptop away. According to the father, the child is not a fast walker and the mother was going to catch up with them along the way. The mother caught up with them before they reached the father's residence.

65The father and child visited for 45 minutes at his home. The mother remained outside in the backyard. At the end of the visit, the mother and child went home.

66The father asserts that despite losing his job, he continues to make child support payments to the mother. He is actively searching for employment and has some freelance work. He has sufficient funds to maintain his housing and purchase the appropriate personal protective equipment to ensure that the child is safe while in his care.

67He vigorously disputes the mother's allegations that his mental health is compromised because of his job loss and the pandemic.

68The father asserts that he takes COVID-19 very seriously and provided detailed evidence of the measures that he is taking to follow government health directives.

69The father agrees that on April 27, 2020, he would not sign the agreement that the mother prepared entitled "COVID-19 Recommended Child Access Clauses" prior to re-commencing the overnight parenting schedule. This is because the agreement prepared reduced his overnight parenting time with the child and did not reflect the regular parenting time set out in the Final Order.

Part Five: Legal Considerations

70The 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

71Section 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 in Ontario 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.

72If 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.

73In 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.

74On 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.

75If a court determines that there has been a material changes in circumstances, then the court must determine what parenting order is now in the best interests of the child.

76Sub-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 order is in a child's best interests.

77The 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 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at paragraph 74; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at paragraphs 50 and 54.

78The 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).

79A 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 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

80A 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

81The 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."

82There 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.

83Some important general legal principles have emerged.

84In 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 or restricted 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.

85There 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.

86A 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.

87In Lee v. Lee, 2020 ONSC 2044, the court stated that in the face of anxious and distressing times, a child will most benefit from the love, connection and support shared with both parents so long as it is all done safely.

88The court must balance the harm of COVID-19 exposure with harm to children being denied face-to-face contact with a parent. See: Pollard v. Joshi, 2020 ONSC 2701.

Part Six: Analysis

Has there been a material change in circumstances affecting the child's best interests?

89Since the final order was made, there is no doubt that the COVID-19 pandemic has created a need for additional safety measures and health protocols to protect the safety of the child and the community. The global pandemic has created significant anxiety and confusion for parents, particularly separated parents with children navigating between two homes.

90However, the pandemic in and of itself is not a reason to fundamentally change the final parenting order that the parties consented to on December 2, 2019. The case law is clear that the pandemic, standing alone, is not a reason to suspend parental access or parenting time, particularly where there is evidence to indicate that appropriate precautions are being taken to avoid exposure to infection. See Thibert v. Thibert, 2020 CanLII 26427 (ONSC), at paragraph 2 of that decision.

91Although it may very well have been appropriate and responsible for the mother and child to self-isolate for fourteen days from March 13 to 27, in accordance with government health directives, there was no reason why the regular parenting plan could not have resumed after that time.

92I have very serious concerns that the mother is not acting in good faith and that she is using the pandemic to restrict the father's parenting time with the child, for the following reasons:

1. The mother deposed that she and the child were very ill with COVID like symptoms and that on March 13, 2020, they received medical advice from Telehealth to self-isolate and quarantine for fourteen days. Yet, on her own evidence, she did not follow this advice. She acknowledged that during that fourteen day period, she went outside with the child for walks in the park on several occasions. In fact, the undisputed evidence shows that the mother and child met the father at the park on seven occasions during this fourteen day period. The mother acknowledges texting the father to let him know that they were going to the park and permitted the father to visit with the child at those times.

2. The mother states that she and the child continued to be "very ill" after the fourteen day period of so called quarantine was completed. At one point in her evidence she states that they continued to be ill for "four weeks". At another point she states that they were "symptom free in mid-April".

3. The mother offers no medical evidence, any specific details, or any supporting documentation that she and the child continued to be "very ill" after March 27 th. Further, her evidence is conflicting and inconsistent regarding the length of the time period that they were ostensibly ill.

4. The father presented seven photos of the child as exhibits to his affidavit during the time period that the mother described she and the child as being very ill. The photos were taken on March 20, March 21, April 12, and April 16, 2020. The photos show a healthy looking child running, walking and smiling in the park (even during the period of "quarantine"). The mother did not dispute this evidence. The child did not look ill.

5. The mother acknowledges that on May 23, 2020 she took the child fishing with friends during the father's regular parenting time with the child under the final order. The mother and child spent the day fishing with a number of different people even though it is the mother's position that the father's regular parenting time should be suspended because of the child's risk of exposure to the virus.

6. The mother has offered absolutely no specific evidence or detail supporting her belief that that father is not taking the pandemic seriously and that he is not following government directives. She does not give any concrete examples to support what appears to be simply a baseless allegation.

7. Finally, the mother's proposal to reduce the father's overnight parenting time to two non-consecutive overnights each week as the solution to reducing the child's risk of exposure while with the father makes no sense. There is no explanation how reducing the number of overnights would reduce the child's risk of COVID-19 exposure while in the father's care. If anything, the mother's proposal increases "the back and forth nature" of the parenting schedule during the pandemic which she stated "put the child at further risk of COVID-19" in her urgent motion.

93The court agrees with counsel for the father that the mother is using the COVID-19 pandemic to adjust a parenting schedule that she does not like and has not liked since the parties entered into final Minutes of Settlement in December of 2019.

94The court has serious concerns with the mother's credibility and reliability. The mother's description of the events that took place on April 14, 2020 was concerning. The mother views what happened on April 14, 2020 as the father attempting to abscond with the child and a further example of his inability to conduct himself in a child-focused manner.

95The father states that he told the mother he was taking the child to his apartment, and that she did not object. The parents and child had previously walked to the father's apartment a few days earlier for a similar visit. The mother acknowledged that she caught up with the father and child before they reached the father's apartment (after she dropped off the lap top at her apartment). The mother acknowledged waiting outside in the father's the backyard while the father and child played with a ball that the child had left there on a previous visit. The mother further acknowledges then walking the child back to her home after the visit.

96To view this interaction as an abscondment stretches credulity. The mother's description of herself "screaming" and "running around crying on the streets towards the father's residence" is concerning.

97I have no concerns about the father's ability to comply with COVID-19 health directives for the following reasons:

1. The father gives very detailed evidence regarding his compliance with government health directives and protocols during the pandemic. During the times that he has met the mother and child in the park, he has maintained social distancing with the mother at all times. The mother does not dispute this.

2. The father maintains a very healthy lifestyle. He deposes that he continues to meticulously adhere to COVID-19 health and safety measures, "including practicing physical distancing (staying two metres away from other people in public), using disinfectants, using hand sanitizers; washing his hands with soap and water thoroughly and often; using face masks, as well as compliance with any public safety directives."

3. The father has no personal risk factors through employment or associations that may require controls on direct contact with the child.

4. The father has not experienced any illness or COVID-19 like symptoms. He lives alone. His daughter of a previous relationship comes to his home for visits. She and her mother have not experienced any illness. The father and the mother of his older daughter have worked cooperatively during COVID to continue their parenting arrangement.

Part Seven: Conclusion and Order

98The father's regular and court ordered parenting time with the child has been unilaterally suspended by the mother for approximately three months. The child has a close and loving relationship with his father. Children need the support and guidance of both of their parents during this difficult and stressful time.

99The court finds that it is in the child's best interests that his parenting time with his father be reinstated immediately in accordance with the final order and minutes of settlement, dated December 2, 2019, with some minor modifications to address the COVID-19 health issues.

100The court is aware that public health directives are frequently changing. The court will adopt the approach taken by Justice Sherr in C.L.B. v. A.J.N., 2020 ONCJ 213 and Justice Kiteley in McArdle v. Budden, 2020 ONSC 2146. Instead of setting out specific health terms that the parties must follow, the parties will be required to follow public health directives issued by the governments of Canada, Ontario and the City of Toronto.

101The father seeks make-up parenting time. The father has lost approximately twenty-eight overnight parenting days with his son, if not more, over the past few months, excluding the time that the mother and child were self-isolating.

102The court will give the mother the benefit of the doubt for the first fourteen days of self-isolation, in particular given that the father initially agreed to the suspension of the regular parenting schedule for at least the first two weeks as he was concerned about both the mother and the child's health at that time.

103Given that we are now entering into the summer months and school holidays, the court will provide a block of ten days of make-up parenting time for the father, prior to the commencement of the alternating "week about" schedule for the summer, as set out in the provisions of the final order.

104Although this only partially makes up for the lost parenting time between the child and the father, it is not in the child's best interests to be away from either parent for prolonged periods of time. The child enjoyed a "week about" parent arrangement last summer with both parents. The ten-day period of make-up parenting time to be ordered provides three additional days over the seven day "week about" period under the operative final order.

105The exchanges will occur at Ramsden Park, which is close to both of the parties' homes.

106The court is not prepared to include a police enforcement clause at this time. The court adopts the reasoning and approach taken by Justice Pazaratz in Patterson v. Powell, 2014 ONSC 1419. A police enforcement order is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation. However, the court will reconsider the father's request for a police enforcement order if there is continued and repeated non-compliance with the final order.

Order

107Accordingly, for the reasons above, the Court makes the following order:

a. The parties shall comply with the terms of the Final Order dated December 2, 2019. The Final Order remains in full force and effect, subject to the modifications below.

b. The father's parenting time pursuant to the Final Order shall resume on Wednesday, July 1, 2020 at 9:00 AM. For the next ten days, until Friday, July 10, 2020 at 6:00 pm, the child shall remain with the father, as partial make-up time for the parenting time that was unilaterally suspended by the mother. During this period, the mother shall have reasonable telephone and video chats with the child once a day.

c. Following the make-up time ordered above, commencing on Friday July 10, 2020 at 6:00 PM, during the summer holidays, the parents shall share parenting time with the child on a week on/week off basis, from Friday at 6:00 PM to Friday at 6:00 PM. The child shall be with the mother for the first week, commencing Friday, July 10, 2020. The child shall be with the father for the second week, commencing Friday, July 17, 2020, and thereafter, the parties will alternate weeks until the beginning of the school year. The regular parenting scheduled will commence at the beginning of the school year in accordance with the Final Order dated December 3, 2019.

d. During the summer parenting schedule, the parenting exchanges shall occur at Ramsden Park.

e. The parties must respect physical distancing measures. They must do whatever they can to ensure that neither of them nor the child contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by the child. Neither party shall do anything that will expose themselves or the child to an increased risk of contracting the virus.

f. Both parties will follow government orders and requirements as set out and as updated here:

• https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html
• https://www.ontario.ca/page/2019-novel-coronavirus#section-7
• https://www.toronto.ca/home/covid-19/

g. The parties are encouraged to work together to help the child navigate through this public health crisis. He needs to see his parents cooperating and putting his interests first. He should not be put in the middle of their issues with one another, particularly in this emotionally difficult time for him.

h. The father's motion for a police enforcement clause is dismissed at this time, without prejudice to being renewed should the mother fail to comply with the terms of this Court Order and the Order dated December 2, 2019.

i. The mother's motion is dismissed in its entirety.

108If the father is seeking his costs of this motion, then he may serve and file written costs submissions by July 31, 2020. The mother will have until August 31, 2020 to file a written response. The submissions should not exceed two pages, not including any offer to settle or bill of costs.

109In the circumstances of the COVID-19 pandemic, this endorsement is deemed to be an order of the court that is operative and enforceable without any need for a signed or entered formal typed order. The parties may submit formal orders for signing and entry once the court re-opens; however, this endorsement is an effective and binding Order from the time of release.